Immigration Law Update
February 2010 |
|
|
|
|
|
| Greetings! |
|
Individuals, investors and employees applying for visas at U.S. consulates in Germany and worldwide will have to complete a new on-line visa application form, the DS-160. The new form asks a lot of questions that need to be carefully answered. Furthermore, the cost of obtaining a visa may soon be going up.
|
| Planning Ahead - Filing for H-1B's April 1 |
On April 1, 2010, the United States Citizenship and Immigration Service (USCIS) will begin accepting H-1B petitions again for employment start dates six months hence - October 1, 2010 (the start of their new fiscal year 2011). 65,000 cap-subject peitions will be available as well as 20,000 additional H-1B's for those applicants with master's or higher degrees from U.S. universities. If in the first five business days of the filing period USCIS receives more than enough petitions to reach the 65,000 cap, it will conduct a lottery to select the cases that are awarded quota numbers. Cases that are not chosen in the lottery are rejected and returned along with their filing fees.
Employers anticipating a need for foreign professional workers in the U.S. should prepare applications as soon as possible as it is difficult to tell whether there may be a surge of filings at the beginning of the filing period. Furthermore, the initial filing period falls during the Easter and Passover holidays, therefore it is best to gather required documentation sooner rather than later to have applications ready to be filed for April 1 receipt by USCIS. |
|
|
|
| New Electronic Visa Application Form DS-160 |
As of March 1, applicants for U.S. nonimmigrant visas at consulates in Germany and many consulates worldwide will be required to complete and submit the new Nonimmigrant Visa Electronic Application Form DS-160. Many consulates have already started using the form. The form takes the place of three current visa application forms, the DS-156, DS-157, and DS-158 that applicants previously had to complete before attending a visa interview at the consulate. These forms requested information ranging from the individual's personal information, details about visa and immigration history, to education and work experience. These questions have now been centralized onto the DS-160, along with the ability to upload an application photo. However, applicants should be advised that some questions have been newly formulated and even new ones added, including, for example, whether an individual has previously expatriated from the U.S. in order to avoid taxation!
Nonimmigrant visas are required for international travelers coming to the U.S. temporarily except those traveling on the Visa Waiver Program. All nonimmigrant visa applicants, regardless of the visa type for which they apply, will be required to fill out the DS-160 on-line before scheduling a visa interview appointment. However, for now the DS-160 does not replace the DS-156E form that E Treaty Trader/Investor visa applicants are required to complete (requirements may differ depending on the consulate); nor does it yet replace the DS-156 and DS-156K forms for the K-1/K-2 Fiancé(e) Visas. After completing, digitally signing and electronically submitting the form, the applicant will print out a confirmation page. This must be brought to the interview along with the visa fee payment receipt, passport, a photograph that meets the photo requirements, and any additional required documents for the specific visa type.
The process of completing the form is quite time-consuming and cumbersome. However, of great significance is that the form requests a lot of information and asks many detailed questions ranging from salary information, parents' names and birthdates, to a long list of security-related questions that may form the basis for a determination that an applicant is inadmissible to the U.S. Individuals, investors or employees applying for U.S. visas should make sure to carefully and correctly answer these questions before submitting the application, as there may be significant consequences for responses that are given without due consideration - such as the denial of the visa or even of other immigration benefits.
|
| Proposed Fee Increases for Visa Applications and Consular Services |
In December 2009, the U.S. Department of State (DOS) published a proposed rule to increase nonimmigrant visa application processing fees, including the Machine-Readable Visa (MRV) fee. The proposed rule establishes separate and increased fees for different visa categories.
The fee for E visas for Treaty Traders and Investors would be $390.
Applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor visas, would pay a fee of $140.
Applicants for petition-based visas would pay an application fee of $150. These categories include:
- H visa for temporary workers and trainees
- L visa for intracompany transferees
- O visa for aliens with extraordinary ability
- P visa for athletes, artists and entertainers
- Q visa for international cultural exchange visitors
- R visa for religious occupations
The application fee for K visas for fiancé(e)s of U.S. citizens would be $350.
On February 9, 2010, DOS published another proposed rule in the Federal Register to change certain consular fees, including those related to U.S. passport and passport card applications, immigrant visas (permanent residence), and other services provided to U.S. and foreign citizens. Among other things, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the category and increases the adult passport book application fee from $55 to $70.
DOS will not begin collecting these new proposed fees until it fully considers public comments and publishes a final rule. To view both proposed rules and to submit comments, go to www.regulations.gov. Though these fee increases have not yet been implemented, individuals and employers should brace themselves for these added costs of doing business, transferring employees, or immigrating to the U.S. |
| Senators Propose New Entrepreneur Visa |
|
On February 24, 2010, Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced legislation designed to stimulate job creation and increase America's global competiveness by helping immigrant entrepreneurs secure visas to the U.S.
The bill, titled the StartUp Visa Act of 2010, will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a minimum of $250,000 to the immigrant's startup venture. The bill would create a new EB-6 category for immigrant entrepreneurs: after proving that he or she has secured initial investment capital, if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the U.S. and attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status. More than 160 venture capitalists in the U.S. have endorsed the senators' proposal.
It remains to be seen if and when the bill can be passed. But the fact U.S. lawmakers are looking into new options to encourage immigrant investors to set up businesses in the U.S is a welcome sign. |
| Tax Tip - This Month: IRS Guidance on Taxation for Residents and Non-Residents |
|
As indicated above, expatriation is front and center not only for the IRS but to immigration authorities as well. The fact that the new DS-160 non-immigrant visa form implemented by the Department of State contains a question regarding expatriation and the avoidance of taxes is a signal that the U.S. is increasingly focusing its attention on individuals who seek to give up lawful permanent residence status or U.S. citizenship.
For guidance on whether and how a U.S. resident, non-resident and expatriate is subject to U.S. taxation, the IRS has a very detailed and helpful publication, Publication 519 "U.S. Tax Guide for Aliens", which is located on-line for easy reference. Chapter 4 especially contains helpful details as to how income of resident and non-resident aliens is taxed, including what it means to be "engaged in trade or business" in the U.S. For example, individuals: who are temporarily in the U.S. on student or trainee visas; who own and operate a business in the United States selling services, products, or merchandise; or who perform personal services in the U.S. are considered to be engaged in trade or business in the U.S. Chapter 4 also discusses what income is "effectively connected with a U.S. trade or business", how to treat income from U.S. real estate, and the tax rate on income subject to U.S. tax.
The chapter also outlines the filing requirements for U.S. expatriates. For example, if an individual is subject to the expatriation tax and expatriated before June 17, 2008, he or she must file Form 1040NR for each year of the 10-year period following expatriation. Further, a statement must be attached to the form, listing by category (dividends, interest, etc.) all items of U.S. and foreign source income, whether or not taxable in the U.S. If an individual expatriated after June 16, 2008 and is subject to the new mark-to-market tax, he or she must file Form 1040 or Form 1040NR (with Form 1040 as a schedule) and attach Form 8854, Expatriation Information Statement (see also our November and January newsletters for more information about the expatriation tax).
For U.S. residents, non-residents and expatriates, Publication 519 is a vital first step to obtain information on tax-return filing requirements. These, in turn, should then be discussed in greater detail with tax counsel. |
| Global Update - Italy |
Italy to Close Consulates Worldwide
Due to governmental budget cuts, on June 1, 2010 Italy will close its consulates in Saarbrücken and Nuremberg (Germany), Mulhouse (France), Ghent (Belgium) and Chur (Switzerland). Honorary consuls will be appointed instead.
The cost-cutting measures are part of a plan by the Italian government to restructure its consular network and close 21 of its 119 consulates worldwide. In the second half of 2010 the missions in Mannheim and Hamburg, Germany will also be affected. Last year, Italy announced planned closures of four consulates in Australia. |
| Firm News - New Office Address |
| I am pleased to inform you of our new address as of February 1 in the heart of Munich:
Nymphenburger Str. 4
80335 Munich, Germany
Tel: +49 (0) 89 208 027 121
Fax: +49 (0) 89 208 027 450 | |
|
Please feel free to forward this newsletter to others who may have an interest in these topics. You can also browse past newsletters. If you have any questions, comments or suggestions, please e-mail me at mlh@consular-consulting.com.
Sincerely,
|
|
Magdale Labbe Henke
Attorney-at-Law (U.S.) and
Solicitor of England and Wales (non-practising)
Principal, MLH Consular Consulting
This newsletter is provided for informational purposes only and should not be construed in any way as legal advice. |
|
|
|
|
