Labor Immigration Law

We have clients and our office handles a number of U.S. visa applications submitted in Canada.  Accordingly, we wish to report on a new appointment service for all U.S. visa applicants in Canada, which becomes effective on September 1, 2010.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

We wish to remind our readers and clients that a new fee goes into effect starting on September 8, 2010 for Electronic System for Travel Authorization (ESTA) registration.  ESTA is a required pre-travel registration for Visa Waiver Program (VWP) travelers to the U.S.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

Many of our readers and clients are aware of the recent developments with respect to the “border security bill” passed by Congress and recently signed by President Obama into law (Public Law 111-230).

What Are the New H-1B and L-1 Filing Fees?

Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

Note that not all H-1B or L-1 cases are subject to these new fees.  These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
• To obtain authorization for an alien having such status to change employers.

It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.

Revisions of Form I-129 is Underway

Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:

USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)

Conclusion

The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers.  The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes.   However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.

In a recent announcement, USCIS, as part of their annual budget review and due to lower-than-estimated fee revenue collection, proposed a fee increase that will amount to an average increase of  10% across the board.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

Most of our clients and readers remember the summer of 2007 when USCIS raised the filing fees for certain services by a substantial amount (in all fairness, USCIS decreased the fees for certain services) (see the archived May 29, 2007 USCIS press release).  One of the motivating forces behind this fee increase was the collection of an additional funds which would lead to a 20 percent reduction in average application processing times for I-90, I-140, I-485 and N-400 petitions.

The jury is still out on whether there is a notable and sustainable decrease in processing times for petitions filed with USCIS.  However, in an article from today Business Week reports that the government has collected much less (hundreds of millions of dollars) than originally anticipated when the new USCIS fees went into effect.

The 2007 USCIS fee increase had a collection target of an additional $1 billion.  However, the agency is now expecting that it would collect about $282 million short of the $2.33 billion target for the fiscal year ending on September 30, 2009.

According to Director Majorkas, “[g]iven the current economic climate, we anticipate that the current filing trend will continue. We will therefore continue to make the necessary adjustments while remaining dedicated to delivering on our public service mission.”  As a result, the agency costs are expected to far exceed its revenue and will have to seek ways to bridge its budget shortfall.  There are requests for money from Congress and it is possible that there may be some fee adjustments, although no official information has been made available.

The USCIS Ombudsman has released a recommendation report which urges overhaul of the USCIS fee payment system.  USCIS is considered a “pay-for-service” government agency where petitioners pay for the provision of a particular service.  However, the current system which accepts checks or money orders for most, and credit cards for a few e-filing-enabled forms, has many flaws which in some cases result denial of benefits to petitioners who are otherwise eligible.

Numbers of Fee Rejections

The numbers of fee-based rejections of immigration petitions are  staggering.  Alhough most of the service centers do not keep track of rejections solely based on fees, the potential numbers are alarming.  In December 2008, there were up to 4,000+ possible fee rejections in the California Service Center, 5,000 in the Nebraska, 7,000 in Texas and slightly over 6,000 in Vermont.  The Chicago Lockbox Operations Division,  however, keeps track of the fee rejections and it estimates that 3.2 percent of the 10,000-12,000 filigs per day are rejected for fee-related reasons.  This adds up to 300-400 petitions rejected per day and this is only for the Chicago Lockbox.

Common Mistakes and Problems

There are  few common problems and mistakes which contribute to the majoriry of rejected petitions:

• No amount written – please make sure you write the exact amount of the fee, USCIS will not write the amount for you;
• Incorrect amount – verify that the fee is correct and that there are no additional fees, such as biometric, etc.
• Written and numerical amounts do not match and missing signature – this is most likely an oversight by the check drafter but, unfortunately, it is common;
• Stale-dated checks – in some cases USCIS would delay the receipting of a petition and will not deposit the check for a number of months and the check will become “stale” – to avoid this, make sure the check is dated as of the date the check is sent to USCIS or shortly in advance;
• Incorrect payee – most of the USCIS filing fees should be issued to Department of Homeland Security but this can vary and the instructions for each form should be consulted before writing the check;
• Check or money order not submitted through a U.S. bank or in U.S. dollars – the checks or money orders must be in U.S. dollars and drafted on U.S. bank.

Recommendations

The report has several recommendations for USCIS with which we, at the Capitol Immigration Law Group, agree fully:

1. Institute a batch filing system that would enable high volume filers to pay USCIS fees online;
2. Institute an online shopping cart mechanism that would simplify the process of identifying appropriate USCIS forms, calculating related fees, and submitting payments;
3. Expand the payment options within the e-Filing system to include all USCIS fees; and
4. Implement additional visual and written aids within current instructions to ensure that payments are submitted correctly.

Additionally, language barriers and complicated instructions sometimes contribute to one or more of the above mistakes.  The Ombundsman urges USCIS to revise its fee collection procedures to address not only the mechanics of the fee collection but also the complexity of the immigration filings system and the applicable fees.

The Government Accountability Office (GAO) has produced another set of two excellent and very revealing reports – one reviewing the Immigration and Naturalization Fees and one suggesting improvements for the setting of USCIS fees.

The two reports are very revealing in describing USCIS’s budgetary items, its heavy reliance on filing fees to finance operations and some inefficiencies created by the fact that USCIS is self-funding to a large extent.  The reports also criticize the July 2007 fee increase which resulted in an enormous spike in applications and, according to the GAO, surprised USCIS.  One of my favorite examples was:

USCIS’s lack of timely, comprehensive fee reviews prior to 2007 led to the need for an average fee increase of 86 percent. This contributed to a surge in application volume as applicants attempted to submit their applications before the fee increase took effect, resulting in costly operational challenges. For example, the number of applications submitted increased an unprecedented 100 percent in July 2007 over the prior month, exceeding storage capacity. At the Texas Service Center unprocessed applications were stored outside in six rented 10-by-40-foot containers, double-locked, and monitored by a full-time security guard.

Yes, according to the GAO, at least some of the applications filed at the Texas Service Center were stored outside, in a 10-by-40 container (like this one), exposed to weather and other elements.

The USCIS has released a chart describing its progress towards meeting the fiscal year (FY) 2008 and FY 2009 processing time goals.  Attached is a PDF of the chart with a couple of annotations highlighting some important lines that are generally of high interest to our clients and readers.

What may be of the greatest interest are the current average processing time compared to the FY 2008 and FY 2009 goals for the following categories :

• I-140, Immigrant Petition for Worker – current goal:  6 months, FY 2009 goal: 4 months.  Actual average time: 11.8 months.
• I-485, Adjustment of Status- current goal: 6 months, FY 2009 goal: 4 months.  Actual average time: 13.6 months.
• I-131, Reentry Permit – current goal: 3 months, FY 2009 goal: 2.5 months.  Actual average time: 3.9 months.

The USCIS has acknowledged that the goals were set before the new fee rule came into effect during the summer of 2007 and which resulted significant increase in the filings.  However, USCIS has declined to realistically adjust (decrease) the goals for FY 2008 and 2009.  As a result, although we expect that the processing times will improve, the gap between the goals for FY 2009 and the actual processing times will remain significant.