L-1 Visa Reform Act of 2004 Changes Parts of the Temporary Worker Program

The USCIS announced this week that it has implemented new provisions to the L-1 temporary worker program, as mandated by the L-1 Visa Reform Act of 2004.

The L-1 Visa Reform Act amended legislation regarding the outsourcing of L-1B nonimmigrants, temporary workers who have been employed overseas by a company with an affiliation/office in the U.S. who now performs services involving specialized knowledge in the U.S. for that international company. According to this amended legislation, L-1B temporary workers can no longer work at a worksite other than that of the employer who petitioned for the visa if:

1. The work is controlled and supervised by the different employer; or
2. The arrangement with the offsite location is to provide that non-petitioning entity with local labor for hire, as opposed to a service related to the specialized knowledge of the employer that petitioned for the visa.

These provisions related to outsourcing of L-1B workers is applicable to all L-1B petitions filed after June 6, 2005 and include all extensions and amendments involving those currently under L-1 status.

The revised legislation also requires that all L-1 workers must have been employed for at least one year outside the U.S. for the employer with the qualifying relationship with the petitioning employer. Prior to this amended legislation, participants in the blanket L-1 program were only required to have worked with the international employer for six months or more. This amendment is applicable to all petitions for initial L-1 classification filed with the USCIS after June 6, 2005. It does not apply, however, to extensions of stay under the blanket L-1 program.

In addition, L-1 petitioners are reminded that USCIS requires new filing fees and forms. Form I-129 must now be filed with the base filing fee of $185 and a new $500 Fraud Prevention and Detection Fee, if applicable.

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DHS ISSUES REBRANDED FORM I-9

Washington, D.C. – U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) announced today that they have updated the Employment Eligibility Verification Form (Form I-9) to eliminate outdated references to the former Immigration and Naturalization Service (INS) and its parent agency, the Department of Justice.

On March 1, 2003, the Homeland Security Act of 2002 (Public Law 107-296) transferred the functions of the former INS from the Department of Justice to the Department of Homeland Security (DHS). USCIS, an entity within DHS, presently maintains many of the immigration forms that USCIS and ICE inherited from the former INS. USCIS is currently rebranding these forms, including the I-9, to reflect the transfer to DHS.

Aside from replacing outdated references to the Department of Justice and the former INS with references to DHS and its components, the current edition of Form I-9 is the same as the 11/21/91 edition. The edition date on the rebranded Form I-9 reads “(Rev. 05/31/05)Y.” Employers may meet their employment verification requirements under the law by completing a Form I-9 that has an edition date of either “(Rev. 5/31/05)Y,” “(Rev. 05/31/05)N,” or “(Rev. 11/21/91)N” in the lower right corner of the form.

DHS is currently in the process of making substantive changes to the Form I-9 in connection with previous rulemakings and plans to introduce a new Form I-9 at the end of this process. More information about the employment verification process and other employer-based immigration topics is available from USCIS’ Office of Business Liaison at http://uscis.gov/graphics/services/employerinfo/eibulletin.htm.

USCIS reminds certain H-1B1 free trade nonimmigrants of the required filing fee

H-1B1 Free Trade nonimmigrants from Chile and Singapore will need to file fees with their applications, as required by the H-1B Visa Reform Act of 2004. Since the law changed in December of last year, the USCIS has received numerous applications from Chilean and Singaporean nonimmigrants with the incorrect filing fee. After July 20, 2005, the USCIS will reject all of these cases with the incorrect fee. Until that date, the Nebraska Service Center intends to accept these applications with the incorrect fee and seek the proper amount through an official Request for Evidence.

Specifically, this additional filing fee for H-1B1 Free Trade nonimmigrants from Chile and Singapore are required for the following situations:

An employer wishing to employ a current H-1B1 Free Trade nonimmigrant from Chile or Singapore currently employed by another H-1B1 employer.
An employer requesting an initial extension of H-1B1 status for an H-1B1 Free Trade nonimmigrant from Chile or Singapore that currently works for said employer.
An employer who wishes to change a nonimmigrant’s status and employ them as an H-1B1 Free Trade nonimmigrant from Chile or Singapore in “new employment.”

This additional fee is $1,500 for businesses that employ 26 or more full-time employees and $750 for businesses with less than 26 full-time employees. This number of employees should include any U.S. affiliate or subsidiary of the petitioning employer. Do note that the $500 Fraud Prevention and Detection Fee, which was also authorized by the H-1B Reform Act of 2004, is not necessary for those from Chile or Singapore seeking an initial grant, extension, or change of status to a H-1B1 Free Trade nonimmigrant or filing an amendment to authorize a change in H-1B1 employers.

EB3 Numbers Will Not Be Available After July 1, 2005

In the Department of State’s July 2005 Visa Bulletin, it was stated that there are no longer visa numbers available for those individuals in the Employment-based EB3 category for every applicable country. In other words, all individuals under EB3 status will not be possible to file I-485, the Application to Adjust Status to Permanent Residence. In addition, EB3 individuals will not be able to obtain immigrant visas at consulates abroad. While this limitation previously applied only to nationals of mainland China, India and the Philippines, changes in numbers have now resulted in this major backlog.

Please note that this limitation affects all EB3 individuals, regardless of country of nationality, with the exception of Schedule A workers (nurses, physical therapists, etc.)

I-485 cases that are currently pending will remain pending until visa numbers are again available. If those numbers change and a set cut-off date is established, I-485 cases with priority dates before the cut-off date will be eligible for approval.

Individuals eligible to file for the I-485 under the EB-3 category will still be able to file prior to July 1, 2005. If this relates to you, it is suggested that you apply immediately.

DOL To Take A New Look At PERM Denials

The first wave of PERM approvals was sent out this week, according to the Department of Labor (DOL). PERM, the electronic filing and application processing procedure for labor certification for permanent employment-based immigration, became active in March of this year.

Rumors of mass denials of electronic PERM applications, according to DOL, are not the case. However, the majority of PERM cases filed were denied. According to DOL, many of these denials were in error. Because many errors may have been due to the new electronic system, DOL stats that all PERM cases that were denied will be run again through the system. If these applications are denied again, new denial letters (with a 30 day period for appeal) will be mailed to the applicants. Applications that were mistakenly denied will move through the system.

According to DOL, the following were the most likely reasons for systemic errors:

“The alien’s qualifications listed on the application do not meet [the minimum requirements] stated on the application.”

“More than one additional recruitment step was conducted less than 30 days from the date the application was filed.”

“For household domestic positions, failure to post the notice.” –

USCIS Now Accepting Additional H-2B Petitions for FY 2005 and 2006

As of May 25 of this year, The U.S. Citizenship and Immigration Services (USCIS) began to accept additional H-2B petitions, based on the requirements set in the Save Our Small and Seasonal Businesses Act of 2005.

This Act will allow USCIS to accept applications for the following types of H-2B workers to begin work immediately:

. FY 2005: Roughly 35,000 workers, who are either new H-2B workers or not certified as returning workers, wishing to start working in the U.S. before October 1, 2005;
. FY 2005 and 2006: Returning workers, who are workers counted against the H-2B annual numerical cap of 66,000 during any one of the three fiscal years prior to the fiscal year of the proposed start date. Please note that if the petition was approved only for an extension of stay in H-2B status or for a change or addition of employers or terms of employment, the worker was not counted against the numerical cap and would instead meet the requirement stated in #1 above.

All petitions will be processed and accepted based on current regulations, with the addition of the following requirements for returning workers:

. The petition should include a certification from the employer signed by the same person who originally signed Form I-129 and should say, “As a supplement to the certification made on the attached Form I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” Note that the list should include the full name of the worker; if the petition wishes to change status of the worker within the U.S., it should also include evidence of previous H-2B admissions (e.g.: a visa or copy of the worker’s I-94 document).
. One petition can benefit more than one worker, including unnamed workers in special filing situations. Returning workers, however, should be listed in a certification as stated in #1 above. For submissions for multiple workers (including returning workers), Attachment 1 to Form I-129 should be included in the petition.
. Petition approval notices will list all returning workers, who should then be ready, when requesting an H-2B visa at a U.S. consulate or CBP port, to show proof of their previous H-2B admissions (e.g.: a visa or copy of the I-94 document). While the State Department will confirm prior visas through its electronic system, failure to show these documents to an inspector could result in denial of the visa or admission to the U.S.

All petitions must include a Labor Certification form (or copy of one if the original labor certification has already been accepted by USCIS). Premium processing requests may be submitted via Form I-907 and an additional $1,000 fee.

For petitions requesting a work start date on or after October 1, 2005, an additional fraud prevention and detection fee of $150 should also be included. This fee is per petition, not per worker.

Department of State Introduces Online Passport Application Forms

This week, the Department of State’s Bureau of Consular Affairs (BCA) introduced a new online procedure for filling out passport application forms. This new process, according to BCA, will make the process faster and will reduce data entry errors by eliminating manual data entry of handwritten application forms.

Under this new process, individuals applying for U.S. passports will no longer be required to handwrite personal data; instead, applicants will enter electronically their personal information on a secure website dedicated to the passport application process. Individuals will then print the completed form, which will include a barcode containing all the relevant information. The barcode will then be read by a machine at the BCA during the adjudication process.

The online form can be accessed at http://travel.state.gov/passport. Individuals can also download blank passport application forms from this website. Completed forms can be submitted to any of the nearly 6,000 passport application acceptance offices throughout the U.S., or at a U.S. embassy or consulate abroad.