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USCIS Sets New Regulations for
H-1B Filing After
several months of speculation, the USCIS recently
established its firm position on U.S. employers who file
more than one H-1B petition under the annual numerical cap
for a single employee. The USCIS announced that multiple
filing is prohibited and the USCIS will deny or revoke any
multiple petitions it receives in the name of a single H-1B
beneficiary worker. Further, the USCIS confirmed that filing
fees would not be returned for such denied or revoked H-1B
petitions.
This announcement serves to bolster the USCIS’s stated
policy of encouraging fair distribution of H-1B visas under
the annual cap. Denying and revoking duplicate petitions
will serve to allow all beneficiaries of cap-subject H-1B
petitions a fair and equal chance for acceptance and
processing.
The USCIS also announced the terms under which this year’s
cap filings will be handled. Should more than 65,000 H-1B
petitions be filed within the first FIVE business days of
the eligible filing period (that is until April 7), a
lottery will be used to determine which 65,000 H-1B
petitions will be accepted for processing. Despite this
broadened acceptance period, we would highly recommend
filing any new H-1B petitions as early as possible to avoid
undue complication.
Priority Dates
Continue to Move Forward in April 2008 Visa
Bulletin; Visa Numbers for Indian Nationals in EB-2
Classification Available Again
The April 2008 issue of the U.S.
Department of State’s (DOS) Visa Bulletin shows a continued
trend of priority dates rapidly moving forward in order to
ensure the full usage of all immigrant visa numbers. Nearly
all employment-based preference categories saw gains.
Most significantly, visa numbers for Indian nationals in the
second preference category (EB-2) have become available
again. Numbers for this particular subset were unavailable
during January and February due to oversubscription. The DOS
has put a provision in the Immigration and Nationality Act
into effect that allows for unused visa numbers in a
preference category to be reassigned without regard to the 7
percent per-country limits. In other words, due to smaller
demand for EB-2 classification numbers by nationals of
countries other than China and India, the government will
disregard the per country quotas and can assign numbers to
Chinese or Indian nationals as needed.
The DOS continues to warn that forward movement will
continue only if the level of demand is not higher than
expected. It should be assumed that retrogression (the
backward movement of priority dates) will be required by the
summer or fall of 2008. Thus, VISANOW advises that one
continue to capitalize on the situation and be prepared to
file Form I-485 (Application to Register Permanent Residence
or to Adjust Status) on April 1, 2008, or as soon thereafter
as possible.
EMPLOYMENT-BASED VISA BULLETIN FOR APRIL
2008
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All chargeability areas except those listed |
China-mainland born |
India |
Mexico |
Philippines |
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
1-Dec-03 |
1-Dec-03 |
C |
C |
|
3rd |
1-Jul-05 |
8-Feb-03 |
1-Oct-01 |
1-Oct-01 |
1-Jul-05 |
|
Other workers |
1-Mar-02 |
1-Mar-02 |
1-Mar-02 |
1-Mar-02 |
1-Mar-02 |
Higher Fines for Employers Violating Federal Immigration
Laws The Attorney General
recently announced higher civil fines for employers who
violate Federal immigration laws. Primarily, these are
violations of employment eligibility requirements and
include: knowingly employing undocumented workers, failing
to comply with I-9 requirements and wrongfully
discriminating based on nationality. All these will lead to
civil monetary penalties under the Immigration and
Nationality Act (INA).
Under the new rule, civil fines, which were last increased
in 1999, will increase by as much as $5,000, an average of
25 percent per violation. The minimum penalty for knowingly
employing an undocumented worker increases from $275 to
$375. For those found to have committed multiple violations,
the maximum penalty increases from $11,000 to $160,000.
Penalties are determined on a per-worker basis.
Based on these new fines and the increased enforcement
efforts by the Department of Homeland Security (DHS), it is
critical that employers evaluate their current policies and
procedures and take corrective actions to ensure a fully
compliant workplace.
Estonia and Latvia Become Newest Additions to the
VISA Waiver Program
On March 12, 2008, Estonia and Latvia signed a
memorandum of understanding with the United States
pertaining to visas and air security, paving the way
for membership in the VISA Waiver Program.
The VISA Waiver Program
allows foreign nationals from certain countries to be
admitted to the U. S. under limited conditions and for a
short time without obtaining a visa. Most European Union
states have U.S. visa waivers, but not 11 of the 12 mostly
ex-communist states that joined the bloc in 2004 and 2007,
as well as older member Greece. The following countries are
currently in the program: Andorra, Austria, Australia,
Belgium, Brunei, Denmark, Finland, France, Germany, Iceland,
Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco,
the Netherlands, New Zealand, Norway, Portugal, San Marino,
Singapore, Slovenia, Spain, Sweden, Switzerland, and the
United Kingdom.
Countries signing such bilateral pacts as the one signed on
March 12th do not get immediate visa-free status,
but the United States will make access easier once they
fulfill a number of security criteria, even if their visa
rejection ratio is high. In the Latvian case, the agreement
involves tight control on passport issuance, information
sharing and allowing armed air marshals on any direct
flights by U.S. carriers to and from Latvia. Estonia has
agreed to U.S. inspections at its border guard service.
The Czech Republic
signed a similar deal with the United States in February
2008 and Hungary is expected to do the same by April. In
addition, the European Union and the United States could
agree to grant visa waiver status for all 27 EU states at a
joint summit in June and implement it by the end of 2008.
High Application Volume to
Result in Naturalization Delays
United States Citizenship and Immigration
Services (USCIS) reported receiving 737,223 naturalization
applications during May, June and July 2007. This is a 3.5
times increase over the number received during the same
period in 2006. As of October 2007, USCIS had nearly 1
million naturalization applications pending approval.
This significant increase coincided with the USCIS’
announcement regarding a rise in the fee for adult
naturalization applications (N-400) from $330 to $595 that
went into effect July 30, 2007. USCIS officials believe this
surge in applications is also due to citizenship campaigns
launched throughout the U.S., the heated political climate
revolving around the immigration issue and the upcoming
presidential elections.
This high volume has caused the processing time to more than
double and now stands at 16 to 18 months for applications
filed during the summer of 2007, compared to the
six-to-seven-month time frame for applications filed in
2006. When the USCIS first proposed the fee increase, the
agency indicated this action would result in decreased
processing times. It is believed it will now take almost
three years for USCIS to clear the naturalization backlog.
Federal officials announced that they had agreed on an
emergency plan to hire back an additional 1,800 employees
(including 700 retired USCIS staff) in an effort to reduce
the immense backlog of applications for citizenship by legal
immigrants. USCIS has also expanded work hours for its
employees.
New Biometric Requirement for Form I-131, Re-entry
Permits and Refugee Travel Documents
U.S. Citizenship and
Immigration Services (USCIS) has issued revised
instructions for Form I-131 (Application for Travel
Document). Effective March 5, 2008, the revised
instructions require applicants for re-entry permits
and refugee travel documents, aged 14 through 79, to
provide biometrics, namely fingerprints and
photographs. There will be an additional $80 for the
collection of biometrics.
Biometrics for these applicants will be taken at a
USCIS Application Support Center (ASC) for
background and security checks. Applicants for
re-entry permits and refugee travel documents will
be notified of their appointment at the designated
ASC after the filing of their I-131 application.
Failure to appear for the biometric appointment may
result in a denial of the I-131 application.
The USCIS strongly encourages applicants to apply
for the I-131 application well in advance of their
anticipated travel dates to allow time to attend
their ASC appointments and receive I-131 approval.
Applicants subject to the biometric collection, who
depart the U.S. prior to that collection, risk a
denial of their I-131.
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