Wolfsdorf Immigration Newsletter January 2010

1. FY 2010 H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. December 21, 2009, is the "final receipt date" for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. Regulations now provide that H-1B petitions received by USCIS on or before December 19 (because of the weekend) have been submitted "under the cap," but H-1B petitions received by USCIS on or after December 22, 2009, will be rejected.

USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after December 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process H-1B petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.
• change the terms of employment for current H-1B workers
• allow current H-1B workers to change employers
• allow current H-1B workers to work concurrently in a second H-1B position

Now that the FY 2010 cap has been reached, the earliest an employer can file a new H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=153a1638367b5210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

For more details on the H-1B count, see http://www.uscis.gov/h-1b_count.

2. State Dept. Proposes Increase in Nonimmigrant Visa Application and BCC Fees

The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and Border Crossing Card (BCC) fees. Under the proposed rule:

• Applicants for all visas that are not petition-based, including B-1/B-2 tourist and business visitor visas and student/exchange visitor visas, would pay $140
• Applicants for petition-based visas (H, L, O, P, Q, R) would pay $150
• Applicants for treaty traders and investors (E) would pay $390
• Applicants for K visas would pay $350
• Applicants for non-petition based machine-readable visas (except E category) and BCC applications, with the exception of certain Mexican citizen minors' BCCs, would pay $140

The press release is available at http://www.travel.state.gov/news/press/press_4603.html. The proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-29722.pdf.

3. Department of Labor Announces Centralization of Prevailing Wage Determinations

As of January 1, 2010, the Department of Labor's Office of Foreign Labor Certification's National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The notice also includes information about processing CNMI prevailing wage determinations. The NPWHC will only process prevailing wage determination requests received by mail in hard copy. The Department said it is developing an electronic means for the submission of such requests.

The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

4. IRS New Guidance on “HEART ACT” – Exit Tax for U.S. Expatriates

On November 9, 2009, the IRS issued new guidance regarding their enforcement of the Heroes Earnings Assistance and Relief Tax Act (the “HEART Act”). ( (http://www.irs.gov/irb/2009-45_IRB/ar10.html) Enacted in June 2008, the HEART Act imposes a “mark-to-market tax” on certain high net worth, or high earning lawful permanent residents who relinquish their green card (“covered expatriates”). Such persons become subject to an exit tax (“mark-to-market tax”) if, at the time of expatriation, they have had their green card for any portion of eight, of the previous 15 tax years and they have a:

(i) Net worth of more than $2 million;
(ii) Average net annual U.S. tax liability of more than $145,000 (adjusted annually for inflation); or
(iii) Failed to certify that they have satisfied all U.S. federal tax obligations for the five years preceding expatriation.

This exit tax is applied to the net unrealized gain on the expatriate’s worldwide assets as if the property were sold for its fair market value on the day before the date of expatriation. Any net gain on this deemed sale in excess of $626,000 (2009 figure) is taxable.

IRS CIRCULAR 230 NOTICE

In compliance with IRS requirements, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of avoiding tax penalties or in connection with marketing or promotional materials.

5. Health Experts Say 22-Year HIV Travel Ban Reflected Ignorance About Disease

In a move public health and human rights advocates have hailed as a "victory," the so-called HIV travel ban, which barred entry to the U.S. by people living with HIV or AIDS, has been officially revoked, bringing to a close years of work to end the measure. For more than 20 years, people living with HIV or AIDS needed look no further than the United States' front door for a reminder of the stigma associated with their disease. A U.S. immigration measure first imposed in 1987 after politicians reacted to the outbreak of AIDS prohibited all infected persons from obtaining U.S. tourist visas or permanent residence status unless they obtained a special waiver.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online:
https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs:
http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin:
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

FIRM NEWS

Cliff Rosenthal will be in South Africa for in-person U.S. immigration consultations from January 18-22, 2010. Please email him at crosenthal@wolfsdorf.com or call (310) 570-4088 to set up an appointment.

Avi Friedman, Rita Sostrin and Naveen Rahman Bhora will host a WOLFSDORF IMMIGRATION LAW GROUP Immigration Seminar for Physicians in New York City on January 23, 2010. The seminar is scheduled from 11:00 a.m. to 1:00 p.m. and will be held at Roosevelt Hospital, Conference Room C, 1000 10th Avenue. Topics covered will include J-1 Waivers, Visa Options for Physicians and Scientists, and Consular Processing of Nonimmigrant Visas. Participants will be able to engage in a free case strategy consultation following the seminar. If you would like to attend, please RSVP to Art Rivadeneyra at art@wolfsdorf.com by January 15, 2010.

Bernie Wolfsdorf will speak at AILA’s MidYear Conference in Mexico on the Impact of Global Business on Business Immigration Practice on January 29, 2010. Also, check out Bernie’s Blog on AILALeadership Blog Comprehensive Immigration Reform - It's Time to Walk the Walk!

GLOBAL IMMIGRATION NEWS:

Germany — New Application Process for Permanent Residence Permits

Germany has a new application process for permanent residence permits. Previously, foreign workers who had a gross yearly income of more than €64,800 and who had not previously lived in Germany were issued their permanent residence permits upon registration with the Residency Office after their arrival in Germany; accompanying spouses were issued a temporary residence permit with work permit at the same time. Now, these new employees will need to undergo an examination by the Federal Office for the Protection of the Constitution before being allowed to apply for a permanent residence permit. The results of this exam take approximately eight weeks to process, and it can only be initiated after the foreign national employee has registered with the Residency Office.

Because of this change in policy, the new employee will be issued a temporary residence permit (Fiktionsbescheinigung), which includes a work permit, after registering with the Residency Office. The Fiktionsbescheinigung is normally issued for three months; in exceptional cases it may be issued for six months.

To obtain a tax card immediately, the foreign national employee needs to provide a Fiktionsbescheinigung valid for at least six months; the spouse gets a Fiktionsbescheinigung without work permit. After passing the exam, the foreign national employee gets his/her permanent residence and work permit and the spouse his/her temporary residence with work permit stamped into his/her passport.

India — The New Quota System and Tax Regulations

Effective immediately, the Ministry of Labor and Employment in New Delhi has announced the new quota system in which the Indian government will allow employers to recruit foreign workers so long as their numbers do not exceed 1% of the total workforce or 20 foreign workers total. Once this quota has been exceeded, employers in India will not be allowed to sponsor additional foreign workers.

In addition, all "E" visa applications submitted through Indian Consulates in the U.S. should include a tax liability letter from the sponsoring company in India. This letter must certify the following details:

• Indian company should be liable to withhold tax in relation to salary received by foreign workers;
• Number of foreign workers being hired should not exceed 1% of total workforce;
• Within 1% of total workforce, foreign workers should not exceed more than 20 employees; and
• Should number of foreign workers fall within 1% but more than 20, there may be some delay in processing.

The Indian government has not specified whether these new requirements will be implemented at Indian Consulates outside of the U.S.

 Netherlands — New Salary Requirements for Knowledge Migrants in 2010

Effective January 1, 2010, the Dutch Immigration Department will raise the gross income level requirements for those applying for Knowledge Migrant work authorization.

The new salary requirements, will be as follow:

• Foreign workers under 30 years of age will be required to earn at least €36,801 gross on an annual basis and demonstrate a valid employment contract;
• Foreign workers 30 years of age and over will be required to earn at least €50,183 gross on an annual basis and demonstrate a valid employment contract;
• Foreign students who graduate from an educational institution in the Netherlands will be required to earn at least €26,376 on an annual basis in order to qualify as highly skilled foreign workers.

Singapore — Minimum Insurance Coverage for Foreign Domestic Workers is to be S$15,000 a Year

Starting January 1, 2010, the minimum insurance coverage for all foreign domestic workers in Singapore will be raised to S$15,000 a year. According to Singapore's Ministry of Manpower, no cap will be placed on the maximum medical liability of an employer for foreign domestic workers ("S" Pass holders). The Manpower Ministry has indicated this is to reduce the employer's exposure to potentially large hospital bills.

Switzerland — Work Permit Quotas to be Lowered by 50 Percent in 2010

The Swiss Federal Council will reduce the 2010 work permit quotas by 50 percent for all non-EU/EEA nationals.

The quotas in 2010 will be as follows:

• L Permits—3500 (Granted on application for an activity of less than 12 months duration)
• B Permits—2000 (Initial permit limited to one year; Renewable until the granting of the permanent residence permit/C permit after 5 or 10 years)

The Swiss Federal Council will re-evaluate quota numbers every six months.

United Kingdom — Identity Cards to be Extended to Highly Skilled Foreign Workers Starting January 6, 2010

Starting January 6, 2010, highly skilled foreign workers and their dependents will receive an identity card for foreign workers when they successfully apply to extend their stay in the U.K. under Tier 2 of the points-based system. Under new regulations approved by Parliament this month, all Tier 2 applications made inside the U.K. on or after January 6, 2010, will involve the enrollment of the applicant's biometric information (fingerprints and photograph).

United Kingdom — The Independent Migration Advisory Committee has Completed its Review of Tier 1 of the Government's Points-based System

The Migration Advisory Committee has recommended the following in connection with the Tier 1 system:

• The salary multipliers should be rapidly and thoroughly reviewed;
• Foreign workers with an undergraduate degree as their highest qualification should be allowed to apply under Tier 1 General provision;
• Professional qualifications (in law and accountancy, for example) should be considered equal to a Master's degree;
• Pay thresholds should be substantially increased, with no points for previous annual earnings below £24,000;
• Foreign workers with previous annual earnings of at least £150,000 should not be exempt from meeting the educational qualification requirements;
• Foreign workers should receive points for their age if they are 39 or younger; and
• First-time applicants should initially be allowed to enter the U.K. for two years, rather than three as at present, with a three-year extension later if they are in highly skilled employment.

The implementation of the above recommendations will be at the discretion of British authorities. It is for the British government to decide whether and when to accept these recommendations, as well as the timetable for implementation.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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