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Chris Musillo on Nurse and Allied Health Immigration

H-1B News -- Filing Fee Increase, Neufeld Memo

Rating: 2 votes, 5.00 average.


August 2010 is shaping up to be one of the toughest months for H-1B employers. In the last few days, we have a seen a targeted H-1B filing fee increase and the dismissal of a lawsuit that sought to overturn the Neufeld Memorandum.

Fraud Fee Increase



Late last week, the House and Senate quickly passed a massive H-1B and L-1 filing fee increase. The increase was instantly signed by the President.


Effectively immediately, H-1B and L-1 employers with more than 50 employees and who have workforces with 50% H-1B or L-1 workers, will see an increased fraud fee on new petitions. Previously, the fraud fee was $500. The new L-1 fraud fee will be $2,750 and the new H-1B fraud fee will be $2,500.


New petitions are a Beneficiary's first L-1 or H-1B visa for a Petitioner. Typically, new Petitions are when the Beneficiary is (i) a new hire from overseas or from another nonimmigrant visa status, (ii) a student ending their OPT, or (iii) an L-1 or H-1B transfer from another L-1 or H-1B employer.
The fraud fee does not apply to employees' L-1 or H-1B extensions since these are not "new" filings.

Neufeld Memo Lawsuit Dismissed


Earlier this summer a consortium of recruiting and staffing companies sued the USCIS, contending that the Neufeld Memorandum was contrary to law. On Friday, a federal Judge dismissed the case. The Judge's opinion says that the Neufeld Memorandum is legally permissible because the Memorandum is simply "guidance" and not binding on USCIS officers. The Plaintiffs had hoped that the federal Judge would force the USCIS to withdraw the Neufeld Memorandum.


The Neufeld Memorandum limits approvals of H-1Bs where the Beneficiary is employed at a third-party worksite. In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not "employers".


The Memorandum derisively referred to the IT staffing model as a "job shop". USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.


MU has seen much stricter evaluations in third-party worksite situations. Although we have not seen a material rise in denials, we have seen more RFEs issued in many H-1B cases where the employee is set to work at a third-party worksite.


Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

 

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Comments

  1. Adi's Avatar
    http://abcnews.go.com/Health/Wellness/nursing-shortage-big-time-recruiter-fill-jobs/story?id=11370964

    Article about nursing shortage.
  2. BB's Avatar
    The $2,000 fee is not nearly high enough to remove the enormous advantages to employers of hiring indentured labor. The H1B gives employers the ability to immediately deport any H1B employee. This amount of power over employees represents a violation of the 13th Amendment to the U.S. Constitution (the amendment that freed the slaves):

    "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have power to enforce this article by appropriate legislation."

    Some claim that the H-1B program helps to create American jobs, but it is currently being used by some companies to outsource American jobs to foreign countries. Under current law, an outsourcing company can use American workers to train H-1B guest-workers, fire the American workers and outsource the H-1B workers to a foreign country where they will do the same job for a much lower wage. In fact, Indian Commerce Minister Kamal Nath has referred to the H-1B as "the outsourcing visa."

    Employers can legally discriminate against qualified Americans by firing them without cause and recruiting only H-1B guest-workers to replace them. The U.S. Department of Labor (DOL) has said: "H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of a foreign worker." Some companies that discriminate against American workers are so brazen that their job advertisements say "H-1B visa holders only." And some companies in the United States have workforces that consist almost entirely of H-1B guest-workers.
  3. Jim's Avatar
    "Article about nursing shortage. "

    Good article. Vindicates what I have been saying on Greg's blog as well. Those who only went back during the recession and those who held off retirement only did it for one reason: financial. Nothing more. They will leave as fast as they went back and when they do, the shortage will be worst than before and the system would be in shock as it is tantamount or similar to suddenly pulling the rug on something.

    There is also a good possibility that they may not even wait for the economy to be at full speed. I bet you, once stocks makes a strong rebound again to even acceptable levels they'll liquidate it or bring their equities down to bare minimum before it goes down again. The up and down roller coaster ride is head spinning and there is even a chance for double-dip. Once stocks rebound a bit it would be wise for them to get out and stop riding the roller coaster ride. Once they get out of equities or bring it down significantly on their portfolios, there is no more reason to be working. Period.

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    The US government will miss out on the $1 billion that Indian firms pay as social security contributions for their skilled workers temporarily stationed in the US.
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