Enforcement Advisor

Your Reliable Source of Worksite Enforcement, Employer Compliance & Business Immigration News
Volume 3, Issue 8August 2010
In This Issue
New Fees for Certain H-1B and L-1 Petitions
U.S. District Court Dismisses Lawsuit Challenging "Anti-Contractor" H-1B Memo
Priority Dates Advance for Most Employment-Based Immigrant Visa Categories
_____________ 
 
New Fees for Certain H-1B and L-1 Petitions
 
President Barack Obama signed into law H.R. 6080, the Emergency Supplemental Appropriation for Border Security Act on August 13, 2010. Section 402 of the Act requires an additional fee of $2,000 for H-1B petitions and an additional fee of $2,250 for certain L-1 petitions filed between August 13, 2010 and September 30, 2014, where the petitioner employs 50 or more individuals in the U.S. and more than 50% of its employees are in H-1B or L-1 nonimmigrant status.
 
USCIS stated that it is in the process of updating the Form I-129, Petition for a Nonimmigrant Worker, to reflect this new provision, but advises that while these changes are pending and to avoid a request for evidence (RFE) and potential delays in processing, petitioners should include a cover letter with the filing that explains whether they are required to pay the additional fee or explains why it is not required.
Quick Links
 

IP logo
 
Visit us at:
Join Our Mailing List
U.S. District Court Dismisses Lawsuit Challenging "Anti-Contractor" H-1B Memo 

The U.S. District Court for the District of Columbia recently dismissed the lawsuit challenging the January 8, 2010 USCIS memorandum on employer-employee relationships in H-1B petitions primarily involving third-party placements. In Broadgate, Inc. v. USCIS, the plaintiffs Broadgate, Inc., Logic Planet, Inc., DVR Softek, Inc., Techserve Alliance, and the American Staffing Association, claimed that the memo was an illegal change in the rules of the H-1B program.

 
The memo provides field guidance concerning employer-employee relationships required to support H-1B petition approvals. H-1B regulations reguire an H-1B petitioner to show that it has the authority to "hire, pay, fire, supervise or otherwise control" the work of the H-1B employee.
 
The district court dismissed the lawsuit on August 13, noting in part that the memo is policy guidance that does not bind USCIS adjudicators and that the interpretations do not clearly contradict the regulations.  
 
In situations where a staffing company or IT consulting company is the H-1B sponsor, or in situations where the H-1B worker will work at a third-party location, H-1B petitioners should pay special attention to the memo for guidance on how to demonstrate the employer-employee relationship necessary to obtain H-1B approval.
____________________
 
Priority Dates Advance for Most Employment-Based Immigrant Visa Categories 
 
 

The Department of State's September Visa Bulletin shows an advance in priority date cut-offs for nearly all employment-based immigrant visa categories, similar to last month. In some cases, these advances exceed the State Department's earlier projections of visa availability through the end of the current fiscal year.

 

In the second employment-based (EB-2) preference category, priority dates advanced by just over seven weeks for China and India, to May 8, 2006, and remains current for all other countries. In the third employment-based (EB-3) preference category for professionals and skilled workers, cut-off dates advanced by six and one-half months for most countries, to December 15, 2004, and one month for China, to October 22, 2003, but are unchanged for India, at January 1, 2002, and remain unavailable for Mexico. In the EB-3 other worker subcategory, priority dates advanced just over 10 months for most countries, to March 22, 2003, but remain at January 1, 2002 for India and continue to be unavailable for Mexico. All other employment-based categories remain current.

 

The September 2010 priority date cut-offs for the employment-based immigrant categories are as follows:

 

EB-1: Current for all countries.

EB-2: China - May 8, 2006; India - May 8, 2006; all other countries - current.

EB-3 Professionals and Skilled Workers: China - October 22, 2003; India - January 1, 2002; Mexico - Unavailable; all other countries - December 15, 2004.

EB-3 Other Workers: India - January 1, 2002; Mexico - Unavailable; all other countries - March 22, 2003.

EB-4: Current for all countries.

EB-5: Current for all subcategories and countries.

 

These dates are estimates only. Immigrant visa availability could change if demand changes, and retrogression or unavailability in a visa category is possible before the fiscal year ends. 

The priority date is the date that the labor certfication application or  Form I-140, Immigrant Petition for Alien Worker, was filed. When the priority date is current, an immigrant visa becomes available to the foreign national beneficiary.