Archive for the ‘Uncategorized’ Category

DOS Phasing Out Employment Authorization for Some A-2 Visa Holders; DOS Retreats from More Restrictive Interpretation for EADs for Certain G-4 Dependents

Friday, May 20th, 2016

The Department of State (DOS) is phasing out its endorsement of employment authorization requests for dependents of foreign government employees holding A-2 visas who are considered to be permanently resident in the United States for the purposes of the Vienna Conventions on Diplomatic and Consular Relations. The Office of Foreign Missions will only consider new dependent applications for work authorization if the employment began between July 1 and December 31, 2015. Renewal applications will only be considered if the dependent’s work authorization expires on or before June 30, 2016.

On a related note, in late 2015, DOS began implementing a new interpretation of the reciprocity rules between the United States and other countries with respect to work authorization for certain G-4 dependents, restricting such authorization in the United States unless a bilateral work agreement exists between the United States and the principal G-4’s country of nationality. Fortunately, in late February 2016, this new policy was reversed, and G-4 dependents can again apply for and obtain work authorization regardless of the status of a bilateral work agreement.

“Habitual Drunkard” Ruled Invalid Basis for Denying Citizenship, But DUI Grounds for Visa Revocation

Friday, May 13th, 2016

In 1956, the American Medical Association (AMA) declared alcoholism to be an illness.  By 1980, the AMA started establishing policies on the “disease” theory, largely to secure third-party funding, which could only be done if alcoholism was categorized as a disease. Although the AMA’s position was solidified in 1987, a Supreme Court case the following year addressed the issue via the withholding of veterans’ benefits as a result of the veterans “own willful misconduct.” The majority opinion acknowledged the competing medical literature which refused to classify alcoholism as a disease and further held that the victim “bears … responsibility.” Within a short period of time, the American Hospital Association, the American Public Health Association, the National Association of Social Workers, and the American College of Physicians all classified alcoholism as a disease.  The National Institutes of Health followed suit in 2008.

This evolution of medical attitudes concerning alcoholism has spilled over into the immigration arena, where the 1952 Immigration and Nationality Act (INA) excluded citizenship from drunkards on the basis that they lacked “good moral character.” This standard has never been updated despite several modifications to the INA, and the same standard is applied to cancellation of removal applicants, who are ineligible for that relief if shown to be a habitual drunkard. A driving under the influence (DUI), open container, minor in possession, or public intoxication arrest could lead to the charge that an individual is a habitual drunkard. Absent an alcohol-related criminal charge, the very first question on both naturalization and cancellation of removal applications concerning moral character is, “Have you ever been a habitual drunkard?” The Ninth Circuit decided it was time for the INA to catch up with medical opinion and recently held that alcoholism is a disease and, therefore, the “habitual drunkard” question is irrelevant to moral character and unconstitutional under the rational basis standard.

However, the treatment of alcoholism as a disease is a double-edged sword. As USCIS adjudicators, Immigration and Customs Enforcement (ICE) attorneys, and immigration judges in the Ninth Circuit now are being prevented from imputing drunkenness onto one’s character for a DUI, the Department of State (DOS) is revoking nonimmigrant visas for the same offense. Under the INA, the inadmissibility statutes include those who have a possible physical or mental disorder associated with harmful behavior. Due to the growing consensus that alcoholism is a disease and the acknowledgement that drunk driving is harmful behavior, DOS has determined that a DUI offense raises doubts about admissibility and has recently authorized consular officers to revoke nonimmigrant visas of visa holders with a DUI arrest that has occurred within the past five years, unless that arrest has already been addressed within the context of a visa application.  This means that foreign nationals who are present in the United States on a nonimmigrant visa who are subsequently arrested for a DUI, or who previously had a DUI arrest but that information only now surfaced – information that calls into question the person’s continued eligibility for a visa – are at risk for visa revocation. Previously, there was no consequence of a DUI arrest subsequent to visa issuances until the time of the next visa application. Once revoked, the visa is not valid for future travel to the United States but it does not require immediate departure from the United States if the foreign national is currently present here.  Revocation does not preclude reapplying for a new visa. During reapplication, consular officers will refer any nonimmigrant visa applicant with one alcohol-related arrest in the last five years or two or more in the last 10 years to a panel physician for a medical examination prior to visa issuance to rule out a medical ineligibility.

News in Brief!

Monday, May 9th, 2016

The following additional items may be of interest to our readers:

Visa Waiver Program Users Restricted from Traveling to Libya, Somalia, and Yemen: The list of restricted countries for the Visa Waiver Program has grown by three.  Libya, Somalia, and Yemen have joined Iran, Iraq, Sudan, and Syria as “red-flag” countries.  DHS has limited eligibility for the Visa Waiver Program for individuals that have visited these countries since March 1, 2011. These restrictions do not apply to dual nationals of Libya, Somalia, and Yemen, but continue to apply to dual nationals of Iraq, Iran, Sudan, and Syria.  Other individuals such as journalists, government officials, and NGO employees can receive waivers on a case-by-case basis.

Petitioning for a Sibling? Consider Using a DNA Test: The Board of Immigration Appeals (BIA) overruled a USCIS policy that prevented consideration of sibling-to-sibling DNA tests.  The BIA held that USCIS had no real justification, scientific or otherwise, to refuse consideration of DNA tests results in sibling cases.  Therefore, a DNA test might be worthwhile to include, especially when the siblings are more advanced in years and birth certificates were issued late or not at all.  A DNA test that indicates a 99.5% match between the siblings is powerful evidence of a qualifying relationship.

TPS Designation Extended for Guinea, Sierra Leone, and Liberia:  Recent DHS notices extended the designation of Guinea, Sierra Leone, and Liberia for Temporary Protected Status (TPS) for six months, from 5/22/16 through 11/21/16. The 60-day re-registration period runs from 3/22/16 through 5/23/16.

 

What to Do When the Examiner at Your Adjustment Interview Requests Your EAD

Saturday, April 2nd, 2016

Local field offices can ask for EAD (Employment Authorization Document) cards from applicants at the conclusion of successful adjustment of status interviews. This is because once the application has been approved, the foreign national is no longer an applicant for adjustment of status, but a permanent or conditional resident. As a result, the authority under which the EAD was granted no longer applies, and the card is no longer valid.  Unfortunately, the EAD is often the only document a foreign national has to demonstrate lawful status in the U.S. Many field offices do not issue an I-485 approval notice at the conclusion of the interview, nor routinely place “I-551” lawful permanent resident stamps in passports immediately after a successful interview. By confiscating the EAD at the interview, the foreign national is left without any documentation regarding his or her status in the United States. Should an officer request an applicants EAD card at the conclusion of a successful adjustment interview, request an approval letter or an I-551 stamp. While most green cards are being produced and mailed within two to three weeks of the approval, an approval letter or stamp can serve as proof in the interim and in the event that the green card is not delivered as planned.

One-to-One Facial Image Comparison Project at JFK Airport

Saturday, April 2nd, 2016

Last spring, travelers passing through customs at Dulles International Airport noticed new equipment being tested there.  That equipment was the one-to-one facial image comparisons assisting U.S. Customs and Border Protection (CBP) in identifying possible fraudulent usage of valid passports. After a successful testing period at Dulles, DHS has installed the new technology in three terminals at John F. Kennedy International Airport in New York City.

 

The system was developed by Unisys as part of its Land Border Integration contract with CBP. The facial-comparison technology relies on the personal image on a passport’s biometric page (which is electronically stored on the small chip in the ePassport and compares it to a live facial image taken at the CBP booth.  The system then generates a match confidence score indicating the likelihood of a match between the two photographs.  If there is a successful match, the live facial image is not retained.

Facial image comparisons will be used for returning U.S. citizens with ePassports and first-time Visa Waiver Program travelers. The latter have been included because Homeland Security has identified an appreciable risk of passport and identity fraud among this population of travelers, exacerbated by recent terrorist attacks. Since travel on the Visa Waiver Program accounts for about two-thirds of all business and leisure travel to the U.S., the new technology will be heavily used.

Given its success as a test program, Dulles Airport is expected to adopt the new facial-comparison program in February 2016. CBP has not stated whether additional airports will use the one-to-one program, but the agency will be conducting additional tests to evaluate new biometric technologies in different environments in 2016.

 

Employment-Based Immigrant Visa Categories for India and China

Saturday, April 2nd, 2016

Professionals from India and China face multiple-year visa waits because their employment-based (EB) visa categories are oversubscribed. Recently, however, there has been some significant forward movement, reducing wait times in some categories by as much as six months. Below is a summary of waiting times and the reasons for the movement:

 EB-2 India: In the March Visa Bulletin, the EB-2 India final-action date advanced to October 15, 2008, shaving off 8½ months from where the category was just three months ago. The Department of State (DOS) explains that demand was less than anticipated — thus the forward movement — and also reflects a strategy of advancing dates more aggressively earlier in the year in an effort to ensure that cases can be completed and all visa numbers used within the fiscal year. The lower demand may be attributable to fewer EB-3 to EB-2 upgrades than expected, or that the last advancement sufficiently captured the bulk of the demand. Low demand also may be the result of USCIS working through a backlog of EB-2 India cases, which would give the appearance that demand has tapered off.  The category, advises DOS, is not expected to move at this pace in the coming months.

EB-2 and EB-3 China: The EB-2 Final Action date for China continues to lag behind the EB-3 China Final Action date in March — August 1, 2012 for EB-2 and June 1, 2013 for EB-3. DOS explains that while demand decreased in November and was relatively low in December, demand for this category was high in October.  At the same time, demand for EB-3 China is on the low side. Thus, EB-3 China continues to advance. Because the EB-3 category cut-off date for China continues to be more than 10 months ahead of EB-2 China, foreign nationals and their employers degrade from EB-2 to EB-3, which in turn causes greater than normal fluctuations in both categories.

On a related note, USCIS has determined that for family-sponsored filings, the “Dates for Filing Visa Applications” chart for March 2016 may be used. For employment-based filings, the Application “Final Action Dates” must be used.

ICE Raids Homes of Undocumented Immigrants

Thursday, March 3rd, 2016

On January 2, 2016, the Obama Administration authorized Immigration and Customs Enforcement (ICE) to raid the homes of immigrant families who had illegally entered the United States through the southern border since 2014.  After only two days, 121 people were detained. Advocacy organizations and members of Congress have been lashing out at President Obama over this controversial policy.  They argue that the nationwide raids are a violation of due process and are inhumane, spreading terror and anxiety among many Central American immigrant families who suffer from fear of deportation to dangerous and violent conditions in their home countries.

Copy of Approval Notice Sufficient for O and P Canadian Travelers

Wednesday, March 2nd, 2016

Some Canadian O and P travelers recently have been told by CBP officers that their admission may be denied for not having the original I-797 approval notices when they seek to enter the United States. In a recent meeting, CBP confirmed that presentation of a photocopy of an approval notice is sufficient for CBP to verify the petition validity and grant admission. The issue arises because Canadian nationals are exempt from the visa requirement for O and P visas and often are approved with multiple beneficiaries but only receive one original approval notice. Because the beneficiaries frequently do not travel together, only one person will have the original and all others only copies.

H-1B Professional Visas — Preparation Begins for April Filings

Wednesday, March 2nd, 2016

Once again it is H-1B filing season, and, once again USCIS is likely to receive a record number of petitions and the full allocation of visa petitions in the first week of filing commencing April 1. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2017, for work that commences on October 1, 2017.

Visas for professional specialty workers (H-1Bs) are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules of H-1B1 visas.

While some H-1B petitions can be filed at any time because they are cap exempt, the vast majority of H-1B petitions for new work must be filed in April. Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the early April filing period.

New Rules Tweak Certain Nonimmigrant (E-3, H1-B1, CW-1) and Immigrant (Professor/Researcher) Visa Classifications

Wednesday, March 2nd, 2016

The Department of Homeland Security (DHS) has published new rules, effective February 16, 2016, that tweak the eligibility requirements or the work authorization process for four visa classifications.  Below is a summary of what has changed:

Outstanding professors and researchers are eligible for priority worker immigrant visa classification if they can demonstrate international recognition in their academic field, three years of experience in teaching or research, and an offer of employment at an institution of higher learning or research facility. USCIS regulations provide six categories of acceptable evidence to demonstrate international recognition; however, those categories are limiting and do not specifically allow for other kinds of evidence that could equally establish eligibility.  The new rule provides for greater flexibility by adding a catch-all category of acceptable evidence — “comparable evidence to establish . . . eligibility — that would permit other significant accomplishments and achievements, such as important patents and peer-reviewed funding grants, for consideration. This additional language aligns with comparable evidence that can be presented in the extraordinary ability category.

E-3, H-1B1, and CW-1 are nonimmigrant work visa categories that have been treated as the other nonimmigrant work-visas classifications with respect to work authorization “incident to status,” even though the regulations did not specifically provide for such. Visa holders in other nonimmigrant work-visa classifications are permitted to work for 240 days during the pendency of a timely filed extension application, but these nonimmigrants were not expressly permitted to do so even though in practice they were. The new rule remedies these anomalies and makes the categories consistent.

What are these visas? Available only to nationals from Australia, the E-3 visa is similar to the H-1B professional specialty worker visa. The H-1B1 visa is a result of free trade agreements with Chile and Singapore and is also similar to the H-1B. The CW-1 visa allows certain workers in the Commonwealth of the Northern Mariana Islands (CNMI), a small group of islands within the Mariana archipelago that has been under U.S. control since the end of World War II, to work there.  The CNMI has its own immigration laws but is slowly transitioning to U.S. federal immigration compliance.