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OCTOBER 2010

Government Increases Immigration Filing Fees

U.S. Citizenship and Immigration Services (USCIS) adjusted its filing fee schedule to increase filing fees on average by 10 percent starting November 23, 2010. All applications postmarked on or after that date without the new filing fee will be rejected. As background, USCIS reviews its fees every two years to determine whether the fees are enough to recover the costs to administer immigration laws. Fee-generated revenue has been lower than expected during the last two years because of reduced filings, and the agency announced changes to its fee schedule as a means to recoup the full cost of processing immigration benefits. The administration had previously changed its 2010 appropriations by removing asylum, refugee, and military naturalization costs from the fee structure, rather than continuing its earlier practice of recovering these costs by adding surcharges to immigration fees. USCIS relies on filing fees for 90% of its annual $2.8 billion budget. Despite average increases, USCIS reduced filing fees for certain applications, including for I-129F fiancé petitions and I-539 applications to extend/change nonimmigrant status. Also, because of special considerations, naturalization fees remain unchanged. The government recognizes the significant public benefit of citizenship and wants to avoid any possible disincentive to pursuing citizenship through naturalization. The attached USCIS fact sheet contains the new fee schedule: Final Rule: Schedule of Fees.

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ICE Imposes $1 Million Fine for Electronic I-9 Deficiencies

U.S. Immigration and Customs Enforcement (ICE) announced a $1 million fine settlement last month with the clothing retailer Abercrombie & Fitch. The settlement came after an I-9 audit of the company’s stores in Michigan revealed a number of technology-related deficiencies in its electronic verification system. The announcement raised concerns among employers that were early adopters of electronic I-9 systems, especially if they assumed their electronic systems would automatically reduce I-9 liability. While ICE released limited details of the settlement, the company had not knowingly hired any undocumented workers. The fine emphasizes that ICE can essentially invalidate an I-9 form if an employer chooses to complete the form with an electronic signature and the system fails to comply with recordkeeping standards. Following the 2006 interim rule allowing electronic I-9 verification systems, some employers adopted their own custom-built systems that may not have been effective in meeting basic I-9 requirements. ICE clearly intends to hold employers accountable for ensuring their systems create effective compliance. Electronic I-9 systems must retain the same recordkeeping as the paper I-9, including all I-9 fields, employee attestations, and electronic signatures. Employers should carefully choose an electronic verification system. Electronic I-9 systems have many advantages, but they require careful planning and research to choose a vendor that adequately supports its product, releases necessary updates, and responds to continuing changes in I-9 policy.

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BALCA Clarifies Notice of Filing Requirement

The Board of Labor Certification Appeals reversed the Department of Labor’s denial of a labor certification application in Matter of Il Cortile Restaurant, finding that where an employer has employees working on weekends and holidays those days are “business days” for purposes of satisfying the notice requirement. The DOL had taken the more restrictive position that consecutive business days related to the Notice of Filing at 20 C.F.R. §656.10(d)(1)(ii) had to be Monday through Friday, excluding weekends and Federal holidays. However, the regulations do not define business day, and where employees are onsite and able to see the Notice of Filing, the purpose of the notice requirement is satisfied.

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Updated FY 2011 H-1B Cap Count

As of October 15, 2010, the annual quota of 65,000 and the special U.S. master’s degree exemption of 20,000 have not yet been reached for new H-1B petitions. Using the H-1B program, U.S. businesses are able to hire foreign workers in occupations that require theoretical or technical expertise in specialized fields, including as scientists, engineers, or computer programmers. According to this latest H-1B cap count, only 42,800 cap-subject petitions had been filed, and only 15,700 petitions had been counted against the additional H-1B master’s exemption. Employers should take advantage of this opportunity to file new H-1B petitions. Once the annual quota is reached employers will need to wait until next year for new H-1B workers to start under this program.

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