Business Immigration Insights

On January 3, 2013, DHS announced publication of its final rule for certain spouses, children and parents of U.S. citizens to obtain provisional waivers of unlawful presence from within the United States, prior to leaving in order to apply for required immigrant visas at US consulates in their home countries.  The new rule and procedures will become effective on March 4, 2013.

The USCIS California Service Center recently changed the way it interprets H-1B requirements when job location changes, but duties and all other employment terms remain the same.

Previously, according to a 2003 USCIS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file a new Labor Condition Application (LCA) with the Department of Labor, and post the required LCA notice at the new work site, but did not have to file an amended petition with USCIS.

On October 5, 2012, U.S. Immigration and Customs Enforcement (“ICE”) issued additional criteria  for determining when individuals who are in committed, long-term, same-sex partnerships may avoid removal (i.e., deportation) from the United States.  According to the memorandum, the following factors are relevant (though not sufficient) in exercising favorable prosecutorial discretion:

• The partners are each other’s sole domestic partner and intend to remain so indefinitely;
• The partners are not in a marital or other domestic relationship with anyone else; and
• The ...

The State Department has announced the registration period for the Congressionally mandated 2014 Diversity Visa (DV) lottery. The DV lottery allows nationals from certain countries to apply for immigrant visas ("green cards") outside of the normal immigrant visa process. Individuals already being sponsored for immigrant visas by family members or employers may participate as well. Requirements include being a national of an eligible country (although an applicant may qualify based on his or her spouse's nationality) and high school education or work experience. The online ...

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.

US Citizenship and Immigration Services (USCIS) is advising that the current version of Form I-9 should continue to be used by employers despite the August 31, 2012 expiration date specified on the form.  USCIS is in the process of updating the form once again, and presumably the new version will be available in the coming months.

Form I-9, Employment Eligibility Verification, must be used by U.S. employers to verify the identity and employment eligibility of all newly-hired employees.

Please contact Hunton & Williams if you have any questions about Form I-9 or related requirements.

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 ...

DHS Secretary Janet Napolitano announced today that undocumented youth who were brought here as children and who meet certain criteria are now eligible for "deferred action," a form of long-term relief from deportation that allows employment authorization and college attendance, but does not lead to a green card.  Known as DREAMers (after the Development, Relief and Education for Alien Minors Act, which Congress has failed to pass each time it has been introduced since 2001), these young people have become increasingly vocal and visible in public protests and in the media.

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 serious immigrant visa retrogression we notified you about recently has worsened for Indian and Chinese nationals, and is now affecting previously unaffected visa categories, including EB-1 and EB-2 "Worldwide".