 Immigration Law Update
January 2011 |
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| Greetings! |
Welcome to the New Year 2011 and to the January edition of our Immigration Law Update. The new year brings of course new regulations and significant changes that companies and individuals will need to keep in mind. |
| H-1B Cap Reached | |
As of January 26, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011 (October 1, 2010 - September 30, 2011). This is the final receipt date for H-1B petitions.
The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.
USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.
The process starts all over again as of April 1, 2011 when petitions can be filed for FY 2012, with an earliest possible employment start date of October 1, 2011. . |
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| New Export Control Attestation Requirement on Form I-129 | |
With the new version of Form I-129 "Petition for a Nonimmigrant Worker" released by USCIS on November 23, 2010, came new export control attestations that employers need to take note of. Though USCIS has been accepting only the new version of the form as of December 23, 2010,
petitioners will not be required to complete Part 6 "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States" until February 20, 2011, giving employers time to clarify export license issues.
USCIS will require employers filing Form I-129 for H, L and certain O visa petitions on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license must obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker. This attestation must be signed by the employer under penalty of perjury.
U.S. law prohibits the "export" of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting activities. Technology or source code is considered "released" for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national
Therefore, to properly complete the new I-129 form, before releasing such technology or technical data to the foreign national an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license must be obtained from the Department of Commerce Bureau of Industry and Security (BIS), which administers EAR, or the Department of State Directorate of Defense Trade Controls (DDTC), which administers ITAR.
Clearly, petitioners will have to carefully scrutinize whether technology or data will be accessed by prospective foreign national employees and what licenses may be required. These attestations cannot be taken lightly as employers are attesting under penalty of perjury and any misrepresentation would be a violation of federal law. Therefore it is critical to consult an attorney with expertise in export control law.
For more information, the BIS offers a series of six training modules called "Essentials of Export Control", which can be downloaded in .pdf format. |
| USCIS Beta-Tests New Data Validation Tool for Petitions - VIBE |
USCIS has started beta-testing a new web-based tool to validate basic information about companies or organizations petitioning to employ alien workers. The Validation Instrument for Business Enterprises (VIBE) uses commercially available data to validate this information through an independent information provider (IIP). As a result, employers and applicants may begin seeing VIBE-related Requests for Evidence (RFEs) on applications that are filed with USCIS.
Currently, when adjudicating employment-based petitions, USCIS primarily relies on documentation supplied by the petitioning company to establish the petitioner's eligibility for the requested classification. The VIBE Program will allow USCIS to electronically receive commercially available information from an IIP about a petitioning company or organization, including:
- Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
- Financial standing, including sales volume and credit standing
- Number of employees, including onsite and globally
- Relationships with other entities, including foreign affiliates
- Status, for example whether it is a single entity, branch, subsidiary or headquarters
- Ownership and legal status, such as LLC, partnership or corporation
- Company executives
- Date of establishment as a business entity
- Current physical address
USCIS Officers will use the information provided from VIBE to verify the petitioner's qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, USCIS will use VIBE to confirm that the petitioner has a foreign affiliate. In cases where petitioners must establish ability to pay, USCIS can use information from VIBE to confirm the petitioners' financial viability. If there are inconsistencies or other issues as a result of information supplied by VIBE, USCIS will issue an RFE or a Notice of Intent to Deny (NOID) to the petitioner. A final decision will be made based on the totality of the circumstances.
Classifications Subject to VIBE Validation
The following I-140 employment-based immigrant classifications will be included in VIBE:
- E12 Outstanding professor or researcher
- E13 Multinational executive or manager
- E21 Member of professions holding an advanced degree or an alien of exceptional ability (except National Interest Waiver petitions)
- E31 Skilled Worker
- E32 Professional
- EW3 Unskilled/Other Worker
The following I-129 employment-based nonimmigrant classifications will also be included in VIBE:
- E-1 Treaty Trader
- E-2 Treaty Investor
- E-3 Member of specialty occupation who is a national of the Commonwealth of Australia
- H-1B Specialty occupation worker
- H-1B1 Specialty occupation worker from Chile or Singapore
- H-1B2 Worker performing services related to a Department of Defense (DOD) cooperative
research and development project or co-production project - H-1B3 Fashion model of distinguished merit and ability
- H-2A Temporary or seasonal agricultural worker
- H-2B Temporary non-agricultural worker
- H-3 Trainee or special education exchange visitor
- L-1A Intra-company transferee in a managerial or executive position
- L-1B Intra-company transferee in a position utilizing specialized knowledge
- LZ Blanket L petition
- Q-1 International cultural exchange visitor
- R-1 Religious worker
- TN NAFTA professional from Canada or Mexico
At this time, the following classifications will not be subject to VIBE due to the very unique eligibility requirements for these classifications:
- E11 Individuals of extraordinary ability
- E21 National interest waiver
- EB-5 Immigrant investor
- O Individuals with extraordinary ability or achievement (including essential support personnel)
- P Internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)
Petitioners should be prepared for higher incidences of RFE's from USCIS should VIBE not be able to adequately validate a company's data. Employers should be sure to file petitions early to take into account possible delays in processing due to VIBE checks and to ensure that petitioned-for workers will be able to start assignments when planned.
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| Tax Tip - Tax Filing Season Begins - (A little) Extra Time to File |
April 18 Filing Deadline This Year Taxpayers will have until Monday April 18, 2011 to file their 2010 tax returns and pay any tax due because Emancipation Day, a holiday observed in the District of Columbia, falls this year on Friday, April 15. By law, District of Columbia holidays impact tax deadlines in the same way that federal holidays do; therefore, all taxpayers will have three extra days to file this year. Taxpayers requesting an extension will have until Oct. 17 to file their 2010 tax returns. Taxpayers with foreign accounts should be sure to properly report income from these accounts and file the appropriate forms (e.g., FBAR) on time to avoid stiff penalties. The IRS has stepped up its efforts to track down offshore accounts and will continue its focus on offshore tax compliance. Therefore, taxpayers with offshore accounts should consult their tax advisors regarding taxes that may have to be paid on income from these accounts. This is especially crucial for U.S. citizens and lawful permanent residents who reside overseas. Recent Tax Law Changes Impacting When Some Taxpayers Can Start Filing
Tax law changes enacted by Congress and signed by President Obama in December mean some taxpayers need to wait until February 14 to file their tax returns in order to give the IRS time to reprogram its processing systems.
Taxpayers who need to wait to file include:
- Taxpayers Claiming Itemized Deductions on Schedule A. Itemized deductions include mortgage interest, charitable deductions, medical and dental expenses as well as state and local taxes. In addition, itemized deductions include the state and local general sales tax deduction that was also extended and which primarily benefits people living in areas without state and local income taxes. Because of late Congressional action to enact tax law changes, anyone who itemizes and files a Schedule A will need to wait to file until February 14.
- Taxpayers Claiming the Higher Education Tuition and Fees Deduction. This deduction for parents and students - covering up to $4,000 of tuition and fees paid to a post-secondary institution - is claimed on Form 8917. However, there will be no delays for the many parents and students who claim other education credits, including the American Opportunity Tax Credit extended last month and the Lifetime Learning Credit.
- Taxpayers Claiming the Educator Expense Deduction. This deduction is for kindergarten through grade 12 educators with out-of-pocket classroom expenses of up to $250. The educator expense deduction is claimed on Form 1040, Line 23 and Form 1040A, Line 16.
Though the IRS will start accepting these tax returns as of February 14, taxpayers affected by the delay who use e-filing and commercial tax software can begin preparing their tax returns immediately because many software providers are ready now to accept these returns. The software providers will hold onto the returns and then electronically submit them after the IRS systems open on Feb. 14 for the delayed forms.
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| Global Update |
 UK ends Tier 1 (General) applications from overseas
As of December 23, 2010, the UK Government was no longer accepting applications under Tier 1 (General) from abroad. As a result, it is no longer possible to apply to enter the UK under Tier 1 (General) from overseas, although applications made from within the UK to the UK Border Agency will continue to be accepted.
Taiwanese Nationals Get Visa-Free Access to EU
As of January 11, 2011, Taiwanese nationals wishing to visit the 25 Member States of the Schengen area or Bulgaria, Romania and Cyprus for up to 90 days on business, as tourists or family visitors will no longer require a visa. The exemption also applies to Andorra, Faroe Islands, Greenland, Liechtenstein, Monaco, San Marino and the Vatican. In 2009, more than 175,000 Schengen visas were issued in Taiwan and the number of visitors to the EU is now expected to increase by at least 30%, as a result of the visa-free regime.
Currently, the Schengen area includes 22 EU Member States and three associated States (Norway, Iceland and Switzerland). Once third-country nationals enter the Schengen area, they can move freely from one Member State to another for a maximum period of three months within a half year.
The short-stay visa waiver for Taiwanese nationals will not apply to "overseas" passport holders whose travel document does not contain an identity card number. Furthermore, Taiwanese wishing to stay in the Schengen area more than three months, or to live, work, marry or study there for longer than three months will need to obtain a national visa from the Member State.
Based on the principle of reciprocal treatment, as of November 11, 2010 Taiwan granted visa-free travel to the nationals of Romania, Bulgaria and Cyprus.
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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-practicing)
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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