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Immigration View

Navigating Complex U.S. Immigration Laws

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.

Five Years of Arrival/Departure History Now Available on I-94 Webpage

Posted in General Immigration News and Updates, H-1B Temporary Workers, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

As many of you already know, the U.S. Customs and Border Protection (“CBP”) implemented an electronic Form I-94 process in 2013, which means that (most) nonimmigrant U.S. travelers no longer fill out a paper Form I-94 Arrival/Departure Record when they arrive in the U.S.  Instead, the CBP gather travelers’ arrival/departure information automatically from their electronic travel records and, once in the U.S., travelers must log onto the I-94 webpage in order to access and print their admission record information.

On May 1, CBP launched a new service which offers nonimmigrant U.S. travelers access to their arrival/departure records going back five years.  This online travel-history function is designed to permit travelers to avoid the need to file Freedom of Information Act requests to receive their arrival/departure history, greatly speeding this process.

Travelers may visit the I-94 webpage to retrieve their I-94 arrival/departure record number and/or five-year travel history by entering their required name, date of birth, and passport information.

Clicking on “Get Most Recent I-94” will return the current I-94 number, most recent date of entry, class of admission and admit-until date.  (Please recall that this does not reflect any changes of status, extension of stay or adjustments of status granted by U.S. Citizenship and Immigration Services after arrival into the U.S.).

Clicking on “Get Travel History” will return their five-year travel history based on their I-94 records, listing the date and port of entry of arrivals and departures.

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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.

Need a U.S. visa or passport? Prepare to wait – DOS passport and visa issuance database crash has worldwide impact

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

U.S. PassportAn unspecified glitch in a global database used by the US government to issue passports and travel visas has left countless people around the world unable to travel for the last few days, according to State Department officials.

The database, known as the Consular Consolidated Database (CCD), is one of the largest Oracle-based data warehouses in the world, holding more than 100 million records of visa cases and 75 million photographs, with links to other federal agency security databases, including the FBI’s Integrated Automated Fingerprint Identification System (IAFIS) and the Department of Homeland Security’s Automated Biometric Identification System (IDENT). It is also the gateway to the Department of State Facial Recognition system and the NameCheck system.

The database was created to provide Consular Affairs a near real-time aggregate of the consular transaction activity collected domestically and at consular post databases worldwide by providing for a set of centralized visa and American citizen services to support U.S. consular posts and back office functions worldwide.

The CCD, which is used to print and approve U.S. visas and passports worldwide, reportedly crashed following scheduled maintenance earlier this week and was out of operation for as much as a few days.  Although service has been restored (only in a “limited capacity,”) it continues to have significant problems, including outages, since July 19, 2014

In a press briefing on July 24, 2014, Marie Harf, deputy spokesperson for the State Department, said “The Bureau of Consular Affairs has been experiencing technical problems with our passport and visa system.  The issue is worldwide, not specific to any particular country.”  She went on to confirm that the issue was “… a technical issue, and again, we are working to correct it and should be fully operational again soon. We’re operating at a little bit of limited capacity right now, though, so we’re trying not to overload the system.”

The downtime and ongoing limited use has resulted in a growing backlog of visa and passport processing in the U.S. and at consular posts abroad.  It is not clear just how many people have been impacted or left stranded waiting for their U.S. travel documents, but it is estimated that more than 50,000 applicants have been affected.

Harf could not say how long it would take to clear the visa backlog or when the database would be restored to fully operational status. “It’s going to take a little while, so we ask people to be patient,” she said.

Since the CCD is used to approve record and print visas and other documents, perform U.S. passport verifications, and to ensure that national security checks are conducted on applicants, these functions are currently compromised by the CCD crash and current limited operations.  As such travelers seeking a U.S. visa, passport or other travel document should expect delays.

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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.

Humanity’s Children

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

Last week, the annual conference of the American Immigration Lawyers Association (AILA) became emotional over unaccompanied minors coming in unprecedented numbers to the US.  The Deputy Secretary of DHS,  Alejandro Mayorkas, followed prepared remarks with a Q&A.  He was asked what was being done to protect these children.  He paused and told the story about how his morning had begun.  He received a graphic report of an alien family, mother and 2 children,  who had crossed into Texas.  The mother and 1 of the children had been run over and killed in an auto accident.  He started his morning learning of a 5-year-old recently orphaned child on US soil—there was an emotionally charged silence by Sec. Mayorkas and by the audience of 3,000 immigration lawyers.

According to DHS Secretary Jeh Johnson in remarks this week before the House Committee on Homeland Security: ”To be clear, we face an urgent situation…Last year, CBP apprehended more than 24,000 unaccompanied children at the border.  By mid-June of this fiscal year, that number has doubled to more than 52,000. Those from Guatemala, El Salvador and Honduras make up about three quarters of that migration.”   http://www.dhs.gov/news/2014/06/24/statement-secretary-homeland-security-jeh-johnson-house-committee-homeland-security

His testimony and a statement by Vice-President Joe Biden describe actions and priorities.  In a White House press release of June 20th, Mr. Biden stated: ”Our first priority is to manage the urgent humanitarian situation by making sure these children are housed, fed and receive any necessary medical treatment.  We also are taking steps to improve enforcement and partnering with our Central American counterparts in three key areas:  combating gang violence and strengthening citizen security, spurring economic development, and improving capacity to receive and reintegrate returned families and children.”  http://www.whitehouse.gov/the-press-office/2014/06/20/fact-sheet-unaccompanied-children-central-america

June 20th was also World Refugee Day. In ceremonies throughout the world,  the United Nations’ Refugee Agency UNHCR tried to highlight the plight of the world’s record numbers of refugees.  According to UNHCR statistics, there is a worldwide population of over 43.7 million refugees and internally displaced people.  Undoubtedly, some of the unaccompanied children coming to the US are refugees—having a well-founded fear of persecution on account of their race, religion, nationality, political opinion or membership in a particular social group—some are not.

The US admits and resettles more refugees than any other country in the world, but the vast majority of the 43.7 million stay in camps or return to their homeland—only about 100,000 refugees per year are resettled in 3rd countries.  Those resettled in the US receive funding from HHS’ Office of Refugee Resettlement (ORR) .  In order to fund the services to the unaccompanied minors, ORR is using funds that had been allocated to refugee resettlement.  Which humanitarian crisis requires the funds more urgently?  Will Congress allocate funds specifically to assist with the humanitarian crisis of the inflow of unaccompanied minors?  We will see.

The US doesn’t have a monopoly on humanitarian crises from the inflow of unaccompanied minors.  The New York Times reports that this is also a problem in Europe, particularly Italy.   In a June 14th article focusing on the squalid conditions in a Rome facility  known to refugees as the “Palace of Squatters”, the Times quotes Rome’s Mayor, Ignazio Marino.  Marino is a transplant surgeon who had practiced at UPMC in Pittsburgh and at Jefferson Hospital in Philadelphia before entering Italian political life. The article states:  ”Mayor Marino sees the problem as extending beyond  Rome.  Europe as a whole ’has to offer opportunities to people, not just beds…’  He called for a strategic plan for refugees. ‘This is a challenge that has to be faced at the European Union level…”   http://www.nytimes.com/2014/06/15/world/europe/palace-of-squatters-is-a-symbol-of-refugee-crisis.html?_r=0

This is the approach the US seems to be taking and hopefully adequately funding, by facing the humanitarian crisis on a national and international level.

 

US Consulates in Canada Limiting Visa Appointments This Summer

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

As reported by the American Immigration Lawyers Association (AILA), US consulates in Canada will be limiting visa appointments for 3rd-country nationals during the months of June, July and August of this year.  This will not affect those with already-scheduled appointments.

Demand for visa appointments is reportedly increasingly high during these months, resulting in difficulty for 3rd-country nationals to schedule visa interview appointments.

AILA reports that emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

Otherwise, 3rd-country nationals are encouraged to schedule their visa applications at US consulates other than those located in Canada (e.g., applying through the US consulate in one’s home country) during the 3-month period.

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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.

H-4 Work Authorization? Not for everyone.

Posted in General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, PERM Labor Certification, Priority Dates, Uncategorized

On May 12, 2014, the US Department of Homeland Security (DHS) issued a Proposed Rule that would amend provisions of the US Citizenship and Immigration Service’s (USCIS’s) Regulations regarding work authorization for certain H-4 nonimmigrants.

An H-4 nonimmigrant is the spouse or child of an H-1B worker.  H-4 status does not currently provide eligibility for work authorization.

In a bold and seemingly well-considered move, DHS is proposing to change this.  Employment eligibility would not, however, be open to all who are in H-4 status.  Instead, if the proposed measure stands as it is, it would enable an H-4 spouse to apply for employment authorization if:

  • The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
  • The H-1B spouse has been granted an extension of his/her authorized period of admission under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. (Generally summarized, this is the provision which permits an H-1B petition to be extended beyond 6 years if the H-1B worker is the beneficiary of either a PERM application or I-140 petition pending for at least 365 days prior to reaching the 6th year of H-1B time.)

The stated goal in permitting certain H-4 nonimmigrants to apply for work authorization is the country’s interest in “attracting and retaining high-skilled foreign workers” for the benefit of the US economy, US employers, and alleviating possible economic burdens on the families of H-1B workers.  The benefit is also meant to encourage foreign workers who are stuck in what seems like an endless delay toward becoming US permanent residents, to remain in the US until the greencard process can be finished (i.e., a visa number becomes available and the case can be processed to conclusion).  In summary, if due to a priority-date backlog, an H-4 spouse can’t file an I-485 application to be eligible for employment-authorization, the Proposed Rule is the “fix” to permit the filing of the employment card application.

This proactive measure may also inadvertently help alleviate problems for US employers resulting from the limit on H-1B numbers.  Presumably, at least some of H-4 spouses were the beneficiaries of H-1B petitions that were selected in the H-1B cap lottery (and took a highly prized H-1B number) or were not selected (leaving a US employer without its prospective employee).

On another note, an interest of the country is also family unity.  Although this isn’t an economic interest, it would seem to me that consideration should be given to opening up eligibility for employment authorization to any spouse of a foreign worker who is maintaining lawful status and is the beneficiary of a Family-Based petition in a severely
retrogressed category.  Perhaps not many people would benefit, but…it’s a thought.

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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.

No Foolin’ – H-1B Visa Shortage a Serious Impediment to Local Hiring

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

Every April Fool’s Day, we play tricks on one another, good natured fun with hoaxes usually followed by a cry of “April fool!” and a good hearty laugh.

Consider that you run a for profit business that is constantly looking for talent and are seeking to keep certain foreign nationals who have proven that they have just the right type of skill to perform a specialty role in your organization.

If your business is in Pittsburgh where there are thousands of students studying, researching and creating at some of the world’s top universities, you might think you have your pick from a wide range of recent graduates, some of whom may be foreign nationals.

What a foolish notion.

You likely may not know that the foreign national came to the United States on a student visa known as the F-1, and is authorized to work for you for only a limited period of time on what is known as “Optional Practical Training” or “OPT.”  OPT is usually good for one year, but for certain students in science, technology, engineering and mathematics (STEM) fields working for employers using E-Verify (the government’s employment eligibility system), the OPT can be extended for 17 months.  Usually, if working out well during OPT employment, he or she would be a “keeper,” for whom another visa is required.

To extend that employee’s employment eligibility beyond OPT, you would have to file for another visa known as the H-1B.  It’s great for employers needing workers with at least a bachelor’s level of education. You must offer and pay a “prevailing wage” as determined by the Department of Labor.

Other requirements include a $325 visa fee, $500 anti-fraud fee, $1,500 training fee (employers of fewer than 25 workers pay $750) and maybe even legal fees.

Lots of employers know the benefits of the H-1B visa and that it’s one of the only ways to secure new professional level talent. Of course, there are other possible non-immigrant visa routes, known in government-speak as “TN,” and “E-3” and “O-1,” but these have limited applications.  Moreover, there always is a limited supply of H-1B’s.

Each fiscal year, the government issues no more than 85,000 H-1B visas. While employers may file on April 1 for an H-1B visa beginning October 1, even if filing right away, it’s likely the supply will run out, and you’d be out of luck.

In 2014, as with the last two years, demand far exceeded supply. The government received more than 172,000 applications in just the first five business days of April 2014, and the window shut abruptly. Anyone not applying was left out.  Even if the application is technically correct and timely filed, even more luck is needed to get the visa.

These applications properly and timely filed and received by the government will be subjected to a 50-50-like lottery, which will allow about half of the applicants to receive an H-1B visa and remain in your employ.

For those who are not lucky: “April fool!”  You’ll get your filing fees back, but you won’t get to keep your employee any longer.

The joke will be on the worker as well. Regardless of how talented, educated and effective the foreign national may be in your company, she or he will have to find a way to stay in the U.S. legally or may need to leave the country altogether – while your skilled position becomes open again.

This is quite a foolish game to play. It’s also the current law, sad to say, with no changes planned in the foreseeable future.

FY 2015 H-1B Cap: What are the Odds?

Posted in H-1B Temporary Workers

The U.S. Citizenship and Immigration Services (USCIS) announced that on April 7th it received more than enough H-1B petitions to reach both the “regular” cap of 65,000 visas and the advanced-degree cap of 20,000 for fiscal year 2015 (FY 2015).

USCIS reported that it received about 172,500 FY 2015 cap-subject H-1B petitions.  So, what are the odds that your petition will receive a number under the FY 2015 H-1B cap?  Simple math shows that your chances are about 50/50.  The odds would be slightly better if your petition was for an advanced-degree professional because advanced-degree cap petitions which weren’t selected to count against the 20,000 advance-degree cap were included in the selection process for the regular cap.  In reality, the odds could be better or worse.  Without knowing how many of the 172,500 petitions were advanced-degree cap cases, the calculations can’t be refined.  We do know that after 20,000 advanced-degree petitions were counted, there were approximately 152,500 cap-subject H-1B petitions remaining for only 65,000 spots.  This means that about 43% of those remaining petitions would have been chosen for processing. 

The computer-generated random selection process (aka lottery) has been completed.  Electronic receipts are being received for premium processing cap cases. Presumably paper receipts for non-premium processing cap cases will begin to arrive in next week’s mail. 

USCIS stated that it will reject and return (with the unused filing fees) cap-subject petitions which were not randomly selected, that is, unless a petition is found to be a duplicate filing.

The wait should be over soon.

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