12.06.2010 December 2010 Immigration Update
By: William J. Benos

Human Human Resources (HR) Tips of the Month.
The time has come when employers should again be mindful that the H-1B cap may soon be reached for the current fiscal year. U.S. Citizenship and Immigration Services (USCIS) reported as of November 30, 2010 that 50,400 H-1B cap-eligible petitions have been filed against the “regular” cap amount of 65,000, and 18,400 H-1B cap-eligible petitions have been filed against the “master’s exemption” cap amount of 20,000. H-1B petitions are filed by employers on behalf of foreign workers who will be employed in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. Even though many employers may find themselves mired in a slow economy, the fact that the pace of H-1B petition filing appears to be picking up would indicate that it would be prudent for such employers to reconsider the timing of their strategic hiring decisions.

Our Tip Regarding the Urgency to File Your H-1B Petitions for New Workers: In light of the fact that the H-1B cap may be reached any time now, employers should make it a priority to determine whether or not they will be hiring any foreign workers for specialty occupation positions. If such hiring is contemplated in the near term, the employer should initiate the H-1B petition process sooner rather than later while H-1B cap availability still exists. When the H-1B cap limits are met, possibly in the next few days or weeks, the filing of H-1B petitions will not be allowed again until April 1, 2011 for employment start dates commencing on October 1, 2011.

Our Tip Regarding H-1B Filing Preparedness: For those employers seeking to file an H-1B petition for the first time, there is even greater urgency to initiate the H-1B process promptly because of delays frequently encountered in certifying Labor Condition Applications (LCAs) with the Department of Labor (DOL). Employers filing H-1B petitions must first obtain a certified LCA from the DOL for each H-1B petition that is filed. The most common reason for certification delay is that the DOL does not have a confirmed federal employer identification number (FEIN) on file when the LCA is submitted. To avoid such a delay, an employer that is contemplating an H-1B petition filing should first submit the requisite FEIN documentation to the DOL to obtain FEIN confirmation before submitting the LCA. By doing so, the employer can save several critical days of delay. With the H-1B cap limit looming, a delay of several days may make the difference between a successfully filed H-1B petition and one that ultimately is rejected.

New Version DREAM Act Reintroduced During “Lame Duck” Session of Congress. On November 30, 2010, Senate Majority Leader Harry Reid (D-NV) reintroduced a new version of the “Development, Relief, and Education for Alien Minors Act of 2010” or the “DREAM Act of 2010” (S.3992). This new version of the DREAM Act may come up for a vote as early as December 6, 2010. As is stated in our October 2010 Immigration Update, if enacted, the DREAM Act would provide certain inadmissible or deportable alien students who graduate from U.S. high schools with a path to citizenship. To qualify, among other things, the student must have arrived in the U.S. as a minor, have been present in the U.S. for at least five years prior to the bill’s enactment, have good moral character, and either have been admitted to an institution of higher education in the U.S. or have earned a high school diploma or obtained a GED certificate in the U.S. Among the changes that have been made in the new version of the legislation, the new DREAM Act excludes from eligibility persons with certain criminal convictions (i.e., those with offenses punishable by a term of more than one year or three misdemeanors), requires applicants to pay all taxes, specifies that no applications can be made before one year after enactment, and provides applicants with conditional nonimmigrant status for ten years which are followed by three years of permanent resident status before the applicant can be eligible for naturalization.

USCIS Implements Fee Increases. As of November 23, 2010, USCIS implemented fee increases for certain key filings. The fee to file a Petition for a Nonimmigrant Worker (I-129) increased from $320 to $325; the fee to file an Immigrant Petition for an Alien Worker (I-140) increased from $475 to $580; the fee to file an Application to Adjust Status (I-485) increased from $1,010 to $1,070; the fee to file a Request for Premium Processing (I-907) increased from $1,000 to $1,225; and, the fee to file an Application for Employment Authorization (I-765) increased from $340 to $380. These fee increases are in addition to the recently enacted additional fee of $2,000 required under Public Law 111-230 to be paid by employers that have 50 or more employees in the U.S. and of which 50% or more of their employees in the U.S. are in H-1B, L-1A or L-1B nonimmigrant status.

For more information about this topic, please contact the author or any member of the Williams Mullen Immigration Team.


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