Consumer Pamphlet: Immigration Update
Note: This pamphlet is available online only.
Employers who use the H-1B program are required to pay an additional $1,500 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,500 fee pays for U.S citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor.
Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions are exempt from the fee (see below).
In addition, ACWIA created a Fraud Prevention and Detection Fee of $500, which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee.
Each of these fees is in addition to the base processing fee of $320 to file a Petition for a Nonimmigrant Worker (Form I-129). An optional $1,225 “Premium Processing” fee may be paid to expedite certain petitions, including H-1Bs via Form I-907.
The exemption covers only institutions of higher education, nonprofit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of nonprofits that qualify for this exemption have been construed narrowly: At present, nonprofit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the nonprofit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner. Public secondary schools do not qualify for cap exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the affiliation agreement. The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.
This act provides exemptions from the congressionally mandated annual H-1B cap.
The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, the United States Citizenship and Immigration Services (USCIS) is required to count those cases against the cap for the remainder of the fiscal year.
The cap opens with the federal government’s fiscal year each Oct. 1. A cap-subject H-1B can be filed no earlier than six months before the employment start date or April 1. Because of the high volume of H-1B cap-subject applications, USCIS randomly selects 65,000 H-1Bs and rejects the rest in a lottery-type system, underscoring the urgent and critical need for action by Congress to increase the number of H-1B visas available each year.
The U.S. Department of Labor’s Office of Foreign Labor Certification created the iCERT system to improve access to employment-based visa application services and Department of Labor immigration news and information. This system currently processes Labor Condition Applications (LCAs) for the following visa categories: D-1, E-3, H-1B, H-1C, H-2A and H-2B. More information can be found at iCERT.doleta.gov. LCAs can take about a week to process. A certified LCA is a required element of an H-1B package. Therefore, it is vital to file the LCA in advance of April 1 of the applicable fiscal year.
PERM, which is the acronym for Program Electronic Review Management, is the re-engineering of the permanent labor certification process.
PERM is the only method of filing applications for labor certification.
Important considerations concerning PERM include:
– The goal of PERM is to adjudicate labor certification applications within a 90-day time frame through the use of online submissions on Form ETA 9089. In reality, processing times can reach one year or longer. Further, if the Department of Labor audits the application, requesting additional information or documentation, processing times also can reach one year or longer.
– The wage required for beneficiaries of approved labor certifications is 100 percent of the prevailing wage. The DOL uses a 4-level wage survey for prevailing wage determinations.
– The employer must post notice of job availability for at least 10 consecutive days, and the notice period must be between 180 and 30 days before filing.
– The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days.
– Regulations require in the recruitment phase that the employer place two advertisements on two different Sundays in the area of intended employment. For professional positions, employers must place three ads in forums in addition to the two Sunday ads. The list of recruitment sources includes: job fairs, employer’s website, campus recruiting and/or posting, trade or professional organization, use of private employment firm, employee referral program with incentives, ad in local and ethnic newspapers, radio and television ads, and a website other than the employer’s.
– Employers must pay all PERM filing fees and costs. In addition, a Form I-140 must be filed within 180 days of PERM approval.
Note: A pending or approved I-140 alone does not confer status. Status pursuant to PERM is not conferred until Form I-485 is filed when a visa number is available.
All pending labor certifications filed prior to PERM must be evaluated to determine the benefits of, and potential supplemental recruitment required for, filing under PERM. Particular attention is being paid to visa retrogression issues affecting nationals from certain countries, including those from India, China and the Philippines.
Current regulations allow I-140 petitions to be concurrently filed with the I-485 if a visa number is available at the time of filing. Visa numbers are dictated by the Department of State and published once monthly on the Visa Bulletin, which is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.
The Visa Bulletin can move forward, backward or remain unchanged. It is of the utmost importance to monitor the bulletin for changes that are posted once monthly.
The Departments of State and Homeland Security announced the Western Hemisphere Travel Initiative to secure and expedite travel. The Western Hemisphere Travel Initiative requires that all U.S. citizens, Canadians, citizens of the British Overseas Territory of Bermuda, and citizens of Mexico have a passport or other accepted secure document to enter or re-enter the U.S.
On Dec. 19, 2008, the U.S. Department of Homeland Security published a Final Rule in the Federal Register that expands the categories of non-U.S. citizens required to provide biometrics -digital fingerprints and a photograph – upon entry or re-entry to the United States through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program.
Currently, certain non-U.S. citizens arriving at U.S. air, land and sea ports of entry with nonimmigrant visas or those traveling without a visa as part of the Visa Waiver Program (VWP) under the Electronic System for Travel Authorization (ESTA) program are subject to US-VISIT procedures. Under this final rule, all non-U.S. citizens, except Canadians applying for admission to the United States as B-1/B-2 visitors for business or pleasure and those specifically exempted, will experience US-VISIT procedures when entering the country. For more information go to: http://www.dhs.gov/visa-waiver-program-requirements.
Beware of notaries public. A notary may not confer legal advice, including instructing a person to fill out a particular form. Anyone who confers legal advice who is not a licensed attorney commits the unlicensed practice of law which is a third degree felony. For more information, see The Florida Bar pamphlet “Notaries, Immigration . . . and the Law.”
The Federal Trade Commission offers an Immigration Toolkit with helpful resources for advocates and consumers in immigrant communities. Go to: www.consumer.gov/immigranthelp.
[Updated July 2015]