L-1 and H-1B Filing Fee Increase - H.R. 6080 Presented to President

As soon as the Senate passed the bill, the Congress quickly cleared for White House and has already been presented to the President. Since it passed during the special session, everything had to be cleared out of the Congress quickly.

The House passed the Emergency Border Security Supplemental Appropriations Act of 2010, which the Senate passed it yesterday with amendments. One of the amendments includes the following fee increase for H-1B and L-1. This amendment was sponsored by Sen. Charles Schumer of New York. The amendment provides:

L-1 Filing Fee and Fraud Prevention and Detection Fee Will be Increased by $2,250 for Petitioners Employing 50 or More Employees in the United States and More Than 50% of the employees are H-1B or L-1 Employees.

H-1B Filing Fee and Fraud Prevention and Detection Fee Will be Increased by $2,000 for Petitioners Employing 50 or More Employees in the United States and More Than 50% of the employees are H-1B or L-1 Employees.

The total filing fees after this legislation will be much higher than these figures in that these employers will also have to pay $1,500 American Worker Training Fees for H-1B petition plus current fraud prevention fee of $500 and I-129 filing fee of $320.

The Increased Fee will take effect on the date this bill is enacted into a law by the President's signature and remain in effect until September 30, 2014.

Summary of the impact to Indian Software companies :
Nasscom reports, the increase will cost Indian Companies by $200 to $250 Million per year.
As most of the Indian outsourcing companies have 70% to 80% of temporary workers on H1B and L1 visa, the H1B fee increase will heavily impact all these companies and especially like TCS, Infosys, and Wipro because they send around 10,000 professionals every year
Indian IT Companies are not happy to pay for the border protection of US and say that it is not compliant with World Trade Organization fair practices.
The biggest burden is companies have to deal with the cost for new applications, renewals and transfers. If you think of it, it is a huge cost. http://www.greencardapply.com/news/news10/news10_0817.htm


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Substantially Increased Fees for Certain H-1B and L-1

President Barak Obama signed a law on August 13, 2010, that increases funding for U.S. border security by $600 million. The funding for this increase in security will be paid for, in part, by substantially increasing the fees that some employers must pay when filing H1B and L-1 petitions. The increases, $2,000 for each H1B filing and $2,250 for each L-1 filing, apply to employers with 50 or more employees if more than 50 percent of the company workforce is comprised of H1B and/or L-1s workers.

The bill, formally known as the Emergency Border Security Supplemental Appropriations Act of 2010, will provide funding for retention of current border security staff, as well as the hiring of 1,000 federal officers and agents for the U.S. Border Patrol, U.S. Customs and Border Protection (CBP), and additional U.S. Immigration and Customs Enforcement (ICE) personnel.

The funding will also provide $196 million to the U.S. Department of Justice to pay for U.S. marshals, Federal Bureau of Investigations (FBI), Drug Enforcement Administration (DEA), and Bureau of Alcohol Tobacco, Firearms and Explosives (ATF) agents to be stationed along U.S. borders. Another $10 million is allocated to the Courts of Appeals, District Courts, and related services to meet the increased workload created by additional immigration enforcement.

The bill increases the fees for filing and for fraud prevention and detection required with petitions for nonimmigrants in the H1B ($2,000) and L-1 ($2,250) categories. These increases only apply to companies that employ 50 or more employees in the United States and whose U.S. workforce is made up of more than 50 percent L-1 and H1B workers.

Several different media outlets have reported that employees of the U.S. Senate have stated that these increased fees would primarily affect four Indian-based companies: Tata Consultancy, Wipro Ltd., Infosys Technologies Ltd., and Mahindra Satyam.

Based on the criteria set forth in this bill, it is expected to also affect large and medium-sized IT consulting companies and other firms in the United States, with a primary focus on technology companies. It should be noted that the impact on these companies will not occur in a vacuum.

The services of these companies, and the workers they provide, are utilized by major U.S. companies in most industry segments, as well as federal, state, and local governments. Thus, the increased financial burden is likely to send deep reverberations well beyond a handful of large non-U.S. based companies.

The wording in the bill regarding the fee increase is unclear. It references both the filing fee and fraud prevention and detection fee. However, there is not a specification as to the amount that either or both would be raised. That is, the language requires an increase of $2,000 in these fees for H1B petitions and $2,250 for L-1 petitions, but is not specific regarding how the increase will be allocated between the two types of fees at issue. Typically, standard filing fees are increased by the U.S. Citizenship and Immigration Services (USCIS) by regulation.

http://www.greencardapply.com/news/news10/news10_0824.htm


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New I-140 Form and EB3 Professional vs. EB3 Skilled Worker

The recent version of the I-140 form contains nine choices of category in part 2 of the form. The form I-140 has one important difference for EB3 cases. The new version requires the petitioner to distinguish between an EB3 filing for a professional versus an EB3 filing for a skilled worker. Older versions of the form had only one box for both of these two subcategories.

Since the new version of the form requires a distinction between an EB3 professional and an EB3 skilled worker, it is important to understand the definition of professional. This term is defined in the applicable regulations as a foreign national who holds at least a U.S. baccalaureate degree or a foreign equivalent degree, and who is a member of the professions.

There have been reports of denials if the EB3 professional category is selected, but the beneficiary does not have a "United States baccalaureate degree or a foreign equivalent degree." The term "foreign equivalent degree" means a degree which, by itself, without considering experience, is the equivalent of at least a U.S. baccalaureate degree.

It is not sufficient for the individual to have a combination of education and experience that is equivalent to a U.S. bachelor's degree. The skilled worker category, as explained below, only requires an individual to have at least two (2) years of prior work experience or training and the job must require the two years of work experience or training.

The solution for those cases that do not meet the EB3 professional category is to select the EB3 skilled worker category. As explained above, a skilled worker is defined as appropriate for a job that requires at least two years of work experience or training. Since there is no difference in visa number availability or backlogs between the two subcategories of EB3 for a professional or an EB3 skilled worker, the use of this category should not create any disadvantage.

This is not to be confused with the EB3 "other worker" category for workers with less than two years of experience or training. The other worker category is treated differently with respect to visa number allocations. The waiting period for the other worker category is far more backlogged than the EB3 category for a professional or a skilled worker. http://www.greencardapply.com/news/news10/news10_0825.htm


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USCIS' New Policy for "Two-Step Approach" of Form I-140 Petitions Evaluation

On August 18, 2010, USCIS issued a Policy Memorandum for "Two-Step Approach" Form I-140 Petitions Evaluation. This Policy Memorandum (PM) provides guidance regarding the analysis that Immigration Service Officers (ISOs) must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for:

EB1 - Extraordinary Ability petitions;
EB1 - Outstanding Professor or Researcher petitions;
Aliens of Exceptional Ability, including EB2 NIW petitions.
The purpose of this PM is to ensure that U.S. Citizenship and Immigration Services (USCIS) processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard.

In addition, this PM revises Adjudicator’s Field Manual (AFM) Chapter 22.2 to clarify that USCIS will make successor-in-interest (SII) determinations in Form I-140 petitions supported by an approved labor certification application if the transfer of ownership took place while such application for labor certification was still pending with the Department of Labor (DOL).

The ISO is reminded that the standard of proof applied for petitions filed for Aliens of Extraordinary Ability, for Outstanding Professors or Researchers, or for Aliens of Exceptional Ability is the “preponderance of the evidence” standard. Thus, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is true “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

If a petitioner provides supporting documentation that satisfies the regulatory prongs, and such documentation is legitimate (i.e. not forged, issued in error, inaccurate, etc.), Kazarian prohibits USCIS from “unilaterally imposing novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. section 204.5.” Kazarian requires that an adjudicator first determine whether the petitioner has provided evidence to satisfy the requisite number of evidentiary prongs under the particular EB-1 classification.

The adjudicator must look at each prong for which evidence has been provided (“the proper procedure is to count the types of evidence provided”) to determine how many evidentiary prongs have been satisfied. If the documentation (including but not limited to articles, publications, memos, reference letters, expert testimony, support letters, etc.) is relevant to the category, is substantive (does not merely recite the regulations) and is credible.

Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor.

http://www.greencardapply.com/news/news10/news10_0903.htm



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USCIS' Executive Summary for H-1B & L-1 Fee Increase Provisions

The USCIS has released its executive summary of implementing this new law. The involved agencies are still coordinating the specific policies to interpret and implement specific language of the new law, but pending the release of a final interpretation of every detailed issues, the involved employers should review and follow the executive summary as preliminary guidance.

On August 13, 2010, President Obama signed into law Public Law 111-230. The new law contains provisions that require petitioners to pay an additional $2,000 for certain H-1B petitions and an additional $2,250 for certain L-1 petitions.

To begin public outreach on this legislation, USCIS held a teleconference on August 19, 2010 to share how USCIS will implement it.

Since the enactment of this law, USCIS received various public inquiries as well as requests for clarification. During the teleconference, USCIS provided the public with responses to some of the most commonly asked questions followed by an open forum to answer additional questions.

During the teleconference, among other answers provided, USCIS informed the public that:

The additional fee is required for certain H-1B or L-1 petitions postmarked on or after August 14, 2010;

The law will remain in effect through September 30, 2014;

This law is applicable to petitioners who employ 50 or more employees in the U.S. and more than 50% of the petitioner’s employees are in H-1B or L nonimmigrant status;

Until the Form I-129 is updated, if a petitioner believes she or he is exempt from the requirement to pay the additional fee, the petitioners should include a cover letter, with their filings, that explains why the added fee does not apply. At the top of the cover letter, petitioners should include a notation of whether or not the fee is required in bold capital letters;

If a petitioner does not include the added fee and USCIS determines the fee is required or if USCIS cannot determine if the fee is required, USCIS will issue a Request for Evidence (RFE) for the additional fee or for further explanation; and

If the petitioner includes the increased fee, the fee should be paid by a separate check. The check should be made payable to the Department of Homeland Security. By paying the increased fee separately, USCIS will be able to more quickly issue a refund, if it is later determined that the increased fee was not required. http://www.greencardapply.com/news/news10/news10_0904.htm


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Growing Tension of Obama Policy Within U.S. Immigration and Customs Enforcement

One of the big changes that the country has witnessed since the Obama Administration took over the government was to switch the immigration enforcement focus from the undocumented aliens to the employers hiring undocumented aliens. Obviously, underlying this policy was the efforts of the Obama government to appease its strongest constituency, the Hispanic community, pending the enactment of CIR.

Under the policy, the law enforcement against the undocumented aliens has been substantially reduced, while the law enforcement against the U.S. employers has gradually intensified. This created some tension in the immigration enforcement community.

Under the leaked policy, detention and treatment of detained undocumented aliens would receive some leniency. Report indicates that such swift of policy at the top level of the Obama administration has ignited discontent and resistance within the ICE, which culminated in no confidence vote by the ICE (US Immigration and Customs Enforcement) officers union against the head of the agency.

As it poises for further immigration initiatives, U.S. Immigration and Customs Enforcement is struggling with festering internal divisions between political appointees and career officials over how to enforce laws and handle detainees facing deportation.

Under the Obama administration, the Department of Homeland Security has shifted its focus away from the worksite raids and sweeps employed during George W. Bush's presidency to deporting more criminals and creating less prison like detention settings. But ICE, a branch of DHS, is facing intensified resistance from agency middle managers and attorneys, and the union that represents immigration officers.

The internal conflict has grown increasingly public over ICE's plans, among them to expand a risk assessment tool to guide agents on detention decisions, cut down on transfers of detained immigrants, and open more "civil" detention facilities -- what field directors call "soft" detention.

Immigration officers say the new measures limit their enforcement efforts and the revamped lockups will compromise their safety. In June, their union took the unprecedented step of issuing a vote of no confidence in the agency's director, John Morton, and the official overseeing detention reform, Phyllis Coven.

Months before that, the 24 field managers who oversee detention and deportation sent a memorandum to Morton that challenged a number of recommended changes. Current and former ICE attorneys in New York, Houston and other offices nationwide say they are angry that they have been instructed to drop efforts to deport some immigrants. http://www.greencardapply.com/news/news10/news10_0912.htm

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It Is Very Important to Request EAD Extensions in a Timely Fashion

It is very important to request EAD (work permit) extensions in a timely fashion. A gap in employment authorization generates a number of practical and legal complications. The USCIS is working to improve the processing times for EADs. Hopefully, many who are waiting anxiously for their EAD renewals will have the approvals in time or without much of a gap in authorization. However, there is rarely a valid reason for not filing as early as possible. This should serve as a warning to individuals whose EADs will need to be renewed in the future.

Aliens should renew their expiring EADs and file most cases around 120 days prior to the expiration. Following this practice avoids gaps in employment authorization.

An alien is permitted to request the renewal of an expiring EAD up to 120 days in advance of the expiration. It is advisable to take advantage of the full filing window, if the ability to work legally in the United States is based solely on the EAD. The U.S. Citizenship and Immigration Services (USCIS) is permitted to take up to 90 days to process EAD applications. Filing 120 days in advance allows enough time to accommodate additional minor delays or problems with the EAD request.

The USCIS is taking the full 90 days, or close to 90 days, to adjudicate EADs. There have been times in the past when the USCIS processed EADs more quickly. As a result, some EAD holders file their extension requests expecting processing times in keeping with those they may have previously experienced. Around 60 days, and sometimes less, was typical. Our current experiences, however, are echoed by our colleagues, as the American Immigration Lawyers Association (AILA) has posted similar reports.

The urgent problem faced by many who have delayed their EAD extension filings is the prospect of not being permitted to work between the expiration of the current EAD and the approval and issuance of the new EAD extension. Unlike an H1B-type of petition, there is no employment authorization granted based upon a "pending" EAD, even if it is an extension request.

Those waiting for EAD renewals often ask about interim EADs. The USCIS local offices, unfortunately, no longer issue interim EADs, as they did before. Even when interim EADs were issued, it was required by the USCIS that the EAD filing had been pending for at least 90 days.
http://www.greencardapply.com/news/news10/news10_0913.htm


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