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.