Business Immigration Insights

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.

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of December 21, 2009, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2010 (10/1/2009 through 9/30/2010).  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.  Petitions that were received by USCIS on December 21st are subject to a random selection process and some will ultimately be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & ...

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced it would serve 1,000 Notices of Inspection on U.S. employers whose business activities affect "critical infrastructure" (i.e., public safety and national security).  ICE agents will review I-9 forms, which all U.S. employers must use to verify employees' identity and U.S. work authorization.

As of December 14, 2009, foreign nationals who apply for immigrant visas or adjustment of status are no longer required to receive the Human Papillomavirus (HPV) vaccination.  CDC will continue to require vaccination for mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B.  Others will be required only if a public health need exists at the time, and the vaccine is (a) age-appropriate and recommended by the Advisory Committee on Immunization Practices for the general U.S. population; and (b) against a disease ...

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.  

U.S. Citizenship and Immigration Services announced today that as of October 25, 2009, it had received all of the available 20,000 master's cap petitions, and approximately 52,800 petitions under the regular cap.  Although a total of 65,000 petitions are allowed each fiscal year, this figure includes 6,800 petitions that are reserved under treaties between the United States and Chile and Singapore.  Thus, less than 5,500 regular H-1B petitions are remaining for Fiscal Year 2010.  With more than 6,000 petitions filed during the four week period leading up to October 25th, it seems that ...

The Supreme Court's docket for its 2009-10 term includes two key immigration cases that will affect immigrants' access to legal counsel and the federal court system.  In Padilla v. Kentucky, which is set for October 13, the Court will decide whether a criminal defense attorney must advise a foreign-born client on how a criminal case will affect the client's immigration status, and what remedies the client may seek if an attorney gives incorrect advice.  In Kucana v. Holder, which is set for November 10, the Court will decide whether federal appeals courts have jurisdiction to review ...