December 12, 2014

January 2015 Department of State Visa Bulletin

The new visa bulletin is out at this link: January 2015 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (February 15, 2005) and China (February 1, 2010); EB-3 is at June 1, 2013 for all countries, except India (December 15, 2003) and China (March 1, 2011); EB-3 other workers is at June 1, 2013 for all countries, except India (December 15, 2003) and China (July 22, 2005); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at April 15, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of July 15, 1991.

December 5, 2014

President Obama’s Executive Actions on Immigration—What this Means for Business Immigration

On November 20, 2014, President Obama announced a series of executive actions on immigration that will include: (1) creating a deferred action program for the parents of U.S. citizen and lawful permanent resident children who meet the eligibility requirements; (2) implementing a “Priority Enforcement Program”; and (3) streamlining immigrant and nonimmigrant programs to boost the economy and create jobs in the U.S.

Actions related to business immigration changes include:

• Providing portable work authorization for high-skilled workers awaiting Lawful Permanent Resident (LPR) status and their spouses;
• Enhancing options for foreign entrepreneurs;
• Strengthening and extending on-the-job training for STEM graduates of U.S. universities;
• Streamlining the process for foreign workers and their employers, while protecting American workers;
• Reducing family separation for those waiting to obtain LPR status; and
• Ensuring that individuals with lawful status can travel to their countries of origin.

For more detailed information from the White House, please click here (http://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action).

The President’s announcement was welcome news. However, as is often the case with new immigration measures, it may be some time before the actual implementation of the new programs. The USCIS has not yet announced any timeline for implementation of these changes. Detailed information about the timeline for implementation can be found on the USCIS’s Executive Actions website at: http://www.uscis.gov/immigrationaction.

November 21, 2014

President Obama Addresses the Nation on Immigration Reform

On November 20, 2014, President Obama announced he will provide immediate relief for many of those impacted by of our immigration system, and he is offering Congress an architecture for the permanent reforms.

Under the new policies announced, the Obama Administration will build on the Deferred Action for Childhood Arrivals (DACA) program by providing temporary relief for the parents of U.S. Citizens and lawful permanent residents. The new program, to be called Deferred Action for Parents (DAP), will ensure that millions of U.S. Citizen and lawful permanent resident children will remain unified with their parents. The President also announced new enforcement policies and steps to improve the adjudication of business and family visas.

According to the American Immigration Council, every U.S. President since at least 1956 has granted temporary immigration relief to one or more groups in need of assistance. Like his predecessors, President Obama did not provide a permanent legal status to anyone—only Congress can do that.

For questions and updates on eligibility and application procedures, please contact our office.

November 17, 2014

National Visa Center No Longer Collects Original Civil Documents

As of November 12, 2014, immigrant visa applicants at non-electronic processing posts will be instructed to submit photocopies of their civil documents by mail to the National Visa Center (NVC). When the appointment is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing. Original Affidavit of Support forms must still be submitted to NVC for initial evaluation. Applicants at designated electronic processing posts will continue to submit their documents via email.

For more information, please visit the Department of State website.

November 11, 2014

U.S. and China Agree to Extend Visas for Business Travelers, Tourists, and Students

The U.S. Department of State announced that starting November 12, 2014, the U.S. will issue extended visas to Chinese business travelers, tourists, students, and exchange visitors in accordance with the new reciprocal agreement between the two countries.

According to the new agreement:

- B-1 and B-2 temporary visitor visas for business and tourism will increase in validity from one to ten years, for multiple entries; and
- F-1 student and F-2 dependent visas, M-1 vocational student and M-2 dependent visas, and J-1 exchange visitor and J-2 dependent visas will increase in validity from one to five years, or the length of the program, for multiple entries.

It is important to note that visa validity is not the same as the allowed duration of stay in the U.S. While a visa allows a foreign citizen to travel to a U.S. port of entry, a Customs and Border Protection officer at a U.S. port of entry will grant admission to valid travelers and notify the traveler of the permitted length of stay. The new agreement does not change the permitted duration of stay in the U.S. for any visa class.

Additionally, the new agreement does not increase the validity of visas already issued. To obtain a visa with extended validity, holders of valid or recently-expired visas will need to apply again. There will be no change to visa eligibility criteria, and the Interview Waiver Program (IWP) will remain available to those who qualify. The visa application fee will remain at USD $160.

Please contact our office if you have questions about this information or visa application procedures, or if you require additional information on timing, strategies, or eligibility for these visas.

For more information, please visit http://travel.state.gov/content/visas/english/general/us-china-agree-to-extend-visas.html

November 7, 2014

CBP Tightens Security Measures for Visa Waiver Travel to the U.S.

The U.S. Customs and Border Protection (CBP) increased security screening measures on travelers who wish to enter the U.S. under the Visa Waiver Program (VWP). VWP enables citizens of certain countries to travel to the United States as visitors without obtaining a visa. Under these new measures, those seeking to travel to the U.S. under the VWP will be required to complete a longer application when seeking approval under Electronic System for Travel Authorization (ESTA). (VWP travelers are required to hold an ESTA approval prior to entering the United States). According to CBP, the increased security measures are in response to growing concerns that foreign fighters who possess U.S. and European passports or travel documents, and have joined militants in Syria and Iraq may seek to travel to the U.S. CBP indicated these individuals could pose a potential threat for committing terrorist attacks in the United States.

Effective November 3, 2014, the new measures mandate VWP travelers to provide the following additional data fields information when completing the ESTA application: (1) other names/aliases or other citizenships; (2) parents name(s); (3) national identification number (if applicable); (4) contact information (email, phone, points of contact); (5) employment information (if applicable); and (6) city of birth.

Travelers with a current and valid ESTA do not need to reapply. However, a new ESTA with these new data fields will be required once the valid ESTA or passport expire, or for any future travel under the VWP. The new security measures may result in possible delay of ESTA processing because manual adjudication may be required for cases involving erroneous information, data fields entered as “unknown,” or passports from multiple countries. All VWP countries are required to comply with the new security measures.

What should I do?

Travelers who use the VWP should apply for ESTA security clearance at the earliest opportunity and should prepare for a possible increased delay or a denial of ESTA clearance. In the event that ESTA clearance is denied, the individual will be required to apply for an actual visa at a U.S. consulate.

Please contact our office if you have any questions about the new ESTA procedures.

October 3, 2014

USCIS to Delete E-Verify Records More Than 10 Years Old

USCIS announced that effective January 1, 2015 it will delete annually all E-Verify transaction records that are more than 10 years old. This means that on January 1, 2015, employers will no longer have access to E-Verify cases created prior to December 31, 2004. To access these cases, the employer must download a Historic Records Report before December 31, 2014. The report will include all transaction records for cases more than 10 years old and is only available from October 1, 2014 to December 31, 2014.

E-Verify will advise employers each year when the Historic Records Report is available for downloading. If an employer did not use E-Verify for more than 10 years prior, there will be no records to report.

USCIS states that it is best practice to (1) record the E-Verify case verification number on the related Form I-9 and (2) retain the Historic Records Report with the Forms I-9.

USCIS is making this retention change to its E-Verify system to remain compliant with the National Archives Records Administration (NARA) records retention and disposal schedule (N 1-566-08-7), which requires disposal of records more than 10 years old to minimize security and privacy risks.

Please visit the E-Verify website for instructions on how to download Historic Records Reports in E-Verify. Please contact our office if you would like more information about E-Verify and responsibilities of enrolled employers.

October 2, 2014

2016 Diversity Program Registration

The Department of State (DOS) opened registration for the 2016 Diversity Visa Program (DV-2016) on October 1, 2014, and it will close at noon (EST) on November 3, 2014. Applicants must submit entries electronically during the registration period at https://www.dvlottery.state.gov/. DOS encourages applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. There is no cost to register for the DV Program.

The congressionally mandated DV Program provides a maximum of 55,000 Diversity Visas each fiscal year. Diversity Visas are drawn from random selection among all entries to individuals who meet strict eligibility requirements, and who are from countries with low rates of immigration to the United States. To be eligible, successful Diversity Visa entrants must have at least a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience.

Please feel free to contact our office for more information about the Diversity Visa Program.

September 4, 2014

Recent Trend: A Purchased Airline Ticket May Result in COS or AOS Denial

A number of U.S. employers have recently received denials for change of status (COS) and adjustment of status (AOS) applications where the beneficiary purchased, but did not use, an airline ticket to depart the United States. The only reason cited in the denials is that the foreign national’s alleged departure from the United States shows constructive abandonment of the application.

U.S. Customs and Border Protection (CBP) has informed USCIS of this trend, classifying it as a simple office training issue. On August 6, 2014, CBP explained that when a foreign national purchases an international plane ticket, this information is uploaded to its computer system, which is shared with USCIS. Referred to as an “implied departure,” the ticket is displayed on the preliminary screen in the system’s electronic record for the ticketed foreign national. If the USCIS officer fails to click to a deeper level of the electronic record, he or she will not know whether the foreign national actually boarded the plane and departed the United States. CBP is actively taking steps to rectify this issue and expects a speedy resolution.

If you would like to find out more about “implied departures” or have received such a denial, feel free to contact our office.

August 4, 2014

Technical Difficulties at Embassies and Consulates Worldwide

On July 29, 2014, the U.S. Department of State announced that its consular system is experiencing technical difficulties, which began in mid-July. The problem is worldwide and not specific to any particular country or visa category. These difficulties have prevented some U.S. embassies and consulates from issuing passports, visas, and other official documents. The State Department assured the public that it is working diligently in investigating the cause of the performance issues and to restore full functionality to its global database. Please refer to the State Department website for regular updates on the status of visa issuance.

If you would like to know more about the status of visa issuance and/or how this affects you, please contact our office.

July 29, 2014

DACA and State Driver’s Licenses

The Deferred Action for Childhood Arrivals (DACA) policy permits individuals who arrived in the United States before the age of 16 and who meet other age, education, continuous presence, and criminal history-related requirements to remain in the United States for a renewable two-year period and to apply for work authorization. The federal REAL ID Act specifically identifies deferred action as a lawful status that would permit the issuance of a federally recognized driver’s license.

However, because the rules governing eligibility for driver’s licenses are determined at the state level, a DACA grant does not automatically provide eligibility for a state driver’s license. Because the REAL ID Act federally recognizes deferred action as lawful presence, there are strong arguments for states to issue driver’s licenses to deferred action grantees. DACA recipients who do obtain work authorization and social security numbers qualify under the eligibility rules for a driver’s license in almost every state. Currently, otherwise-eligible DACA grantees can get a driver’s license in every state except Arizona and Nebraska. Litigation challenging the denial of driver’s licenses to DACA grantees in those two states is ongoing.

For more information about DACA, please contact our office.

July 15, 2014

E-Verify Participation May Spur Compliance Investigations

I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensures the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

Common errors identified by M & C Branch include:

• Creating duplicate cases for the same employee
• Immediately terminating employees who receive a tentative non-confirmation (TNC)
• Failing to create a case by the third day after the employee started work for pay
• Creating cases for employees who were hired before the employer-participant enrolled in E-Verify
• Not reviewing acceptable documents or a document containing a photograph

After an initial review of an employer-participant’s system usage, M & C Branch may contact participants with noncompliance issues by emails and phone calls. In addition, employers may be contacted to participate in a desk review or site visit for further investigation and to educate the employer-participant about how to properly use E-Verify. According to USCIS “Employers are selected to participate in a desk review if a standard review of their company’s usage indicates that they may be experiencing difficulties with the [E-Verify] system” (USCIS Executive Summary).

M & C Branch is not authorized to issue fees or other punitive measures. However, it can refer employer-participants suspected of misuse, abuse and/or fraud to Immigration and Customs Enforcement (ICE) or the Department of Justice. For more information about M & C Branch, please visit the USCIS website

Please feel free to contact our office for more information about E-Verify and the eligibility requirements and individual considerations for enrollment.