One H-1B Fee Eliminated

Posted on by

H1b 2016October 1 is a significant date in government because it is the beginning of the fiscal year. It is also the date that the majority of cap-subject H-1B individuals begin their positions with H-1B status. There are always developments in H-1B visas to keep abreast of, so that employers can remain compliant. The Public Access File is a major part of that. Knowing whether an employee should be subject to certain taxes, such as FICA, is another.

The recent news in the H-1B world is that the fee penalties of Public Law 111-230 have sunset. H-1B and L-1 petitions that are filed on or after October 1 are not subject to this fee anymore.

In 2010, President Obama signed Public Law 111-230 into effect. This law increased the fees that certain employers had to pay to file some H-1B and L-1 petitions. Employer petitioners who employed 50 or more employees in the United States with more than 50% of its US workforce in H-1B or L-1 nonimmigrant status had to pay $2,000 for the filing of each petition. This fee existed on top of the normal filing fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act fees.

Government Shutdown Avoided

Posted on by

Immigration Programs Teeter for Two More Months

Congress averted a government shutdown on Wednesday by a few hours through the passage of a continuing resolution. President Obama signed it that same day and the federal government will be funded until December 11. In March of this year, a similar storyline unfolded, and the budgetary battle was explicitly over funding the Department of Homeland Security and immigration matters.

The immigration news stemming from the continuing resolution is that the four programs that were set to sunset on September 30 have been extended until December 11. While each individual program had its own congressional bill authorizing a longer renewal period or even permanence, none of those were passed. The EB-5 program even had three competing bills that aimed to tweak and improve the program in different ways. The continuing resolution maintains the four programs – CONRAD 30, EB-5 Regional Center, Religious Non-Minister Workers, and E-Verify. That means those programs have another two months until their existence is in peril.

DOS Lawsuit Update

Posted on by

Class Action Suit Versus Department of State

Mehta v. DOS is the class action lawsuit that private lawyers have filed to compel the federal government to use the original October Visa Bulletin that thousands of newly eligible Green Card eligible individuals file for permanent residence. The lawyers filed the complaint on September 28. It is replete with declarations and stories from individuals who were convinced from September 9 to September 25 that the government had made an immigrant visa available to them. Many but not all of the individuals in the lawsuit are EB-2 and EB-3 individuals from India and China. There are also concerns for individuals aging out from the Child Status Protection Act. The complaint requests that the federal court reinstate the Visa Bulletin issued on September 9, rather than the revised October Visa Bulletin that is in force. The revised bulletin has dashed many potential applicants’ hopes by rolling back filing times. The original bulletin was feted for “modernizing” the process by including filing dates and priority dates. The modernization was an aspect of the president’s executive actions on immigration from November 2014.

The main update from the lawsuit is that the federal judge is expected to make his decision on whether the government must use the original visa bulletin on Monday. Hopeful applicants who decided to give the application a try anyway have had their packages refused by USCIS. Pressure has been mounting from interested Congresspersons, through media channels, and individuals’ actions, in addition to the lawsuit. For example, some have taken to sending roses to USCIS.

The complaint details the lives of the representatives of the class action lawsuit. The representatives each have different stories, but the common thread is that they had been waiting for visa availability for years and were finally able to file. They continue to wait anxiously, as a decision is expected on Monday. If the revised bulletin is upheld, it is unknown when they will be able to file. The calculations are done on a month-to-month basis.

The hashtag on Twitter is #visagate2015.

October Visa Bulletin

Posted on by

October Visa Bulletin: Rollback and Lawsuit

The past week of the Visa Bulletin has been a whirlwind. Thousands of individuals waiting in line to file for their Permanent Residence thought they had finally become eligible to file through a modernized October Visa Bulletin that the State Department released on September 9. Instead on September 25, the State Department issued a revised Bulletin that undid the changes of the original Bulletin. The consequence is that thousands of individuals, especially those in the EB-2 category with Chinese and Indian chargeability, are no longer allowed to file for Green Cards this month. Thousands of individuals with approved PERM cases and Permanent Residence eligibility are in no man’s land and uncertain as to when they will be able to file.

The rolled back filing dates on the September 25 Visa Bulletin look like this:

EB-2 China – 1/1/2013 – rolled back 17 months

EB-2 India – 7/1/2009 – rolled back 2 years

EB-3 Philippines – 1/1/2010 – rolled back 5 years

FB-1 Mexico – 4/1/1995 – rolled back 3 months

FB-3 Mexico – rolled back 17 months

The modernization of the Visa Bulletin was to include filing date eligibility alongside priority dates. Previous visa bulletins only showed the priority dates. The priority and filing dates are calculated by the available allotment of Green Cards, as there are percentage restrictions for each category (for example, 28.7% of employment-based Green Cards come from EB-1). In November 2014, President Obama announced that he and his administration were taking executive action to modernize the visa system. The Visa Bulletin released on September 9 was supposed to represent the modernized visa system.

Private attorneys have filed a class action lawsuit (Mehta v. DOS) in the Western District of Washington to prevent the filing dates from the revised Bulletin from superseding the original Bulletin’s dates. It essentially seeks to reinstate the filing dates from the original October Visa Bulletin. They have filed the complaint and appeared in court to request a Temporary Restraining Order on the revised Bulletin. A decision is expected today. Representatives Zoe Lofgren and Mike Honda represent the San Jose and Silicon Valley districts and have released press statements against the revision, encouraging the Department of State “to provide discretionary relief to those affected.” They also applaud the efforts of the class action suit.

For now, the thousands of individuals who thought they were finally eligible to file for their Green Cards will have to continue their waiting.

Pope Speaks on Immigration

Posted on by

Pope Francis’s first US visit was highly anticipated and virtually every step was televised. As the leader of a billion Catholics worldwide and a moral authority, his words carry enormous influence. The pontiff had an opportunity to deliver a speech to a joint session of Congress during his visit. He spoke on many politically divisive topics, one of which was immigration.

The pope’s remarks on immigration resonated with the immigrant beginnings and roots of the United States, touching on themes of hope and freedom. His perspective on immigration emanates from a place of empathy and humanity, exhorting lawmakers and the public to allocate resources to assisting many of the migrants who have escaped brutal poverty, violence, and gang warfare in Central America.

Congress has its hands full this week on immigration and various policy matters, one of which is continuing the government’s operations and avoiding a government shutdown. A continuing resolution has been proposed while a longer-term solution can be worked out. There are four immigration programs that are set to expire this week.

Watch the Pope’s speech here.