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
|
|
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.