PL 111230 has Increased H-1B and L-1 Filing Fees by: • $2,000 for H-1B - transfer or new filing • $2,250 L-1 - for transfer or new filing As per the USCIS teleconference held August 19, 2010, the fee for H-1B and L-1 filings will be increased by $2,000 and $2,250, respectively. This fee increase will apply only to NEW and TRANSFER FILINGS, and not for extensions or amended filings. The foregoing fee is applicable to employers with 50 or more employees in the United States, if more than 50 percent of the applicant’s employees are on H-1B and L-1 Visas.

This is to inform you that on August 13, 2010, President Obama signed into law PL 111230 which includes a provision that, "during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) shall be increased by $2,250 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b) of such Act or section 101(a)(15)(L) of such Act" and that "during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) shall be increased by $2,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act." Although the legislation states that this fee increase will take effect upon "enactment" of the statute, which normally means the date it is a signed into law, August 13, 2010. This has been reconfirmed by the USCIS today and the new fee has been in effect since August 14, 2010. Therefore, at this time we are recommending that our clients continue to file H and L petitions with the previously required filing fees for extension or amended cases and submit the new fee on new and transfer cases. For the cases already filed on August 14th onwards, the USCIS will issue requests for evidence spelling out in detail exactly who is required to pay the additional amounts. The cases filed on or after August 14th, 2010 are on hold as of today at the Vermont and California Service Centers. However, the hold is expected to be lifted by 20th of August 2010.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced implementation of an Act Making Emergency Supplemental Appropriation for Border Security for the Fiscal Year Ending September 30, 2010, and for Other Purposes (also known as the Emergency Supplemental Appropriation for Border Security Act).

This Act requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1 petitions. These additional fees are required for any initial H-1B or L-1 petition filed starting [insert date] through September 30, 2014, where the petitioner employs 50 or more individuals in the U.S. and more than 50% of its employees are in H-1B or L-1 nonimmigrant status. USCIS is in the process of updating the Form I-129, Petition for a Nonimmigrant Worker. While these changes are pending and to avoid a Request for Evidence (RFE) and potential delays in processing, petitioners are encouraged to include a cover letter with the filing which states whether they are required to pay the additional fee or explaining why it is not required.

Broadgate, Inc., et al v. USCIS, et al Case number: 1:10cv00941 This Application for Preliminary Injunction and Complaint filed on June 8, 2010 by Greenberg Traurig LLP in the U.S. District Court of the District of Columbia, challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships, resulting in the denial of H-1Bs filed by IT staffing firms. Judge Gladys Kessler will be hearing the case. More details to follow.

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WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption. USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2011 H-1B petitions. These updates and helpful filing information can be found at USCIS’ Web site. Should USCIS receive the necessary number of petitions to meet the cap, it will issue an update to advise the public, that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date. To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date. For cases filed for premium processing during the initial five-day filing window of April 1-7, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center. Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap. Therefore, USCIS will continue to process all petitions filed. For more information on USCIS and its programs, visit www.uscis.gov. H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

Washington, D.C. March 25, 2009: On January 8, 2010 Donald Neufeld, Associate Director, Service Center Operations for the U.S. Citizenship and Immigration Services (USCIS), issued a memorandum pertaining to H-1B petitions. The American Immigration Lawyers Association (AILA) has requested that the Neufeld memo be withdrawn, as it is problematic and contradictory to the business models of certain industries that often rely on H-1B workers. Of particular concern are issues related to third-party placement policies.

AILA has noted four key points: 1) The policy indicated in the memo is inconsistent with current regulations. 2) The new policies and guidelines impose significant economic burdens on a variety of industries at a time where economic growth desperately needs to be promoted not hampered. 3) There are potentially serious adverse business consequences for many H-1B employers and employees. 4) The memos emphasis on certain elements of the employer/employee relationship appear to now being carried over to other immigrant and nonimmigrant visa matters where they are totally inappropriate. The Neufeld memo is commanding new factors in determining an employer/employee relationship. Under current regulations related to filing for an H-1B worker a U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States that: 1) Engages a person to work within the U.S.; 2) Has an employer/employee relationship; 3) Has an Internal Revenue Service tax identification number. At issue is how these things are interpreted in third-party situations. The Neufeld memo adds additional requirements for demonstrating control over the H-1B worker not currently included in the regulations. The memo details a lengthy list of requirements to be considered when an H-1B petition is adjudicated. AILAs concern is that employers will now need to spend considerable time and money gathering additional evidence in order to file an H-1B petition. If such evidence is not presented, there may be numerous denials or excessive requests for additional evidence. This impacts heavily on businesses that rely on H-1B workers with certain specialties. The time and money required to execute a successful petition may become impossible for some businesses. AILA members are already starting to informally hear such things. Now is not the time to compromise the functioning of U.S. businesses. Growth and increased employment opportunities should be promoted not stymied. If the object is to promote the hiring of U.S. workers over foreign nationals, reports have shown decreasing the number of crucial H-1B workers will not have that affect. In fact, studies have shown that there is a rise in U.S. workers hired commensurate with the H-1B workers, who are largely performing unique tasks. If a business is compromised by not having certain workers, the result will be a decreased ability to hire U.S. workers. Studies indicate that H-1B hires are used for key talent, not cheap labor. Science and technology are prime examples of this. AILA also theorizes that individuals currently in H-1B status may ultimately become entrepreneurs who hire U.S. workers. Keeping them from working in the U.S. can potentially quash future business development. One industry already feeling the impact of the Neufeld memo is healthcare. The U.S. has a severe shortage of physicians. International physicians are already filling that need. At present, almost 30 percent of all physicians in the U.S. are foreign nationals who attended medical schools outside of the U.S. and subsequently did their residency and fellowship training in the U.S. These physicians often use the H-1B visa once their training is completed. Policies in the Neufeld memo create conflicts with existing regulations. This is particularly relevant in the area of third-party employment. An example is cases where an organization petitions for H-1B physicians and then places those physicians in temporary positions where there are temporary acute needs. Or a physician who works for an organization that sends him or her to rural areas or underserved hospitals in times of specific needs. Another area in the Neufeld memo to consider pertains to government contractors. Many areas of government research are conducted in partnership with private companies. If undue burdens are placed, the U.S. government could potentially be deprived of the knowledge and research skills of key researchers and information technology professionals. Another area potentially hard hit by the Neufeld memo: IT Consulting Companies IT consulting companies often petition for IT professionals to be in H-1B status. They then send these H-1B workers out to client sites. Points raised in the Neufeld memo about demonstrating the employer/employee relationship would be contradictory to how such companies function. This is of grave concern to AILA, as many IT companies rely on foreign talent as do the businesses that contract with these IT consulting companies. The Department of Labor and the U.S. Congress recognize third-party placement involving H-1B dependent employers. The Neufeld memo constitutes a significant change in prior regulation, policy and practice, without the appropriate notice and comment required by the rulemaking process under the Administrative Procedure Act. AILAs membership hopes USCIS will understand the possible consequences and withdraw this memo.

"On March 15th, 2010, the U.S. Department of Labor ("DOL") Secretary Solis announced that the DOL will begin exercising its authority to certify applications for U Nonimmigrant Status Visas ("U Visas")." This tool can be used by the DOL in H-1B/LCA Audit and related Wage and Hour Investigations.

U visas as they are known are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse and are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes. "Regardless of immigration status, no one should have to suffer criminal abuse silently. U visas give some measure of security to immigrant victims who are desperate to escape an abusive situation and are willing to cooperate with law enforcement," said Secretary Solis. "I have instructed Labor Department investigators to identify potential U visa applicants as they conduct workplace investigations. This action will help local law enforcement rescue vulnerable immigrants from suffering and help put criminals behind bars." Individuals who receive U visas may remain in the United States for up to four years and may eventually apply for permanent residency. The U visa was created by the Victims of Trafficking and Violence Prevention Act of 2000. Labor Department authority to certify U visas will be delegated to its Wage and Hour Division, which will identify potential applicants in appropriate circumstances during the course of workplace investigations. Among other U visa application requirements, a federal law enforcement agency or official must certify that the U visa petitioner has been helpful, is being helpful or is likely to be helpful in the investigation or prosecution of the criminal activity.