Posted On: February 23, 2012

Automatic Visa Revalidation

For certain nonimmigrants traveling outside of the U.S. to select geographic locations for 30 days or less, they may be able to avail themselves of a process known as automatic visa revalidation. This procedure allows certain individuals with previously issued visas to be readmitted when:

• Seeking readmission in the same nonimmigrant classification as shown on an expired visa, or

• Seeking readmission under a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while in the U.S., and

• Seeking readmission after an absence of 30 days or less from the U.S., and

• Seeking readmission after travel to a "contiguous territory" such as Canada or Mexico (for individuals in F or J status, this also includes travel to "adjacent islands other than Cuba"), and

• Seeking readmission after having maintained nonimmigrant status, and

• Seeking readmission without having applied for a visa while outside the U.S.

The individual must present the following:

• Valid passport

• Valid Form I-94 (Arrival-Departure Record) with an unexpired period of initial or extended authorized stay

• Expired or valid nonimmigrant visa in any classification

• Valid Form I-20 or Form DS-2019 if in F, M, or J status

Please note that Canadian citizens are typically exempt from the requirement to present a visa for admission to the U.S. except in the E or K classifications. In such circumstances, they must have been admitted at least once under the visa in order to be eligible for automatic visa revalidation. Please also note that nationals of Iran, Syria, Sudan, and Cuba are not eligible for automatic visa revalidation. For more information on this process, please contact our offices.

Posted On: February 16, 2012

Enhanced Consular Processing in China: New Interview Waiver Pilot Program

The U.S. Embassy in Beijing has announced upcoming changes to consular procedures that are aimed at increasing the visa processing capacity in China by up to 40% in 2012. These changes are in response to the recent Executive Order signed by President Obama that seeks to benefit the American economy through increased travel and tourism to the U.S. In 2011, consular posts in China processed over 1 million visa applications, accounting for approximately 11% of the total U.S. visa workload from around the world. In order to meet the increasing visa demand, efforts are being made to enhance consular processing, including the opening of new consular offices in Guangzhou and Shanghai, as well as adding 50 new consular officers. Additionally, a new pilot program will be implemented allowing certain qualified applicants who were previously interviewed and screened for a prior visa to be eligible to renew their visas without undergoing another interview. In these select circumstances, consular officers will be able to waive interviews for qualified applicants who are renewing their visa in the same classification within 48 months of the expiration of their previously held visa. These changes are expected to greatly enhance the visa processing capacity in China, opening up as many as 100,000 interview appointments. For more details, see http://beijing.usembassy-china.org.cn/20120209amb-visa.html.

Posted On: February 9, 2012

March 2012 Department of State Visa Bulletin

The new visa bulletin is out at this link: http://travel.state.gov/visa/bulletin/bulletin_5664.html. Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 remains current, except for India and China (May 1, 2010); EB-3 is at March 15, 2006 for all countries, except for India (Aug. 22, 2002) and China (Jan. 1, 2005); EB-3 other workers is at March 15, 2006 for all countries, except India (Aug. 22, 2002), China (April 22, 2003); EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at July 22, 2009 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 Dec. 22, 1988.

Posted On: February 9, 2012

Report Shows Huge Increase in Denials and Delays for H-1B and L-1 Petitions

New research results released by the National Foundation for American Policy (NFAP) reveal that USCIS has had increasingly high denial rates of L-1 and H-1B petitions over the last four years. Analysis of data gathered from USCIS show that 63 percent of all L-1B petitions (e.g. intra-company executives/managers or specialized knowledge workers) received a Request for Evidence and 27 percent were issued a denial which means that between 63 to 90 Percent of L-1B Petitions were denied or delayed in 2011. Additionally, the data reveals that the increase in denials is largely related to petitions filed on behalf of Indian-born professionals and researchers.

“The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy,” states the report and concludes that "such actions are harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States." Additionally, the report found that the increase in Request for Evidence and denials is costing employers undue time and money, including millions of dollars in project delays and contract penalties.

The NFAP analysis includes the following findings:

- Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011. In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.

- Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.

- Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.

- The denial rates also increased for O-1A petitions, which are used for “individuals with an extraordinary ability in the sciences, education, business, or athletics.” Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011.

- Along with increased denials have come skyrocketing rates of “Requests for Evidence” or RFEs, which are used by USCIS adjudicators to obtain more information in lieu of making an immediate decision on a petition. Employers note that simply the act of an RFE can result in months of delays, affecting costs and potentially delaying projects and contract performance.

- The Request for Evidence rate for L-1B petitions (to transfer employees with specialized knowledge) rose from 17 percent in FY 2007 to 49 percent in FY 2008, and, as noted, reached an astonishing level of 63 percent rate in FY 2011. As recently as FY 2004, USCIS adjudicators requested additional evidence for L-1B petitions in only 2 percent of the cases. There appears to be no reasonable explanation for the rate of Request for Evidence for L-1B petitions to rise from 2 percent to 63 percent in just 7 years.

- The Request for Evidence rate for L-1A petitions (to transfer managers and executives) increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.

- For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for H-1Bs was 26 percent.

- For O-1A petitions, the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011.

- Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is far more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).

To see the report, “Data Reveal High Denial Rates for L-1 and H-1 Petitions at USCIS,” in full, visit the NFAP website at www.nfap.com.

Posted On: February 2, 2012

Pending Final Rule: Issuance of L Visas Based on Visa Reciprocity Schedule

Pending final rule with the Department of State (DOS) is a regulation governing issuance of full validity L Visas to individuals with approved L petitions. The rule permits the issuance of L visas with validity periods based on the visa reciprocity schedule which reflects the reciprocal treatment the applicant’s country accords the U.S. Under the current rule, L visas are limited to the petition validity period which is determined by USCIS and currently cannot exceed 3 years. An individual in L status may apply for an extension in increments of up to two years, but the total period of stay may not exceed 5 or 7 years for individuals employed in a specialized knowledge or managerial/executive capacity, respectively. The change in regulation allowing for issuance of full validity L visas based on the visa reciprocity schedule will benefit those who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in the petition approved by USCIS and who have extended their L stay while in the United States. As such, these individuals would not be required to apply again for an L visa if they were to travel outside the United States during the period prescribed under the applicable reciprocity schedule, as is currently required when petition validity has been extended. Please note that this change is pending final rule and is not yet effective.