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This article summarizes the most significant developments in immigration law during the 2010 calendar year.

New Online Prevailing Wage System for PERM and H-1B

The Department of Labor (DOL) announced on January 14, 2010 that a new online prevailing wage system for PERM and H-1B will be launched beginning January 21, 2010. This is a big change in DOL’s practice regarding the prevailing wage determination system. For the past decade, prevailing wage determination for PERM and H-1B has been performed by a state agent. Employers who request a determination for a prevailing wage need to file an application with the state wage agent when a position is offered. Under the PERM system, a prevailing wage determination must be received prior to filing the PERM labor certification, the first step in an employment sponsored immigration petition. DOL began this new centralized system on January 1st, but it has only been available through paper filing for the first couple of weeks. The new online prevailing wage system will be incorporated into the existing iCert system that DOL currently uses to handle Labor Condition Applications for H-1B petitions.

New H-1B Standards in Determining Qualified Employer-Employee Relationships

On January 8, 2010, USCIS issued new guidance regarding employer-employee relationships in H-1B cases. In the memo, USCIS tries to clarify what kinds of standards and documents are used to determine whether an employee-employer relationship exists.

In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key; this is different than actual control. Establishing an employer-employee relationship is only dependent on the right to control and not on actual control.

However, in practice, USCIS heavily relies on evidence of actual control to determine the right of control.  USCIS considers multiple factors in the determination process, and none of the factors are decisive by themselves. Instead, USCIS uses the totality of the factors to determine the validity of an employee-employer relationship. Factors used include but are not limited to a) whether the petitioner uses tools/instruments provided by the employer, b) employee benefits, c) whether the employer dictates when and how the employee works, d) whether the employer has the ability to hire, pay, and fire the employee, f) whether the employer maintains supervision over the employee, g) the nature of supervision (whether it is onsite or offsite), and  h) whether the employer is the one who evaluates the employee, etc.  

Arizona SB 1070

Governor Jan Brewer of Arizona officially signed the Support Our Law Enforcement and Safe Neighborhoods Act, or Arizona SB 1070 for short, into action on April 23, 2010.

Essentially, the bill makes it legal for law enforcement officers in the state of Arizona under reasonable suspicion to determine the nature of someone’s immigration status. The bill will also allow for officials to arrest a person if there is probable cause to believe that the person is in the United States illegally. Officials will release those detained only after they show proof of status. First-time offenders face a fine of up to $100. Repeat offenders could face a maximum of 20 days in jail on top of fines. Another provision of the bill makes it a crime to shelter illegal aliens, transport them, and encourage or play any part in their immigration, knowingly or recklessly. Depending on the number of illegal aliens involved, offenders could face felony charges. 

Passage of the bill sparked immediate controversy. It was scheduled to go into effect on July 29, 2010. Legal challenges over its constitutionality and compliance with civil rights law were filed, including one by the United States Department of Justice. The Department of Justice along with other opponents of the law also asked for an injunction against the law’s enforcement. The day before the law was to take effect, a federal judge issued a preliminary injunction that blocked the law's most controversial provisions.

The Color of the New Green Card Is Now Really Green

The Permanent Resident Card, also commonly known as the “Green Card” has encompassed many shapes and forms over the years. For the past several years, the color of the Green Card has remained a light shade of pink. On May 11, 2010, U.S. Citizenship and Immigration Services announced that it has completely redesigned the card, adding new and enhanced features. Among its many improvements, the Green Card is finally going to be the color green.

Aside from the change in color to match its infamous name, the redesigned Green Card has some enhanced security measures. These include: Secure optical media to store biometrics for rapid and reliable identification of card holders. Holographic images, laser engraved fingerprints, and high resolution micro-images to make the card nearly impossible to reproduce. New design features with detailed and personalized elements will make it difficult to tamper with or alter the card if it is stolen. Radio Frequency Identification capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Last, but not least, a pre-printed return address will enable the easy return of a lost card to USCIS.

USCIS Announced Changes of Filing Location for Form I-140 and Form I-526

On August 3, 2010, U.S. Citizenship and Immigration Services (USCIS) announced revised filing instructions for petitioners filing an Immigrant Petition for Alien Worker (Form I-140). The new form, dated 6/14/10, reflects an overall effort to transition the filing of benefit forms from USCIS Service Centers to USCIS Lockbox facilities.

According to this announcement, Form I-140 filed alone or together with an Application to Register Permanent Residence or to Adjust Status (Form I-485) should be filed at the USCIS Dallas Lockbox facility, or at the USCIS Nebraska or Texas Service Centers, depending on the classification for which the petition is being filed. Forms I-140 for skilled workers (marked “f” in Part 2, Petition Type, of the form) should continue to be submitted to either the Nebraska or to the Texas Service Centers. Forms I-140 that are accompanied by a Form I-907, Request for Premium Processing Service should also go only to the Nebraska or Texas Service Centers. Starting on Aug. 3, 2010 all other Form I-140s should be submitted to the USCIS Dallas Lockbox facility.

USCIS Implements Certain H-1B and L-1 Fee Increases

On August 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

According to the USCIS officer, these additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) non-immigrant status.    

New Review Processes based on USCIS PM

On August 18, 2010, U.S. Citizenship and Immigration Services (USCIS) released a new interim memo which clarified the method of analysis USCIS officers must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. 

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavour.

Adjusted USCIS Fees Become Effective on November 23, 2010
 

On September 24, 2010, U.S. Citizenship and Immigration Services (USCIS) announced a final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application.

This rule is effective November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Highlights of the final rule include some important fee increases including: I-140 Immigration Petition for Alien Worker ($475 to $580), I-907 premium processing service ($1000 to $1225), I-129 Petition for a Non-Immigrant Worker ($320 to $325), I-130 Petition for Alien Relative ($355 to $420), and I-485 Applicant to Register Permanent Residence or Adjust Status ($930 to $985—excluding the $80 fingerprinting fee).The current I-485 fee listed is $1010; to clarify, this number includes the fingerprinting fee.  The adjusted I-485 fee will be $1070. Again, this number includes the adjusted fingerprinting fee $85.

Visa bulletin 2010

Visa numbers for the EB-1 category remained current throughout the year.

In the EB-2 category, at the beginning of 2010, cut off dates were set at May 1, 2005 for mainland Chinese nationals and January 22, 2005 for Indian nationals. Then cut off dates progressed continuously in the months following, ending the year at June 8, 2006 for mainland Chinese nationals while the cut off dates progressed to May 8, 2006 in September 2010 and remained unchanged in the following three months for Indian nationals.

In the EB-3 category, at the beginning of 2010, cut off dates were set at August 1, 2002 for mainland Chinese nationals and June 22, 2001 for Indian nationals. Then cut off dates progressed continuously in the months following, ending the year at December 8, 2003 for mainland Chinese nationals and January 22, 2002 for Indian nationals.
 
Conclusion

This year has brought many new developments to immigration.

Our firm received over 223 NIW and 166 EB-1 approvals in 2010. We would like to extend a warm greeting to the USCIS officers who worked tirelessly this year to evaluate our cases and improve their administrative procedures.

We are excited to see what new developments arise next year. Finally, we would like to extend our warmest greetings to our clients who have supported and trusted us. May you and your family have a wonderful New Year! We hope that your American dreams come true in 2011!  

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fourteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, PC.

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Tel：	1-800-230-7040, 713-771-8433
Email：	info@hooyou.com
website：	http://www.hooyou.com

 

(12/31/2010)

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