Proposed Elimination of "Interim Benefits" Fees
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The Proposed Rule advocates an elimination of fees for what are referred to as interim benefits. These are the I-765, Application for Employment Authorization Document (EAD) and I-131 Application for Travel Document (Advance Parole, only), that are issued based upon the foreign national's having a pending I-485, Application for Adjustment of Status. Since the I-485 fee would almost triple, however, there does not seem to be a cost savings for most individuals. Additionally, not every I-485 applicant needs or wants the EAD and AP, although many do renew them annually.
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Submit Your Comments to USCIS by April 2, 2007
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Anyone may comment on the proposed regulation. Those interested in commenting should take time to review the proposed regulation and formulate logical, potentially persuasive statements. Comments will be made public, as they will be posted as submitted at www.regulations.gov. One should NOT include any personal detail unless s/he is willing to share it freely. While no one likes prices to go up, simply complaining about the increase in costs is unlikely to have an impact.
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Comments must be received by April 2, 2007 and must reference the agency name (U.S. Citizenship and Immigration Services), as well as the docket number (USCIS-2006-0044). Comments may be submitted through the Federal eRulemaking Portal or via mail or hand-deliver / courier, in hardcopy, disk, or CD-ROM form to:

Director, Management Division
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Avenue, NW, 3rd Floor
Washington D.C.  20529

Conclusion
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Voicing your opinion makes you a part of the democratic process, and this is how the U.S. government and legal systems are supposed to work. Although many may hesitate to publicly comment, the government does carefully consider the content of comments, as well as the sheer number of those responding. When the USCIS introduced regulations to reduce the time for B-2 tourist visits from six months to 30 days, for example, there were more than 10,000 comments. That convinced the USCIS to shelve the proposal.
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2. Labor Substitutions : Still Possible in February 2007
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The Murthy Law Firm issued a February 2, 2007 NewsFlash on movement in a proposed U.S. Department of Labor (DOL) regulation that seeks to eliminate the labor substitution process. We remind MurthyDotCom and MurthyBulletin readers that, as of this writing, and until any such regulation becomes effective, labor substitution cases are still possible. Therefore, those companies that have pre-approved labor certifications (LCs), and those individuals who have been offered the opportunity to utilize the substitution process may wish to take steps to file their cases at the earliest opportunity. While the current wording of the regulation is not known, since it is a DOL regulation, its scope is inherently limited to matters within DOL control. Accordingly, while nothing is guaranteed, it is quite possible that the regulation will not be able to interfere with labor substitution cases that have already been filed with the USCIS. It would seem that a case with an approved I-140 petition would be on even safer ground, as there was nothing in the proposed regulation that would have affected such cases.  
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LC Substitution - Pros and Cons
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Substitution cases have been at the root of certain fraud problems, which is part of the DOL's motivation for the regulation. Thus, it is likely that all such cases will be closely scrutinized. This may be even more true for those cases filed in an effort to beat the regulation. Companies that legitimately filed labor certifications may find substitution to be a valuable procedure in instances where LC approvals are not needed for the named individuals. This saves time, money, and is a very valuable employee-recruiting tool to attract good candidates to fill labor shortages.
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Be Wary of the Unscrupulous
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Foreign nationals should take care in choosing their employers, as there are some that engage in the sale of labor substitutions. It is likely that the movement in this regulation will cause frenzy among certain companies that may try to take advantage of unwary individuals. We reiterate our warnings set out in our September 9, 2005 MurthyBulletin article, Beware of Fraudulent Labor Substitution Cases, available on MurthyDotCom. Moreover, before taking advantage of a pre-approved LC, one should be certain that s/he meets all of the requirements of the position at a point before the priority date, and that the company has the ability to pay the prevailing wage.
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Conclusion
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Hopefully, the DOL will carefully consider the comments sent by employers, American Immigration Lawyers Association (AILA) members, and AILA and other interested organizations whose memberships work with immigration cases each day. Some of the provisions in the regulation simply are not realistic; among them the 45-day expiration of the labor certification. At this point, LCs do not have expiration dates. To go from no expiration date to a 45-day limit simply does not fairly consider real-world scenarios, including the need to coordinate attorneys, employers, and beneficiaries for finalization of the I-140 filings.
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3. DOL Trying to Impose PERM Fee
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The U.S. Department of Labor (DOL) is submitting a legislative proposal to Congress to request imposition of a PERM processing fee. DOL must ask Congress to pass a bill, rather than simply propose a regulation as USCIS has done in its effort to increase fees. The reason DOL must first go to Congress is that the DOL have never been authorized to collect fees for PERM processing. Unlike the USCIS proposed rule on fee increases [See article #1, Proposed Significant Increase in USCIS Filing Fees, in this edition of the MurthyBulletin.], which will require a public comment period and second review by the OMB, the DOL proposal requires that Congress pass a bill. The President, then, must sign that bill into law. The USCIS already has the authority to collect fees for case processing, as most MurthyDotCom and MurthyBulletin readers know from personal experience.
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Earlier Scare of Very High DOL Fees
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There was a fear that at one time that the DOL fee to process labor certifications would be one-third of the DOL-mandated annual prevailing wage for the position. This would have resulted in tens of thousands of dollars in fees for a single employee just to obtain labor certification and then more time and money for continuing in the permanent residency process. Fortunately, that proposal did not progress for several reasons; including concern that part of the DOL's work is protecting the U.S. labor market and the wages and conditions for U.S. workers.
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Reasons DOL Fee is Unlikely
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It is not clear whether Congress will be willing to impose a PERM fee, particularly in light of the substantial fee increases proposed by USCIS. Congress is already holding a committee meeting on the fees proposed by USCIS. We will monitor this matter and update MurthyDotCom and MurthyBulletin readers, as appropriate. More importantly, the purpose of the labor process is considered to be the protection of the U.S. worker. Collecting fees from employers or employees going through the labor certification process may cause a blurring of the lines delineating exactly who the DOL serves. So, in principle, there has been some resistance to imposing a DOL fee for processing labor certifications.
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4. H1B1 Visa Category : Viable Option for Nationals of Chile and Singapore
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Often overlooked and underutilized, the H1B1 nonimmigrant visa category was created after President George W. Bush signed into law certain Free Trade Agreements (FTAs) with Chile and Singapore on September 3, 2003. Both FTAs, as well as the H1B1 nonimmigrant visa category, became effective on January 1, 2004. The H1B1 provides a potential alternative to the H1B for foreign nationals from the countries of Chile and Singapore.
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H1B1 Quota for Chile and Singapore
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The H1B1 category has numerical limits that are carved out of the available 65,000 H1B cap. That is, the H1B cap is reduced by the numbers available for the H1B1 for nationals of Chile and Singapore. Specifically, 1,400 H1B1 visa numbers are available for Chileans, while 5,400 are set aside for Singaporean nationals. Despite the relatively low numbers, this category has not been used to its full potential so far.
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Eligibility Criteria / Qualifications for H1B1
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The H1B1 category is for a person in a "specialty occupation" who requires the theoretical and practical application of a body of specialized knowledge and the attainment of a bachelor’s degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation. Therefore, the requirements are identical to those of the regular H1B category. Additionally, the H1B1 nonimmigrant classification is available to certain professionals who may not possess post-secondary degrees or the equivalent, but who will engage in the profession of Agricultural Managers or Physical Therapists (for Chilean nationals only); or Disaster Relief Claims Adjusters or Management Consultants (for both Chilean and Singaporean nationals).
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Pros and Cons of H1B1 and H1B
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Similar to the TN visa for Canadian and Mexican citizens, one advantage of the H1B1 category is that H1B1 beneficiaries do not need to first obtain approval of the H1B1 Petition from the United States Citizenship and Immigration Services (USCIS). Consequently, H1B1s can apply directly for their visas at a United States consulate.
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The H1B1 visa category shares the same disadvantages of the TN category, in that H1B1 visas are only valid in one-year increments and do not provide certain protections available to H1B and L-1 holders under the doctrine of dual intent. This means that H1B1 beneficiaries may not pursue permanent residence in the United States while in H1B1 status. The availability of this category, however, does not preclude Singaporean and Chilean nationals from applying for regular H1B status once they are ready to process for permanent residence. As regular MurthyDotCom and MurthyBulletin readers know, one who is in H1B and L-1 status enjoys dual intent benefits, allowing that individual to seek permanent resident status while maintaining the H1B or L-1 status.
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Conclusion
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The H1B1 visa category should not be overlooked, as it may prove to be a valid alternative to recruit qualified professionals after the regular H1B cap has been reached. Unless Congress increases the quota, it has been predicted that this year, in Fiscal Year 2008, the regular H1B cap could be reached on or shortly after the very first business day H1Bs will reach the USCIS; which will be April 2, 2007. Employers unable to locate workers within the U.S. may wish to consider making efforts to recruit from Chile or Singapore, in light of the availability of the H1B1.
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5. MurthyDotCom : Did You Know about our Rumor Control Page?
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Whether the result of spreading an erroneous understanding of the law or getting caught up in a media frenzy over some issue that is constantly changing, there are always topics in U.S. immigration law that require knowledgeable, clear-headed explanation. MurthyDotCom has a Rumor Control page for immigrants to find fiction separated from truth and the truth clarified by attorneys at the Murthy Law Firm.
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The next session MurthyChat will be Monday, February 12, 2007, 9:00pm Eastern Time (U.S.). Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 
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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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6. Important Processing Times and Dates
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Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
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