September 2010 Newsletter
SEPTEMBER 2010
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our September 2010 newsletter covering immigration topics that are of interest to our clients.
Headlines:
- USCIS Implements H-1B and L-1 Fee Increases – Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.
- USCIS Issues a Final Rule Adjusting Fees for Immigration Benefits – The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories.
- CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved – U.S. Customs and Border Protection has clarified that certain Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved.
- U.S. Mission in Canada Announces New Appointment Service for Visa Applicants Coming to U.S. – Applicants now must pay their machine-readable visa fee before scheduling an appointment.
- Dep't of State Updates Guidance on Medical Grounds of Inadmissibility – Following an update by the CDC to its technical instructions, the State Department has updated guidance on medical grounds of inadmissibility and issued a corresponding cable to the field.
- USCIS Discusses the Effects of Invalid Puerto Rico Birth Certificates on the I-9 Process – After September 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid, but employers should not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for I-9 purposes and whose employment eligibility was verified on the I-9 before October 1, 2010.
- ICE Approves Special Relief for Certain F-1 Haitian Students – The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status.
- Government Agency Links
- New Publications and Items of Interest
- Klasko News – Awards, recent speaking engagements and more.
1. USCIS Implements H-1B, L-1 Fee Increases
On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.
The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
- Initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
- To obtain authorization for a worker having such status to change employers.
USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.
The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.
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2. USCIS Issues a Final Rule Adjusting Fees for Immigration Benefits
On September 24, 2010, U.S. Citizenship and Immigration Services (USCIS) announced a final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application. The rule also will reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories. The adjusted fees will go into effect on November 23, 2010.
The final fee rule establishes three new fees for:
- Regional center designation under the Immigrant Investor Pilot Program (EB-5);
- Individuals seeking civil surgeon designation (with an exemption for certain physicians who examine service members, veterans, and their families at U.S. government facilities); and
- Recovery of the USCIS cost of processing immigrant visas granted by the Department of State.
The final fee rule adjusts fees from $1000 to $1225 for the premium processing service. The final fee rule reduces fees for six individual applications and petitions:
- Petition for Alien Fiancé (Form I-129F);
- Application to Extend/Change Nonimmigrant Status (Form I-539);
- Application to Adjust Status from Temporary to Permanent Resident (Form I-698);
- Application for Family Unity Benefits (Form I-817);
- Application for Replacement Naturalization/Citizenship Document (Form N-565); and
- Application for Travel Document (Form I-131), when filed for Refugee Travel Document.
Importantly, the final fee rule also expands the availability of fee waivers to new categories, including:
- Individuals seeking humanitarian parole under an Application for Travel Document (Form I-131);
- Individuals with any benefit request under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; and
- Individuals filing a Notice of Appeal or Motion (Form I-290B) following a denial of any application or petition that did not initially require a fee.
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3. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved
A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa - i.e., had an immigrant visa interview - and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.
This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that a TN nonimmigrant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual's intent is to remain in the US temporarily. Some CBP officers, however have not always followed that advice.
The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that "the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse's immigrant petition."
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4. U.S. Mission in Canada Announces New Appointment Service for Visa Applicants Coming to U.S.
The U.S. Mission in Canada is transitioning to a new appointment service for applicants applying for a visa to come to the United States. As of September 1, 2010, all services, including calling for information and scheduling an appointment, are being provided at no additional cost, with no requirement that applicants pay phone charges or use PIN numbers to access such services. Applicants should go to http://www.usvisa-nfo.com/en-CA/selfservice/ss_country_welcome to obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.
Beginning September 1, 2010, applicants must pay their machine-readable visa (MRV) fee before scheduling an appointment. If the applicant has paid the MRV fee before September 1, 2010, but has not scheduled an appointment, there is a grace period from September 1, 2010, until October 1, 2010 during which the applicant can still use the MRV fee for appointment scheduling. If the applicant does not schedule an appointment before October 1, 2010, he or she will have to pay the MRV fee again through the new service to schedule an appointment.
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5. Dep't of State Updates Guidance on Medical Grounds of Inadmissibility
Following an update by the Centers for Disease Control and Prevention (CDC) to its technical instructions, the Department of State (DOS) has updated guidance in the Foreign Affairs Manual (FAM) concerning medical grounds of inadmissibility and issued a corresponding cable to the field.
The cable notes that the CDC updated the Technical Instructions for Physical or Mental Disorders with Associated Harmful Behavior and Substance Related Disorders (2010 MH TIs) effective June 1, 2010. Those instructions supersede all previous guidance on physical or mental disorders and substance related disorders. The major revisions in the 2010 MH TIs include changes to the methods of diagnosis of mental disorders and substance]related disorders, the definition and determination of remission, and the alcohol abuse evaluation. The DOS cable includes updates to 9 FAM resulting from this change to the technical instructions.
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6. USCIS Discusses Effects of Invalid Puerto Rico Birth Certificates on I-9 Process
On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After September 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid. However, U.S. Citizenship and Immigration Services (USCIS) noted in recent guidance that employers should not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for I-9 purposes and whose employment eligibility was verified on the I-9 before October 1, 2010.
USCIS noted that the new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. The guidance notes:
New Employees
- All certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes through September 30, 2010.
- Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.
- Beginning October 1, 2010, if an employee presents for List C a birth certificate issued by the Vital Statistics Office of the Commonwealth of Puerto Rico, the employer must look at the date that the certified copy of the birth certificate was issued to ensure that it is still valid.
Existing Employees
Employers must not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for Form I-9 purposes and whose employment eligibility was verified on Form I-9 before October 1, 2010.
Federal Contractors
Employers awarded a federal contract that contains the Federal Acquisition Regulation (FAR) E-Verify clause have special Form I-9 rules for the verification of existing employees.
- If completing new Forms I-9 for existing employees, certified copies of Puerto Rico birth certificates are acceptable as a List C document under the following circumstances:
- Until October 1, 2010, all certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes.
- Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.
- If updating existing Forms I-9, an employer must not ask an employee to present a new certified copy of a Puerto Rico birth certificate if the employee presented a certified copy of a birth certificate issued in Puerto Rico before July 1, 2010 that was valid and acceptable for the Form I-9 at the time it was presented.
See the E-Verify Supplemental Guide for Federal Contractors for more information on E-Verify and FAR requirements.
How will this law affect the retention of documents with Form I-9?
The new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates issued in Puerto Rico but allows employers to keep photocopies of these documents. Employers who choose to make photocopies of documents that their employees present when completing Form I-9 must do so for all employees, regardless of national origin or citizenship status.
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7. ICE Approves Special Relief for Certain F-1 Haitian Students
U.S. Immigration and Customs Enforcement (ICE) has approved special relief for certain F-1 Haitian students who have suffered severe economic hardship as result of the January 12, 2010, earthquake in Haiti. This relief applies only to students who were lawfully present in the United States in F-1 status on January 12, and enrolled in an institution that is certified by ICE's Student and Exchange Visitor Program.
The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status.
F-1 students granted employment authorization by means of the notice will be deemed to be engaged in a full course of study if they meet the minimum course load requirements specified in the notice.
"We want to ensure that students from Haiti, who were here at the time of January's tragic events, are able to concentrate on their studies without the worry of financial burdens created by the devastation of the earthquake," said Louis Farrell, director of the Student and Exchange Visitor Program. "These students have the full support of SEVP [the Student and Exchange Visitor Program] and designated school officials for assistance."
ICE manages SEVP and the Student and Exchange Visitor Information System.
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8. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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9. New Publications of Interest
2009 Yearbook of Immigration Statistics. This compendium of tables published by the Department of Homeland Security's Office of Immigration Statistics provides data on foreign nationals who, during fiscal year 2009, were granted lawful permanent residence, were admitted into the United States on a temporary basis, applied for asylum or refugee status, or were naturalized. Also included are data on enforcement actions.
New USCIS Web features; Spanish enhancements. U.S. Citizenship and Immigration Services (USCIS) announced on August 2, 2010, the launch of new Web features intended to expand users' access to case information. The features include a new online inquiry tool and tailored case status information, as well as new features for Spanish-speaking users.
Border-related interactive discussion site. U.S. Customs and Border Protection has launched an interactive social media Web site on border-related developments. Users can complete a profile and join the discussion, including posting blog entries, photos, and videos.
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10. Klasko News
Partner Named as New York Super Lawyer 2010
Suzanne Seltzer (Suzanne) has been selected again by her peers as a New York Super Lawyer for 2010. New York Super Lawyers is an annual listing by Law and Politics Magazine of outstanding lawyers who have attained a high degree of peer recognition and professional achievement, with only the top 5% of attorneys in the state making the cut. We congratulate Suzanne on once again being honored as a Super Lawyer by her peers.
New Appointments
Kate Kalmykov (Kate) has been reappointed as Chair of the AILA New York Chapter's Continuing Legal Education Committee for the 2010-2011 calendar year. For more information about this committee, please contact Kate at kkalmykov@klaskolaw.com.
Jennifer Hermansky (Jen) was appointed as Co-Chair of the New Members Division of the AILA Philadelphia Chapter. In this role, Jen will be organizing social events and training sessions for new members of the Philadelphia Chapter. Contact Jen directly for more information on the upcoming New Member Division events at jhermansky@klaskolaw.com.
Recent Speaking Engagements
On September 27, 2010, William Stock (Bill) discussed "Immigration Update for Students and Researchers" at the University of Medicine & Dentistry of New Jersey (UMDNJ). Bill discussed H-1B visas, travel updates and permanent resident status. To view the PowerPoint used at this presentation, click here.
On September 24, 2010, Elise Fialkowski (Elise) discussed "Extraordinary Ability, Outstanding Researchers and National Interest Waivers" at the PBI Immigration Law Forum 2010. Elise presented an overview of the regulatory requirements for immigrant petitions under these categories, recent adjudication standards and case law, as well as practical guidance for practitioners drafting such petitions. For more information, click here.
Bill flew to Dallas, Texas for meetings held on September 24 and September 25, 2010, with human resources representatives and foreign national employees of two of our clients, Ameripath and AmerisourceBergen Corporation, to update them on current issues in employment-based immigration and on their immigration status. To arrange an on-site meeting with Bill, contact him at wstock@klaskolaw.com.
On September 20, 2010, H. Ronald Klasko (Ron) spoke at The University of Texas Medical Branch and on September 22, 2010 at The University of Texas Health Science Center at San Antonio. Ron discussed "J-1 Waivers for Clinicians and Researchers" and "Permanent Residence Options for Clinicians and Researchers." For more information on these topics, please contact Ron at rklasko@klaskolaw.com.
Recent Publications
In the September 15, 2010 issue of The Legal Intelligencer, Bill published an article entitled "The New Birthright Citizenship Debate: What's All the Hubbub About?" Bill's article explores the current debate over whether children born in the United States could be denied citizenship if their parents are not lawfully present in the United States, and argues that such a change, even if possible, is not desirable as a matter of policy. For more information on this topic, please contact Bill at wstock@klaskolaw.com.
In the August 18, 2010 issue of The Legal Intelligencer, Suzanne published an article entitled "Prevailing Wage Determinations: Doing it Yourself May be Best." In this article, Suzanne discusses the new prevailing wage system. To obtain a copy of this publication, e-mail Suzanne at sseltzer@klaskolaw.com.
In Immigration Options for Investors, 2nd Edition, Ron published a chapter entitled "EB-5 Job Creation - What to Do When Plans Change." The chapter discusses what investors must do when the necessary jobs will not be created, will be delayed or will be different than anticipated. For more information on the EB-5, visit www.eb5immigration.com or write to Ron at rklasko@klaskolaw.com.
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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2010 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.
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