Haiti

On January 12, 2010, an earthquake devastated Haiti leaving thousands of Haitians dead and hundreds of thousands without homes. As a result of the earthquake, on January 21, 2010, the United States Department of Homeland Security (DHS) granted Temporary Protected Status (TPS) for eligible Haitian nationals for eighteen months. TPS was granted because of TPS beneficiaries are allowed to remain in the U.S. and can legally work for a set time period. Initially, the registration period started on January 21, 2010 and ended on July 20, 2010. On July 13, 2010, DHS extended the registration period to January 18, 2011. The extension was granted to give individuals additional time to register.

An individual is eligible for TPS if he or she (1) is a national of Haiti (or an alien having no nationality who last habitually resided in Haiti); (2) has continuously resided in the U.S. since January 12, 2010; (3) has been continuously present in the US since January 21, 2010 – the date of the Federal Register publication; (4) has met certain eligibility requirements; and (5) has completed all TPS application procedures described in the including, but not limited to, filing an Application for TPS (Form I-821) and Application for Employment Authorization (I-765).

Individuals must submit their TPS applications with the proper fees or fee waiver requests. All applications and fee waiver requests must be received by United States Citizenship and Immigration Services (USCIS) by January 18, 2011. If USCIS rejects an individual’s TPS application because his or her fee waiver request was denied, he or she may re-file his or her TPS application with the required fees or a new fee waiver request as long as the TPS application is received by USCIS no later than the January 18, 2011 deadline. Furthermore, if an individual’s TPS application package is received by January 18, 2011, and fee waiver request is denied on or after December 3, 2010, an individual will be given 45 days from the denial date to re-file his or her application packet with the required fee or a new fee waiver request.

For detailed TPS information or on how to apply, contact us at (202) 234-0899.

Honduras and Nicaragua

On May 5, 2010, the Department of Homeland Security (DHS) formally announced an eighteen-month extension of the TPS designation for eligible Honduran and Nicaraguan nationals from July 5, 2010 to January 5, 2012. In addition, EADs for Honduran and Nicaraguan TPS beneficiaries bearing an expiration date of July 5, 2010 and category A-12 or C-19 will be automatically extended for a six month period, through January 5, 2011. Employers should accept the EADs as valid “List A” documents. Employers should not request proof of Honduran or Nicaraguan citizenship, or ask for additional Form I-9 documentation if a worker presents an EAD that has been automatically extended.

What documents may a qualified individual show to his or her employer as proof of employment authorization and identity when completing Form I-9?

After January 5, 2011, TPS beneficiaries may present their new EADs on Form I-766 bearing an expiration date of January 5, 2012, to their employers as proof of employment authorization and identity. After January 5, 2011, employers may not accept EADs that no longer have a valid date. Employees also may present any other legally acceptable document or combination of documents listed on the Form I-9 as proof of identity and employment eligibility.

For detailed TPS information or on how to apply, contact us at (202) 234-0899.

El Salvador

On July 9, 2010, the Department of Homeland Security (DHS) formally announced an eighteen-month extension of the TPS designation for eligible Salvadoran nationals from September 9, 2010 to March 9, 2012. In addition, EADs for Salvadoran TPS beneficiaries bearing an expiration date of September 9, 2010 and category A-12 or C-19 will be automatically extended for a six month period, through March 9, 2011.

Employers should accept the EADs as valid “List A” documents. Employers should not request proof of Salvadoran citizenship, or ask for additional Form I-9 documentation if a worker presents an EAD that has been automatically extended.

Liberia

On March 19, 2010, President Obama extended Deferred Enforced Departure (DED) through September 30, 2011, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. The President also automatically extended the employment authorization for Liberian nationals covered by DED for six months, from April 1, 2010 until September 30, 2010. For employment eligibility verification purposes, DED recipients from Liberia may present an EAD issued to a Liberian national having an expiration date of March 31, 2010, and this expired EAD is acceptable for completion of the Form I-9.

USCIS has published a notice in the Federal Register extending the validity of employment authorization documents for Liberian nationals covered under DED.  During the first 6 months, Liberian receiving DED may present their automatically extended Form I-766 with an expiration date of March 31, 2010, to their employers as proof of employment authorization and identity. The EAD must bear the notation “A-11” on the face of the card under “Category.” To minimize confusion over this automatic extension at the time of hire or re-verification, qualified individuals may also present a copy of the Federal Register notice regarding the automatic extension of EADs through September 30, 2010.

For detailed TPS information or on how to apply, contact us at (202) 234-0899.

Somalia

On July 27, 2009, USCIS announced an extension of TPS for eligible Somalian nationals for eighteen months through March 17, 2011. DHS has issued new EADs to eligible TPS beneficiaries who timely reregistered by the September 24, 2009, deadline and apply for a new EAD.

For detailed TPS information or on how to apply, contact us at (202) 234-0899.

Sudan

On, December 31, 2009, USCIS announced an extension of TPS for eligible Sudan nationals for eighteen months, through November 2, 2011. Eligible Sudanese were required to re-register with USCIS by March 2, 2010.

For detailed TPS information or on how to apply, contact us at (202) 234-0899.

As a appendage to the law, the Department of Homeland Security (DHS) is publishing a final rule that permits and changes how employers can sign and retain required I-9, Employment Eligibility Verification Forms in electronic format.

Background:

Since the passage of the Immigration Reform and Control Act (IRCA), all U.S. employers are required to verify the employment authorization and identity of all employees hired to work in the United States, including United States citizens, hired after November 6, 1986.

Recently, in June 2006, DHS published an interim final rule to permit electronic signature and storage of the Form I-9.  That interim rule amended DHS regulations to permit employers to complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9), as long as certain performance standards set forth in this final rule for the electronic filing system are met. 

Now, the final rule here with the publication date, July 22, 2010, makes permanent the law allowing electronic I-9 verification and makes changes as well as clarifications to the law.  These changes and clarifications goes into effect 30 days from publication date.

How to Start Electronic I-9 Verification:

You can start making the I-9 process paperless by using our law firm’s paperless- I-9 verification system with optional E-Verify capability. For information, contact us at (202) 234-0899.

 Completing Form I-9 and E-Verify: 

While there is much overlap between Form I-9, Employment Eligibility Verification, and E-Verify requirements, this addresses the three-day rule as it applies to E-Verify.  For more information on Form I-9, consult with Immigration Solutions Group, PLLC at (202) 234-0899. 

If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  The first day the employee starts work for pay is not included in the three business day calculation.

Determining the E-Verify Hire Date:

We realize the term “hire date” in E-Verify is confusing because its meaning can vary depending on:

• When the employee starts work for pay
• The date the case is created in E-Verify

E-Verify does not allow you to select a future date as the hire date so if the employee has not yet started work for pay, the E-Verify hire date is always the date you create the case in E-Verify.  The reason for this is because the three-day rule for E-Verify purposes is associated with the date the employee starts work for pay.  An E-Verify case is not late as long as it is created no later than the third business day after the employee started work for pay—it doesn’t matter how many days have passed between the employee completing Form I-9 and the employer creating the case in E-Verify. If you’re a federal contractor with the FAR E-Verify clause and you’re creating a case for an existing employee, the hire date is always the date the employee first started work for pay.  It doesn’t matter if the employee completes a new Form I-9 —the hire date is always the Section 2 certification date of the original Form I-9.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during August. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by July 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. The fiscal year 2010 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal year 2010 limit for employment-based preference immigrants calculated under INA 201 is 150,667. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 26,367 for FY-2010. The dependent area limit is set at 2%, or 7,533.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation,
of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

*NOTE: For August, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAR08. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01MAR08 and earlier than 01MAR09. (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For August, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN SEPTEMBER

For September, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

D. RETROGRESSION OF THE MEXICO FAMILY FOURTH PREFERENCE CUT-OFF DATE

It has been necessary to retrogress the Mexico Family Fourth preference cut-off date to keep visa issuances within the annual numerical limitations set by law. It is anticipated that for October, the first month of the new fiscal year, this preference will return to the latest cut-off date reached during FY-2010.

E. APPLICABILITY OF INA SECTION 202(a)(5)(A)AS IT RELATES TO THE ALLOCATION OF “OTHERWISE UNUSED” NUMBERS

INA Section 202(a)(5)(A), added by the American Competitiveness in the 21st Century Act (AC21), provides that if total demand will be insufficient to use all available numbers in a particular Employment preference category in a calendar quarter, then the otherwise unused numbers may be made available without regard to the annual per-country limits. This provision helps to assure that all available Employment preference numbers may be used. In recent years, the application of Section 202(a)(5)(A) has occasionally allowed oversubscribed countries such as China-mainland born and India to utilize large quantities of Employment First and Second preference numbers that would have otherwise gone unused.

For example, let us assume that 11,600 Employment Second preference numbers are available in a calendar quarter. There is heavy Employment Second preference demand by China-mainland born and India applicants; however, each country is oversubscribed and would ordinarily be limited to about 800 of the available numbers due to the prorating provisions of INA Section 202(e). Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6,500 numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8,100 of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits. Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability. In this instance, greater number use by one country would indicate a higher rate of demand by applicants from that country with earlier priority dates.

F. DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by U.S. Citizen and Immigration Services (CIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. To avoid delays in processing while waiting for the CIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA. On July 7th, CIS provided the required data to VO.

The Department of State has determined the Family and Employment preference numerical limits for FY-2010 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2010 are as follows:

Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 150,667

Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2010 the per-country limit is 26,367. The dependent area annual limit is 2%, or 7,533.

Previously, as of 07/02/10, approximately 24,200 H-1B cap-subject petitions and 10,400 H-1B petitions for aliens with advanced degrees were receipted.

Description of Service and Fee Amount

Nonimmigrant visa application and border crossing card processing fees (per person): 

• Nonimmigrant visa application processing fee (non-refundable) for all categories below:
  • Non-petition-based nonimmigrant visa (except E): $140.00

               Includes (but not limited to), the following visa categories: 

•  
  •  Petition based visa categories: $150.00  

               Includes these visa categories:           

•  
  •  E – Treaty Trader/Investor, Australian Professional Specialty category visa: $390.00
  • K – Fiance(e) or Spouse of U.S. citizen category visa: $350.00
• Border crossing card fees:
  • Border crossing card – age 15 and over (Valid 10 years): $140.00
  • Border crossing card – under age 15; for Mexican citizens if parent or guardian has or is applying for a border crossing card (valid 10 years or until the applicant reaches age 15, whichever is sooner): $14.00

Other Fees 

• L visa fraud prevention and detection fee – for visa applicant included in L blanket petition  (principal applicant only): $500.00

When the nonimmigrant visa application processing fee is not required: 

• Applicants for A, G, C-3, NATO and diplomatic visas (defined in 22 CFR 41.26): No Fee
• An applicant for a J visa participating in official Department of State or USAID sponsored educational and cultural exchanges, under a G-1, G-2, G-3 or G-7 program number, as well as the applicant’s dependent spouse and children: No Fee
• Replacement of machine-readable visa when the original visa was not properly affixed or needs to be reissued through no fault of the applicant: No Fee
• Applicants exempted by international agreement as determined by Visa Services, including members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly, and their immediate families: No Fee
• Applicants travelling to provide charitable services as determined by
  Visa Services: No Fee
• U.S. Government employees travelling on official business: No Fee
• A parent, sibling, spouse or child of a U.S. Government employee killed in the line of duty who is traveling to attend the employee’s funeral and/or burial; or a parent, sibling, spouse, son or daughter of a U.S. Government employee critically injured in the line of duty for visitation during emergency treatment and convalescence: No Fee

When the nonimmigrant visa issuance fee is not required: 

• An official representative of a foreign government or an international or regional organization of which the U.S. is a member; members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly; and applicants for diplomatic visas as defined under item 22(a); and their immediate families: No Fee
• An applicant transiting to and from the United Nations Headquarters: No Fee
• An applicant participating in a U.S. Government sponsored program which may include applicant’s dependent spouse and children: No Fee
• An applicant travelling to provide charitable services as determined by Visa Services: No Fee

Other – When a Visa is Not Required – Visa Waiver Program 

• Citizens of Visa Waiver Program participating countries, and meeting requirements pay a small fee. Select  USCIS fees  to learn more.