As of November 26, 2010, United States Citizenship and Immigration Services (“USCIS”) receipted 20,579 petitions, toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 17,743 approved and 2,836 pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.

Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap:

1. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
2. From November 28, 2009 until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

On September 23, 2010, United States Citizenship and Immigration Services (“USCIS”) announced a final rule, which adjusted its filing fees for immigration applications and petitions. The final rule was published in the Federal Register on September 24, 2010, and will become effective as of November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee, or they will be rejected.

The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application. The final fee rule establishes three new fees for:

• Regional center designation under the Immigrant Investor Pilot Program (EB-5);
• Individuals seeking civil surgeon designation (with an exemption for certain physicians who
  examine service members, veterans, and their families at U.S. government facilities); and
• Recovery of the USCIS cost of processing immigrant visas granted by the Department of State.

The final fee rule also adjusts fees for the premium processing service. According to USCIS, this adjustment will ensure that it can “continue to modernize as an efficient and effective organization.”

The final fee rule reduces fees for six individual applications and petitions:

• Petition for Alien Fiancé (Form I-129F);
• Application to Extend/Change Nonimmigrant Status (Form I-539);
• Application to Adjust Status from Temporary to Permanent Resident (Form I-698);
• Application for Family Unity Benefits (Form I-817);
• Application for Replacement Naturalization/Citizenship Document (Form N-565); and
• Application for Travel Document (Form I-131), when filed for Refugee Travel Document.

In addition, the final fee rule eliminates two citizenship-related fees for those service members and veterans of the U.S. armed forces who are eligible to file an Application for Naturalization (Form N-400) with no fee:

• Request for Hearing on a Decision in Naturalization Proceedings (Form N-336); and
• Application for Certificate of Citizenship (Form N-600).

Lastly, the final fee rule expands the availability of fee waivers to new categories, including:

• Individuals seeking humanitarian parole under an Application for Travel Document (Form I-131);
• Individuals with any benefit request under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; and
• Individuals filing a Notice of Appeal or Motion (Form I-290B) following a denial of any application or petition that did not initially require a fee.

The new fee schedule is available on the USCIS website here.

As of October 22, 2010, approximately 44,300 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 16,200 H-1B petitions for aliens with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.

On August 13, 2010, President Obama signed Public Law 111-230 into law; this law contains provisions to increase certain H-1B and L-1 petition fees. 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 August 14, 2010, and will remain in effect through September 30, 2014. However, the new fee does not apply to derivative beneficiaries (i.e. spouses or dependent children).

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 INA 101(a)(15)(H)(i)(b) or INA 101(a)(15)(L); or
• To obtain authorization for an alien having such status to change employers.

All employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee. USCIS will calculate the percentage based on the number of employees in the United States. All employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward the calculation.

The petitioner, not the beneficiary, should pay the additional fee, where it applies. USCIS recommends that petitioners include the new fee in a separate check.

USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with Public Law 111-230. To facilitate implementation of Public Law 111-230, 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. The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

As of October 15, 2010, approximately 42,800 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 15,700 H-1B petitions for aliens with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.

The United States Department of State has issued its instructions for this year’s Diversity Visa (“DV”) lottery program. The DV lottery program offers an opportunity for aliens of certain nationalities to acquire U.S. permanent residence by making permanent residence visas available to persons who meet the eligibility requirements. Applicants for DVs are chosen by a computer-generated random lottery drawing.

A total of 55,000 diversity visas are available in the diversity immigration lottery. However, the Nicaraguan and Central America Relief Act (“NACARA”) passed by Congress in November 1997 stipulates that beginning as early as DV-1999, and for as long as necessary, 5000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. The actual reduction of the limit to 50,000 began in DV-2000 and remains in effect.

Entries for the DV-2012 DV Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 5, 2010, and noon, Eastern Standard Time (EST) (GMT-5) Wednesday, November 3, 2010. Applicants may access the electronic Diversity Visa Entry Form (E-DV) at http://www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 3, 2010.

The list of eligible countries may change each year. For the DV-2012 lottery, the following countries are considered “high admission” countries and are therefore not eligible:

BRAZIL;
CANADA;
CHINA (Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible);
COLOMBIA;
DOMINICAN REPUBLIC;
ECUADOR;
EL SALVADOR;
GUATEMALA;
HAITI;
INDIA;
JAMAICA;
MEXICO;
PAKISTAN;
PERU;
PHILIPPINES;
POLAND;
SOUTH KOREA;
UNITED KINGDOM (except Northern Ireland) and its dependent territories; and
VIETNAM;

Persons born in any of the above countries are not eligible. However, persons born in other countries who subsequently obtained citizenship in one of the above countries are still eligible. For DV-2012, no countries have been added or removed from the previous year’s list of eligible countries.

For DV-2012, entrant notification will be through the Entry Status Check at http://www.dvlottery.state.gov. Those selected will be provided further instructions, including information on fees connected with immigration to the U.S. Persons not selected will NOT receive any notification. Spouses and dependent children (unmarried children under age 21) of successful applicants may also apply for visas to accompany or follow to join the principal applicant.

The United States Embassy in Ottawa has announced that it will be transitioning to a new appointment service for applicants applying for U.S. visas at U.S. consular posts located in Canada.

All United States embassies/consulates in Canada currently use NVARS, which charges a fee for appointment booking services. However, 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. In addition, as of this date, 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.

Applicants who have already scheduled an appointment through NVARS, should pay their visa application fee, known as the Machine Readable Visa (“MRV”) fee, prior to September 1, 2010; they should then bring their Scotiabank receipt to the appointment. It is recommended that applicants who have not yet started their application process wait until after September 1, 2010, to pay their MRV fee and schedule an appointment under the new, no-cost service.

Beginning September 1, 2010, applicants will be required to pay their MRV fee prior to scheduling an appointment. For applicants who paid their MRV fee prior to September 1, 2010, but who have not scheduled an appointment, there will be a grace period from September 1, 2010 until October 1, 2010 during which they can still use their previously paid MRV fee for appointment scheduling. However, if they have not scheduled an appointment prior to October 1, 2010, they will have to pay the MRV fee again through the new service in order to schedule an appointment.

The Department of State’s National Visa Center (“NVC”) has provided information on its new Immigrant Visa Electronic Processing Program (the “Program”), a pilot project that uses electronic communication and documentation methods to simplify and accelerate the immigrant visa application process. The Program uses e-mail for communication and submission of all forms and documents to the NVC using Portable Document Format (“PDF”).

Under the Program, all forms will be downloaded, completed, signed (if required), scanned, saved as PDF files, and e-mailed to the NVC. Required civil documents and supporting documents must be converted to PDF files by scanning and e-mailed to the NVC. After the NVC has completed processing the applicant’s petition, the applicant will need to present the original physical documents to the US Embassy/Consulate at the time of the applicant’s visa interview. Failure to do so may cause a delay or denial of the visa being sought.

The Program applies to the following applicants:

1. Applicants who are applying for a visa at the U.S. Embassy in Ashgabat, Turkmenistan are required to process electronically.
2. Applicants who are applying for a visa at the U.S. Consulate General in Ciudad Juarez, Mexico, in the following visa categories are required to process electronically if the first three letters of their NVC Case Number are MEP:
   • CR1 Conditional Spouse of United States Citizen
   • CR2 Conditional Child of United States Citizen
   • IR1 Spouse of United States Citizen
   • IR2 Child of United States Citizen
3. The option to participate is initially limited to visa applicants who are applying for a visa at the U.S. Embassies in Guangzhou, China and Montreal, Canada.

If eligible to participate in the Program, the applicant (or designated agent) and the petitioner must:

1. Have regular access to e-mail internet service;
2. Have the ability to scan required documents into PDF files; and
3. Be able to submit all forms electronically (no paper copies will be accepted).

All visa applicants, their designated agent (if applicable), and their petitioner will need to follow the processing requirements in order to successfully complete electronic processing of the immigrant visa petition. If the applicant and/or designated agent meets the above requirements and chooses to participate, further information on electronic processing requirements appears here.

If the applicant and/or designated agent DOES NOT meet the above requirements, the applicant is not eligible for participation in the Program. Such an applicant (or an applicant who is eligible but who chooses not to participate) should follow the instructions provided in the National Visa Center’s letter (e.g. paying the applicable fee or mailing the Choice of Address and Agent Form, DS-3032, to the NVC).

The Program represents a positive change. Previously, immigrant visa applicants were required to submit their original documents to the NVC, which could potentially have resulted in lost original documents. The Program now allows applicants to submit PDF copies of required documents and to simply bring the original documents to their final interview.

As of August 26, 2010, United States Citizenship and Immigration Services (“USCIS”) receipted 4,841 petitions toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 3,654 approved and 1,187 pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.

Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap:

1. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
2. From November 28, 2009 until December 31, 2014, workers performing labor or services in the
Commonwealth of Northern Mariana Islands and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

As of August 27, 2010, approximately 34,900 H-1B cap-subject petitions were receipted. United States Citizenship and Immigration Services (“USCIS”) has also receipted 13,000 H-1B petitions for aliens with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.