Posted On: August 27, 2012

E-Verify Alert: I-94 Processing Delays

Please note that USCIS' E-Verify system is currently experiencing delays in obtaining up-to-date Form I-94 information. Form I-94 is the arrival-departure record issued to certain non-immigrants, and the Customs and Border Protection's (CBP) current processing time for entering the I-94 information into its database is 30 days or more. E-Verify uses this informatoin to confirm work authorization and CBP's delays in updating the database may result in an increase in E-Verify Tentative Nonconfirmations (TNC). E-Verify users are advised that the delay in recording Form I-94 information should not affect how they complete the Form I-9 or an E-Verify case. For more information, see the CBP website or contact CBP at (877) CBP-5511.

Posted On: August 17, 2012

USCIS Begins Accepting Requests for Deferred Action

Effective August 15, 2012, USCIS announced that it will start accepting requests for deferred action. Earlier this summer on June 15, 2012, the Department of Homeland Security (DHS) had announced that a certain class of young individuals will be considered for relief from removal from the country or from entering into removal proceedings. Those eligible for consideration are individuals who came to the U.S. as young children and who meet the following criteria:

• Be 15-30 years old, and have entered before age 16;
• Have been present in the U.S. for 5 years as of June 15, 2012;
• Have maintained continuous residence;
• Have not been convicted of one serious crime or multiple minor crimes, or otherwise pose a threat to national security or public safety; and
• Be currently enrolled in high school, graduated or have a GED, or have enlisted in the military.

USCIS will review requests and grant deferred action on a case-by-case basis. Eligible individuals will receive deferred action for a period of two years, subject to renewal, and will be allowed to apply for work authorization.

For more information on the deferred action process, see www.uscis.gov/childhoodarrivals or call the USCIS National Customer Service Center at 1-800-375-5283.

Posted On: August 15, 2012

September 2012 Department of State Visa Bulletin

The new visa bulletin is out at this link: http://www.travel.state.gov/visa/bulletin/bulletin_5759.html. Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is at January 1, 2009 for all countries, except for India and China for which visas are currently unavailable; EB-3 is at Oct. 1, 2006 for all countries, except for India (Oct. 8, 2002), China (Dec. 15, 2005), and Philippines (Aug. 1, 2006); EB-3 other workers is at Oct. 1, 2006 for all countries, except India (Oct. 8, 2002), China (June 22, 2003), and Philippines (Aug. 1, 2006); 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 May 8, 2010 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 February 1, 1989.


Posted On: August 13, 2012

USCIS Extends Validity of Form I-9 Beyond August 31, 2012 Expiration Date

USCIS has announced that employers should continue using the current version of the Form I-9 after the form’s expiration date of August 31, 2012. The current version of the Form I-9 shows an expiration date of August 31, 2012 printed in the upper right corner and a revision date of August 7, 2009 printed in the lower right corner. Employers are advised to use the current version of Form I-9 until further notice, however USCIS will also accept the prior version of the Form I-9 which has a revision date of February 2, 2009.

Posted On: August 13, 2012

CBP Plans to Eliminate Form I-94

The U.S. Customs and Border Protection (CBP) announced plans to eliminate Form I-94, Arrival/Departure Record. Form I-94 is the white card that is completed by non-immigrants upon arrival in the U.S. and surrendered upon their departure. Its main purpose is to document proper admission and maintenance of status. One of the reasons cited by CBP for eliminating Form I-94 is the fact that it already has access to the data gathered on Form I-94, including information that is gathered through the visa application process at the U.S. consulate, as well as data provided to CBP through the Advance Passenger Information System (APIS), a web-based system used by transportation carriers. Another reason is that CBP hopes to reduce time and money by eliminating Form I-94 as it costs an estimated $36 million a year in labor and resources to print, store, and enter the data.

CBP anticipates an immediate system-wide elimination of the form beginning later this summer. It plans to issue an admission stamp in the passports of nonimmigrant aliens which will include a handwritten notation indicating the status and authorized period of stay. CBP will also create an electronic record for arriving nonimmigrant aliens, and may consider creating a web portal to allow nonimmigrant aliens to verify their status and print an admission record receipt. Nonimmigrants arriving at air and sea ports using APIS will no longer receive a Form I-94 (However, during this transitional period, CBP may continue to issue the paper form even though it will not serve any actual function). Nonimmigrant arriving at a land border, unless otherwise exempted, will continue to receive a valid paper Form I-94. Also certain classes of individuals, such as refugees, will continue to be issued a valid Form I-94.

It currently remains to be seen how CBP will meet the challenges of administering these new procedures and how it will impact USCIS, employers, the Social Security Administration, and other agencies that currently rely on the Form I-94 for proof of alien status, employment eligibility, and identification purposes.

Posted On: August 6, 2012

ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION (ESTA): DISCLOSURE OF PREVIOUS REFUSALS AND DENIALS

Individuals who are eligible to apply for admission under the Visa Waiver Program must first seek authorization via the Electronic System for Travel Authorization (ESTA) program. In order to apply for travel authorization through ESTA, an applicant must meet the following criteria:

• Currently not in possession of a visitor’s visa.
• Travel to the U.S. is for 90 days or less.
• Travel to the U.S. is for business or pleasure.

Completing ESTA Form: Tips on Avoiding a Misrepresentation Finding

When completing the ESTA form, a failure to disclose visa refusals as a result of administrative processing or entry of an incorrect visa category on the Form DS-160, Non-Immigrant Visa Application, may be deemed as a misrepresentation which could make the applicant inadmissible. Therefore, such “refusals” on account of administrative processing or an incorrect visa category on Form DS-160 should be reported as a visa “denial” when completing the ESTA form.

• Visa Applications Subject to Administrative Processing

A visa application that has been suspended for administrative processing under § 221(g) of the Immigration and Nationality Act (INA) is deemed a visa “refusal” by the Department of State (DOS) even if the issuance of the administrative processing notice is to request missing documents or other additional information and the visa is ultimately granted.

• New DS-160, Non-Immigrant Visa Application, Due to Incorrect Visa Classification

A visa applicant may be required to complete a new DS-160, Non-immigrant Visa Application, if s/he failed to select the correct visa category. The consular officer may note this error in the system as a refusal under INA § 221(g).

• Reporting Visa “Refusals” as “Denials” on ESTA Form

The U.S. Customs and Border Protection (CBP) requires that such refusals be reported as “denials” on the ESTA application. For example:

ESTA question: “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?”

Answer “Yes” if the applicant’s visa application is under administrative processing by a consular post and/or if the applicant has been required to complete a new DS-160 due to incorrect entry of visa classification and there is a refusal notation in the system. Please note that in some instances, the applicant may not be informed by the consular officer of such a notation so it is best to treat the requirement to complete a new DS-160 as a visa denial on the ESTA form and explain the circumstances in the space provided.

CBP will then review the ESTA application and typically make a determination on whether the applicant is eligible for travel within 72 hours of submission.

For more information on the ESTA application process, please contact our office.

Posted On: August 2, 2012

Tips on Completing Form I-94, Arrival-Departure Record

Individuals entering the U.S. on a non-immigrant visa are required to fill out a Form I-94, Arrival-Departure Record.

Completing Form I-94

Form I-94 must be completed upon arrival in the U.S. and is a white card with two perforated sections as follows:

Upper portion, Arrival Record, requests the following information:

• Family Name
• First Name
• Date of Birth
• Country of Citizenship
• Sex (Male or Female)
• Passport Number
• Airline and Flight Number (if applicable)
• Country Where You Live – Lawful Permanent Residence
• City Where You Boarded (if applicable)
• City Where Visa was Issued (if applicable)
• Date Issued (Day/Mo/Yr) (if applicable)
• Address While in the United States (Number and Street)
• City and State

Lower portion, Departure Record, requests the following information:

• Family Name
• First Name
• Date of Birth
• Country of Citizenship

The Customs and Border Protection (CBP) officer will stamp your Form I-94 and passport, noting the date of entry and period of admission. The CBP officer will retain the Arrival Record, i.e. the upper portion of the Form I-94, and return the Departure Record, i.e. the lower portion of the Form I-94, and passport to you.

Checking Accuracy of Form I-94

Please ensure that the CBP officer has entered the correct information on your Form I-94 particularly with respect to the period of admission, i.e. length of stay in U.S. should correspond to the date granted on your Form I-797, Approval Notice. If you are not granted a period of admission pursuant to your Form I-797, Approval Notice, please request that the CBP officer correct the error immediately to avoid future complications with your immigration status. However, please note that in some circumstances, the period of admission may be shortened if your passport is expiring before the dates of authorized stay. For those admitted as academic students or exchange visitors (F or J classifications), they are granted “duration of status” on Form I-94, which means they are authorized to stay in the U.S. as long as they are engaged in a course of study/work pursuant to the terms of their visa.

Retaining Form I-94 Departure Record

The bottom portion of Form I-94 is a departure record and should be kept in your passport until you depart the U.S. as it must be returned to U.S. officials upon exiting the U.S.:

• If departing by air or sea, please turn the I-94 into the transportation carrier prior to departure.
• If departing by land and you will not be returning to the U.S. within 30 days, please turn the I-94 into the Canadian authorities when crossing the Canadian border and to a U.S. Official when crossing the Mexican border.

Please note that if you have been admitted to the U.S. under certain visa classifications, you may take short trips (30 days or less) to Canada or Mexico and be readmitted on the same Form I-94 for the balance of time remaining on your I-94. Similarly, individuals in F or J status may take short trips (30 days or less) to Canada, Mexico, and the Adjacent Islands, and be readmitted on the same Form I-94 for the balance of the time required for them to complete their program.

As each traveler’s circumstances may vary with respect to their nationality, visa classification, destination, and immigration history, please consult with our office prior to your departure.