Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for December, 2012

New USCIS Fee for Immigrants Entering the US for First Time After Consular Processing

The U.S. Citizenship and Immigration Service (“USCIS”) has announced that effective February 1, 2013, USCIS will begin collecting an additional USCIS Immigrant Fee of $165.00 from foreign nationals seeking admission as permanent residents to the U.S.    The fee will apply to immigrant visa applicants who have received their visa approval from a U.S. Consulate abroad and must be paid directly to the U.S. before the immigrants (and their families) travel to the U.S. for the first time as immigrants.

What is the USCIS Immigrant Fee?

In its press release, USCIS explains that the fee was established by the September 24, 2010 fee change rule (last time the fees were revised in a substantial manner) and will is being introduced now after collaboration between USCIS and the Department of State (“DOS”) on how to best collect the fee without disrupting the existing procedures.  The fee is imposed to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.    See Federal Register notice.

It is important to understand that this fee is in addition to the fees already collected by USCIS and DOS (via the National Visa Center).

How Should the New Fee be Paid?

The new fee will have to be paid online through USCIS website after immigrant visa applicants receive their visa package from DOS (usually the U.S. Consulate) and before they depart to the U.S.   DOS will be providing such applicants with specific information on how to submit payment when they attend their consular interview.  Acceptable methods of payment would be checking account information or debit/credit card, drawn on U.S. funds.

Who is Affected by the New Fee?

All immigrant visa applicants who process their immigrant visas through a U.S. Consulate abroad (including Canada and Mexico) will be required to pay the new fee, starting February 1, 2013.   USCIS processes approximately 36,000 immigrant visa packages (green card “activations”) each month.  Please note that permanent residency applicants who process their green cards from within the U.S. will not have to pay the new fee — for example, I-485 applicants to adjust status from within the U.S. will not have to pay the fee.   Also, prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

What Happens If the Fee is Not Paid?

The applicant will not receive a green card until the required USCIS Immigrant fee is paid.    However, failure to pay does not affect the lawful status of the applicant.   While the applicant can use their Customs and Border Protection (CBP) Form I-94, Arrival and Departure Record, for one year to document they are a lawful permanent resident, once that I-94 stamp expires, the applicant will need to possess a green card as evidence of their lawful permanent resident status.

Conclusion

We are hopeful that USCIS and DOS will establish a clear process to inform applicants, especially those who are currently undergoing their immigrant process, of the new requirement to pay the fee before the green card is produced.   Our office will continue to monitor this new fee and related procedures and provide updates.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

No comments

January 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the January 2013 Visa Bulletin which is the fourth Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement (again) in EB-2 India.   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may continue to face a very slow (if any) forward movement over the next months.  There is notable forward movement in EB-3 China of more than two and a half months.

Summary of the January 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the January 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all now current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by six (6) weeks to December 8, 2007.
  • EB-3 ROW and EB-3 Mexico move forward by five (5) weeks to February 1, 2007.  EB-3 Philippines remains unchanged at August 15, 2006, EB-3 China  moves forward by eleven (11) weeks to September 22, 2006, while EB-3 India  moves forward by only one (1) week to November 8, 2002.
  • The “other worker” category moves forward by five (5) weeks for ROW and Mexico to February 1, 2007.  It remains unchanged at August 15, 2006 for Philippines and remains unchanged (again) at July 1, 2003 for China.  It moves forward by one (1) week for India to November 8, 2002.

Summary of the January 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the January 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by three (3) weeks to December 22, 2005.   FB-1 Mexico moves forward by only one (1) week to July 8, 1993 and FB-1 Philippines moves forward by eight (8) weeks to December 22, 1997.
  • FB-2A moves forward by one (1) month to September 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by one (1) month to September 1, 2010.
  • FB-2B ROW, China and India all move forward by three (3) weeks to December 8, 2004.  FB-2B Mexico moves forward by three (3) weeks to November 22, 1992 while FB-2B Philippines moves forward by three (3) weeks to April 15, 2002.

No Progress in EB-2 India – Suggests Very Slow Forward Movement in the Future?

Similar to the past couple of months, many in the EB-2 India community have been eagerly anticipating to see what the January 2013 Visa Bulletin would look like in an effort to “predict” how quickly the cutoff dates in EB-2 India would move in the future.   Unfortunately, the January 2013 Visa Bulletin does not bring good news.   The lack of any movement in EB-2 India (again) this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.    This is the Department of State’s way to “control” the demand of visas in this category (number of new I-485 filings) and to allow USCIS to work through the number of filed and pending I-485 applications in this category (many of whom are by now eligible for AC21 porting, however).

The movements (or the lack thereof) reflected in the January 2013 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India will move very slowly over the next months.  Based on the significant retrogression two months ago and the lack of any movement this month, combined with Mr. Oppenheim’s expectations, we expect that there will be very slow and gradual forward movement in this category over the next months.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the January 2013 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments

USCIS Launches “Online Entrepreneur Resource Center”

In recent years, despite the U.S.’s rich history as a haven for ambitious immigrants, many foreigners looking to work in the U.S. have had to cope with increasingly restrictive immigration policies. As a result, the number of immigrant-founded startups in Silicon Valley, to take an example, has declined from 52.4% in 2005 to 43.9% in 2012.    A few days ago, on November 28, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas marked a significant milestone for the USCIS Entrepreneurs in Residence (EIR) initiative by launching an online resource center.   The resource center, Entrepreneur Pathways, provides entrepreneurs who seek to start a business in the United States an intuitive way to navigate the immigration process.

The Online Entrepreneur Resource Center

By launching the online resource center, USCIS acknowledged that “our nation has always attracted individuals with great drive and entrepreneurial spirit.” As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.

The Online Entrepreneur Resource Center is essentially a collection of materials describing (in a fairly cursory manner) the visa options for foreign entrepreneurs.   The guide has few sections, explaining what visa options there may be, how to file an application, what happens after approval, when an arrival can be expected, etc.   However, the descriptions and guidance provided are extremely broad and vague and are unlikely to provide an entrepreneur, willing to start a business or invest a substantial amount of funds, the level of accuracy and detail which are key for a sound business decision.

Clarifications to Options for H-1B Holders-Entrepreneurs

An interesting portion of the guide is how it deals with the option for H-1B work visa for entrepreneurs.   Our office has previously reported on the problems H-1B holders entrepreneurs face in the U.S.   Specifically, the issue of “right to control” (discussed below) effectively prevented many foreign entrepreneurs establishing a company and then having this company sponsor an H-1B for them.

By way of background, the H-1B temporary work visa program was made off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases could not be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   In subsequent guidance, USCIS has indicated that certain corporate structures may permit companies to sponsor H-1B work visas for founders/owners if there is a mechanism (such as independent board of directors) which can provide the company’s right to control over the sponsored H-1B employee/owner.

The Online Entrepreneur Resource Center provides more information on the kind of documents/information which may be needed to establish the employer-employee relationship (or the right to control).   Specifically,

If you own your company you may be able to demonstrate an employer-employee relationship if the ownership and control of your company are different.  For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment), you may be able to meet this requirement. Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes: Term Sheet, Capitalization Table, Stock purchase Agreement, Investor rights Agreement, Voting Agreement, Organizational documents and operating agreements.

This additional information is helpful as it provides a clearer guidance on what USCIS is looking for.   Essentially, it seems that they may consider the employer-employee relationship and the right to control established when the ownership (by the sponsored entrepreneur) and the control (voting, etc.) are by different parties.    In many situations, this may permit a foreign entrepreneur to qualify for H-1B; however, in many others, especially small startup companies, this structure may not be feasible or practicable.

In the welcome move, the EIR initiative announced that while the entrepreneurs will not be able to file the petition on their own behalf, in some cases the business entity that they will run or create may file as their employer. This effectively contradicts the 2010 Neufeld Memorandum’s requirement for a petitioner’s right to control.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the additional options for entrepreneurs who seek to start a business in the United States. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

No comments