Business Immigration Insights

On December 21, the Department of State announced changes to the power consular officers have to waive personal visa interviews for nonimmigrant visa (NIV) applicants. Under the new guidelines, will remain in place indefinitely, consular officers are now authorized to waive personal visa interviews for

• First-time applications: H-2 temporary agricultural and non-agricultural workers;
• Other applications – applicants with a previously approved visa: NIV applicants applying in any other NIV category who were previously issued a nonimmigrant visa in any classification if the applicant is applying within 48 months of their most recent nonimmigrant visa’s expiration date may have their interview waived at the discretion of the consular officer, unless the only prior visa was a B visitor/business visa. 

This is a follow up to our prior post on Domestic Visa Processing.

The Department of State has officially released the details of the long-anticipated domestic visa processing pilot program. The pilot program will be open starting on January 29, 2024, and will accept up to 20,000 applications, with applications accepted on a rolling basis. The system is set up to release approximately 4,000 application slots each week for the first 6 weeks of the program starting Monday, January 29, 2024. Once the weekly limit is reached, the system will be locked until the next set of slots are released following next week. The system will be open until April 1, 2024, or until all application slots are used, whichever comes first.

After a 20+ year hiatus in domestic visa processing, the Department of State is launching a pilot program to resume limited state-side processing of visa renewals in early 2024. According to a recent State Department announcement, the new pilot program will allow some individuals in the U.S. with visas to renew those visas without leaving the country or attending an interview at a U.S. Embassy or consulate outside the United States.

COVID travel restrictions may be improving, but the most recent update to the Department of State’s Visa Wait Times confirms that there are still very serious, ongoing visa appointment delays resulting from the pandemic.

In the newest sequel to the Shergill v. Mayorkas settlement, US Citizenship and Immigration Services (USCIS) has now updated its Policy Manual to address documents that E and L nonimmigrant spouses may show their employers to prove their work eligibility.

Following the settlement of a US Citizenship and Immigration Services (USCIS) lawsuit that finally recognizes that dependent L and E spouses are able to work lawfully incident to their status, US Customs and Border Protection (CBP) updated its admission system to designate on the I-94 admission records those spouses who are authorized to work without applying for an EAD.  L and E spouses should be admitted with an “S” after their status to indicate that they are spouses authorized to work.  The new I-94s do not explicitly state “work authorized”, but the “S” designation tells employers for I-9 purposes that they are authorized to work for the validity of their I-94s. 

As we previously reported, President Biden is rescinding the international travel restrictions that have drastically hindered US business and tourist travel for almost 2 years.  Beginning at 12:01 a.m. Eastern Time on Monday, November 8, 2021, travelers will no longer need a valid National Interest Exception if they have been in China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, or India within the past 14 days.  Instead, they – and all air travelers to the US, with some very limited exceptions – will have to prove they are “fully vaccinated” before boarding a US-bound flight.

News sources are reporting that, on September 20, Jeff Zients, White House Covid Response Coordinator, announced easing of restrictions on direct entry into the US by fully vaccinated international travelers.  Few details are available as of this writing.

At some point this year, we expect that the United States will lift the travel ban that includes all of the Schengen countries, the United Kingdom, China, and others.  While there have been many rumors about when this will happen, the US government remains silent.

When the United States lifts the travel ban, US visa holders in the United States will have many questions about whether they can travel abroad, when they can return, and what impediments they may face.  The following FAQs address these questions.  We will update them as needed.

In the ten days since we reported on presidential Proclamation 10052, certain questions we and other immigration attorneys had about the proclamation have been clarified.  The proclamation established a ban on admission to the United States for people in the H, L, and J nonimmigrant visa categories for the rest of calendar year 2020.  We now have the following additional answers to the questions we asked on June 23:

If I am Canadian and do not require a U.S. visa, am I banned from entering?

No.  Canadian citizens are not subject to the ban.  The pretext for the proclamation is preventing entry ...

As of May 1, 2020, when employers verify identity and employment authorization for their employees, they must use the October 21, 2019, edition of Form I-9, Employment Eligibility Verification.

Unemployment insurance, as described in a recent blog post by our Labor and Employment colleagues, is a “joint federal-state program, administered separately by each state following guidelines established by federal law.”  While the requirements of these programs vary from state to state, eligibility criteria generally exclude nonimmigrants whose work authorization is tied to a specific position with a specific employer (e.g., TN, H-1B, and L-1 workers).

President Trump signed the eagerly awaited Coronavirus Aid, Relief, and Economic Security (CARES) Act on March 27, 2020.  What does it mean for people who are affected by COVID-19 and living here on work-authorized visas?  They, like their colleagues who are US citizens and permanent residents, have also been furloughed without pay, laid off, and affected by university closures.  But, unlike their colleagues, nonimmigrant workers are also at risk of involuntarily violating or even losing their US immigration status during COVID-19.  To understand why, see our earlier blog, COVID-19: How Do Furloughs Affect Nonimmigrant Workers?  Unfortunately, the Act is silent on the fate of these workers.  While it provides general relief that may also aid nonimmigrants, their eligibility for that relief is not entirely clear.

Employers nationwide are implementing work reductions, closures and furloughs in order to reduce costs during the COVID-19 economic slowdown in the United States.  When employees are put on reduced hours or furloughed, employers face changing legal obligations in multiple areas of labor and employment law.  Companies that employ nonimmigrant workers should not overlook the additional legal obligations they have toward these employees, especially those who are on visas that have prevailing wage requirements.

Employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).

As reported in the Hunton Labor & Employment blog, COVID-19 has disrupted the global economy and employers may soon face the need to reduce expenses associated with exempt employees. Employers can place exempt employees on furlough, or, in some cases, reduce salaries and hours, without jeopardizing the FLSA exemption, but exceptions may need to be made for certain employees on work-authorized visas.

Continue Reading

Employers face many urgent issues in responding to the US outbreak of the novel coronavirus, COVID‑19.  The disease has forced employers to develop and implement workplace safety, mitigation, and business continuity plans.  These may include allowing employees to work from home or from alternate unaffected worksites, as well as outsourcing I-9 document reviews to agents in remote locations. Economic slowdowns have occurred in some sectors due to the global pandemic, requiring some companies to consider or implement temporary employee furloughs or even reductions in force.

Reacting to the novel coronavirus that originated in Wuhan City in Central China, the Trump Administration has issued a proclamation prohibiting anyone from entering the United States who has been physically present anywhere in China within 14 days of seeking US entry.  The prohibition has no fixed end date, but is to be reviewed every 15 days by the Secretary of Health and Human Services.

The prohibition does not apply to US citizens or lawful permanent residents, their spouses, or their minor children.  If the citizen or permanent resident is a child under age 21, the prohibition does not apply to the child’s parents, guardians, or minor siblings.  It also does not apply to anyone who is traveling on a diplomatic or crewmember visa or to a handful of additional, unusual situations.

In 2019, the large policy and enforcement shifts signposted in 2017 and 2018 continued to play out with stricter immigration enforcement across the board. While we don’t expect to see seismic shifts in the coming year, there are a few issues to watch for in 2020.

(1) H-1B “Specialty Occupation” Definition Change Likely to Stall in Court

USCIS has indicated it will be announcing an official change to the definition of “specialty occupation.” While we have already seen a detrimental shift in the H-1B adjudication process, this would be an official regulatory change. We expect that any attempt to re-interpret the H-1B statute as narrowly as possible will face a lengthy court battle.

Since March 2019, all applicants who file Form I-539 Application To Extend or Change Nonimmigrant Status have been required to appear for biometrics appointments so that US Citizenship & Immigration Services (USCIS) can compare their biometric data against their identity documents and forward the data to the FBI for security screenings.

Why Is USCIS Taking Fingerprints from Applicants for Temporary Status?  According to USCIS, this new biometric requirement is to aid in identifying threats to public safety and national security, and to protect the integrity of the immigration ...

Applicants for US visitor, student, and work-related nonimmigrant visas, as well as family-based and employment-based immigrant visas (“green cards”), now have to provide information about the social media platforms used over the preceding 5-year period.  The updated visa application forms seek information about the most popular social media platforms, including Facebook, Twitter, Pinterest, and YouTube.  Applicants also have the opportunity to provide information about social media platforms not listed in the drop-down menus.  For each platform, applicants must ...

U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2019 H-1B lottery.  Employers who filed petitions should now have received either a Form I-797 receipt notice with assigned receipt number, or the original rejected petition including filing fees.  USCIS will take inquiries if employers believe they filed during the required period – April 2 to April 6, 2018 – and have not received a receipt notice or rejected petition by August 13, 2018

The Associated Press is reporting that US embassies and consulates around the globe have been instructed to limit the validity period of F-1 visas issued to Chinese graduate students studying in fields such as robotics, aviation and high-tech manufacturing. The new policy requires that visas issued to such students are only valid for one year, where Chinese students are normally issued visas valid for up to five years. The policy is reportedly taking effect on June 11, 2018. There are more than 300,000 Chinese citizens studying in the United States – nearly one-third of all ...

On May 18, 2018, after receiving a notice from the Government of Ecuador terminating that country’s bilateral investment treaty with the United States, the U.S. Department of State’s Office of Trade Representative announced the termination in the Federal Register.  The treaty has been in force since 1997.

In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but ...

On Tuesday, January 16, 2018, the new US Embassy in London will be operational for all US visa, consular,  and US citizen services.

The new address is: 33 Nine Elms Lane, London SW11 7US.  Any appointments already scheduled will be held at the new address.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

On November 20, 2017, the United States Citizenship and Immigration Services (“USCIS”) issued a policy memorandum restricting TN nonimmigrant classification under the profession of Economist, to those who will primarily engage in activities consistent with the profession of Economist and specifically excluding those employed as Financial Analysts, Market Research Analysts, and Marketing Specialists. USCIS explains that the policy memorandum was necessary, because the lack of an in-depth description of the Economist profession in the North American Free Trade Agreement, which created the TN nonimmigrant classification, has led to inconsistent adjudications regarding which positions are encompassed under the Economist profession.

In its memorandum, USCIS explains that Economists generally specialize in either the analysis of individuals or firms to better understand the relationship between supply and demand or in the analysis of aggregated indicators to determine how different sectors of the economy are related to each other.  USCIS adds that Economists may apply economic analysis to issues in a variety of fields including labor, international trade, development, econometrics, education, health, and industrial organization.

This week, Tom Homan, acting Director of the Immigration and Customs Enforcement (ICE), announced that he has instructed Homeland Security Investigations (HSI), the investigative branch of ICE, to quadruple the number of worksite inspections.  Danielle Bennett, spokeswoman for the agency, confirmed this directive and added “ICE’s worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves.”

What does this mean for U.S. employers? This means that employers should expect to see increased HSI visits during which HSI will conduct not only I-9 audits to ensure that employers are complying with established employment eligibility verification requirements, but also other investigations related to compliance with immigration and labor regulations.

Following the arrest of a US consular employee by Turkish authorities, the United States has suspended the issuance of nonimmigrant visas at the US Embassy in Ankara and the US Consulate General in Istanbul.  This is not a travel ban on Turkish nationals, as those with nonimmigrant visas can continue to use them, and those wishing to apply for nonimmigrant visas can do so at other US consular locations outside of Turkey.  The processing of immigrant visas will continue without interruption.

In response, the government of Turkey announced the immediate suspension of visa services to US ...

United States Citizenship and Immigration Services (“USCIS”) has announced that premium processing has been reinstated for all H-1B cases.   As of today, petitioners may file H-1B petitions requesting premium processing and may upgrade currently pending H-1B petitions to premium processing.

Although no official statement has been issued, the United States Citizenship and Immigration Services (“USCIS”) announced during a call with the American Immigration Lawyers Association’s Service Center Operations Liaison Committee that it expects to resume premium processing for all H-1B cases on or before October 3, 2017.   We will update this post as soon as USCIS makes an official announcement.

On Sunday, September 24, 2017, the White House identified eight countries as inadequately managing identity and security risk information for their citizens who seek admission to the United States or other U.S. immigration benefits and established the following restrictions for those countries:

• North Korea / Syria:  All immigrant and nonimmigrant visas are suspended.
• Chad / Libya / Yemen:  All immigrant visas and all B-1 business and B-2 tourist visas are suspended.
• Iran:  All immigrant visas are suspended, as well as all nonimmigrant visas except F and M student visas and J exchange ...

March 2017 brought us a surprising suspension of the Premium Processing option for all H-1B petitions received by the USCIS on or after Monday, April 3, 2017, which led to an overwhelming number of H-1B extension filings in a short period of time.  The USCIS was unable to process most of the cases within the 15-day period, leading to the return/refund the $1,225 filing fees.  April 2017 brought us the H-1B cap petition lottery that, once again, demonstrated a high demand for H-1B visas by US companies.  In addition, while these events were taking place, the President and members of his ...

The Trump Administration may be moving towards revamping the J-1 exchange visitor program in ways that could be detrimental to universities, research organizations, businesses, hospitals, healthcare, families, and students.  J-1 nonimmigrant (temporary) visas are issued to: foreign students, scholars, researchers, postdocs, college work/study participants, medical students/residents/doctors, interns, trainees, au pairs, and more.  As part of his campaign’s immigration reform outline, President Trump singled out J-1 work/study programs, stating that he would ...

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.

President Trump signed today the long-awaited revised travel ban Executive Order entitled, “Protecting The Nation From Foreign Terrorist Entry Into The United States”, effective 12:01 a.m, Eastern Standard Time on March 16, 2017.  The list of affected countries includes Sudan, Syria, Iran, Libya, Somalia, and Yemen; Iraq was removed from the list.  Key provisions are as follows:

The Ninth Circuit has just issued a unanimous opinion upholding the Temporary Restraining Order against the Trump Administration’s Executive Order known as the “Travel Ban.” The 3-judge panel unanimously recognized that without the TRO, the states of Minnesota and Washington were likely to be harmed as parens patriae (i.e., legal protector) for their citizens, and also by damage inflicted on “operations and missions of their public universities and other institutions of higher learning,” and their “operations, tax bases, and public funds.”

As we reported last Friday, President Trump has signed an Executive Order to temporarily restrict the admission of all refugees and persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  The administration’s failure to provide clear guidance to its own agencies on how to implement the order is resulting in inconsistent applications, which are unacceptable to the hundreds of thousands of individuals and U.S. businesses potentially affected by this travel ban.

We have learned that, as of the evening of January 27, 2017, all U.S. embassies and consular posts have been instructed to immediately suspend the issuance of both nonimmigrant and immigrant visas and cancel currently scheduled visa interviews for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Some diplomatic visa categories are exempt.

The Administration has now signed the Executive Order entitled, “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” with immediate effect. Individuals from the designated countries should strongly consider not traveling outside the United States during the periods mentioned below. Key provisions are as follows:

1. The Order prohibits the “immigrant or nonimmigrant entry” into the United States by nationals of Iraq, Iran, Yemen, Somalia, Syria, Sudan and Libya for the next 90 days – until April 27, 2017.

A draft of President Trump’s Executive Order banning Muslims and Refugees has surfaced.  While the final Order may be different, we expect most of what is in the draft to remain.  The draft Order provides for:

• 120-day suspension and “realignment” of the refugee admissions program to determine what additional procedures are necessary to ensure the security and welfare of the United States
• Indefinite suspension of the Syrian refugee program
• 30-day suspension of visa issuance to nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen
• 30-day suspension of “other” immigration benefits for nationals of those countries

Donald Trump’s statements about the U.S. immigration system were a main feature of his presidential campaign. Now that he has been elected, many are questioning whether and how those statements might become actual policies. We have already begun fielding questions from clients asking how new policies, regulations and laws will affect their businesses, their employees, their families, and themselves.

According to the January 2016 edition of “All Aboard,” the National Labor Relations Board’s in-house newsletter, U.S. Citizenship and Immigration Services has recently granted U status for the first time to victims of unfair labor practices in cases in which the NLRB’s General Counsel served as law enforcement certifier.

After more than 15 years since the statutes were enacted, the U.S. Department of Homeland Security will finally publish its proposed regulations implementing the American Competitiveness in the Twenty‑First Century Act of 2000, known as “AC21,” and the American Competitiveness and Workforce Improvement Act of 1998, known as “ACWIA.”

On April 15, 2015, the day its previous order was due to expire, the Federal District Court for the Northern District of Florida extended its permission for the Department of Labor to process H-2B wage and labor certification applications for another month, through May 15, 2015.

On March 20, 2015, the U.S. Department of Labor issued new FAQs providing more details on the latest developments in the ongoing federal court case challenging DOL's authority to issue and implement regulations for the H-2B temporary worker program.

On March 17, 2015, the U.S. Citizenship & Immigration Services announced it will resume H-2B processing, but will continue to suspend premium (expedited) processing until further notice.

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily shut down its processing of H-2B petitions and the U.S. Department of Labor (DOL) has stopped accepting or processing applications for H-2B prevailing wages and temporary labor certifications due to a Florida federal court’s decision in Pérez v. Pérez.

The Department of State reports that it is experiencing technical problems with its global passport and visa system. This problem is delaying the issuance of visas at this time. The embassies and consulates are still scheduling and conducting visa interviews; however, visa issuance will be delayed until the problem is resolved. This is a worldwide issue, and not specific to any one location. Those planning to travel abroad to obtain new visas must take this problem into consideration before departing the United States, as their return may be delayed. We will provide an update ...

As widely anticipated, U.S. Citizenship and Immigration Services announced yesterday that it has received a sufficient number of H-1B petitions to meet both the regular cap (65,000) and the advanced degree cap (20,000) for Fiscal Year 2015.  USCIS received a total of 172,500 petitions during the FY2015 filing window, which ran through the first five business days of April.

As Congress failed to reach an agreement to avert the unthinkable, the US Government shut down at midnight.  This will affect some immigration-related government agencies:

• US Citizenship and Immigration Services (USCIS),which processes immigrant and nonimmigrant visa petitions, will continue operating.  Petitions already on file will continue to be processed, and new petitions will continue to be accepted.  eVerify will not be operating during the shutdown.
• US Customs and Border Protection, which conducts inspections of those arriving by land, air, and sea, and enforces ...

The U.S. Department of State (“DOS”) has now issued FAQs for handling of same-sex spouses in both the immigrant (green card) and nonimmigrant (temporary visa) categories, following the Supreme Court’s finding, in Windsor v. United States, that Section 3 of the Defense of Marriage Act is unconstitutional.  Effective immediately, DOS will treat same-sex spouses and their children identically to opposite-sex spouses and their children.  This means that same-sex spouses whose marriages, whether foreign or domestic, are legally recognized where they occurred are now ...

On July 1, DOL announced that its Office of Foreign Labor Certification (OFLC) is making publicly available redacted copies of all certified H-1B, H-1B1 and E-3 Labor Condition Applications (LCAs) and permanent labor certifications (PERMs) dating back to April 15, 2009, through the iCert “Labor Certification Registry” (LCR).  These certified documents can be searched by case number, case type, state, job location, employer name, posting range, or industry code.  The “LCR Document Availability Schedule” gives specific availability timeframes for each type of ...

The USCIS announced that it received 124,000 Fiscal Year 2014 H-1B petitions between April 1, 2013, and April 5, 2013, including petitions filed for the advanced degree H-1B visas.  The lottery, which was held on Sunday, April 7, 2012, was conducted by a computer-generated random process for the 20,000 advanced degree H-1Bs.  Those not selected were added to a second lottery for the other 65,000 H-1Bs.  Receipt notices for those selected should arrive in the coming weeks.  The USCIS confirmed that it will begin adjudicating petitions filed under the expedited “Premium Processing” ...

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of April 5, 2013, it has received sufficient H-1B petitions (regular and master’s cases) to reach the statutory cap for Fiscal Year 2014 (10/1/2013 through 9/30/2014). This is significantly faster than the current fiscal year, when the cap was not reached until June 11, 2012.  Because the cap was met during the first five business days that employers could file Fiscal year 2014 petitions, a lottery will be held in the coming weeks to determine which cases will be accepted for processing, and which will be rejected.  Those chosen in the lottery will be issued receipt notices; those rejected will receive the original filings back from USCIS.

If automatic spending cuts ("sequestration") take place at midnight tonight, wait times for visa appointments at US embassies and consulates will likely increase.

At its Daily Press Briefing on February 27, 2013, the Department of State warned that it will have to reduce the numbers of officers who process visa applications worldwide, and said, "We could have major setbacks in really the herculean effort we’ve made to reduce wait times."

At its press briefing on February 28, 2013, the Department elaborated:  "Sequestration threatens all of our operations because it cuts across ...

On August 7, 2012, U.S. Customs and Border Protection posted a Travel Update to its website, confirming that CBP agents will systematically stop issuing paper Forms I-94 (Arrival/Departure Records) at all airports and some sea ports of entry in the very near future.  Travelers who enter at land ports of entry will continue to receive paper Forms I-94, until further notice.

The U.S. Embassy in Mexico City has announced that, as of July 1, 2012, individuals seeking to renew their visas at the embassy and consulates in Mexico no longer must attend a visa interview appointment, as long as their current visas are still valid or expired within the past 48 months. Previously, only those whose visas had expired within the past 12 months were exempt from interview.

Note that even those applicants who are exempt from interview under the new policy must still attend an appointment at the Applicant Service Center ("ASC") for biometrics and fingerprinting. Additional ...

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of Monday, June 11, 2012, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2013 (10/1/2012 through 9/30/2013). Perhaps a sign of an improving economic situation in the United States, this is significantly faster than the current fiscal year, when the cap was not reached until November 22, 2011.
 
The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers. Cap-subject H-1B ...

The Department of State announced increases in visa fees, effective April 13, 2012.  The machine-readable visa (MRV) fees will increase from $140 to $190 for the following nonimmigrant visas:  H, L, O, P, Q and R.  MRV fees for E and K visas will drop from $390 (E) and $350 (K), to $270 and $240, respectively.  All other nonimmigrant visas will increase from $150 to $160.  In addition, immigrant visa fees will drop for family-based cases ($330 to $230) and employment-based cases ($720 to $405).  Finally, Border Crossing Card (BCC) fees for Mexican nationals will increase from $14 to $15.  The ...

Under its Validation Instrument for Business Enterprises (VIBE) program, through a data partnership with Dun & Bradstreet (D&B), USCIS verifies "business existence" for each US employer who files a petition for a foreign-national employee.

If data on the employer is unavailable in D&B, or does not match data in the employer's petition, USCIS sends the employer a Request for Evidence, asking for additional documentation of the company's business existence, which delays approval of the petition.  Although a single employer is not supposed to receive a VIBE Request for Evidence more ...

U.S. Citizenship and Immigration Services (USCIS) announced that as of November 22, 2011, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2012 (10/1/2011 through 9/30/2012).  The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers.  Cap-subject H-1B petitions received by USCIS after November 22nd will be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available ...

Department of State Managing Director for Visa Services, Ed Ramotowski, announced yesterday that, due to their robust economies and currency strength against the U.S. dollar, 44% more U.S. visas have been issued in Brazil this year than last year and 35% more in China.  DOS described its efforts to keep up with this skyrocketing demand.

U.S. Citizenship and Immigration Services announced recently that US employers who petition for foreign workers in the H-1B, H-1B1 (Chile/Singapore), L-1, and O-1A categories will not be required to complete Part 6 of Form I-129 until February 20, 2011.  Part 6 contains the employer certification regarding licensing requirements under export controls and ITAR, recently discussed in this blog. USCIS received a number of inquiries from stakeholders requesting that the agency delay implementation of this requirement in order to give petitioners time to establish the necessary ...

U.S. Citizenship and Immigration Services recently issued a new Form I-129, effective December 23, 2010.  Part 6, "Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.," requires an employer to certify it will not "release" controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate "export license," if one is required.  Under the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), a "deemed export" occurs when controlled technology or technical data is "disclosed" or "transferred" to ...

Beginning January 10, 2011, applicants for nonimmigrant visas at the U.S. embassy and consulates in Mexico must visit an Applicant Service Center (ASC) for biometrics (digital photos and fingerprints) before their visa interviews.  Applicants will no longer pay separate fees to schedule an appointment, apply for a visa, and have a courier service deliver their passports.  Instead, one fee will cover everything:  USD140 for tourist visas, USD150 for petition-based visas (H, L, O and P), and USD390 for E treaty/trader visas.  An applicant with a Mexican passport who is renewing a visa in ...

The Department of State has revised its "visa reciprocity" schedule for China, effective July 9, 2010, allowing US embassies and consulates to issue 1-year, multiple-entry H-1B visas to Chinese nationals.  The new reciprocity schedule for China may be viewed at the State Department's website here.

Validity periods and other restrictions on US nonimmigrant visas, such as H-1B visas, are based on the concept of "reciprocity":  the validity and limitations another country imposes on US citizens for similar types of visas.  Previously, Chinese H-1B visas were limited to 3 months and ...

The U.S. Department of State has confirmed that contractors on a pre-approved list at the Kentucky Consular Center (KCC) are now auditing approved nonimmigrant petitions -- including H-1B and L-1 petitions -- in order to verify that information contained in the petitions is correct.  The audits are creating significant delays for petition-based visa applicants at embassies worldwide.

On August 11, 2010, the State Department published its final revised rule on J-1 Interns and Trainees.  The revised rule makes 3 key changes.  First, host companies no longer must provide a Dun & Bradstreet report  Second, program sponsors may interview candidates by phone rather than only in person or by videoconference.  And third, both interns and trainees may participate in unlimited J-1 programs as long as they will develop more advanced skills or train in a different field of expertise in each new program.  Interns must still be enrolled full-time in a foreign college or university or ...

The U.S. Department of State (DOS) has announced that, as of June 4, 2010, nonimmigrant visa fees have increased at its U.S. embassies and consulates worldwide.  In the Federal Register notice announcing the move, DOS explained that increases are necessary because an independent study from August 2007 to June 2009 concluded the agency "is not fully covering its costs ... under the current cost structure."  Petition-based visa fees for temporary workers -- such as H-1B, L-1 and O-1 -- increased from $131 to $150.  E-1 (treaty trader) and E-2 (treaty investor) visa fees increased almost ...

In recent months there have been multiple reports that some H-1B workers arriving at Newark Liberty International Airport in New Jersey have been questioned extensively by U.S. Customs and Border Protection (CBP) officers about their employment in the United States.  In some cases H-1B workers have been refused entry and/or had their visas cancelled.  CBP headquarters has since confirmed that most of these incidents occurred as part of an enforcement action involving companies that are under investigation for immigration violations, presumably involving fraudulent H-1B petitions or inadequate documentation.  Based on the types of questions being asked by CBP, there are also indications of increased scrutiny of H-1B workers who are employed by consulting firms, based on the January 2010 Neufeld memo discussed in our previous blog entry Indian nationals who are employed by consulting firms appear to be the primary targets of these enforcement efforts.

Since 2009, the Department of State has been phasing in a new, online visa application form at embassies worldwide.  The new DS-160 combines all previously used forms (DS-156, DS-157 and DS-158) for all nonimmigrant visa applications except Ks and Es.  DOS's goal is to use the DS-160 exclusively worldwide by April 30, 2010.

U.S. Citizenship and Immigration Services (USCIS) recently issued a memorandum containing guidance for the processing of H-1B petitions involving certain employer-employee relationships, including self-employment, third-party site placements and independent contractors.  Specifically, the memo states that an H-1B employer must establish that it will maintain the "right to control" the "when, where, and how" a sponsored H-1B worker performs the job, thus raising concerns about the viability of previously acceptable employment arrangements.  This memo follows months of increased scrutiny by USCIS of H-1B petitions filed by consulting companies and H-1B employers that are owned by the employee who is being sponsored.

The Department of Homeland Security (DHS) may designate a country for Temporary Protected Status (TPS) when conditions make it unsafe for citizens of that country who are in the United States to return.  TPS is usually granted when there is ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions.  Due to the recent 7.0 magnitude earthquake, DHS has designated Haiti for TPS.

On November 2, 2009, the Centers for Disease Control of the U.S. Department of Health and Human Services issued a final rule removing HIV infection from the list of "communicable diseases of public health significance," effective January 4, 2010.  The rule means that HIV-positive foreign nationals will no longer be inadmissible to the United States or require waivers in order to be approved for nonimmigrant or immigrant visas.  It also means HIV testing will no longer be part of immigration medical exams.  

On August 21, 2009, the Department of Labor (DOL) issued a bulletin discussing the interaction between the H-2B visa program and the Fair Labor Standards Act (FLSA).  After an extensive review, and under its wage and enforcement authority, the DOL has concluded that employers are responsible for paying both transportation and visa expenses of their H-2B workers, since these are "primarily for the benefit of the employer". 

U.S. Citizenship and Immigration Services (USCIS) has engaged outside contractors to conduct thousands of site visits to petitioners, including companies that have sponsored employees in H-1B, L-1 or O-1 status.  Typically, the site visits are conducted after approval of the petition.  The investigators may arrive unannounced at the work site, or call the company ahead of time to plan a time to visit the company office or facility.  According to information provided by one such investigator, the purpose of the site visit is to verify that the company is a real operating business ...

Recognizing that driver's license requirements vary among the states, Immigration and Customs Enforcement (ICE) issued a fact sheet to help F, M and J visa holders who need to apply for driver's licenses or state identification cards.  

In 2005, the USCIS suspended Premium (15-day) Processing of R-1 nonimmigrant visa petitions due to fraud issues related to the sponsoring religious organizations.  The USCIS conducted on-site inspections of petitioners as part of the R-1 adjudication process.  Effective July 20, 2009, those R-1 religious organization petitioners already the subject of  successful on-site inspections at the locations where the beneficiaries will work may request Premium Processing.  The filing fee for Premium Processing is $1,000.  If the USCIS issues a request for evidence, the 15-day ...

After years of rumors and high hopes, the USCIS has finally announced that Canadian and Mexican citizens applying for TN status may be admitted for up to three years at a time.  Previously, they were limited to one-year renewable increments.  The TN visa category, created as part of the North American Free-Trade Agreement (NAFTA), allows certain Canadian and Mexican professionals to work lawfully in the United States for US employers.  This is very good news for employers, as it will reduce the annual renewal costs and inconveniences for employees holding TN status.