Immigration Law Update
June 2010 |
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Greetings! |
Welcome to the June edition of our Immigration Law Update. This month we have news about more visa and immigration application fee increases, as well as important tips and details for filing the Report of Foreign Bank and Financial Accounts (FBAR) form that is due June 30, including information on certain extensions and exceptions from filing. |
H-1B Cap Update |
As of June 25, 2010, USCIS has received approximately 23,500 H-1B cap-subject petitions. Additionally, USCIS has received 10,000 H-1B petitions for aliens with advanced degrees. So availability still remains towards the 65,000 general cap and 20,000 advanced degree cap. |
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More Visa and Petition Fee Increases |
Due to an independent cost of service study, the Department of State (DOS) has decided to increase fees for various visa and consular services:
Immigrant Visa Processing
In the past, this fee, regardless of category, was $355. Now DOS has created a tiered immigrant visa application processing fee structure:
- The application fee for a family-based visa (processed on the basis of an I-130, I-600 or I-800 petition) will be $330.
- The application fee for an employment-based visa (processed on the basis of an I-140 petition) will be $720.
- Other immigrant visa applications (including for diversity visa applicants, I-360 self-petitioners, special immigrant visa applicants, and all others) will have a fee of $305.
In addtion, the immigrant visa security surcharge will lincrease from $45 to $74.
Additional Passport Pages
Diversity Lottery Fee
The Department is raising the fee paid by winners of the Diversity Visa lottery who apply for immigrant visas from $375 to $440.
Affidavit of Support Review
An affidavit of support review fee is charged for all affidavits of support reviewed at the National Visa Center in connection with an application for an immigrant visa. The Department is increasing the fee from $70 to $88.
Furthermore, the U.S. Citizenship and Immigration Service (USCIS) also plans to increase fees for immigration benefit applications. Below is a chart of the proposed changes (decreases in some cases):
Application/Petition Description Current Fees Proposed Fees I-90 Application to Replace Permanent Resident Card $290 $365 I-102 Application for Replace/Initial Nonimm Arrival-Dep Document $320 $330 I-129 Petition for a Nonimmigrant worker $320 $325 I-129F Petition for Alien Fiance(e) $455 $340 I-130 Petition for Alien Relative $355 $420 I-131 Application for Travel Document $305 $360 I-140 Immigrant Petition for Alien Worker $475 $580 I-290B Notice of Appeal or Motion $585 $630 I-360 Petition for Amerasian, Widow(er) or Special Immigrant $375 $405 I-485 Application to Register Permanent Residence or Adjust Status $930 $985 I-526 Immigrant Petition by Alien Entrepreneur $1,435 $1,500 I-539 Application to Extend/Change Nonimmigrant Status $300 $290 I-600/600A Orphan Petitions $670 $720 I-687 Application for Status as a Temporary Resident $710 $1,130 I-690 Application for Waiver on Grounds of Inadmissibility $185 $200 I-694 Notice of Appeal of Decision $545 $755 I-698 Application to Adjust Status From Temp to Permanent Resident $1,370 $1,020 I-751 Petition to Remove Conditions on Residence $465 $505 I-765 Application for Employment Authorization $340 $380 I-817 Application for Family Unity Benefits $440 $435 I-824 Application for Action on an Approved Application or Petition $340 $405 I-829 Petition by Entrepreneur to Remove Conditions $2,850 $3,750 Civil Surgeon Designation $0 $615 I-924 Application for Regional Center - Immigrant Investor Pilot Program $0 $6,230 N-300 Application to File Declaration of Intention $235 $250 N-336 Request for Hearing on a Decision in Naturalization Proceedings $605 $650 N-400 Application for Naturalization $595 $595 N-470 Application to Preserve Residence for Naturalization Purposes $305 $330 N-565 Application for Replacement Naturalization/Citizenship Document $380 $345 N-600/N-600K Naturalization Certificate Applications $460 $600 Waiver Forms (I-191, I-192, I-193, I-212, I-601, I-612) $545 $585 Immigrant Visa $0 $165 Biometric Services $80 $85
These fee changes are scheduled to take effect July 13, 2010. |
Tax Tip - This Month: FBAR in Detail - Who doesn't have to file? |
By Melissa Gillespie, Of Counsel
International Tax Counsel
Report of Foreign Bank and Financial Accounts (FBAR) due June 30
As explained in past newsletters, Form TD F 90-22.1 must be filed by June 30 with the Treasury Department: by any U.S. person who, at any time during a previous calendar year, had a financial interest in, or signature authority over, any foreign financial account located in a foreign country with an aggregate value of more than $10,000. Important definitions, exceptions, tips for completing the form and key information are outlined below. Keep in mind that failure to file FBAR when required can subject an individual to criminal penalties, as well as a civil penalty of the greater of $100,000 or 50% of the amount in the foreign account at the time of the violation for each year the individual did not report. RECENT ACTIVITY
IRS Notice 2010-23-continuation of Notice 2009-62: this notice extends the FBAR filing deadline to June 30, 2011 for persons with signature authority but no financial interest in a financial account. The notice also provides that a financial interest in or a signature authority over a "commingled fund" other than a mutual fund is not required to be reported on an FBAR, (so private equity funds and hedge funds are not required to be reported for 2009 and earlier years). IRS Announcement 2010-16-continuation of Announcement 2009-51 extends the suspension of the FBAR reporting requirement for those who are not U.S. citizens, U.S. residents or domestic entities. There are new Proposed Regulations RIN 1506-AB08 (the "Proposed Regs"), as issued by the Treasury Department's Financial Crimes Enforcement Network (FINCEN). DEFINITIONS
U.S. Person For June 30, 2010 filing deadline (as found in the July 2000 version of the FBAR form): United States Person means (1) a citizen or resident of the United States, (2) a domestic partnership, (3) a domestic corporation, or (4) a domestic estate or trust After June 30, 2010: Pursuant to the Proposed Regs, the above definition should remain. A disregarded entity for tax purposes must file the FBAR if otherwise required (not considered disregarded for FBAR purposes). Financial Interest If the owner of record of the account or the person who has legal title to it is any of the following:
- A U.S. person that is the owner of record of the account or has legal title to it, regardless of whether the account is maintained for the benefit of the U.S. person or other U.S. or non U.S. persons;
- A person that is acting as an agent, nominee, attorney or otherwise on behalf of the U.S. person;
- A corporation in which the U.S. person owns, directly or indirectly, more than 50% by vote or by value;
- A partnership in which the U.S. person owns an interest in more than 50% of the "profits" (defined as the U.S. persons distributive share of income, taking into account any special allocations);
- A Trust in which the U.S. person either has a direct or indirect present beneficial interest in trust assets, or from which the U.S. person receives more than 50% of current income;
- A Trust or a person acting on behalf of the Trust, which was established by a U.S. person and for which a US Trust protector has been appointed
Foreign Account
This includes bank accounts (including savings, demand, checking, deposit, time deposit), debit card and prepaid credit card accounts, securities accounts and derivatives. Not included in definition: Individual bonds, notes or stock certificates or unsecured loan to a foreign trade/business. Notice 2010-23 provides that persons with a financial interest in, or signature authority over, a foreign commingled fund that is a mutual fund are required to file an FBAR.
SIGNATURE AUTHORITY Notice 2010-23 has once again extended the filing requirement for persons with signature authority and no financial interest in a foreign account, to June 30, 2011. COMPLETING THE FORM Part I- filer information: Name, address, TIN. If no TIN, the form requests foreign identification information (Lines 1-13). If the filer has a financial interest in 25 or more foreign financial accounts, the filer should check the yes box, sign and date the report (Items 44, 45 and 46) and leave blank Part II (Continuation of Separate Accounts) or Part III (Joint Accounts) of the report (Line 14). Filer must be able to provide complete information upon request. Part II (if owned separately) and Part III (if owned jointly):Requests information about the accounts: Information such as: name and address of foreign bank; maximum dollar value in that calendar year; and type of account (Part II- lines 15-23; Part III- lines 15-33) If owned jointly, must provide how many joint owners, excluding the filer, and the name of the principal joint owner, excluding the owner. (Lines 24-33) If owned jointly by husband and wife, may file one FBAR but only if the joint account as reported is the only account by either spouse. If so, then spouse must sign the filer spouse's FBAR to fulfill his/her filing obligation. If either has an additional FBAR filing requirement for another account, then a separate FBAR must be filed which includes all accounts (including the jointly owned account) Maximum value of account (Line 15):
Maximum amount of account equals: greatest value of currency, as reported in that account's currency, or nonmonetary assets in the account during that calendar year. If non-U.S. currency, then must convert the maximum value of each account into U.S. dollars by using the Treasury's Financial Management Service December 31 rate ( www.fms.treas.gov). Part IV- applies when filer has signature authority over but no financial interest in the account Part V-when filer is filing a Consolidated report:A corporation which owns directly or indirectly more than a 50 percent interest in one or more other entities required to file this report will be permitted to file a consolidated report on TD F 90-22.1, on behalf of itself and such other entities. The corporation also must check box "d" in Item 2. EXCEPTIONS TO FILING THE FBAR There are some exceptions to the reporting requirement. These exceptions include:
- Accounts in U.S. military banking facilities operated by a United States financial institution to serve U.S. Government installations abroad.
- An officer or employee of a bank is not required to report having signature or other authority over a foreign account if the officer or employee has no personal interest in the account.
- An officer or employee of a domestic corporation whose equity securities are listed on a national securities exchange or which has assets exceeding $10 million and 500 or more shareholders of record, is not required to report having signature or other authority over a foreign account if the person has no personal financial interest in the account, and if he/she has been advised in writing by the chief financial officer of the corporation that the corporation has filed a current report that includes the foreign account.
- Correspondent or "Nostro" accounts are not required to be reported
MISCELLANEOUS
- Form 90-22.1 must be received by June 30 by Department of Treasury (not postmarked)
- Filed separately to Department of Treasury - not a copy with 1040
- Must keep copies of filed FBAR for past 5 years
- Statute of Limitations- IRS has 6 years to assess civil penalties (31 U.S.C. 5321(b)(1)).
- Fax signatures not accepted
- A practitioner must comply with FBAR rules as part of his or her due diligence obligation under Section 10.22 of Circular 230
- If do not meet filing requirement for Schedule B and have a foreign account, must file Sched B.
- Pursuant to Notice 2010-23, if filer has no other reportable foreign financial accounts and qualifies for the filing relief as provided, the filer should check the "no" box in response to FBAR-related questions found on federal tax forms for 2009 and earlier years that ask about the existence of a financial interest in, or signature authority over, a foreign financial account.
- Section 6103- information collected on the FBAR is not subject to the taxpayer confidentiality provisions of Section 6103; thus, it can be shared with any law enforcement agency that may request it
Please contact us if you have any questions about FBAR filing or other tax filing obligations, or if you need assistance with voluntary disclosure issues as a result of failure to meet past filing obligations. |
Global Update |
Super Saturday Visa Appointments in China
The U.S. Embassy in Beijing, along with four U.S. consulates general across China, will be open on Saturdays over the next few weeks to accommodate thousands of Chinese travelers seeking visas to visit the United States.
Trade and tourism between China and the United States have grown dramatically over the past couple years. In 2009, U.S. consulates in China issued more than 487,000 visas to Chinese travelers. 66% of these visas were for business and tourism. Growth in 2010 has been even more dramatic - China's 2010 visa load is up 28 percent over the same period last year. Therefore, this step has been taken to hopefully facilitate visa processing.
New Italian Immigration Regulations
The Italian Government enacted a new decree at the beginning of June that will introduce substantial new requirements for immigration permits. The provisions have not yet been fully enforced but once they are, they will apply to all non-EU citizens who enter Italy for the first time with a permit to remain for at least 1 year or more. Among the requirements, foreigners will have to take integration courses to ensure they learn Italian, and are familiar with the Italian culture and lifestyle. The purpose of the new regulation is to ensure that non-EU citizens can fully integrate into their Italian communities.
For more information, feel free to contact us with any questions. |
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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 [email protected].
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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