10.01.2010 October 2010 Immigration Update: HR; USCIS Fee Increase; H-1B Cap Count; Employers Criminally Charged; DREAM Act
By: Joseph A. Krawczel

Human Resources (HR) Tip of the Month.
If an employment relationship is terminated with an H-1B employee, the employer must send a letter informing the U.S. Citizenship and Immigration Service (USCIS). In addition, if the employee is “dismissed” by the employer (as opposed to the employee voluntarily resigning), the employer is liable for the former employee’s transportation costs to return home. Failure to comply with these requirements could have serious consequences for the employer. USCIS views the employment relationship as on-going, and the employer will be liable for back and front pay. It should also be noted that termination of an H-1B employee results in immediate loss of that person’s nonimmigrant status. Our tip: Employers should have a plan if they decide to terminate an H-1B employee. This plan should include notice to USCIS as well as a mechanism to pay the employee’s travel expenses to return home.

USCIS Announces Fee Increase for Most Immigration Filings.
A USCIS final rule appearing in the Federal Register on Friday, Sept. 24, 2010, increases petition and application fees by an average of ten percent. Most notable for employers and employees, the Form I-140 Immigrant (Green card) Petition fee is increased from $475 to $580; the Form I-485 Adjustment of Status application fee is increased from $930 to $985; and the I-765 Employment Authorization Document application fee is increased from $340 to $380. There is a small increase for Form I-129 Nonimmigrant Petitions (H and L visa petitions) from $320 to $325. USCIS is also increasing its Premium Processing Fee from $1,000 to $1,225. The new fees apply to all filings postmarked on and after Nov. 23, 2010. Petitioners and applicants with time-sensitive filings need to be especially cognizant of the new fees. USCIS will reject as improperly filed any filing postmarked after Nov. 23 that contains the old fee. For more information, click here.

September 2010 H-1B Cap Count.
As of Sept. 24, approximately 39,600 H-1B cap-subject petitions were receipted. In addition, USCIS has receipted 14,400 H-1B petitions for aliens with advanced degrees. Based on current numbers, the caps for H-1Bs will not be reached until December 2010 at the earliest.

Employers Criminally Charged for Hiring Illegal Aliens.
Between Oct. 1, 2009 and July 31, 2010, U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) has initiated audits of 1,641 U.S. employers and has issued 172 final fine notices totaling over $4 million. It recently announced that it was bringing federal criminal charges against two Los Angeles-area employers for knowingly hiring illegal aliens. In one prosecution against Masters in Metal, Inc., the owner of the company and his son can face up to six months in prison. According to ICE HSI, an audit of the company’s records revealed 16 employees had used counterfeit resident alien cards to obtain jobs. Although the company claimed it had terminated those employees, ICE HSI subsequently found that two of the employees remained on the payroll. In the other prosecution, an employee of Parker Personnel, Inc. was taken into custody for allegedly hiring illegal aliens and providing them with counterfeit immigration documents. For more information, click here.

Senate Blocks Consideration of DREAM Act. The U.S. Senate fell short of the 60 votes needed to pass a motion to proceed to consideration of the FY 2011 defense authorization bill. Senate Majority Leader Harry Reid (D-Nev.) indicated that he would have added the DREAM Act as an amendment to the defense authorization bill. The DREAM Act likely will be revisited during the lame duck session of the 111th Congress. If ever enacted, it would give certain inadmissible or deportable alien students who graduate from U.S. high schools the opportunity to earn conditional permanent residency. To qualify, the student must have arrived in the U.S. as a minor, have been in the U.S. for at least five years prior to the bill’s enactment, have good moral character and either have served in the U.S. military for at least two years or have completed two years out of four of a bachelor’s degree program in the United States.

For more information on these immigration developments, contact any member of our Immigration Team.

Williams Mullen Immigration Update. Copyright 2010.
Editorial inquiries should be directed to William J. Benos, Williams Mullen Center, 200 S. 10th Street, Richmond, VA 23219, 804.420.6000

This information is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.