On August 3, 2010, the Department of Health and Human Services (“DHHS”) published poverty guidelines for the remainder of 2010, and until the 2011 poverty guidelines are published, which is expected to occur in late January 2011. HHS issued the delayed update due to recent legislation that prohibited the Secretary of DHHS from publishing 2010 poverty guidelines before May 31, 2010, and required that the 2009 poverty guidelines remain in effect until the Secretary of DHHS published updated guidelines.

The DHHS poverty guidelines are relevant when calculating the minimum income requirements for family-based permanent residence cases.  In connection with such cases, sponsors are required to provide a Form I-864 affidavit of support, which confirms their ability to support the sponsored immigrant at 125% of the federal poverty guideline.  However, sponsors on active duty in the U.S. Armed Forces who are petitioning for their spouse or child are only required to show the ability to support their family at an annual income equal to 100% of the federal poverty guideline.

The updated DHHS poverty guidelines appear below:

2010 POVERTY GUIDELINES FOR THE
48 CONTIGUOUS STATES AND THE
DISTRICT OF COLUMBIA
Persons in family Poverty
guideline
1 ………………………………………… $10,830
2 ………………………………………… 14,570
3 ………………………………………… 18,310
4 ………………………………………… 22,050
5 ………………………………………… 25,790
6 ………………………………………… 29,530
7 ………………………………………… 33,270
8 ………………………………………… 37,010

For families with more than 8
persons, add $3,740 for each additional
person.

2010 POVERTY GUIDELINES FOR
ALASKA
Persons in family Poverty
guideline
1 ………………………………………… $13,530
2 ………………………………………… 18,210
3 ………………………………………… 22,890
4 ………………………………………… 27,570
5 ………………………………………… 32,250
6 ………………………………………… 36,930
7 ………………………………………… 41,610
8 ………………………………………… 46,290

For families with more than 8
persons, add $4,680 for each additional
person.

2010 POVERTY GUIDELINES FOR
HAWAII
Persons in family Poverty
guideline
1 ………………………………………… $12,460
2 ………………………………………… 16,760
3 ………………………………………… 21,060
4 ………………………………………… 25,360
5 ………………………………………… 29,660
6 ………………………………………… 33,960
7 ………………………………………… 38,260
8 ………………………………………… 42,560

For families with more than 8
persons, add $4,300 for each additional
person.

On August 9, 2010, the Department of Homeland Security (“DHS”) published a final rule amending its regulations relating to employment authorization eligibility for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. This rule expands the list of dependents who are eligible for employment authorization from spouses, children, and qualifying sons and daughters of A or G foreign officials to include any other immediate family member who falls within a category of aliens designated by the Department of State as qualifying. This change to DHS regulations provides the Department of State with greater flexibility when entering into bilateral agreements and arrangements with other countries that would extend employment authorization to immediate family members who are recognized as such by the Department of State. The rule became effective on August 9, 2010.

On August 6, 2010, United States Customs & Border Protection (“USCBP”) announced an interim final rule that amends Department of Homeland Security regulations to require travelers from Visa Waiver Program (“VWP”) countries to pay operational and travel promotion fees when applying for an Electronic System for Travel Authorization (“ESTA”) registration.

The VWP allows citizens of certain low risk countries to enter the United States as visitors for a period of 90 days or less. As of January 12, 2009, all VWP applicants were required to obtain approval through ESTA prior to traveling to the United States. ESTA is a web-based system, initially launched in August 2008, that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

The additional fees become effective on September 8, 2010. A fee of $4.00USD will recover the costs incurred by USCBP of providing and administering the ESTA system and is in addition to the mandatory $10.00USD travel promotion fee established by the Travel Promotion Act of 2009, enacted as Section 9 of Public Law 111-145, the United States Capitol Police Administrative Technical Corrections Act of 2009. The total fee for a new or renewed ESTA will be $14.00USD.

As of July 30, 2010, United States Citizenship and Immigration Services (“USCIS”) has receipted 3,116 petitions, toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 1,677 approved and 1,439 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 (CNMI) 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 July 30, 2010, approximately 27,300 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 11,600 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 Department of State (“DOS”) has recently confirmed that citizens of Denmark are eligible for both E-1 treaty trader and E-2 treaty investor visas, since the E-2 treaty for Denmark became effective on December 10, 2008. Confusion was caused by the DOS Reciprocity Schedule, which stated there was “no treaty” in the E-2 category for Denmark, even though the list of treaties contained in the Foreign Affairs Manual (9 FAM 41.51 Exhibit I) indicated that both E-1 and E-2 visas were available.

As of July 9, 2010, approximately 24,800 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 10,600 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 Department of State released its August 2010 Visa Bulletin. This month’s bulletin shows significant movement in several preference categories:

1. The EB-2 country-specific limit for China has advanced about three months from November 22, 2005 to March 1, 2006.
2. The EB-2 country-specific limit for India has advanced five months from October 1, 2005 to March 1, 2006.
3. The EB-3 has advanced almost ten months in the general chargeability category, the country-specific EB-3 limits have shown more modest increases ranging from a one-month advance for China to a nine-month advance for the Philippines. The country-specific limit for Mexico remains unavailable.
4. Other Workers category has advanced almost twelve months for all lists except the country-specific list for India, which has advanced seven months.

The August 2010 Visa Bulletin is available here.

On June 28, 2010, the Department of State (“DOS”) published an updated Schedule of Fees for Consular Services (the “Fee Schedule”) in the Federal Register.

We previously reported that DOS increased its fees for nonimmigrant visa processing on June 4, 2010. The Fee Schedule now implements fee increases for passports, immigrant visas and other consular services. The changes will take effect on July 13, 2010, 15 days after publication in the Federal Register.

The twenty-seven adjusted fees are based on a Cost of Service Study completed by the Bureau of Consular Affairs in June 2009. According to DOS, this study established the true cost of providing these consular services, which by law must be recovered through collection of fees.

The increased fees described in the Fee Schedule are as follows:

As of June 18, 2010, approximately 22,900 H-1B cap-subject petitions were receipted by United States Citizenship and Immigration Services (“USCIS”). Additionally, USCIS has receipted 9,700 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.