Wednesday, December 22, 2010

EXPORT CONTROL QUESTIONS SUSPENDED FOR 60 DAYS

As continuation of my previous post, the Commerce Department has confirmed to AILA liaison that USCIS will suspend the requirement that H-1B, H-1B1, L, and O-1A petitioners complete the export control/ITAR questions in Part 6 on the new I-129 form for a period of 60 days, but will require petitioners to use the new I-129 form (rev. Nov. 23, 2010) for petitions postmarked December 23, 2010, or after. Perhaps they are trying to comply with the notice requirements?

H-1B FEDERAL EXPORT REQUIREMENT CHANGES

On November 23rd, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker. The new form requires petitioners to take additional steps to ensure that federal export compliance is properly evaluated and that petitioner’s attestations are accurate.
What is export? Could be export to a foreign country. However, export of technology to foreign nationals may also deemed export which is prohibited in certain cases. The new Form I-129 includes a new Part 6, called “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.
The new forms includes the following language in Part 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:
(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR
(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary unless and until the petitioner has received the required license or other authorization to release it to the beneficiary.
If n export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered “technologies” without first obtaining the requisite license to cover the foreign worker. It is very important that petitioners not make a misrepresentation on Form I-129 in this regard, which in itself could be problematic (and violating Federal law).
While the new form is effective now, petitioners may continue using the former version of the form (which does not include the reference to export license requirements) until December 23, 2010.
More due diligence will be now required of petitioners applying for H-1B workers.

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 17, 2010 -- AT 53,900

USCIS just issued another H-1B cap update. As of December 17, 2010, it has received 53,900 H-1B petitions subject to the regular cap plus 19,700 H-1B petitions subject to the advanced degree H-1B cap. The advanced degree cap is very close to being exhausted within about a week (if it hasn't already). Once it is exhausted, the regular H-1B petitions usage rate will increase.

Wednesday, December 15, 2010

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 10, 2010 -- AT 52,400

USCIS just issued another H-1B cap update -- as of December 10, 2010, it has received 52,400 H-1B petitions subject to the regular cap plus 19,100 H-1B petitions subject to the master's cap or advanced degree (which is almost run out at 20,000 per year). It is getting closer to exhaustion.

Wednesday, December 8, 2010

PERI SOFTWARE SOLUTIONS DEBARRED FROM H-1B, TO PAY $638K IN BACK WAGES

Following a consent order obtained by the U.S. Department of Labor, Peri Software Solutions, Inc., and its owner, Saravanan Periasamy, have agreed to pay $638,449 in back wages and interest to 67 workers for violating the H-1B provisions of the Immigration and Nationality Act.
The Newark company sponsored the H-1B non-immigrant workers to work as programmer analysts across the country. Under the order, Peri Software Solutions, Inc., and Periasamy also must pay $126,778 in civil money penalties and interest for failing to provide notice of the filing of labor condition applications at each place where any H-1B worker was to be employed and for filing lawsuits against H-1B workers for early cessation of employment. The company and Periasamy will be debarred from participating in the H-1B program for one year.
These DOL penalties should remind all H-1B petitioners to comply with the regulations...

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 3, 2010 -- AT 51,200

USCIS just issued another H-1B cap update. As of December 3, 2010, they have received or approved approximately 51,200 H-1B visa applications under the regular cap plus 18,700 under the advanced degree cap. Less than 15,000 H-1B visas remaining, with the pace expected to pick up somewhat when the master's degree quota is exhausted.

Tuesday, December 7, 2010

NEW H-1B FILING FEES ARE IN EFFECT

Pursuant to Public Law 111-230, certain H-1B visa petitions now require payment of additional $2,000 in filing fees. These additional fees are applicable to petitioning employers who employ 50 or more employees in the United States and 50% of the petitioner’s employees are in H-1B, L-1A or L-1B status. These fees are required to be filed only for initial filings for a new beneficiary.
Until the Form I-129 petition for nonimmigrant worker is revised, USCIS recommends that all H-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter. The fee, statement, notation, or other evidence should be provided with each petition submitted. Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition.
The following is a sample statement that the petitioner could use:
"By this statement we confirm that our company (the petitioner) is not required to
pay the H-1B filing fee under Public Law 111-230. Our business does not have
more than 50 percent of our employees in the United States in H-1B or L-1
nonimmigrant visa status. Therefore, we are not required to pay the additional
filing fee."

Friday, December 3, 2010

USCIS UPDATES H-1B CAP COUNT FOR NOVEMBER 24, 2010 -- AT 50,400

USCIS just issued another H-1B cap update -- as of November 24, 2010, USCIS has received 50,400 cap-subject H-1B petitions, plus 18,400 H-1B petitions subject to the master's degree and higher. Less than 15,000 H-1B visas left and the pace of use is picking up.