Immigration Law Update
March 2010 |
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| Greetings! |
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Welcome to the March edition of our Immigration Law Update. With the beginning of Spring, comes its
telltale signs - warmer weather (sometimes), more daylight, H-1B filings and tax returns. We hope we can shed some (day)light on the latter two issues and other immigration law topics. |
| H-1B Filing Begins April 1 |
On April 1, 2010, the United States Citizenship and Immigration Service (USCIS) will begin accepting H-1B petitions for fiscal year (FY) 2011 against the 65,000 H-1B cap. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master's degree or higher are exempt from the cap.
If USCIS receives more than enough petitions to meet the cap, it will randomly select petitions from all the petitions received on the final receipt date to reach the numerical limit. The cap-subject petitions not selected will be rejected, as will those petitions received after the final receipt date.
Petitions for new H-1B employment at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the annual cap. Additionally, petitions filed on behalf of current H-1B workers who have been previously counted against the cap do not count again towards the H-1B cap.
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| Update on Implementation of New Electronic Visa Application Form DS-160 |
As reported last month, many consulates worldwide implemented the new Nonimmigrant Visa Electronic Application Form DS-160 as of March 1. The implementation process has not been without hiccups, however, due to significant technical glitches. The on-line application would time-out often and all information entered into the form would be lost. Some consulates had been accepting the old DS forms in lieu of the new DS-160 until the new system was fixed. Most consulates have now indicated that the problems have been resolved. Nevertheless, applicants should not leave this step in the visa application process to the last minute in case problems still arise. Furthermore, applicants are advised to regularly save the application to a file on your computer in case the system times out, so that the information entered can be easily uploaded onto the form again. |
| Greece Joins Visa Waiver Program |
On March 9, 2010, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the designation of Greece as a member of the Visa Waiver Program (VWP). Greek citizens will be permitted to travel to the United States for up to 90 days without obtaining a visa.
Greece joins 35 other nations already participating in VWP. Like VWP travelers from other countries, Greek citizens will be required to apply for an Electronic System Travel Authorization (ESTA) through the Web-based system at https://esta.cbp.dhs.gov, operated by the Customs and Border Protection. Greek citizens will be able to visit the United States without visas starting April 5, 2010. |
| Tax Tip - This Month: Obligation to Report Foreign Bank and Financial Accounts; Foreign Earned Income Exclusion |
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Report of Foreign Bank and Financial Accounts (FBAR)
Though tax return filing is just around the corner, there is another critical filing obligation that should not be overlooked. U.S. citizens, permanent residents and tax residents are required to complete the FBAR if they own or assert any control over a foreign financial account, including a bank account, brokerage account, mutual fund or other type of financial account. These individuals must file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR) with the IRS Department of Treasury, if
- The person has a financial interest in, or signature authority (or other authority that is
comparable to signature authority) over one or more accounts in a foreign country, and
- The aggregate value of all foreign financial accounts exceeds $10,000 at any time during the
calendar year.
The FBAR Form must be received by the IRS on or before June 30. However, unlike tax returns, the FBAR is considered filed on the day it is received, not on the date it is postmarked.
Furthermore, the form is not filed together with your tax return but must be filed with the Department of Treasury at P.O. Box 32621, Detroit, MI 48232-0621.
Individuals subject to FBAR filing should take this obligation very seriously. Since last year, the U.S. government has been tightening its focus on tax compliance issues and off-shore accounts. Therefore, it behooves individuals and companies to make sure that they are indeed compliant with tax regulations or to seek out tax advice expediently.
Foreign Earned Income Exclusion
If you are living and working abroad you may be entitled to the Foreign Earned Income Exclusion when completing your U.S. Federal tax return.
The IRS has indicated five important facts about the exclusion:
1. U.S. Citizens and resident aliens who live and work abroad may be able to exclude all or
part of their foreign salary or wages from their income when filing federal tax return. Compensation
for personal services or certain foreign housing costs may also be excluded.
2. To qualify for the foreign earned income exclusion, a U.S. citizen or resident alien must have a tax
home in a foreign country and income received for working in a foreign country. The taxpayer
must also meet one of two tests: the bona fide residence test or the physical presence test.
3. For 2009, the maximum exclusion is up to $91,400 per qualifying person.
4. The foreign earned income exclusion and the foreign housing exclusion or deductions are claimed
using Form 2555, Foreign Earned Income. Certain taxpayers claiming only the foreign income exclusion should use Form 2555-EZ, Foreign Earned Income Exclusion.
5. Once the foreign earned income exclusion is chosen, a foreign tax credit or deduction for taxes
cannot be claimed on the excluded income.
For more information about the Foreign Earned Income Exclusion see Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad.
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| Global Update |
Potential Delays in Processing of Work Permits in Warsaw
As of 1 January 2010, work permits are now issued by the Mazowieckie Provincial Office in Warsaw, which was already responsible for issuing residence permits. Approval times for work permits now may increase from 30 days to a maximum of 60 days if the Office needs to request additional information or documentation to make a decision - a new 30 day processing timeframe begins if additional information is requested by the Office. Previously, total processing time for a work permit application, even where additional documentation was requested, was limited to 30 days. Accordingly, companies should be prepared for possible delays of up to one month and plan appropriately when preparing international assignments to Warsaw.
Changes to EU Long-stay Visas
The European Union Foreign Ministers Council has adopted a regulation regarding the movement of third country nationals with long-stay visas ("D" visas) within the Schengen area. Third country nationals (i.e., non-EU and EEA nationals) with a D visa will now be treated the same as third country nationals holding valid residence permits in an EU member state within the Schengen area.
Accordingly, they will be able to move freely for up to three months in any six-month period within the territories of the other Schengen states. Previously, a third-country national holding a D visa for stays exceeding three months was allowed to stay only in the Schengen state which issued the visa and to transit through other member states only in order to reach the country which issued the visa. However, these individuals were not allowed to travel to the other Schengen states during their stay nor transit through the other states when returning to their countries of origin. The new regulation will hopefully now alleviate this problem.
Additionally, the new regulation states that long-term visas shall have a period of validity of no more than one year. If an EU member state allows an alien to stay for more than one year, the long stay visa must be replaced by a residence permit before the long-term visa expires.
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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,
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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. |
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