In a Federal Register Notice released today, the Department of State announced a new fee structure for cases to be processed at consulates and embassies abroad.

Presently, DOS processes all Immigrant Visas (family based or employment based) at a fee of $355 per person. The new proposed system will be a 4-tiered fee structure with a lower fee for family based immigrant visas ($330) and a significantly higher fee for employment based immigrant visas ($720). Other rates will apply to self-petitioned cases and humanitarian cases.

In family based cases, the Affidavit of Support review fee is proposed to go from $70 to $88.

The Notice does not include an increase in nonimmigrant visa application fees, which are currently $131 USD.

To read the Notice in its entirety, please visit: http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf

In a recent USCIS Stakeholders Meeting, AILA asked for clarification on how unused H-1B1s for Singaporean and Chileans are counted back. Under the Chile/Singapore Free Trade Agreement, 6,800 H-1B cases are reserved per cap for specialty occupation cases from Singapore and Chile. The USCIS responded to AILA by stating that unused H-1B1 numbers from a fiscal year will be reallocated for use in the subsequent fiscal year.

For example, the 6,100 unused Chile/Singapore H-1B1s from FY2009 were added back to the 58,200 regular cap numbers available for FY 2010 to get 64,300 regular cap visas available for FY 2010 (this excludes the 20,000 master’s cap exemption).

Thus far, only 129 of the 6,800 H-1B1 cases under the FY 2010 cap have been used. This means that potentially more than 6600 additional H-1B cap cases will be accepted under the FY 2011 cap, which opens in April 1, 2010. Please note, the USCIS did state that although the regular H-1B cap has been closed, they continue to accept reques for H-1B1 visas or change of status cases.

 The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) and we met this week and the hot topic of discussion was the recently released Neufeld memo. There is a strong belief that the memo was issued in violation of the Administrative Procedures Act.  There is also the belief that the memo violates long-standing precedent and established law.  It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter. The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse  specifically dedicated to collecting and posting relevant documents and information on this issue.  This will allow all  interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. contact mfh@hammondlawfirm.com for additional info.

We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of “rogue” behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.

Recently, the USCIS, particularly, the California Service Center has imposed requirements on IT staffing companies employing H-1b workers that are not found in any statute or regulations.  The requirement to produce contracts from parties with which the petitioner has no direct relationship is impossible to meet and the Service Center knows it ! That, is in fact their aim, to be as obstructionist as possible. Instead of applying the statutes passed by Congress and the regulations promulgated through the Administrative Procedures Act and subject to notice and comment i.e. a hearing by the public, they have chosen to arbitrarily act in an uniformed and misguided attempt to “protect the helpless Amercian worker” Kudos to the goal but, the execution gets a resounding “abject failure”.  I happened to have a case recently that represents the idiocy of the Califronia service Center policy.  The Petitioner (Co. A) had a contract with Co. B who had a contract with Co. C (the end client). For those of you who are familiar with the staffing industry, such an arrangement is the norm rather than the exception.  Entire cos. are built on such contrcatual relationships. The CSC demanded the contract between Co. B and C, and my client who has no relationship with Co. C could simply not produce the required contract. Alternative proof, including a letter from Co. C verifying the relationsip and the job description was produced but, ignored by the CSC and the case was denied. I, being filled with righteous indignation, advised my client to file an appeal because surely the appeals unit would look at the evidence with a fair and unbiased eye and approve the petition. Unofrtunately, I told my client that the filing fee for an appeal is $585.00, attorney fees were ridculously exorbidant, and it would take 14-18 months for the case to be heard, and I added, in the interim, the employee could not keep working but, would have to leave the US and wait abroad for a decision. (clearly, the lack of a speedy appeal process and interim work authorization is one of the reasons that the CSC can act with such incredulity. There are simply no repurcussions when they flaunt the law and turn a blind eye to facts and evidenec submitted) My client, being a brilliant business person, had another option. He simply convinced the Co. B and C, the end client to move the project overseas to his development office in Secunderabad, India. Two of the three U.S. workers assigned to the project at the end client were offered the opportunity to transfer to India and when they declined, 3 more off-shore positions were created for Indians abroad.  Way to go California Service Center ! In one failed swoop, you were able to keep an H-1b worker from working in the U.S., paying taxes, renting an apt, buying a car, etc. all horirble things, and at the same time, eliminate the work for 2-3 U.S. workers. I’m sure they appreciated you “protecting” them. But, hey look at the bright side, you made 3 Indians in Secunderabad very happy ’cause they now have a new project to work on.