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U.S. Consulates in Australia will begin to temporarily limit visa and consular service appointments from now through November, when Australia is scheduled to host the G20 (Group of Twenty) Leaders’ Summit, a forum for international economic cooperation.
U.S. Consulates will prioritize U.S. citizen services, immigrant visas and emergency nonimmigrant visa cases during this period.
BAL Analysis: Visa applicants and others are strongly urged to apply as early as possible for consular services.
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The U.S. Department of State will change its processing fees for nonimmigrant and immigrant visas beginning Sept. 12.
Most of the fees for nonimmigrant categories will remain the same or decrease. Notable fee increases include fees for family-sponsored immigrant visas, domestic review of an Affidavit of Support, and K visas (fiancé of U.S. citizen). Renunciation of U.S. citizenship will increase more than five-fold to $2,350.
Applicants who paid a fee that will decrease will not be refunded the difference. For fees that will increase, applicants who paid their fee (at the lower rate) before Sept. 12 and whose interview is on or before Dec. 11, will not have to pay the increase. Those who paid their fee before Sept. 12 and whose interview is on or after Dec. 12 will be required to pay the increase.
Nonimmigrant Visa Processing Fees
Immigrant Visa Processing Fees
Citizens’ and Administrative Services
BAL Analysis: The new fee schedule represents cost savings for employment-based applications. Petitioners whose fees will increase, notably in family-based immigrant categories, should build the increased costs into their budgets.
Aug. 28, 2014 – Companies employing H-1B workers are subject to investigation by the Department of Labor for prevailing wage violations, and risk legal action, civil penalties, back wages and taxes, and suspension from the H-1B program for non-compliance.
Employers are also subject to random, unannounced inspections by U.S. Citizenship and Immigration Services officials to verify the job details of H-1B nonimmigrant workers in specialty occupations.
In one recent case, the Department of Labor’s Wage and Hour Division alleged that an employer in Indianapolis misrepresented facts in its H-1B petitions and failed to pay prevailing wages to several H-1B workers.
An Administrative Law Judge found the employer liable for back wages because it did not pay H-1B employees the prevailing wage for pre-assignment and post-assignment time. The employer was ordered to pay $121,400 in back wages and civil fines to six workers, plus taxes, interest and penalties to federal and state authorities.
The court also prohibited the employer from participating in the H-1B program for one year and imposed enhanced compliance procedures on the employer, including opening its records to inspection by the Department of Labor for two years.
“The rules governing the employment of nonimmigrant workers in specialty occupations are specific and must be followed completely,” said Thomas Gauza, district director for the Wage and Hour Division in Chicago. “This case shows that the Department [of Labor] will not hesitate to bring legal action against employers that continue to short their employees and violate the law.”
BAL Analysis: Employers are encouraged to conduct internal compliance checks in light of the increased scrutiny and inspections of worksites for potential violations of labor and immigration regulations covering H-1B, L-1 and other nonimmigrant categories.
U.S. Customs and Border Control (CBP) is warning travelers about heavy traffic and longer lines at border crossings during the Labor Day weekend from Aug. 29 through Sept. 1, observed in both Canada and the United States.
Frequent travelers are encouraged to enroll in a Trusted Traveler program, which provides fast-track clearance through automated airport kiosks and dedicated vehicle lanes at land borders as well as expedited domestic travel through pre-check security screening lines. Eligible travelers may enroll in one of the programs – NEXUS, FAST, SENTRI or Global Entry – at the Global Online Enrollment System registration page. The CBP is also reminding travelers to plan for extra time and consider alternate entry points that are less popular. Other tips to speed up border inspections include preparing for inspections before arriving at the booth and contacting the local CBP office for information about prohibited food items.
BAL Analysis: International travelers should expect delays at border controls, but may expedite arrival and departure by enrolling in one of the Trusted Traveler programs.
Over the past several months, BAL has seen a sudden and steep increase in requests for evidence (RFEs) issued by U.S. Citizenship and Immigration Services (USCIS) in O-1 visa petitions (for individuals with extraordinary ability in the sciences, education, business or athletics).
This is consistent with an overall upward trend in RFEs in other types of cases, including H-1B and L-1 visa petitions. A recent report by the USCIS Ombudsman found that RFEs have risen in the past two years for H-1B petitions, and in the first half of fiscal year 2014, USCIS issued RFEs in 43 percent of L-1A petitions and 50 percent of L-1B petitions. The increased scrutiny on O-1 petitions may be related to the record number of individuals seeking alternatives to H-1B cap-subject petitions.
The surge in O-1 RFEs began in April and in some areas has affected more than 40 percent of filings. The RFEs are generic and do not appear to target specific questions or qualifications. BAL is working closely with our clients to gather the additional documentation and evidence needed to overcome requests for evidence.
BAL Analysis: We are advising that O-1 petitioners and beneficiaries should not be surprised or disheartened by RFEs as they become increasingly common. Petitioners should also anticipate adding four to six weeks to their time frames to accommodate delays caused by requests for evidence.
IMPACT – MEDIUM
What is the change? The U.S. has implemented the Foreign Account Tax Compliance Act (FATCA), mandating new reporting requirements for Americans living abroad.
What does the change mean? U.S. nationals living abroad must disclose foreign accounts that meet certain thresholds to the Internal Revenue Service (IRS) annually or face steep fines and penalties.
Background: FATCA is a U.S. law with broad scope that aims to reduce tax evasion by U.S. taxpayers with foreign accounts or assets. More than 80 countries, including Canada, China and, most recently, Russia, have agreed to implement the law. Under FATCA, foreign financial institutions must disclose the names and account information of U.S. citizens with accounts of more than $50,000 to the IRS. Thresholds are higher for U.S. citizens living abroad, generally $200,000 to $400,00, and vary depending on whether they are filing a joint or single return. Foreign financial institutions that fail to comply will incur a 30-percent withholding tax on U.S.-based income. Individuals who violate FATCA also face monetary penalties. A list of countries that have agreed to comply with FATCA can be found here on the U.S. Treasury’s website.
BAL Analysis: FATCA has an unprecedented global reach on U.S. taxpayers, especially American citizens residing abroad, regardless of time spent in the U.S. American expatriates should seek advice from tax experts on reporting obligations under FATCA.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
The Department of Labor has released quarterly statistics on H-1B and PERM applications for the third quarter of fiscal year 2014 (April 1 to June 30, 2014).
The total H-1B determinations in the third quarter (110,562) dropped to about half the number of determinations in the previous quarter (229,204). Of the 110,562 H-1B determinations, 90 percent were certified, 3 percent denied and 7 percent withdrawn. So far this fiscal year, a total of 419,035 determinations have been made. These numbers include H-1B, H-1B1 and E3 petitions.
Computer systems analysts topped the list of positions certified (27 percent), followed by computer programmers (13 percent), software applications developers (11 percent) and other computer occupations (10 percent). California led the states with 19 percent of positions certified, followed by Texas and New York (9 percent each), New Jersey (7 percent) and Illinois and Pennsylvania (5 percent each).
H-1B, H-1B1 and E3 Specialty Occupation Applications:
Source: Office of Foreign Labor Certification
The total number of PERM applications received during the third quarter (20,173) rose 15% over the same period in fiscal year 2013.
The top occupations for PERM applications are computer and mathematics representing 56 percent of applications certified thus far in fiscal year 2014, followed by architecture and engineering (12 percent), and management (8 percent).
Among active PERM applications, 61 percent are under analyst review, 28 percent are under audit review and 10 percent are under appeal.
83 percent of the total certified PERM applications in fiscal year 2014 were from H-1B visa holders. 55 percent of total certified PERM applicants held advanced (masters or higher) degrees. Indian nationals led the number of applications certified at 56 percent, followed by China (7 percent) and Canada (5 percent). California was the most popular work site state, representing 24 percent of certified applications.
PERM Applications:
The priority date for nationals of the Philippines in the EB-3 (employment-based third preference) category will advance considerably by ten months to April 1, 2011 (from June 1, 2010) in September 2014. EB-3 priority dates will remain unchanged for all other countries, including China (Nov.1, 2008) which has recently experienced significant retrogression.
In the employment-based second-preference category, the priority date for workers from India will progress moderately from Jan. 22, 2009 to May 1, 2009 in September. EB-2 priority dates for China will remain unchanged at Oct. 8, 2009. EB-2 priority dates for all other countries will remain current.
The EB-1 category will remain current across all countries.
EB-1 Current across all countries
EB-2 China: Oct. 8, 2009 India: May 1, 2009 All other countries: Current
EB-3 China: Nov. 1, 2008 India: Nov. 8, 2003 Mexico: April 1, 2011 Philippines: April 1, 2011 All other countries: April 1, 2011
Most of the backlog of visa applications that piled up during periodic database outages since July 20 has been cleared, according to the U.S. State Department.
“We have made significant progress and issued most of the worldwide backlog of nonimmigrant visa cases,” the State Department said yesterday.
The Bureau of Consular Affairs is prioritizing immigrant visas, adoption cases and emergency nonimmigrant visa cases. Most of those cases are being processed and printed without delay. However, the database is still not working at full capacity as the result of a computer glitch that started July 20 and a “small number” of visa cases are pending resolution of system performance issues.
The State Department is warning visa applicants that they might still experience delays of up to one week in addition to normal processing times.
BAL Analysis: The clearing of the visa backlog is good news, but visa applicants should keep in mind that some delays are occurring. Travelers should check with individual U.S. embassies and consular posts for more information and should not purchase tickets until they have a printed visa in hand.
The U.S. State Department has estimated that it will take weeks before its database is fully functional after a global outage slowed issuance of visas.
Currently, U.S. consulates are issuing most immigrant visas with few delays. However, nonimmigrant visa applications should expect delays as consulates work through a significant backlog of new applications that have accumulated during the two-week database interruption. The agency is issuing passports and is meeting requests for passports for emergency travel. Travelers from visa-waived countries and travelers who hold valid visas issued before the outage are not affected by the delays.
The performance issues began July 20 after routine maintenance of the Consular Consolidated Database that records, approves and prints visas, passports and other travel documents.
The State Department said yesterday that it is still working toward full functionality of its system. It has been operating at approximately half capacity, having issued 220,000 nonimmigrant visas from July 20 to July 28 – a period in which 425,000 nonimmigrant visas would have been issued under normal conditions.
BAL Analysis: Visa applicants are advised to make appointments as early as possible before anticipated travel dates and not to book tickets until they have received a printed visa. Foreign employees, interns and students awaiting visas should contact their sponsoring entity about possible delays in start dates and enrollment.