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Immigration View

Navigating Complex U.S. Immigration Laws

DOS Still Reporting Technological System Issues with Overseas Passport and Visa Systems

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

The Department of State (DOS) has issued an updated alert to report that 165 posts, representing more than 85% of the nonimmigrant visa demand worldwide, are now online and issuing visas.

On June 25, 2015, DOS updated their alert with the following language:

  • The Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of our nonimmigrant visa demand worldwide, are now online and issuing visas.
  • Posts overseas issued more than 82,000 visas on June 24.
  • Posts overseas have issued more than 238,000 non-immigrant visas this week. For context, if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.
  • We deeply regret the inconvenience to travelers who are waiting for visas, as well as their families and U.S. businesses that have been affected.

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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.

Processing Times for USCIS Overseas Offices Now Online

Posted in Consular Issues, General Immigration News and Updates, Permanent Residence, Priority Dates

Beginning June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters.   Currently, processing times for Forms I-130, I-131, and I-730 are available online.  According to USCIS, if the field office completed less than 10 cases of one of these form types during the reported period, the average processing time will not be displayed.

The processing timeframes displayed show the average length of time it took to complete cases during the period noted on each chart.  The information on this page will be updated around the 15th day of each quarter (January 15, April 15, July 15 and October 15) to reflect current processing times as of the previous six-month period. The processing time of any individual case may vary because of the complexity of the case or the need for the applicant to provide additional information.

Applicants and their attorneys now can easily access this information by visiting USCIS Processing Time Information for International Operations Offices webpage. USCIS intends for availability of this information to aid in managing customer expectations and reduce phone and email inquiries regarding processing times.

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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.

Travelers Beware and Expect Delays: Visa Appointments Cancelled, Being Rescheduled Due to Technical Issues

Posted in Consular Issues, EB-5 Immigrant Investor Program, 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), J-1 Waiver, Non-Immigrant Visas (other than Es, Ls and H-1B), Permanent Residence, Priority Dates, Startup Companies

The US Department of State (State Department or DOS) computer systems are not expected to be online again before next week after experiencing “technological systems issues” (a hardware failure) on June 9th. This information came from the State Department yesterday, June 17th, in an update following their initial announcement regarding the problem last Friday, June 12, 2015.

This has caused DOS’s Bureau of Consular Affairs to experience issues affecting overseas passport and visa systems.  This systems issue is without restriction to particular countries, documents or visa types.  Indeed, the effect seems to reach everyone from the nonimmigrant visa applicant, to the US citizen in need of a passport abroad.

Assistance from the State Department is available to nonimmigrant visa applicants who need to travel for urgent humanitarian reasons and DOS has indicated that it is always able to issue an emergency passport to a US citizen who is overseas and has an urgent need to travel.

Yet, one should be prepared that visa appointments and issuance of some visas will be delayed.  A June 15th update from the State Department said that some visa applicants will “be contacted directly to reschedule their appointments”.

Affected parties will want to seek the guidance of immigration counsel to assess potential impacts on employment start dates and such questions as whether in-country processing is available and should be used for a change or extension of nonimmigrant status instead of processing abroad, among other possible issues.

DOS stated that the “failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates.”  This affects the Department’s ability to meet its legal  requirements to screen  visa applicants before issuing visas for travel.  The State Department offered its apologies to those affected and indicated that it has more than 100 private and public sector computer experts working “around the clock” to resolve the problems as quickly as possible while of course keeping in mind its responsibility to screen visa applicants as part of its critical border security responsibilities.

DOS stated that it will continue to provide regular updates on their website, travel.state.gov.

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

 

No U.S. visa for you! DOS unable to process visas, impacting thousands worldwide

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

The State Department continues to report that “technical problems” with overseas systems preventing the Bureau of Consular Affairs from issuing visas, passports and other travel documents, since last week.

Most U.S. Consulates and Embassies websites contain this (or similar posting):

“The Department of State’s Bureau of Consular Affairs is currently experiencing technical problems with our visa systems. This issue is not specific to any particular country, citizenship document, or visa category. We apologize for the inconvenience and are working urgently to correct the problem and restore full operability. As soon as the situation is resolved, we will update this message.

If you are applying for a nonimmigrant visa and you signed and submitted the nonimmigrant visa application form DS-160 on or after June 9, 2015 we will not be able to process your application. We recommend, therefore, that you continue to monitor this message for updates and only attend the appointment if the situation has been resolved.”   [The Embassy of the United States, London, U.K.]

The State Department has confirmed that the problem is global (not specific to any particular country or visa category) and that it does not believe these problems stem from cyber-security hacking issues. It could not, however, confirm when the system will be back online, other than to advise that “we do not expect the system will be online before next week.”

The State Department advised that issues with the Consular Consolidated Database are affecting passport applications that have been accepted overseas on or after May 26, complicated by a hardware failure that occurred on June 9, preventing biometric clearance requests from posts to the database.  This is preventing Consular Posts from being able to print most nonimmigrant visa applications approved after June 8, 2015 or process new applications submitted on or after June 9.

“The systems in place to perform required national security checks before we issue visas are experiencing technical difficulties,” the notice said. “As a result, we are unable to print visas, regular passports overseas, and other travel documents.”

The State Department indicated that it is working quickly to process the visa backlog and the technical problems have also “disrupted or prevented” data sharing partners from accessing visa records.

Individuals who completed and submitted Form DS-160 on or after June 9, 2015, are advised to monitor the consular post’s website to confirm whether the situation has been resolved prior to attending any scheduled appointment. Nonimmigrant visa applicants who submitted their DS-160 online application prior to June 9, 2015, should plan to attend their scheduled appointment.

Domestic passport operations are not affected.

The State Department added that the current problems are not the same issues that affected the database nearly a year ago. Clearly the current outage is not as sever at last year’s crash since U.S. passports are continuing to be issued (last year, passports were impacted also). See my prior post about the June 2014 outage here. http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/need-a-u-s-visa-or-passport-prepare-to-wait-dos-passport-and-visa-issuance-database-crash-has-worldwide-impact/.  Let’s hope this is not the beginning of a (not-so-great) June tradition.

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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.

 

 

ICE Imposes $2.25 Million in I-9 Civil Penalties on Employer

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement)

Jeremey Foster writes:

In a recent case, a Washington state apple orchard was fined millions of dollars for failing an ICE (Immigration and Customs Enforcement) audit. The audit apparently revealed that almost 950 employees of the company were suspected of not being authorized to work in the United States. The Employment Eligibility Verification forms (Form I-9s) of these employees contained inaccurate information regarding their employment eligibility, and the company continued to employ the unauthorized employees despite advisement by ICE of their ineligibility.

The Immigration Reform and Control Act (IRCA) requires all US employers to maintain original and accurate Form I-9s for all current employees with extremely limited exceptions. Failure to properly and timely complete and maintain I-9 Employment Eligibility Verification forms can result in a variety of penalties, with discretion given to ICE as to which is most appropriate. In this case, the orchard settled with ICE, resulting in a $2.25 million settlement in civil penalties.

Homeland Security Investigations (HSI), a department of ICE, carries out I-9 audits in order to target employers who knowingly hire unauthorized workers and to protect the interests and opportunities of the lawful workforce of the United States.


Jeremey Foster is a summer associate in Fox Rothschild’s Pittsburgh office.

What Director Rodriguez Said in Pittsburgh

Posted in General Immigration News and Updates

Jeremey Foster writes:

USCIS Director Leon Rodriguez met with a group of immigration attorneys, non-profit and community leaders in Pittsburgh as part of a “Welcoming Pittsburgh” event earlier this week. Mr. Rodriguez, who once lived in Pittsburgh, captivated attendees with a discussion of the current state of US Immigration law and practice, as well as the challenges facing his Department and the immigrant community in the wake of 5th Circuit decision enjoining the DAPA and DACA extensions of President Obama’s Immigration Executive Action.

Director Rodriguez was realistic about the challenges his agency faces, but was steadfast in his aim for improvement. He devotes significant time to community development and encourages the cooperation of local USCIS offices and community leaders to help immigrants adjust, live, apply for status, and ultimately thrive. Through these efforts, Rodriguez emphasized his Department’s current encouragement that immigrants naturalize. He discussed how soon the processes could be paid by credit card online and that perhaps there may be a fee waiver for individuals at the 150-200% poverty level.

One of the most pressing concerns of the audience was the processing backlog and waiting times. It was somewhat reassuring to many that USCIS is hiring, albeit at a pace to maintain a quality workforce, to keep up with the ramped-up demand.

Although the law provides various routes through which employment can lead to US permanent residence, attendees noted, and Rodriguez acknowledged, that the actual execution and practicality can be lacking. However, as much as immigration attorneys and immigrants may feel at the mercy of USCIS, USCIS feels the same way with regards to the law. Congressional action is required to fix the issues. Unfortunately, new regulations take time and legislation takes even longer.

A perfect example is the holdup of President Obama’s Executive Action in the courts. Although this process is frustrating to many, Director Rodriguez stated his belief that the President’s Executive Action is legal and he was confident that the provisions would eventually be deemed so.  Regardless of the hostility towards immigration reform by some, Rodriguez noted the bipartisan support for reform and that the issue isn’t going away anytime soon. He cited Pittsburgh as a city that has historically welcomed immigrants of all backgrounds and skill levels. He said that he sees Pittsburgh and cities like it as hope for a future where immigrants are welcome and respected for the contribution they provide to this country.


Jeremey Foster is a summer associate in Fox Rothschild’s Pittsburgh office.

H-1B Amendment is Now Required in Change of Work Location Situation

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

In a recent Administrative Appeal Office (AAO) decision, Matter of Simeio Solutions, LLC, the court held that a change in the beneficiary’s place of employment to a different MSA is a material change with respect to the immigration regulations, and, thus, requires that the sponsoring petitioner file an amended or new H-1B petition with a corresponding Labor Certification Application (LCA) for the new location.

Prior to this decision, it was a long standing practice that no amended or new petition was required for a change in work location so long as a new LCA was certified for the new work location before the beneficiary’s reassignment to that work location.

On May 26, 2015 USCIS posted draft guidance on the impact of on the Simeio Solutions decision to clarify when an amended H-1B petition is/is not required:

When the Employer Must File an Amended Petition

The Employer must file an amended H-1B petition if the H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

USCIS noted that the H-1B employee can immediately begin to work at the new location once the amendment is filed. An approval on the amend petition is not required for the H-1B employee to start work at the new location.

When the Employer Does NOT Need to File an Amended Petition

  • Move within MSA: A new LCA is not required when the H-1B employee is moving to a new job location within the same MSA or area of intended employment. No amendment petition is required either. However, the original LCA must be posted in the new work location within the same MSA or area of intended employment.
  • Short term placements: Under certain circumstances, when an H-1B employee works at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), new LCA is not required. No amendment petition is required either.
  • Non-worksite locations: If the H-1B employee is only going to a non-worksite location, the employer does not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
  • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
  • The H-1B employees spend little time at any one location; or
  • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”

Time Frame to File Amended Petition after USCIS Guidance

  • If the changing of worksite locations happened at the time of the Simeio Solutions decision, the employer will have until August 19, 2015 to file an amended petition.
  • If changing of worksite locations happened BEFORE the Simeio Solutions decision, USCIS will not take adverse action against the employer and employee if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, the employer MUST now file an amended petition for these H-1B employees by August 19, 2015.

According to USCIS, the employer will be out of compliance and subject to adverse action if the amended petition is not filed per the deadlines noted above.

Additionally, USCIS clarifies that if the H-1B petition seeking amendment is denied, the H-1B employee may still return to the worksite covered by the original petition as long as the original petition is still valid.

Although this guidance presently remains in draft status (not yet finalized), it is anticipated that little, if any changes, will occur before being published as final guidance. As such, employers should be very aware of beneficiary reassignments/changes in work location and coordinate closely with their counsel with regard to filing the necessary H-1B amended petitions in accordance with the new USCIS guidance.

 

Update: H-1B Premium Processing Suspension

Posted in Consular Issues, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers

The US Citizenship and Immigration Service (USCIS) has updated its May 19, 2015 alert announcing temporary suspension of premium processing for certain H-1B petitions.  http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Here are the highlights:

  • May 26, 2015 – July 27, 2015*:  Premium processing is suspended for all H-1B extension of stay petitions with extremely limited exceptions for cases meeting the narrow expedite criteria.  See USCIS Expedite Criteria webpage.
  • During this suspension period, premium processing will still be honored for:
    • H-1B extension of stay petitions requesting premium processing prior to May 26, 2015 (but be aware that the announcement states:  “USCIS will refund the premium processing fee if:  A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and USCIS did not act on the case within the 15-calendar-day period.”)
    • Change of status H-1B petitions
    • Consular notification H-1B petitions
    • Consular notification H-1B petitions for those who have H-1B status
    • H-1B amendment petitions that do not also request an extension of stay
    • H-1B1 petitions (under the US-Chile and US-Singapore Free-Trade Agreements).

The temporary suspension is intended to enable USCIS to timely implement the Employment Authorization for Certain H-4 Spouses final rule, which became effective on May 26, 2015, and is anticipated to result in “an extremely high volume of Form I-765 applications”.

*USCIS has indicated that it will monitor workloads and if feasible, resume premium processing for H-1B extension petitions prior to July 27, 2015.

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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.

H-4 Work Authorization Applications Accepted Beginning Today (5/26/2015)

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Immigration Accountability Executive Action (Obama 2014), Non-Immigrant Visas (other than Es, Ls and H-1B), PERM Labor Certification, Permanent Residence

Reminder:  Effective today, May 26, 2015, the Immigration Service will accept applications for employment authorization from “certain H-4 dependent spouses of H-1B nonimmigrants”. (Employment Authorization for Certain H-4 Dependent Spouses Web page).

An H-4 spouse may only apply for an EAD (employment authorization document) if the H-4’s H-1B spouse is pursuing US permanent residence.  More specifically, the H-4 spouse may not file an EAD application unless the H-1B spouse:

  • Is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, OR
  • Has H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (as amended by AC21).

Of course, H-4 status isn’t the only status that an H-1B spouse may hold.  USCIS had previously announced that where a non-H-4 spouse applies for H-4 status, it will first change the status of the qualifying spouse to H-4 and then adjudicate the application for employment authorization. This will add another step to the process and take more time.

Please see my prior post on this topic, “H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?” at http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/h-4-ead-applications-accepted-beginning-may-26-2015-are-you-that-certain-spouse/ for more information.

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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.

 

CIS to Temporarily Suspend Premium Processing for H-1B Extension Petitions from 5/26/15 – 7/27/15

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

Today USCIS announced that starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

  • A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
  • USCIS did not act on the case within the 15-calendar-day period.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Premium processing remains available for all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

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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.