CIS Filing Fee Increase – Effective July 30, 2007
Citizenship and Immigration Services (the CIS) has published its new fee schedule with an effective date of July 30, 2007. Examples of the fee increase include: an “adjustment” from $190 to $320 for Form I-129, which is used to file H, L, E and O visa cases, and an increase from $195 to $475 for the I-140 immigrant petition form, which is filed by employers to sponsor foreign workers for lawful permanent residence (a.k.a. green card status). The filing fee for an I-485 application, which is the last step of the green card process, will be increased from $385 to $1010. Employers considering filing new cases may want to open and file any new matters prior to July 30, 2007, if possible.
CIS states that this increase is necessary for it to provide “better” service to applicants and petitioners. The reality is that not much is expected to change in terms of “service.” Most of the new funds will be redirected to support interior and border enforcement activities, with the result that filing fees have become a tax on the individuals and employers who use the immigration system.
The Department of Labor (DOL) has published new regulations that impose important changes to the labor certification program. The new regulations will become effective on July 16, 2007. Labor certification is the program used by employers to obtain lawful permanent residence for employees by confirming an unavailability of qualified, willing, or able U.S. workers for a given job.
Under the new rule, labor certification approvals will expire if they are not filed in support of a Form I-140 immigrant petition with CIS within 180 days of the grant of the certification. Cases certified prior to July 16, 2007, will expire within 180 days of the effective date of the new rule. In order to comply with this change, it has become even more important for the sponsored foreign worker to obtain employment experience letters prior to when the PERM case is filed, as these letters are required to support the I-140 petition and can take months to obtain.
The new rule also eliminates the possibility of substituting a new foreign worker into an already approved labor certification certified for the benefit of a different employee. Previously, an employer could retain an already approved labor certification application for use by a different employee because the certification was seen as proof of the unavailability of U.S. workers for a given position. As the DOL had certified the position as eligible to be filled by a foreign worker, it made no difference as to the identity of the person who ultimately filled the job. The DOL has now concluded that the substitution option invites fraud as it has discovered that some employers had filed cases on behalf of employees that did not exist. Further, it found that in some cases approved labor certifications were sold to beneficiaries. The DOL considers these problems to pose a threat to the integrity of the program, which exists to protect the U.S. work force. Thus, future substitutions will no longer be allowed.
Most controversially under the new rule, employees will no longer be allowed to pay the attorney fees for a labor certification case if the attorney is also representing the employer. The DOL rule does recognize a foreign worker’s right to retain his or her own personal attorney if the attorney is only representing the foreign worker, but that scenario may be awkward as it is impossible to file a labor cert case without the employer’s consent. Further, it may be difficult to properly establish the minimum requirements and to execute the recruitment process, which lie at the heart of the case, without the close involvement of the employer. This rule regarding the payment of attorney fees is vague, may not be enforceable, and will likely be challenged through litigation. To date, many employers have agreed to sponsor employees for the labor certification process provided the employee covers the attorney fees. Nonetheless, in going forward with any new cases, employers may consider not supporting employee paid labor certification cases until the new regulation is changed or overturned.
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The CIS (Citizenship and Immigration Services) began accepting petitions for Fiscal Year (FY) 2008 H-1B visas on Monday, April 2, 2007. The soonest these visas can be used for work authorization will be October 1, 2007, which is the start of FY 2008.
The FY2008 H-1B regular track quota was exhausted on April 3, 2007. Pursuant to the current regulations, the CIS accepted all regular track cases received on Monday, April 2 and Tuesday, April 3, 2007. As approximately 119,193 cases were accepted on these two days, the CIS will use a lottery system to assign the available 58,200 visas to the 119,193 eligible cases. The cases that do not receive a number will be returned to the filer along with the uncashed checks for the filing fees. Although the CIS has completed the lottery number assignments for all cases, it will take them several more weeks to complete the intake process for these cases. They are currently holding many of the cases that have not yet received a number to allow for the possible reassignment of numbers recaptured from denied or withdrawn cases that were in the queue to receive a visa number. Case receipt notices have not been sent for a significant number of the cases filed at the start of April 2007.
The separate quota of 20,000 visas for foreign workers holding a master’s or higher degree from a U.S. university was exhausted on April 30, 2007. Cases received on April 30, 2007 were also subject to a lottery assignment of the remaining visa numbers.
The cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases and H-1B change of employer cases will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
The Department of Homeland Security has announced that it will abandon its attempt to use RFID enabled I-94 cards to track entries and exits under the US-VISIT system. RFID (Radio Frequency Identification) tags are used to track inventory and in I.D. badges to identify personnel through the use of radio waves. RFID tags can be automatically read by a scanner located several feet away. The tag does not need to be visible to the reader. The correct application of RFID technology increases the speed and accuracy of transactions leading to a more efficient use of resources. Understandably, many persons are worried about the privacy concerns that arise from becoming tagged and readable. The government’s problem with the program, however, was that they could not properly implement the technology. The program was cancelled due to its 33% error rate.