U.S. and China Extend Visa Validity Period for Business Travelers, Tourists, and Students

December 31st, 2014

 

On November 12, the United States and the People’s Republic of China began to reciprocally increase the validity of short-term business and tourist visas and student and exchange visas issued to each other’s citizens. Chinese applicants who qualify for B-1 or B-2 nonimmigrant visas may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J nonimmigrant visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residency permits valid up to five years, depending on the length of their educational program. All qualified dependent family members of students and exchange visitors will also be eligible for these same increases in visa validity.

The same standards of eligibility for a U.S. visa will apply as before the extension in validity, and the change in visa validity does NOT change the permitted duration of stay for any other visa class. Applicants with previous visas still will be eligible to apply for visa renewal via the Interview Waiver Program. The changed visa validity will not change visa application fees.

One should note that existing visas will be valid only until the expiration date printed on the current visa. This extension does NOT increase the validity of visas already issued. To obtain a visa with extended validity, holders of valid or recently expired visas will need to apply again.

NVC No Longer Collecting Original Civil Documents

December 29th, 2014

 

As of November 12, the National Visa Center (NVC) stopped collecting original civil documents (birth certificates, marriage certificates, police clearances, etc.) as part of the immigrant visa (IV) application process. Rather, IV applicants will now be instructed to bring their original documents with them to their interview. This will be a huge relief for foreign nationals who worry about parting with often hard-to-obtain original documents. The NVC hopes that this will make the application process more efficient and reduce waiting times.  We hope so too!

Holiday Travel and Foreign Nationals: Review Your Documents Now

December 24th, 2014

 

Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied, and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.

Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact our office.

President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean?

December 24th, 2014
 

As most of our readers know, on November 20, President Obama announced a number of sweeping and historic immigration measures to address the country’s pressing immigration issues. The overriding principles behind the President’s announcement are: (1) prioritizing immigration law enforcement on those who pose a threat to the United States; (2) creating a program that ensures family unity; (3) facilitating the entry of highly skilled workers who contribute to the U.S. economy, and retaining those who are already here; and (4) securing the country’s borders. Two initiatives will grant work authorization and a shield against deportation for an estimated 4-5 million undocumented immigrants. Other initiatives will benefit over 400,000 foreign national employees waiting for green cards. While the announcement dominated the news and social media for several weeks, none of the actions outlined in the President’s speech and by the Department of Homeland Security shortly thereafter has taken effect.

The articles below summarize the President’s executive action, describe who is likely to be impacted, and explain when in the coming months these measures will be available to eligible foreign nationals.

Expansion of Deferred Action for Childhood Arrivals (DACA):

As announced, the program that went into effect in 2012 will be expanded by eliminating the current age cap of 31 (as of the date of the original DACA announcement). Also, the eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. Moreover, USCIS will grant DACA and work authorization for three instead of two years, which also will be extended to pending DACA renewal applicants.

USCIS expects to accept DACA application under the extended program within 90 days of November 20.

Deferred Action for Parental Accountability (DAPA):

USCIS will create a new deferred action process, similar to DACA, for parents of U.S. citizens and lawful permanent residents – such children must have been born as of November 20, 2014 – who have been continuously present in the U.S. since before January 1, 2010; who were physically present in the U.S. on November 20, 2014; and who are present at the time of application. Eligible parent-applicants will be able to request deferred action and employment authorization for three years, provided they pass required background checks.USCIS expects to begin accepting applications within 180 days of the November 20 announcement

Expansion of Provisional Waiver Program:

The provisional waiver process permits individuals who are eligible to apply for their green cards but who must apply for a waiver of inadmissibility because they have been in the United States unlawfully to do so from within the U.S. before departing for an interview at U.S. consulate abroad. Currently, only immediate relatives (spouses and children of U.S. citizens) are eligible to apply for provisional waivers. Under the expanded program, eligibility for such waivers will become available to all relatives for whom an immigrant visa is available.  In other words, the provisional waiver will be available to the spouses and children of lawful permanent residents (LPRs) as well as other relatives of U.S. citizen-petitioners. Under the provisional waiver program, applicants must show “extreme” hardship to certain U.S. citizen or LPR family members. Under the new directive, USCIS also has been instructed to provide guidance on the definition of “extreme” hardship. The agency may also consider criteria by which a presumption of extreme hardship may apply, which would make it easier for otherwise eligible green card applicants to obtain this necessary waiver.

This change will be done by regulation, but no time frame has been provided.

Work Authorization for H-4 Spouses:

A rule already proposed would permit H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD) card. The rule as proposed limited eligibility to H-4 spouses whose H-1B spouse has begun the process to obtain permanent residency.

Final rulemaking is expected later this month or in January 2015.

Foreign Student Optional Practical Training (OPT):

The length of time for OPT for STEM (science, technology, engineering, and mathematics) graduates of U.S. institutions will be extended, and additional expansions of this program may occur, including the number of degree programs eligible for OPT.

This will be done by regulation, but no time frame has been provided.

PERM Labor Certification:

Perhaps the most common way for employees to obtain green cards is through a labor certification showing that no U.S. workers are willing, able, or available to perform the job.

Regulations will be published to modernize the PERM program and to make the program more responsive to changes in the U.S. workforce.

Relief for Employees Awaiting Green Cards and Modernizing the Employment-Based Visa System:

Each year thousands of visas go unused because the allocation system is not precise. These unused visas could be recaptured so that those waiting for their green cards can get them more quickly. DHS Secretary Jeh Johnson has directed USCIS to undertake several steps to modernize the employment-based visa system, including exploring with the Department of State optimal use of the annual visa allocations. Another measure is to permit individuals with an approved I-140 employment-based petition and caught in the lengthy visa backlog to pre-register for adjustment of status and obtain the benefits of pending adjustment. Such benefits would include obtaining EADs and travel permits. It is presumed that this would include the employee-principal applicants as well as their family-member dependents. These changes could provide tremendous flexibility for employers and their foreign national personnel. Moreover, USCIS has been instructed to clarify the types of job changes (“same or similar”) that do not require new PERM applications, and to make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permissible. The change is expected to affect about 410,000 people.

No time frame has been provided for when these changes would be implemented.

Promoting Research, Development, and Entrepreneurship:

Certain foreign “inventors, researchers, and founders of start up enterprises” will be afforded new immigration options, through the clarification by USCIS that the National Interest Waiver employment-based immigrant visa category is appropriate for some and granting parole status for others.

These changes will be implemented by policy memo and regulation, but no time frame has been provided.

L-1B Specialized Knowledge Intracompany Transferees:

USCIS has been instructed to issue a long-awaited policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” It is expected that a more lenient and consistent interpretation of the law will be implemented, which will provide more certainty for companies and reduce denials.

Southern Border and Approaches Campaign:

DHS has commissioned three new task forces, with personnel realignments to improve border security. The announcement specifically states that the objectives should not impede travel, lawful trade, and commerce.

“Secure Communities”: The controversial deportation program, also referred to as 289(g), is discontinued. The program relied on integrated databases and partnerships with local and state jailers to build domestic deportation capacity and required local law enforcement to detain individuals for ICE custody. Many state and local partners as well as rights advocates and others came to resent the program because of its detrimental effect on local law-enforcement operations, and because it became a general deportation facilitation tool rather than a tool for deporting criminals.

Immediately after President Obama’s executive action was issued, the legality of his authority and actions was raised. While many legal scholars, including some 130 law professors and former general counsel of the immigration service, have stated that the President’s actions are within the legal authority of the government’s executive branch and are consistent with similar actions taken by other presidents, a lawsuit was filed by 17 states in U.S. district court seeking declaratory and injunctive relief. The suit alleges that the Administration’s immigration executive actions violate the “Take Care Clause” of U.S. Constitution (Art. II, Sec. 3, Cl. 5) and Administrative Procedure Act (APA). It remains to seen what the court will do.

In any event, none of these programs has been implemented, and it may be months before the publication of any policy guidance or formal regulations that give these action effect.Moreover, President Obama’s actions do not provide permanent relief or status to anyone, and Congress can enact legislation to supersede any and all of these reform measures.

For months to come, the agencies will provide explanations, instructions, forms, and more detailed procedures as necessary, and we will provide those details as we learn of them. In the meantime, our experienced attorneys are available to answer questions and determine how you may benefit.

Probation Versus Suspended Sentence: What’s the Difference Under US Immigration Law?

December 8th, 2014

Under U.S. immigration law, there is a world of difference between being sentenced to probation and being sentenced to jail but with the jail term suspended. The latter can have dire immigration consequences, even though there may be no meaningful consequences under state criminal law.

Under U.S. immigration law, a suspended term of jail or imprisonment for a criminal offense is considered the same as actually serving that time in prison. Rather than classification of the crime, the law looks at the term of imprisonment. This means that it usually doesn’t matter whether the offense is classifiable as a felony or misdemeanor.  The length of the sentence is especially important because the provisions that refer to “removability” often reference the term of imprisonment to determine whether a person is removable from the U.S. for the crime.  The length of sentence, in turn, also determines whether there is relief available in the form of a waiver from deportation. This is true whether an individual is on a nonimmigrant visa or is a permanent resident.

Most people aren’t criminals and don’t engage in behavior that is normally considered felonious.  But, let’s look at shoplifting.  Often, an individual convicted for misdemeanor shoplifting is sentenced to one year suspended. Perhaps the criminal defense attorney recommended this strategy because it means no jail time, no felony under state law, and even an eventual expungement of the record. The result is no criminal record of consequence.  Not so under immigration law.  Immigration law states that if an individual is sentenced to a year or more for a theft crime, then the crime shall be classified as an “aggravated felony,” even if the original crime was classified as a misdemeanor. An aggravated felony charge under immigration law is extremely serious. It almost always means that the individual — lawful permanent resident and nonimmigrant alike — will be placed in “mandatory detention” and cannot be released on bond.  Furthermore, with the current backlog in the immigration courts, such a person detained under the “mandatory detention” provisions will be held for many months awaiting a hearing before an immigration judge. Finally, a charge of “aggravated felony” limits the availability of relief from deportation that may be available. Thus, even long-time permanent residents who are convicted of an aggravated felony can and often are deported to their home country.

The important lesson here for both nonimmigrants and immigrants is to carefully abide by the laws of this country, because even a minor infraction can have serious consequences. In case of an arrest, it is vital that an immigration lawyer be retained to advise the criminal lawyer on possible dispositions that will not result in removability or other longer-term immigration consequences.  A permanent resident should always apply for naturalization as soon as possible so as not to become subject to removal from the U.S.  Finally, if one has an arrest record of any kind, it is important to seek qualified immigration counsel before traveling abroad, renewing the green card, or applying for naturalization.

E-2 Visa Eligibility for Israelis One Step Closer

December 5th, 2014

In mid-August the Israeli Knesset Interior Committee approved a bilateral treaty between Israel and the United States, allowing U.S. citizens to receive investor visas in Israel. This paves the way for the implementation of the E-2 visa process for Israeli nationals seeking to invest in U.S. businesses. The Israeli investment visa allows U.S. citizens to stay and work in Israel for as long as needed for the investment, along with any essential employees and family. The U.S.’s E-2 treaty investor visa would permit the same for Israeli citizens. While President Obama signed legislation for implementation of an investor treaty for Israelis in June 2012, its implementation has been delayed while the Obama administration works at finalizing the terms of the visa. The approval by the Israeli appears to be the last obstacle in the process. The decision comes despite an ongoing brouhaha over restrictions on Israeli citizens from receiving tourist visas until further notice. In April, U.S. Secretary of State John Kerry announced an internal review into claims that hundreds of young Israelis were being barred from entering the U.S. for political reasons. An initial investigation found that the rejection rate of visa applications for young Israelis ages 21–26 had doubled, from 16 percent  in 2009 to 32 percent in 2014.  U.S. Ambassador to Israel Dan Shapiro stated that the visa crisis was close to coming to an end several days later.

It is anticipated that both governments will finalize procedures and U.S. federal agencies will begin to accept E-2 visa applications for Israelis soon.

Israeli nationals seeking U.S. visas based on international trade may apply under the E-1 trader visa category pursuant to the currently existing U.S.-Israel trade treaty.

News in Brief

December 1st, 2014

DED Extended for Eligible Liberians in the U.S.: USCIS announced a six-month automatic extension of EADs for Liberian nationals covered under Deferred Enforced Departure (DED) following President Obama’s announcement to extend DED through September 30, 2016, for qualified Liberians and those individuals without nationality who last habitually resided in Liberia. The automatic extension of existing EADs until March 30, 2015, allows eligible Liberian nationals to continue working in the United States while they file their applications. The extension also gives USCIS time to process and issue the new EADs.

TPS Extended for Nationals from Sudan and South Sudan: DHS extended the designation of Sudan and South Sudan for Temporary Protected Status (TPS) for 18 months, from 11/3/14 through 5/2/16. Rules about re-registration and initial applications are provided at http://www.uscis.gov/tps.

Settlement Reached in Immigration-Related Employment Discrimination Claim Against United Continental Airline:  The Office of Special Counsel reached a settlement with United Continental Holdings Inc. in which the airline agreed to pay $215,000 and create a backpay fund, after investigations found it requested lawful permanent residents, but not U.S. citizen employees, to complete additional Forms I-9 and provide additional proof of employment eligibility.

USCIS Using Blue Instead of Red Ink for Many Stamps:  Employers, when examining employment verification documents, are advised that as of July 1, 2014, USCIS began using blue ink for many of its secure stamps. The older secure red ink was retired and is no longer used by USCIS.

Consular Revocation of Visas After U.S. Entry:  Reports have emerged that some nonimmigrant visa holders already in the U.S. have been contacted by consular officers and told that their visas have been cancelled and/or revoked. Contact your immigration attorney if you have been so advised by a consular post.

Registration for 2016 Diversity Lottery Open Until 11/3/2014:  The 2016 Diversity Lottery Visa Program (DV-2016) opened on October 1 and closes at noon (EST) on 11/3/14. Applicants from countries with historically low rates of immigration to the United States can now register using d States. For fiscal year 2016, 50,000 diversity visas (DVs) will be available.

Applicants who are selected in the lottery (“selectees”) must meet simple, but strict, eligibility requirements in order to qualify for a diversity visa. Selectees are chosen through a randomized computer drawing.

entry the electronic DV entry form (E-DV) at www.dvlottery.state.gov.

 

 

Current Trends and Future Visa Number Prognostications

November 26th, 2014

The new fiscal year began on October 1, and with it came the annual infusion of visa numbers allocated to the various preference categories that comprise the system for immigrant visa availability under U.S. immigration law. Recently, Charlie Oppenheim, Chief of the State Department’s Visa Control and Reporting Division, provided his analysis of current trends and future projections beyond the basic visa availability updates provided in the monthly Visa Bulletin.

On the employment-based preference side, where there are 140,000 visas allocated annually, backlogs have plagued the system for years and years, in part because not only is the principal foreign national counted against the numbers of visas allocated but also dependent family members. (About 45 percent of the overall numbers are used by principals). Oppenheim reports that the worldwide employment-based third preference (EB-3) (for skilled workers, professionals, and other workers) will move faster in the coming months, as will EB-3 India. But, retrogression for Indian nationals who are eligible for EB-2 (members of professions holding advanced degrees or persons of exceptional ability) appears to be imminent, and could happen as early as November with a cut-off date in 2005. Once this happens, EB-2 India is not likely to advance again until June 2015. A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. The wait for employment-based immigrant visas for India continues to be long — five to eleven years. The Philippines, another severely backlogged country, is however experiencing lower demand. The cut-off date for the EB-3 and “Other Worker” categories is now the same as it is worldwide, 10/01/2011.

Mr. Oppenheim also reports that the EB-4 preference category, used by Special Immigrants — which includes G-4s applying for green cards, special juvenile immigrants, religious workers, certain Iraqis, and broadcasters, among others — could have a cut-off date of August or September of each year going forward.  In practice, this will mean that these intending immigrants will have to wait one to two months to file their cases if they wait to the end of the fiscal year.

EB-5 immigrant investor visas, which have become increasingly popular, for the first time became “unavailable” for Chinese nationals in the final month of the fiscal year ending September 30.  The category is now current. This marked the first time since 1990, when the EB-5 category was first established, that EB-5 visas were unavailable for any country and the first time for the Chinese. No other country was affected by the backlog. Oppenheim predicts that the EB-5 category for China will remain “current” through May or June 2015.  This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. Thereafter, Chinese nationals should expect significant backlogs in this visa category, which could impact dependent children who turn 21 during the pendency of the case.  It is expected that all other countries will remain current for the foreseeable future.

On the family side, Mr. Oppenheim reports that the family-based second preference (F-2) (immigrant visa petitions for spouses and children, and unmarried sons and daughters of permanent residents) will see forward movement. He advised that the F-2 category will continue to move about one month per month.  F-4 (siblings of US citizens) continues to be significantly backlogged, with the current wait 12 years and more than 20 years for the Philippines.

Few Appealed L-1A Managerial/Executive Cases are Successful; Review of Appeals for New Office Petitions Reveals Common Fatal Flaws

November 24th, 2014

A recent review of more than 100 L-1A intracompany transferee petitions in 2013 denied by the USCIS and subsequently appealed administratively reveals that only a handful of cases were ultimately approved. Among petitions for new office extensions, the following are some common fatal flaws cited by the government’s Administration Appeals Office: (1) contradictory evidence in the record, including organizational charts that were inconsistent; (2) managers and executives spending too much time doing the actual work and not managing or directing; (3) lack of evidence of personnel or staff to perform nonqualifying (i.e., nonmanagerial or nonexecutive) duties; (4) vague or overly broad job descriptions; and (5) insufficient evidence to demonstrate how the business will support the manager or executive in the year to come. Many of these same issues derailed initial new-office L-1A petitions. Given that new office L-1A extensions are closely scrutinized as are initial petitions, and request for evidence (RFE) rates have been upwards of 40 percent, employers are advised to carefully prepare and review supporting documentation with these pitfalls in mind.

NIV and IV Application Fees Change, Effective September 12

November 21st, 2014

Nonimmigrant and immigrant visa application fees paid to the U.S. Department of State (DOS) for certain visa categories changed on September 12, 2014. DOS advises that all visa applicants must pay the fee amounts in effect on the day they pay, with the exception of immigrant visa application processing fees paid domestically to the National Visa Center, which will be effective as of the date of billing. Fees that decreased are not refundable. If,  however, a nonimmigrant visa fee was paid before September 12, 2014, and the visa interview is on or before December 11, 2014, the applicant does not have to pay the increased difference between the new and old fee amounts. If, however, the visa fee was paid before September 12, 2014, and the visa interview is on or after December 12, 2014, the applicant will have to pay the difference. For more specific information, see the “Fees for Visa Services” section of the DOS website.