If you are an employer that files immigration petitions, especially H-1B and L-1 petitions, you might have noticed that there was an additional fee levied upon certain employers on file H-1B and L-1 petitions. That was in December. DHS is proposing to increase its filing fees for all of its petitions by a weighted average of 21%. These are what the proposed fees are likely to look like:

E, H, L, O, P, Q, R Petitions – $325 becomes $460

Immigration Petition Fee – $580 becomes $700

Premium Processing Fee – $1225 still, but USCIS would like an increase

USCIS has maintained its fees since 2010. The primary reason for increasing the fees, DHS claims, is that current fees are not generating enough revenue to fund their operations.

The timing of the fee increase seems particularly unfortunate. USCIS is well-behind their stated goals in adjudicating many of the aforementioned petitions. Change and extension of status petitions are taking over 6 months for H and L petitions. O and P petitions are usually adjudicated within two weeks. They are currently approaching three months. Because the timing of adjudication is lengthy, it is causing problems for many employers and employees. Premium processing requests are being foisted because of issues with driver’s licenses, among others. A 240 day extension for employment authorization goes into effect once the employee hits her final day of work authorization on her visa. The extension only goes into effect if the extension is timely filed. The lengthy adjudications have been problematic for months.

The Administrative Procedures Act gives 60 days for comments. July 5, 2016 is the final day to comment. The link to comment is here.

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DHS is proposing to increase USCIS filing fees by a weighted average of 21%. USCIS receives congressionally appropriated funds, but they are insufficient to cover the costs of its operations. Most applications that you file with USCIS require a filing fee that must be paid in whole. For example, if you are filing an employment-based petition for an employee, you are subject to a $325 filing fee. An application for citizenship bears a $680 filing fee currently. Premium processing, which is available for select employment-based petitions, is currently $1,225.

DHS is publishing a proposed a rule and is soliciting comments about the proposed adjusted fees. If you are going to be affected by these price increases, you can follow the links to explain why or why not you agree with the proposed changes. As per the rules, DHS is required to consider each comment before it publishes its final rule.

Here are some reasons pulled out of the proposed rule for why DHS needs this increase in filing fees:

USCIS completed a biennial fee review for FY 2016/2017 in 2015. The results indicate that current fee levels are insufficient to recover the full cost of activities funded by the IEFA. USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between IEFA revenues and costs. This projected shortfall poses a risk of degrading USCIS operations funded by IEFA revenue. The proposed rule would eliminate this risk by ensuring full cost recovery. DHS proposes to adjust fees by a weighted average increase of 21 percent. The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit type.

In addition to ensuring that fees for each specific benefit type are adequate to cover the USCIS costs associated with administering the benefit, the weighted average increase of 21 percent also accounts for USCIS costs for services that are not directly fee funded. For instance, DHS proposes certain changes to how USCIS funds the costs for fee-exempt benefit types through IEFA fee collections received from other fee-paying individuals seeking immigration benefits.6 DHS also proposes to fund the costs of the Systematic Alien Verification for Entitlements (SAVE) program (to the extent not recovered from users),7 and the Office of Citizenship8 through the use of fees. The proposed fee schedule also accounts for increased costs to administer refugee processing. Revenues under the proposed rule would accommodate an anticipated increase in the refugee admissions ceiling to 100,000 for FY 2017. This is an increase of 30,000, or 43 percent, over the FY 2015 refugee admissions ceiling.

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USCIS announced yesterday that it is has completed the computer-generated lottery system it employs for selecting H-1B petitions. Accepted cases have been receipted, but USCIS mentions that not all cases have been returned – receipt or not. A petitioner will not know for sure whether the case was accepted or not for the lottery until it receives the receipt notice or the checks uncashed in the mail with the unselected petition.

Over 236,000 H-1B cap-subject petitions were filed in the first five business days in April, meaning that over 150,000 petitions will not even be considered for adjudication. Plenty of commentators have harked on Congress to increase the cap because the large volume of H-1B filings means that it is evident employers need this visa. Regardless, the cap has remained steadfast since 2003 and legislation proposing its increase has not made progress.

USCIS also announced that some cases will be transferred from the Vermont Service Center to the California Service Center for adjudication. Both service centers have been lagging behind their stated goal times for adjudications in adjudicating H-1B transfer and extension cases. USCIS did not announce when it expects regular processing cases to be adjudicated. It has announced that it will begin adjudicating premium processing cases on May 12.

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Section 204(j) provides that an approved Form I-140 petition for certain classifications remains valid for adjustment of status when an applicant switches jobs or employers if:

• The adjustment of status application has been filed and remains unadjudicated for 180 days or more, based on an employment-based immigrant visa petition AND
• The new job is in the “same or a similar occupational classification” as the job for which the petition was filed.

A new policy memorandum has been issued to assist immigration officers in determining what qualifies as a same or a similar occupational classification and which evidence should be used in making that determination. They are instructed to examine the job duties of the former and new job and skills, experience, education, training, licenses, and certifications required. Wages can also be important. The policy memorandum also repeats that a preponderance of the evidence standard is to be utilized.

Immigration officers are supposed to treat evidence favorably if the applicant establishes that the previous and new job are within the same broad occupation code in determining whether the two positions are similar. The memo gives the example of Computer Programmers, Software Developers Applications, Software Developers Systems Software, and Web Developers being found within the same broad occupational group of Software Developers and Programmers. It also gives warning: just establishing that the two jobs are described within the same broad occupation may not be enough for the two jobs to be in similar classifications for a preponderance of the evidence.

Of note, the memo dedicates analysis to career progression. It continues the analysis under the totality of the circumstances and preponderance of the evidence guidance. The analysis may be more straightforward when the promotion is to a more senior position that does not involve managerial or supervisory duties. The analysis becomes complicated when that transition is to a position that involves a managerial or supervisory role.

For that second scenario, the memo instructs that if the applicant establishes in the new job that she will be “primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, the immigration officer can treat that evidence in the applicant’s favor for determining similar occupational classifications. The example used is a cook advancing to a food service manager. A food service manager supervises restaurant cooks and other individuals in similar positions.

There may also be situations where a normal career progression does not involve managing persons in jobs that in the same or similar occupational classification as the applicant’s original position. The example used is a cook that becomes a food service manager, while retaining many of the original job duties. That position may be devoid of supervisory duties, but the applicant would be able to demonstrate similar occupational classifications based on functions.

The memorandum is lengthy and detailed, delving into many scenarios that immigration officers encounter as they adjudicated portability petitions. Portability is an important provision of the AC21 law enacted in 2000. The express purpose of that law was to increase job flexibility for foreign workers who are stuck in delays and backlogs in the employment-based immigrant visa process.

The post Employee Portability appeared first on Wood Immigration Law.

Continue to expect delays in receiving Prevailing Wage Requests from the Department of Labor. The Department of Labor held a meeting and addressed the delay in returning Prevailing Wage Determinations. The Prevailing Wage Determination is the important first step for an employer to take in sponsoring for a permanent position. The Department of Labor has a stated goal of 60 days to analyze the Prevailing Wage Request and made a determination. The wage that it determines is necessary for the position is the minimum wage that the position can pay.

The Department has announced that stakeholders should expect determinations to take at least 75 days. The online system is supposed to speed up the process, but the increase in prevailing wage requests versus the stagnation of funding and resources, according to the Department of Labor, has forced the return times to lengthen.

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This is a statistically-based article that methodically and neatly describes the large metros in the United States and their ability to retain college graduates. The flight of college graduates is a concern for many metropolitan cities. A high retention rate of college graduates can be viewed as a reliable indicator of economic viability.

The article misses a critical point: immigration.

At US colleges and universities, large and small, the number of foreign students is high. Foreign students from all over the world, flock to American universities for education and the opportunities that education opens. Well over a million F-1 visa students are in the United States. However, their post-graduate options are limited. Someone who attends undergraduate and graduate school in the same city may have embedded himself into the community. That graduate, however, may not have the ability to stay in the United States. Only 85,000 cap subject H-1B visas are available. The O-1 visa bears a high standard for eligibility. J visa ability is limited. L visas have foreign restrictions that would make them unviable for US college graduates. Not every country allows for E visas (notoriously India) and even then, that is an extraordinary expense and may not comport with what the graduate is pursuing. Immigration visas are generally shut off for recent graduates.

There are millions of foreign graduates and not a commensurate number of visas or options to retain their talents and skills. Graduate retention rates would be higher for many cities if foreign national recent graduates had the ability to stay in the United States and work for employers that want to hire them. For example, 233,000 H-1B cap-subject visas were filed last year for the 85,000 visa spots.

The article did not consider this angle as a reason to why some retention rates are more depressed, but this is certainly a factor. Cities are losing the opportunity to retain their college graduates and the lack of nonimmigrant visa options is a major reason why.

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Complaint Over Special Fees and H-1B Cap

India is alleging the United States is engaged in unfair trade practices in the World Trade Organization. The suit is on two bases: the H-1B cap of 65,000 and 20,000 and the enhanced fees that Congress recently slapped on large companies with over 50% of their employees on H-1B or L-1 visas. The case is at the World Trade Organization because India is alleging that the United States has violated trade rules with recently implemented special fees and with the 65,000 cap. The World Trade Organization is the forum where unfair trade restrictions are decided as unfair or fair.

The Cap

The H-1B visa’s lifespan has been governed by a cap, which has historically been larger but has settled in at 65,000 for over a decade. A supplementary 20,000 visas were added for US Master’s graduates. The cap is not exactly 65,000. It is even less, when considering special agreements that the US has with Chile and Singapore. The trade agreement stipulates that 1,400 H-1B visas are allocated for Chilean nationals and 5,4000 H-1B visas belong to nationals of Singapore. For beneficiary nationals of other countries, that means the cap is actually 58,200. Additionally, that is only the cap. A cap is a ceiling not a floor. The US is not required to grant 65,000 cap-subject H-1B visas. It can grant fewer than that.

The US has two arguments against the cap and special allocation of visas for Chile and Singapore. The first is the recent creation of the 20,000 visas for US Master’s graduates. The second is cap-exempt visas, which are reserved for academic, research, and sometimes medical purposes.

Enhanced Visa Fees

In December 2015, an Omnibus Bill was passed that contained some financially harsh provisions against large firms that employ H-1B and L-1 visa holders. While much of the focus in the bill’s germination stage focused on Syrian refugees and the Visa Waiver Program, provisions against these large firms snuck in and have been instituted. For firms that have at least 50 employees, of whom 50% are in H-1B or L-1 status, there is an additional $4,000 fee for every H-1B and $4,500 L-1 initial and extension application. The previous fee of $2,000 was sui generis.

H-1B applications can be expensive for employers. A base filing fee of $325 is required for every application. Depending on the circumstances of the application, a Fraud Prevention and Detection fee of $500 is applied. An ACWIA fee of $750 or $1,500 may be required. H-1B extension and change of status applications are taking such an excruciatingly long time to adjudicate that premium processing is being constructively required. Premium processing requires $1,225. These fees accumulate, especially for multiple workers, escalating fees for every application.

The complaint at the World Trade Organization alleges that this enhanced visa fee is an unfair trade restriction. It is expected that the World Trade Organization will take a year to make a decision at least.

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A recent problem in USCIS adjudications is lengthy processing times for H-1B extension applications. These are applications filed without premium processing. The delays are problematic: they force employers to fork over the $1,225.00 for premium processing, and they can cause significant hardships for affected employees. USCIS Service Center Operations has acknowledged that the lengthy processing times are a problem and USCIS is working on reducing those times.

American Immigration Lawyers Association is working with USCIS to reduce the processing time. The main issues are employees in danger of losing employment authorization or were otherwise forced to request an upgrade to premium processing as a result of the backlog; and (2) clients with a pending H-1B extension petition, where the H-1B beneficiary is within one month of the expiration of the automatic 240-day employment authorization extension.

It is important to consult with the attorney filing your H-1B application whether premium processing is necessary. Both service centers are close to 6 months in processing time. That means an application submitted today would not be adjudicated until the end of July or beginning of August. Premium processing forces a decision within 15 days.

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The Department of Homeland Security has published new rules affecting the following groups: EB-1 outstanding professor and research immigrants; H-1B1; E-3, and CW-1 nonimmigrants. The final published rule takes effect February 16, 2016.

H-1B1 and principal E-3 nonimmigrants are authorized for employment incident to their status with a specific employer. That means nonimmigrants in those classes can work for their sponsoring employer without having to obtain an employment card separately.

H-1B1 and principal E-3 nonimmigrants who have expired status while their employer’s timely filed extension of stay request is pending can continue their employment with that employer for 240 days.

DHS is allowing for continued employment authorization for CW-1 nonimmigrants with expired status while their employer’s timely extension request remains pending.

EB-1 outstanding professions and researchers can provide the same types of evidence as the other EB-1 categories.

DHS is trumpeting these rules as enhanced opportunities for employers and highly skilled workers.

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USCIS has released its most recent processing times for all of the kinds of cases it adjudicates. The data are broken down by the specific Service Center. For example, E-2 visa applications are adjudicated by the California Service Center. The processing time listed is two months. Both the Vermont and California Service Centers adjudicate O and P visa petitions. The California Service Center is adjudicating these petitions in two weeks, which is their stated goal. Vermont Service Center is taking over two months. Of note are that the Vermont Service Center is working on U Visa applications filed in May of 2014. It seems that most Employment Authorization applications are on track to be adjudicated within the regulatory mandated 90 days.

Premium Processing is available for the following kinds of cases. Premium processing requires a $1,225 fee. In exchange, the Service Center will render a decision within 15 days and communicate by email for faster correspondence.

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