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Immigration View

Navigating Complex U.S. Immigration Laws

Homeland Security issues Ebola Travel Advisory

Posted in General Immigration News and Updates

The Department of Homeland Security (DHS) is requiring that anyone coming to the US from one of three West African countries reporting an Ebola outbreak must enter the country through one of five airports screening passengers for the deadly disease.

DHS, together with the CDC and U.S. Customs and Border Protection (CBP), implemented increase screening measures at five major US airports where over 94% of travelers from the affected region enter the U.S., which started with John F. Kennedy International Airport on Saturday, Oct. 11. The five airports are JFK, Chicago, Dulles, Atlanta and Newark. All passengers will experience enhanced security measures and screening.  Specifically, passengers flying into one of these five airports whose travel originated in Liberia, Sierra Leone, and Guinea are also subject to secondary screening and added protocols, including having their temperature taken, before they can be admitted into the United States. At present there are no direct, non-stop commercial flights from Liberia, Sierra Leone or Guinea to any airport in the United States.

The Department of Homeland security (DHS) is one of the leading government agencies working to assist in the Ebola crisis. According to a report issued by the Whitehouse, a new audit reveals that there have been significant issues with the DHS preparations for a pandemic which include supplies and medical equipment purchased by the government have expired.

USCIS released a press release on August 15, 2014, providing guidance on immigration relief measures for nationals of Guinea, Liberia and Sierra Leone currently in the U.S.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

EB-2 India Retrogression – Visa Office on Priority Dates, Demand, and Predictions

Posted in Consular Issues, EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), PERM Labor Certification, Permanent Residence, Priority Dates

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association). 

Below are highlights from the most recent “check-in with Charlie”, reflecting his analysis of current trends and future projections for the various immigrant preference categories.

Following an initial infusion of new visa numbers in October, some of Charlie’s predictions for this fiscal year are already coming to fruition in the November Visa Bulletin as reported in our blog of September 16, 2014.  

EB-2 India Retrogression
As Charlie predicted, EB-2 India will retrogress to February 15, 2005 as of November 1, 2014. Individuals born in India with EB-2 priority dates earlier than May 1, 2009 should file their adjustment of status applications before the end of October. No forward movement in this category is predicted for the foreseeable future.

EB-5 China
EB-5 China became current at the start of the new fiscal year in October, but as Charlie predicted last month, it will at some point become necessary to establish a cut-off date for EB-5 China, possibly as early as May 2015. Charlie will be speaking at a conference in San Francisco on October 23 and will have additional information to report to the public at that time.

EB-3 China “Downgrades”
The cut-off date for EB-2 China is December 8, 2009, approximately three weeks earlier than the cut-off date for EB-3 China, which is January 1, 2010. Charlie predicts that we are likely to see a cut-off for EB-2 China earlier than EB-3 China for a few months and that this is likely to prompt those with priority dates close to or within the EB-3 cut-off to file I-140s in the EB-3 category. This phenomenon is likely to last for a few months until these cases make it through USCIS, at which time the increased demand for EB-3 China will require a correction to that cut-off date.

Predictions for Forward Movement in the Preference Categories
As explained in the November Visa Bulletin, modest forward movement in the family-based preference categories of a few weeks to two months per month is possible. These predictions are based on information available in early October and will continue to be updated as the months progress and new information regarding the supply and demand for visas in the family-based categories becomes available.

In the employment-based preference categories, there is currently no movement predicted for EB-2 India, though EB-2 China is expected to progress by three to five weeks per month. Rapid advancement is expected in EB-3 China for the next few months until the correction described above kicks-in. A one or two week movement per month is expected for EB-3 India. EB-3 Mexico is expected to remain at the worldwide cut-off, as is EB-3 Philippines though for the Philippines, a roll-back might be necessary later in the fiscal year should demand increase dramatically.

Questions Regarding Unused Visa Numbers
An AILA member posed a series of questions following news reports of an estimated 200,000 unused visas which could be recaptured through administrative action.

Charlie agrees that there are approximately 220,000 family and employment-based visas that have gone unused, most of which can be attributed to the period between 1992 and 1997. Prior to the “dot com bubble,” demand was usually insufficient to use all of the available employment-based visa numbers in any given fiscal year. Since then, the increase in demand for labor in the IT sector and improved interagency processes have contributed to greater use of employment-based visa numbers in the fiscal year for which they were allocated. In the past, such unused numbers have only been recaptured through legislative action.

AILA’s Observations on Visa Allocation, Priority Date Movements, and Opportunities for Further Interagency Cooperation
In terms of immigrant visa allocation and usage, the State Department’s principal goal is to fully utilize all visa numbers that are available each fiscal year. Priority dates, therefore, move forward and backward based upon what is known about current and future supply and demand in the various categories. The more complete and reliable information the State Department has, the more precisely it can adjust cut-off dates to ensure full depletion of visa numbers and anticipate workload spikes. Relevant facts may include the number of visas pending at the National Visa Center and at consular posts, the number of approved I-140s attached to pending adjustment of status applications, processing times at USCIS and at posts, etc.

Although there has been significant interagency cooperation in recent years, there are still opportunities for improved efficiency and collaboration. The State Department does not have full visibility to pending I-485 cases at USCIS, nor information as to whether there are EB-2 upgrades or EB-3 downgrades pending for the same foreign national. Better interagency data sharing would allow the State Department to advance priority dates more quickly in some cases, and may have other benefits, such as preventing backlogs at the NVC, and avoiding phenomena such as that which occurred in the summer of 2007 with adjustment of status applications. Applying supply chain management principles to interagency engagement presents another opportunity to build upon the efficiencies already achieved.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The H-1B Lottery: An Entrepreneurial Approach

Posted in General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas

The majority of STEM graduate students in the US are foreign nationals.  Men and women who think big thoughts, come up with amazing innovations and face US immigration challenges if they want to stay in here and put their thoughts and innovations to work, especially if they are entrepreneurial in doing so.  One of the immigration challenges , the H-1B lottery , can be an obstacle, but inspired thinking can turn it into an opportunity.  Look what is happening in Massachusetts.  With the passage of its 2014 Economic Development Bill, the State of Massachusetts has funded a pilot program known as the Global Entrepreneur in Residence Program.   The Massachusetts Technology Collaborative will partner with universities to help foreign entrepreneurs with viable startups stay in the US.  The universities will vet the applicants and as “cap exempt” employers employ them part time to serve as entrepreneurs in residence.  This creative program will allow the foreign national to secure a cap exempt H-1B for the part-time work and a cap subject H-1B for additional part- or full-time work with the start up.   In the absence of immigration reform, some states and universities are beginning to step into the breach.  There are many details to be worked out with this 3 year pilot program, but it shows a way for cap-exempt entities to work together to remove one of the challenges faced by foreign national entrepreneurs.   To quote Jeff Bussgang, the Harvard Business School professor who conceptualized the program:  ”The current  system, where our top academic institutions train the best and the brightest around the world and then they’re told we don’t want them to stay, is absolutely insane.”

EB-2 India: Could the November 2014 Priority Date Retrogression be any Worse?

Posted in General Immigration News and Updates, Immigrant Visas, Priority Dates, Uncategorized

As anticipated, there is bad news for those seeking U.S. permanent residence in the Employment-Based 2nd Preference category for India.  For the month of November 2014, the EB-2 India cut-off date will take a giant leap backward, moving from May 1, 2009, to February 15, 2005.  2005?!  Yes, 2005.  This sobering update was announced in the State Department’s latest Visa Bulletin  .  If this were a game, the “giant leap backward” would be meaningless, but it’s not a game—the backlog and lack of measures to resolve or at least alleviate this difficult situation impacts the lives of many hard-working people who are looking for certainty in their futures.

 

The November 2014 Visa Bulletin  includes commentary explaining that there is no expectation that the EB-2 India date will move forward during any of the next 3 months.  As in the past, the retrogression is likely the result of those in the EB-3 India category advancing into EB-2 positions, as well as fewer drop-down numbers from the EB-1 category due to increased EB-1 filings.

 

As for the EB-3 India category, there will be progress in November 2014, albeit minimal.  The date for EB-3 India will move from November 15, 2003, to November 22, 2003.  “Little if any movement” is projected for each of the next 3 months at minimum.

 

By way of information, the cut-off dates for over-subscribed categories apply to those who are “chargeable” to the country listed.  A nice summary regarding “chargeability” appears on the USCIS website  which explains that “Chargeability is usually determined by country of birth. Exceptions are made to prevent the separation of family members when the limitation for the country of birth has been met.”  More detail about chargeability, can be found in Volume 9 of the State Department’s Foreign Affairs Manual.  (9 FAM 42.12, Notes)

 

Some points to consider…

  • You are likely already well aware that if your priority date is current this month and you don’t file an I-485 Adjustment Application such that it is properly received by Immigration before the end of this month, it will be too late for at least the next several months (years?).  This is because in order to file the I-485 (or consular process), only applicants with a priority date EARLIER than the cut-off date for an oversubscribed preference category may receive a visa number in any given month.

 

  • With both the EB-2 India and EB-3 India categories backlogged by approximately 10 years(!), there is no better argument in favor of immigration reform, including at minimum work authorization for H-4 dependents—ideally for spouses and for working-age children.  Hopefully this will come to pass.

 

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Ms. Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

DV-2016: Applications Currently Accepted

Posted in General Immigration News and Updates, Permanent Residence

The Diversity Visa (DV) Lottery  program continues—at least for one more year.  The DV-2016  application period began on Wednesday, October 1, 2014, at noon and will end at noon on November 3, 2014.  From year-to-year, there is always speculation as to whether the DV Lottery will continue.  So, if you’re eligible and are inclined to give your luck a try, there’s no time like the present.

 

Congress created the DV Lottery program to provide an extra opportunity for those from countries with low rates of immigration to the US to seek U.S. permanent residence.  For DV-2016, 50,000 visas will again be available.  Applicants from no single country may in total receive more than 7% (i.e., no more than 3,500 per country for DV-2016) of the visas in any fiscal year.

 

Are you eligible to apply?  The first thing to check is whether you are from a country whose natives are permitted to participate this year (or if you have a qualifying relationship with someone from a country such that you can apply).  The list of ineligible countries is shorter and includes (…excludes from the program):  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  For clarification, those born in Hong Kong SAR, Macau SAR, and Taiwan may apply.

 

There are of course additional eligibility criteria, rules and FAQs  regarding the application process which should be reviewed before applying.  The Department of State succinctly describes the eligibility requirements as “simple, but strict”.  If you’re not sure, you should perhaps consult with an attorney rather than letting the opportunity pass by.

 

To apply, your application must be submitted electronically using the official electronic DV entry form (E-DV).   No paper entries will be accepted.  Because the application must be made electronically, the State Department is strongly encouraging early applications to allow time for website delays in case of heavy demand, perhaps especially toward the end of the application period.  Be sure to print and keep your online confirmation page after completing the DV entry process.  This should enable you to check the status of your application beginning on May 5, 2015 through Entry Status Check.

 

Are you guaranteed a greencard through this process?  No, not even if you win the lottery. This is because even if you win, your case must be processed through to conclusion by a specific date within the total visa number allotment.  So, even if you enter the DV Lottery, you should seek legal counsel as to whether to continue other greencard processes until permanent residence is granted through your DV lottery win, just in case it isn’t.  As for your DV-2016 Lottery entry, note that neither an attorney nor an agent is in a position to increase the chances of being selected after a properly prepared application is submitted.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

DHS reports 173 Million Nonimmigrant Admissions to the US in 2013

Posted in General Immigration News and Updates, Non-Immigrant Visas (other than Es, Ls and H-1B)

The Department of Homeland Security (DHS) collects information on the characteristics of certain nonimmigrant admissions from I-94 arrival records. This information gathered from I-94s on the number and characteristics of nonimmigrant admissions to the United States during the 2013 fiscal year (October 1 to September 30) is presented by The Office of Immigration Statistics (OIS) in its Annual Flow Report.

Nonimmigrants are foreign nationals granted temporary admission into the United States. The major purposes for which nonimmigrant admission may be authorized include temporary visits for business or pleasure, academic or vocational study, temporary employment, or to act as a representative of a foreign government or international organization.

The Annual Flow Report indicates that, according to DHS work-load estimates, there were 173 million nonimmigrant admissions to the United States during the 2013 fiscal year.  These admissions included tourists and business travelers from Canada, Mexican nationals with Border Crossing Cards, and nonimmigrants who were issued Form I-94 (I-94 admissions).  I-94 admissions accounted for 35 percent (61.1 million) of total non-immigrant admissions. Ninety percent of I-94 admissions were temporary visitors for business and pleasure, while 4.9 percent were temporary workers and families and 2.9 percent were students.  The leading countries of citizenship for I-94 admissions were Mexico, the United Kingdom, and Canada.

Some interesting facts from the Annual Flow Report include:

Port of Entry

The largest 20 ports of entry represented 67 percent of nonimmigrant admissions in 2013. About half of all nonimmigrants were admitted through the following ports of entry: New York (10 percent), Miami (9.3 percent), Los Angeles (6.8 percent), Newark (3.5 percent), Honolulu (3.5 percent), San Francisco (3.3 percent), San Ysidro (3.2 percent), Chicago (3.0 percent), Otay Mesa (2.5 percent), Atlanta (2.5 percent), and Houston (2.5 percent).

State of Destination

The most frequent states of destination for I-94 nonimmigrant admissions in 2013 were California (18 percent), Florida (13 per-cent), Texas (13 percent), and New York (11 percent).  These four states represented the destinations of 55 percent of foreign nationals admitted.

Age and Sex

In 2013, 60 percent of I-94 admissions were accounted for by individuals aged 25 to 54, and 51 percent of nonimmigrant admissions were male. Age and sex distributions remained relatively unchanged between 2011 and 2013.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

EB-2 India: Retrogression Imminent – Visa Office on Priority Dates, Demand, and Predictions

Posted in EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas, Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Priority Dates

The new federal fiscal year begins on October 1, bringing an infusion of visa numbers.  Recently, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, recently shared his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the October 2014 Visa Bulletin and Charlie’s predictions for future movement based on information available as of September 9, 2014.

EB-2 India: Retrogression Imminent

As articulated in Section D of the Visa Bulletin, retrogression of EB-2 India appears to be imminent, and could happen as early as November.  The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005. Members should plan to file adjustment of status applications by the end of October for any eligible EB-2 India clients, as the window of opportunity may be closing.

A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. Based on filings at USCIS, Charlie anticipates a huge volume of India EB-2 demand in the coming months.

NOTE: In addition, the maximum number of EB-2 immigrant visas which are available for India for Fiscal Year 2014 has been reached.  Therefore, EB-2 India visas are “unavailable” until October 1, 2014. USCIS offices may continue to accept and process EB-2 India cases with priority dates earlier than May 1, 2009 during the month of September. However, instead of being acted upon immediately, those cases will be held in the Visa Office’s “Pending Demand” file until October 1, 2014, at which time they will be authorized.

EB-5 China

Following our last report, Charlie announced that EB-5 China numbers were depleted through the end of the fiscal year (September 30, 2014). Though EB-5 China remains current for the start of the new fiscal year in October, Charlie continues to predict that a cut-off date will be imposed at some point during the second half of the fiscal year, possibly as early as May. This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. It is also likely that more applicants will come forward to finalize action on their cases as we enter the final year of the three-year regional center pilot program. It is hoped that sufficient demand data will be available in January which will help in predicting future movement in this category.

Philippines

Demand for both employment-based and family-based visas for the Philippines continues to decrease which accounts for the advancing priority dates in these categories. The cut-off date for the EB-3 and “Other Worker” categories for the Philippines is the same as it is worldwide, October 1, 2011. The NVC has been sending “Choice of Address and Agent” (DS-3032) forms to beneficiaries in an effort to spur demand but so far it is not materializing. Though demand is low and dates will remain favorable for the foreseeable future, this may change if many more applicants come forward to claim immigrant visas.

A Glimpse Into the Preference-Based Visa Process

Have you ever wondered exactly how DOS and USCIS coordinate to ensure preference-based visas are processed efficiently? This month, Charlie provides some insight into the process.

In spring 2007, DOS implemented a new system to address USCIS processing problems that resulted when cut-off dates retrogressed prior to final action on a case. Prior to that time, USCIS would request a visa number from DOS through an automated system upon completion of processing an adjustment of status application. DOS would either grant authorization and allocate a visa number, or deny authorization if the applicant’s priority date was not current. If authorization was denied, USCIS would place the file on the shelf and the adjudicating officer was required to monitor the Visa Bulletin and pull the case when the priority date became current. As a result of the spring 2007 upgrade, cases that are denied authorization due to a non-current priority date are now accepted by DOS and maintained in a “Pending Demand” file. When the priority date becomes current, DOS automatically authorizes the case and notifies the appropriate USCIS office.

This system enables greater efficiency for USCIS and is a safeguard against cases “slipping through the cracks.” It also provides DOS with greater visibility of the pre-adjudicated demand, thus enabling Charlie to better predict priority date movement.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Executive Action: Soon

Posted in General Immigration News and Updates, Immigrant Visas, Uncategorized

Immigration reform is a topic that is as old as it is controversial.  The administration of President Barack Obama, like the George W. Bush administration before it, has pushed for Comprehensive Immigration Reform (CIR)—to no avail.  There have been immigration crises brought on by the current law and also some relief from a “broken” system.   That relief has principally come from Executive action rather than Congressional initiative because Congress can’t seem to pass an immigration reform or related bill.  Among the executive actions taken by the Obama administration have been “Prosecutorial discretion” and Deferred Action for Childhood Arrivals (DACA).

 

Record numbers of aliens have been deported, but the government doesn’t have unlimited resources to prosecute every person who may be subject to removal—all 11 million+ of them.  The executive branch has the discretion to decide where to allocate its resources. This is true in every area of law enforcement.  In the immigration context, there has been executive action to focus on the removal of criminal aliens and to exercise discretion not to prosecute worthy individuals who have only technical immigration grounds for removal.   In addition, DACA has given the relief of “deferred action” to approximately 500,000 aliens who arrived as children under the age of 16, who have clean records, pursued their education at or above the High School level and are under 31 when they apply. This executive action was announced by President Obama in June 2012.  The DACA policy has allowed  many young people who have only known the US as their home to have comfort that the US is their home.

 

In the last few days, there have been lead articles about additional actions that the administration will be taking to effect reform of some aspects of the broken immigration system.  Typically, the articles discuss and debate the timing and the politics, but not the specifics.  While the administration has discretion to take or decline to take some actions that have profound effects on the lives of many aliens and their communities, executive action will not be able to increase the number of family- or employment-based visas nor do away with the H-1B cap.  Executive action may result in H-4 visa holders being granted employment authorization (see Blog posts by C. Wadhwani)  and changes in the process and treatment of unaccompanied minors and increase the resources spent on the Border patrol.  It will be up to Congress, however, to bring the US immigration system into the 21st century, Congress will need to get rid of the H-1B lottery that businesses face when seeking to employ foreign born professional workers and correct other measures that haven’t kept up with the times.  Stay tuned, some changes are coming.

H-4 Work Authorization? A Quick Update.

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Non-Immigrant Visas (other than Es, Ls and H-1B)

If you’re anxiously awaiting news regarding work authorization for certain H-4 nonimmigrants, here’s the latest:

  • The period for submitting comments regarding the proposed rule closed on July 11, 2014.
  • In an open call held on August 14, 2014, USCIS Director León Rodríguez stated that the Service is in the process of considering the comments received.  He acknowledged the importance of the proposed rule to families and stakeholders and said that the Service was working as quickly as possible to conduct its review of the comments.

That’s all we know for now.  Hopefully there will be more news soon, but no time-frame was provided at this point.

For background on this topic, please refer to my May 16, 2014, Immigration View Blog Post captioned, “H-4 Work Authorization?  Not for everyone.”  You may also want to view the Federal Register Proposed Rule that was published on May 12, 2014.

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Ms. Wadhwani is a partner in the Immigration Group of Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.

Technical problems continue for passport and visa issuance: DOS CCD system still not fully operational

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B)

The U.S. Department of State’s Consular Consolidated Database (CCD), a system critical to visa issuance operations, is continuing to experience technical problems, which is limiting the State Department’s visa processing capacity.  As a result, are widespread delays in nonimmigrant visa issuance worldwide.  In conjunction with the Department of State (DOS), U.S. Customs and Border Protection (CBP) has indicated that in order to ease the situation, it will exercise its legal authority to waive nonimmigrant visa requirements for admission on a case-by-case basis.

CBP and DOS have provided the following information regarding the procedures that are being put in place to assist individuals who have applied for but have not been issued nonimmigrant visas due to ongoing CCD problems:

  • A nonimmigrant visa applicant whose U.S. travel is urgent because it either involves an “emergency” or impacts U.S. national interests, may request consideration for special travel permission to the United States if their visa issuance is delayed as a result CCD systems problems.
    • “Emergencies” in this instance include urgent humanitarian travel and life-and-death situations.
    • Upcoming business engagements and U.S. employment needs are not typically considered humanitarian emergencies and likely will not be considered as such in most cases. They may, however, be considered on a case-by-case basis.
  • DOS and CBP joint task force teams will confer on a 24/7 basis, regarding individual emergency travel requests in order to process such requests as      expeditiously as possible.
  • Travel permission, if approved jointly by DOS and CBP, will be facilitated by DOS. The consular post that accepted the visa application will release the traveler’s passport and will issue a transportation letter, which can be presented to common carriers to allow boarding of international U.S.-bound      flights. Upon arrival to a U.S. port of entry and presentation of the transportation letter, CBP will execute an I-193 application to waive the nonimmigrant visa requirement for admission. This will include waiving the $585 processing fee for the I-193.
  • Individuals requesting emergency travel must have a pending visa application with DOS, and the visa must be issuable but for CCD system problems. Applicants who have been issued a 221(g) notice indicating pending administrative processing on their visa applications are not eligible to request      emergency travel accommodations.
  • DOS may not directly inform visa applicants whether or not the delay in visa issuance is the result of CCD problems. Those who have emergency U.S. travel needs should affirmatively communicate with DOS to provide proof of their circumstances. This can occur during the visa interview, or through      e-mails after visa appointments to consular mailboxes or facilitation centers (whichever is the preferred method of communication for each individual consular post, as stated on its website).
  • If a request for emergency travel is not approved and facilitated by DOS, CBP strongly discourages petition-based applicants from traveling to the United States of their own accord using a visitor’s visa or Electronic System for Travel Authorization (ESTA) registration. CBP sent guidance to all ports of entry regarding the above-referenced procedures and will only consider CCD-related I-193 waiver through its joint interface with DOS. Individual requests made at ports of entry will be referred back to DOS. If an applicant is found to have previously requested travel permission that was not granted by DOS, it will be a significantly negative factor and could result in denial of the applicant’s I-193 request.

Currently reported on DOS website: “We have made significant progress and issued most of the worldwide backlog of nonimmigrant visa cases. We are working to bring the Consular Consolidated Database back to full operational capacity. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays. Please check with the embassy or consulate where you will apply for additional information. Please see our FAQs for more information.”

From DOS’ FAQs:  “Q: What is the outlook for NIVs [NonImmigrant Visas]?  When do we estimate the backlog will be processed? A: Current efforts are focused on restoring the system to normal operations, while continuing to adjudicate new applications.  We are committed to reducing the number of pending visa cases as quickly as possible. Applicants should anticipate that visa issuance may be delayed 10-14 days until the system is restored to full functionality and pending applications are printed.”

Since the CCD system continues to function in a limited state, travelers should expect delays in the issuance of visas and U.S. passports, and should plan accordingly.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.