Immigration Lawyers Blog

The media has issued several recent articles documenting the United States' notable nonimmigrant visa denials of the Ugandan Little League Team and members of the Newcastle United Football Club.

The Rev. John Foundation Little League team from Kampala, Uganda was set to be the first African team to participate in the Little League Baseball World Series, held every summer in Williamsport, Pennsylvania. However, problems surrounding the players' documentation plagued the 11- to 13-year-olds, mainly due to the fact that in Uganda, establishing age and identity is complicated because birth certificates are rare and parents or guardians are often illiterate.

In failing to meet the United States' requirements for travel visas, the team was denied visas at the American Embassy. Little League Baseball and Softball officials chose not to appeal to the State Department. Some urge that in the future, Little League should require teams attempting to qualify for the World Series to go through a preliminary visa approval process so that there are no last-minute disappointments.

Another team has suffered setbacks due to U.S. visa denials: the Newcastle United Football Club. Midfielders Joey Barton and Yohan Cabaye and Striker Nile Ranger were denied U.S. visas to participate in the Premier League club's pre-season tour of the United States. Barton and Ranger both failed to get visas due to previous criminal convictions and Cabaye's denial was based on minor technical problems.

In light of the United States' strict requirements surrounding nonimmigrant visas, particularly in an age of increased immigration enforcement, we urge all those seeking to obtain U.S. visas abroad to closely adhere to the requirements of the U.S. consulates and embassies.

Please visit http://www.usembassy.gov/ for more information regarding specific visa application requirements.

The American Immigration Lawyers Association (AILA) is offering a podcast on the subject of the new “Export Control” licensing determination required on H-1B, L-1, and O-1A petitions. An employer is now required to certify on Form I-129, Petition for Nonimmigrant Worker, that it has reviewed the U.S. export control regulations, specifically the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and determined whether it will require a U.S. government export license to release controlled technology or technical data to the foreign worker. If the petitioner determines a license is required, the company must further certify that it will not release or allow access to the controlled technology or technical data until it has received the necessary license or authorization.

The podcast will feature AILA member Tien-Li Loke-Walsh and Abby Walsh, CEO of True Compliance Group, who will discuss the following main points: the company/organization classification and license determination, including best practices and procedures, timelines, common issues for immigration practitioners and key issues for hi-tech or software companies. The podcasts are short, informative audio files that are available exclusively to AILA members. For membership information, see www.aila.org.

Petitioners are advised that the Department of State Visa Office is conducting random telephonic interviews with petitioners of approved nonimmigrant visa petitions to verify factual information relating to the beneficiaries and the proposed employment. This verification process conducted through the Kentucky Consular Center (KCC) may involve research on petitioners, including review of the company website, company contact information, and use of Google earth to confirm existence of a physical office. Telephonic interviews may include questions confirming submission of petition, date of incorporation, physical location of petitioner, number of employees, names of shareholders, location of attorney of record, and other general questions regarding petitioner’s business operations.

The U.S. Department of State (DOS) has changed the policy on work visa issuance for Mexican citizens. Starting February 22, 2010, any Mexican citizen applying for H-1B, H-2B, E-1, E-2, TN or L-1 work visas will receive a one-year validity period only. The policy came about after Mexico decided to raise its visa fees for U.S. citizens coming into its country. In response, the DOS removed the multi-year visa approval options from Mexico. This change applies to Mexican citizens seeking to come to the U.S. and Mexicans already in the U.S. seeking work visa renewals after February 22, 2010.

It is critical to complete the Form DS-160 and accompanying photograph correctly. The U.S. Embassy in London has provided two examples where visa applicants were turned away due to insufficient completion of these items. This is important to note since an applicant who is turned away due to an incorrect form or photo could be formally refused a visa, which may affect eligibility for the Visa Waiver Program later on.

Example 1: Not selecting the correct visa category on the form

The Embassy has provided the following information for visa applicants with respect to the visa category:

It is important that you select the correct visa category in the "Travel Information Section." If you do not do so, the Embassy will not be able to process your application, and you will be required to complete a new DS-160, which will mean having to reschedule the visa interview. In the "Travel Information Section," you are asked "Are you the principal applicant?" On answering that question, a drop down list will appear under "Purpose of Travel to U.S." It is important that you review the information carefully. If your purpose of travel is not covered in the list, click on "Other." This will offer you a further drop down list of choices.

If you are planning on working in the United States and you are being sponsored for a visa by a U.S. company or if your employer is transferring you to a subsidiary or parent company in the U.S., you should select the appropriate category, which is either "Temporary Employee (H1,H2)," "Trainee (H3)," or "Intracompany Transfer (L)." Do NOT select Business/conference visitor (B1) or Business/Personal Travel (B1, B2) as this does not cover your purpose of travel.

Example 2: Photograph is not correct

The Embassy has provided the following information for visa applicants with respect to the photograph:

There are some important points to note before you attempt to upload the photograph:

1. The photos must be no older than 6 months

2. The photos must measure exactly 2 inches by 2 inches

3. The photo should show a clear, front view, full face of the applicant

4. Unless worn daily for religious reasons, all hats or headgear should be removed for the photo

5. Eyeglasses worn on a daily basis can be worn for the photo. However, there should be no reflections from the eyeglasses that obscure the eyes. Dark glasses or nonprescription glasses with tinted lenses are not acceptable unless you need them for medical reasons

6. Uniforms, clothing that looks like a uniform, and camouflage attire should not be worn in photographs except in the case of religious attire that is worn daily. Otherwise, normal street attire should be worn

7. A parent or guardian may not appear in the photo of a minor child; the child must be the only subject

8. Nothing used to support the minor child, whether by mechanical or human means, should be in the camera's frame

9. Only original photos are acceptable. Photos copied from recent driver licenses or other official documents that are copied or digitally scanned will not be accepted and the photos must not be retouched to alter the applicant's appearance in any way.

According to official channels, United States Customs and Immigration Service (USCIS) has received 44,900 H-1B cap-subject petitions as of the 10th of July 2009. The agency plans to continue accepting petitions for both advanced degree and cap subject applications until statutory limits have been reached. It remains to be seen how fiscal year 2010’s numbers will compare to numbers from the last several years.