USCIS Filing Fees on the Rise Again!

by

On August 13, 2010, President Obama signed Public Law 111-230 into law which dramatically increases H1B and L1 filing fees for certain US companies.  The new law went into effect immediately and though Form I-129 has not yet incorporated the new law into the form, all US petitioning companies must disclose whether they are subject or not.

The new law requires additional filing fees of $2,000 for H1B visa petitioner and $2,250 for L1A and L1B petitions where the US petitioning company employs 50 or more employees in the United States and more than 50 percent of its employees in the United States are in H-1B or L visa status.  Petitioners with fewer than 50 employees or those who employ primarily non H1B or L visa workers will not be affected.

However, all applicants will be affected by USCIS’s plan to raise all other filing fees.  On June 11, 2010 USCIS announced their plan to raise fees across the board an average of 10%.  This prospective fee increase is still in the public comment stage but is expected to go into effect shortly.  The agency stated that the fees needed to be increased to offset lost revenue from fewer applications being filed.  This is in sharp contrast to their previous reasoning when they raised fees in 2007 to increase staffing to adjudicate applications faster.

The bureaucracy is expanding to meet the needs of the expanding bureaucracy. – Unknown

H1B Visa Extensions Beyond the Six Year Limitation

by

The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

EB1 Extraordinary Ability Approvals – Part I

by

EB1 Extraordinary Ability – Part I

In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another type of self sponsored residency applications.  The EB1 Extraordinary Ability carries both a higher standard of approval and a higher priority for approved applicants.  For Indian and Chinese nationals, an EB1 application means they can obtain US residency (green card) in a matter of weeks or months because the EB1 category is current and is not backlogged or retrogressed like the EB2 NIW category.

In the case I am going to discuss, the applicant was a Chinese national.  We filed the EB1 petition on October3, 2005 and the case was approved on October 11, 2005.  Unfortunately the issuance of the green card in this case was delayed due to an incomplete medical examination by the USCIS civil surgeon but it was still ultimately approved.

EB1 Extraordinary Ability Requirements

In order to qualify for the EB1-EA, the applicant must have won a Nobel Prize OR show documentation in three of the following areas:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

    EB1 Extraordinary Ability Approved Case Part I

    Degree: BA in Biology

    Position: Research Associate at a US University

    Field of Expertise: HIV/AIDS

    Publications: 25

    Citations: 200 including self citations

    Conferences: 54

    Recommendation Letters: 6

    The applicant in this case was a Chinese national.  The EB1 application was approved in approximately 1 week.  This application was filed in 2005 and processing times do vary.  From 2006 through 2008 we saw processing times range from 6-12 months but now they have settled back down and we are regularly seeing approvals issued in 3 months or less.

    While the applicant was certainly lacking an advance d degree, she more than made up for it by producing a large volume of high impact research and presenting that research at both national and international conferences.  Based on her objective accomplishments, we were able to show that the applicant played a leading role in high level research and that she would continue to play a leadership role in future research.  USCIS agreed with our position and approved the petition in just over one week.

    National Interest Waiver Approvals – Part II

    by

    National Interest Waiver – Part II

    In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another previously approved case.  In this matter, the applicant was an Indian national but unlike today, the EB2 category was current for Indian nationals, and we could file an NIW application and there was no extra waiting period beyond normal USCIS processing times.

    National Interest Waiver Requirements

    1. That the alien seeks employment in an area of substantial intrinsic merit;
    2. That the proposed benefit will be national in scope; and
    3. That the national interest would be adversely affected if a labor certification would be required for the alien.

    National Interest Waiver Approved Case Part II

    Degree: MS in Biochemistry

    Position: Senior Laboratory Technician (This position was amended prior to filing)

    Field of Expertise: Stem Cell Derivation

    Publications: 1 (4th author)

    Citations: 8 including self citations

    Abstracts: 11

    Recommendation Letters: 3

    The applicant in this case was an Indian national.  The NIW application was approved although a difficult request for additional evidence was issued that held up the approval for an additional two months.  However, the applicant still obtained his residency approximately 14 months year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

    By looking at the applicant’s job title at the time we took his case (tech), it would seem like a national interest waiver was a long shot.  His publication record certainly did not help.  However, we were able to identify some novel techniques the applicant developed as a tech and were able to convince his University employer to move him to a different position that is more associated with research prior to filing.  This was certainly a difficult case but a case that we were very proud to get approved because the obvious accomplishments were just not there.  If we took this case today we would consider filing a concurrent EB1 filing since the EB2 category is backlogged.

    Vermost Service Center Expedite Requirements

    by

    The Vermont Service Center (VSC) continues to expedite certain immigration applications in limited circumstances.  You must be prepared to evidence extreme extenuating circumstances creating a hardship to the petitioner or applicant.  Expedited processing is not available to I-129 applications that are eligible for premium processing except to nonprofit organizations and those seeking H2A classification.

    Expedited processing may be granted in the following situations:

    1.  COMPELLING HUMANITARIAN NEEDS

    2.  EXTREME EMERGENT OR UNFORSEEN CIRCUMSTANCES

    3. SEVERE FINANCIAL LOSS TO COMPANY OR INDIVIDUAL

    4. USCIS SERVICE ERROR

    5. DEPT OF DEFENSE or NATIONAL INTEREST SITUATION

    6. NONPROFIT ORGANIZATION REQUEST IN FURTHERANCE OF THE CULTURAL AND SOCIAL INTERESTS OF THE USA

    7. COMPELLING INTEREST OF THE USCIS

    The VSC will review all expedite requests within 5 business days but may request additional evidence before making a decision on the matter.

    National Interest Waiver Approvals – Part I

    by

    National Interest Waiver – Part I

    I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they can qualify for certain applications like the national interest waiver.  I wrote one previous entry describing the typical qualifications for our NIW clients but I would like to start a periodic series describing particular NIW cases that we have successfully handled in the past.

    National Interest Waiver Requirements

    1. That the alien seeks employment in an area of substantial intrinsic merit;
    2. That the proposed benefit will be national in scope; and
    3. That the national interest would be adversely affected if a labor certification would be required for the alien.

    National Interest Waiver Approved Case Part I

    Degree: PhD in Physics

    Position: Research Associate

    Field of Expertise: Materials Science

    Publications: 14

    Citations: 11 including self citations

    Conferences: 21

    Recommendation Letters: 4

    The applicant in this case was a South Korea national.  It was approved without a request for additional evidence and because the visa numbers were current for the EB2 category, the applicant obtained her residency approximately 1 year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

    This applicant surpassed the minimum requirements for an NIW application.  Most of our clients have 4 publications or less and are employed as a post doc at a University.  However, the applicant had a very poor publication to citation ratio.  This could lead the adjudicating officer to believe that her work was not well regarded and of poor quality.  In a sense this was true but we were able to overcome this issue by highlighting her other accomplishments and through her recommendation letters.

    President Obama “Remains Firmly Committed to Immigration Reform”

    by

    On January 28, 2010, President Obama reconfirmed his commitment to comprehensive immigration reform through his spokesperson, Valerie Jarrett.

    Jarrett aseguró que la reforma migratoria es parte de la agenda de Obama. “Por eso lo incluyó en su discurso”, subrayó. “Todo lo que estaba incluido en ese discurso va a ser una prioridad”, con independencia del espacio que se le dedicase, comentó.

    In his State of the Union speech, Obama has spent little time discussing immigration reform but did state that “we should continue work to fix our broken immigration system, to ensure border security, enforce our laws and make sure every person who meets the rules could help.”  A senior official with the Obama administration later cautioned that any immigration reform would have to be done in a bipartisan manner.

    In 2007 when then President Bush proposed sweeping immigration reform, the democrats were mostly supportive and the bill was ultimately defeated by Republicans in the Senate.  If Mr. Obama is waiting for Senate Republicans to join him in supporting immigration reform, it just isn’t going to happen.  We’ll have to wait at least to 2012.

    Expediting Biometrics and Advance Parole at the Nebraska Service Center

    by

    Greg Richardson, Acting Director of the Nebraska Service Center (NSC) held a question and answer conference with AILA regarding requests for expediting biometrics and advance parole.

    Due to processing guidelines mandated by USCIS Headquarters, the NSC is unable to expedite biometrics and advance parole because the filings that were made to the NSC had to be forwarded to a lockbox facility which takes the cases in, fees the receipt and then forwards the application to the NSC.  Until the lockbox location forwards the file to the NSC, the NSC cannot expedite anything.

    In our experience, it is much easier to get an advance parole expedited when efiling the advance parole application and visiting the USCIS local office.

    Nanny Visa Options

    by

    There are four options for host families to bring a foreign nanny/domestic worker to assist them in their home.

    J1 Visa – Au Pair

    The easiest and, by far, most popular option is to bring a nanny as an au pair.  The au pair program utilizes the J1 visa and persons wishes to hire an au pair must do so through an au pair program authorized by the US Department of State.  The prospective au pair are preselected by the program sponsor and the host family must choose the au pair from the offered pool.  Costs are typically between $7,500 to $12,500 which are paid to the au pair program and the host family must also pay the au pair expenses which run between $250 to $450 per week.  The au pairs themselves must undergo training and many types of background checks.  In addition, the au pairs must meet the following requirements:

    (1) Are between the ages of 18 and 26;

    (2) Are a secondary school graduate, or equivalent;

    (3) Are proficient in spoken English;

    (4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;

    (5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and

    (6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.

    The au pair may be granted a J1 visa for a duration of 12 months which can later be extended if the host family wishes to continue her services.

    H2B Visa – Short Term Help

    The H2B visa is generally employed by companies with seasonal or intermittent business such as coastal restaurants, theme parks or other tourist spots.  However, the H2B visa can also be used to bring nannies to the US.  Unlike the au pair program which requires the host family to go through an au pair program, the host family can directly petition for the nanny.  The downside is that the host family must be able to show that there are no available US workers for the job and that the work is temporary in nature.  While the visa may have a three year duration, the work period must be less than 12 months each year.  There are no program fees to be paid but the host family must pay the nanny the prevailing wage as determined by the US Labor Department.

    B1 Visa – Accompanying US Travelers

    US Citizens, permanent residents and foreign nationals coming to the US for temporary nature may bring domestic help with a B1 visa.  The parties must enter a written employment contract guaranteeing payment of the prevailing wage for an eight hour workday and provide any benefits normally required for US domestic workers in the area of employment.  B1 visa are typically valid for 6 months but may be extended.

    PERM Labor Certification – A Permanent Solution

    The PERM program offers a permanent solution for the host family that has chosen a nanny who they would like to keep permanently.  Similar to the H2B visa, PERM does not require the host family to go through a sponsoring agency, a prevailing wage must be paid and the host family must be able to show that no US workers are available for the position.  However, the work does not need to be temporary in nature and upon approval of the PERM process, the host family may petition for the nanny to obtain residency so she can enter the country.

    In order to qualify as a nanny, the applicant must have two years of experience as a nanny and be offered full time employment as a nanny by the host family.  To qualify as a domestic live-in, the applicant must have one year of experience and the host family must show that the employment is a business necessity.