Early this year, DOS announced a pilot program, being implemented on an embassy-by-embassy basis, to waive the nonimmigrant visa interview requirement for certain visa renewals. Recently, the U.S. Embassy in Bucharest, Romania, announced the expansion of the visa interview waiver program to certain applicants seeking to renew a B1/B2, C1/D, or F/J/M visa that expired within the last 48 months. The U.S. Embassy in New Delhi, India announced the expansion of the program to certain applicants seeking to renew a B1/B2 visa (also expired within the last 48 months). And, the U.S. Embassy in Russia also announced the expansion of the program to applicants seeking to renew a B1/B2 or C1/D visa that expired within the last 47 months. Earlier, the U.S. Embassy in Beijing, launched its visa interview waiver pilot program for certain B, C, D, F, J, M and O visa holders, and special rules went into effect for certain Brazilian citizens waiving their consular interviews. See http://bit.ly/beijing-waiver and http://bit.ly/brazil-waiver.
Expansion of Nonimmigrant Visa Interview Waiver Program: Russia (Moscow), New Delhi, and Bucharest
May 18th, 2012Religious Workers (R-1s) Now Permitted to “Recapture” Time Outside of U.S.
May 11th, 2012A foreign national can enter the United States in R-1 religious worker status to work as a minister or in a qualifying religious occupation or vocation, but can only do so for a period not to exceed five years. Unlike H-1B and L nonimmigrant visa holders, USCIS had previously not permitted the subtraction of time in which the R-1 religious worker was traveling or residing outside the United States following his or her initial admission in R-1 status when calculating that five-year period. This is referred to as “recapturing” time, which was not available to Rs. In a new memo, USCIS has finally extended its recapture policy to R-1 nonimmigrants. Now, any days an R-1 nonimmigrant spends outside of the United States during the validity period of his or her petition will not be counted toward the maximum five-year period of stay. Recapture is designed to permit a qualifying nonimmigrant to spend the maximum permitted time allowed by his or her classification in the United States before having to spend a specific period outside of the United States in order to file a new petition for the same status.
Guidance for Certain Foreign Students (F-1) Now Applying for H-1Bs
May 4th, 2012Now that the filing period for new H-1B specialty occupation visas for work commencing October 1, 2012 has begun, we provide below a general overview of the special rules that apply to certain F-1 foreign students who are applying for H-1Bs.
Under the immigration regulations, certain students with pending or approved H-1B petitions are permitted to remain in the United States in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire. Under these special rules, the student’s F-1 status is extended and he or she can remain in the United States until the start date of the new, approved H-1B employment period. This special extension is called the “cap-gap” extension because it fills the “gap” between the normal end of F-1 status and the beginning of H-1B status. The gap often occurs because most students graduate or complete their post-completion Optional Practical Training (OPT) in May or June and H-1B visas, normally exhausted months earlier, are not available again until October 1.
To be eligible for the cap-gap extension, an F-1 student must have an H-1B petition filed on his or her behalf and that petition must be filed while the student’s authorized F-1 admission is still in effect. In other words, the petition must be timely filed during the academic course of study, the authorized period of post-completion OPT, or during the 60-day grace period. Once a timely filed request to change status to H-1B on October 1 has been made, the automatic cap-gap extension begins and continues until the H-1B petition adjudication process has been completed.
If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 (of that year). If, however, USCIS denies, rejects, or revokes the H-1B petition, the automatic cap-gap extension of status expires, and the student is granted (from the date of the notification of the denial, rejection, or revocation of the petition) the standard 60-day grace period before he or she is required to depart the United States. In some instances, however, where there has been a denial, the student is required to leave the United States immediately.
Other rules apply to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees as well as instances where the F-1 student is terminated or laid off during the pendency of their H-1B petition.
The rules regarding work authorization and status for cap-gap foreign students are complicated and very specific. For example, an F-1 student who is already in his or her 60-day grace period when the H-1B petition is filed is unable to receive employment authorization even though F-1 status is automatically extended. Also, students whose status is governed by the cap-gap extension cannot re-enter the United States in F-1 status during this period if they elect to travel. Instead, they are required to apply for an H-1B visa at a consular post abroad prior to returning. And, the earliest they can re-enter the U.S. is ten days prior to October 1.
Student are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the petition processing, with their Designated School Official (DSO) to ensure their status is properly extended on their Form I-20, and with their immigration attorney.
TPS Announced for Syrian Nationals; Certain Requirements for Syrian Foreign Students Relaxed
April 27th, 2012Citing the violent upheaval and deteriorating situation in Syria, the Department of Homeland Security (DHS) announced that eligible nationals from Syria (and persons without nationality who last habitually resided in Syria) are now eligible for temporary protected status (TPS) effective March 29, 2012 through September 30, 2013. The application period is March 29 through September 25, 2012. Like other TPS beneficiaries, eligible nationals will be allowed to remain in the United States and obtain work authorization.
DHS also announced the suspension of certain regulatory requirements for Syrian F-1 students so that they may obtain employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 student status due to the current events in Syria.
Visa Processing Fees Change April 13, 2012
April 20th, 2012The Department of State (DOS) has adjusted the visa processing fees, effective April 13. While most nonimmigrant visa fees increase, all immigrant visa fees decrease. The following are the new fees for some of the most common visas: H, L, O, P, Q and R, $190; E, $270; K fiancé(e)s, $240; immediate relative and family preference application, $230; and employment-based applications, $405. Border crossing cards for those over 14 increase to $160. See http://1.usa.gov/fees_4-13-12.
News in Brief
April 13th, 2012H-1B Visa Count as of April 9: As of April 9, USCIS received 17,400 H-1B petitions counted toward the annual 65,000 cap and approximately 8,200 petitions toward the 20,000 cap exemption for those with advanced degrees.
Oral Arguments in Arizona Immigration Law on April 25: On April 25, the Supreme Court will hear arguments on the legality of the Arizona immigration law, SB 1070. The case involves a range of important questions regarding the role that states may play in the enforcement of federal immigration law.
Updated List of Countries with Limited or No Visa Services: U.S. embassies and consulates are sometimes forced to limit or, at times, suspend visa services because of natural disasters, civil unrest, war, and/or security concerns, among other reasons. The Department of State recently released an updated list of those countries with limited or no visa services. The list also provides information on where affected applicants can go to obtain visa services. See http://travel.state.gov/visa/temp/info/info_1302.html.
Certain Employment-Based Visas (EB-2) Retrogress in May for Chinese and Indian Nationals: The visa priority date cut-off for May for highly skilled professional workers (EB-2 masters-level immigrants) from China and India will retrogress to August 15, 2007. The current cut-off date is May 1, 2010, which reflected a dramatic improvement from last year at this time. DOS cautions that it is impossible to speculate if the cut-off date will change before the next allocation of visas, effective October 1, 2012.
Global Entry Program Now at 24 Airports: Twenty-four airports now participate in the Global Entry program, a voluntary program that allows for the expedited clearance of pre-approved, low-risk travelers arriving in the United States. According to U.S. Customs and Border Patrol (CBP), the inspection and admission process takes only one minute at Global Entry kiosks. Travelers who wish to participate must apply via the CBP Global Entry website, www.globalentry.gov or through the Global On-Line Enrollment System (GOES) website, https://goes-app.cbp.dhs.gov. Applications must be completed and submitted electronically.
DOJ Resource Page for Extension of Work Authorization for TPS or DED Beneficiaries: The Department of Justice now maintains a resource page containing the particularities of work authorization extensions for TPS (temporary protected status) or DED (deferred enforced departure) beneficiaries from nine countries: Haiti, Honduras, Nicaragua, El Salvador, Liberia, Somalia, Sudan and South Sudan and the Syrian Arab Republic (Syria). See www.justice.gov/crt/about/osc/htm/work_extension.php.
Immigration Agencies Sued Over Asylum “Clock”
April 6th, 2012In December 2011, a federal nationwide class action lawsuit was filed against the government, alleging widespread problems with the asylum “clock,” the system that the government uses to determine when immigrants with pending asylum applications become eligible to obtain work authorization in the United States. The lawsuit, filed by a number of organizations and a private law firm, argues that an untold number of asylum applicants have been wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization — including a man from China who initially filed his asylum application in 2003. Under rules and procedures that date back to 1994, asylum officers (AOs) and immigration judges have the power to stop the EAD asylum clock — or the time period the applicant must wait — for any delay in the adjudication process that the judge or AO determines was requested or caused by the applicant. In August 2011, the American Immigration Council, one of the organizations that filed the complaint, issued a report that documented excessive delays and instances where an AO or immigration judge improperly stopped, or failed to start (or restart) the clock. The suit alleges that these practices, combined with growing backlogs in U.S. immigration courts, violate the Constitution, federal statutes, and governing regulations.
New Study Finds Dramatically Increased Rates of Denials and “Requests for Evidence” for H-1B Professionals, L-1 Intracompany Transferees, and O-1 Extraordinary Ability Nonimmigrants
March 30th, 2012With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear: Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:
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Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
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Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
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Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11. (In FY09, the RFE rate was 35 percent.)
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Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
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Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.) The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.
Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.
As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.
Immigrant Visa Backlogs Continue to Decrease from Last Year
March 23rd, 2012Highly skilled professional workers and close family members of green card holders (LPRs) and U.S. citizens continued to see a bit of a reprieve from the visa backlogs and priority date retrogression of just a year ago. The March 2012 Visa Bulletin reports that lighter demand for visa numbers has permitted the advance of priority dates, or green card availability, in a number of key categories.
The Family F2A category (spouses and children of lawful permanent residents) for March has a cut-off date of July 22, 2009 for all countries (in March 2011, the cut-off was January 1, 2007) except Mexico; for Mexico, the cut-off is July 1, 2009.
On the employment-based side, the wait for EB-2 Masters-level immigrant visas for China and India has dramatically improved and is now a little more than two years, or January 1, 2010. At this time just last year, the wait for these nationals was five years.
DOS cautions, however, that when the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off dates, and retrogression is a distinct possibility.
Stateside Waiver Process for “Unlawful Presence”
March 16th, 2012In early January, DHS announced its intent to propose a change that would allow spouses and children of U.S. citizens who are in the U.S. but need a waiver of ”unlawful presence” in order to get a green card to apply for that waiver while remaining in the United States. What does this mean and who is affected?
Background: Under current immigration law, U.S. citizens can apply for green cards for their immediate relatives even if their relatives entered the United States without inspection or are otherwise out of status. However, in order for these individuals to receive their green cards, most applicants must travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. They cannot adjust their status to a lawful permanent resident (LPR) in the United States. Moreover, often those relatives have accrued a certain period of “unlawful presence” in the United States, and once they leave, they are barred from returning to the United States for as long as 3 or 10 years. Under the current process, these individuals must first have an initial interview at their home consulate, and only then can they apply for the required waiver at the home consulate. The rules also require that they show that their U.S. citizen spouse or parent would face “extreme hardship” as a result of the separation. (Extreme hardship to a U.S. child is insufficient.) All of this takes time, and as a result, waiver decisions often takes weeks, months, or even years to be completed.
DHS’s proposal would permit, for the first time, eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If approved, they will have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. Because this new streamlined process is limited to those individuals who are inadmissible based solely on having accrued a period of unlawful presence, if other grounds of inadmissibility are found, the individual would need to submit another waiver application while abroad.
The new process is limited, however, and would not apply to family members of lawful permanent resident (LPR) petitioners. Furthermore, individuals would still need to meet the extreme-hardship standard to obtain a provisional waiver, because USCIS does not intend to modify the standards.
While the proposed change is narrowly construed, the provisional waiver procedure as outlined by DHS is nevertheless a step in the right direction for those eligible. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years, will provide a more predictable process, and will encourage those eligible to begin the process to regularize their status. It is, in fact, this quirk in the immigration laws that has contributed to the large number of undocumented foreign nationals in the United States.
It is unclear when the new process will take effect but presumably by the end of the year. DHS first must issue a notice of proposed rule-making, invite public comment, and then issue a final rule.