Labor Immigration Law

After few weeks, the program entitled “Scheduled Departure” is about to end, according to the Associated Press.  The program allowed illegal immigrants who are subject to judicial order to leave the United States and who do not have a criminal record to turn themselves in voluntarily and be allowed to wrap up their departure in an orderly fashion.

The Immigration and Customs Enforcement (ICE) has decided to scrap the program after netting a total of eight (8) illegal immigrants.  The cost of the program (mainly advertising) is said to have been around $41,000.

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

The Department of State rule, known as the “automatic revalidation” of visas is a rule which allows holders of almost all classes of U.S. visas to travel to a “contiguous territory” and return to the U.S. without a current valid stamp in the passport.

Persons in F, J, H and O status can travel to Canada or Mexico and return to the U.S. without a valid visa stamp.  Persons in F and J status can, in addition to Mexico and Canada, visit the “adjacent islands” (Caribbean islands except Cuba) and return to the U.S. without a valid visa stamp in their passport.

The automatic revalidation is a slight misnomer because it does not revalidate the visa in the passport in all circumstances.  If the visa stamp in the passport matches the current status in the U.S., then the stamp is considered to be automatically revalidated as of the date of the person’s trip back to the U.S.  If, on the other hand, the person has changed status in the U.S. so that the visa stamp does not match the current status, the visa stamp is considered to be changed to the visa type corresponding to the current status.

There are certain requirements, specified in the Department of State regulations.

• Citizens of countries which are considered sponsors of terrorism are ineligible.
• The time outside the U.S. must not exceed 30 days and must be spent solely in a contiguous territory - Canada, Mexico and, for F/J holders, the Caribbean islands, except Cuba.
• Upon return, the person must present valid and current supporting visa document such as I-20, DS-2019, I-797, etc.
• The passport must be valid and unexpired at the time of the return into the U.S
• The person must not have applied for a U.S. visa while in the contiguous country or adjacent island, as applicable.

The Automatic Visa Revalidation program is a very useful, yet somewhat undiscovered, tool for travel to/from Canada, Mexico and certain Caribbean islands.  Please contact us if you would like to obtain more information about this program.

We have written previously on several occasions about the Electronic System for Travel Authorization (ESTA) which is now live and operational.  Direct link.

The new system opened on August 1 and will be voluntary in nature until January 12, 2009, when it becomes mandatory for all individuals traveling under the visa waiver program (VWP).  We have not yet received a meaningful amount of feedback to judge the system’s usability, operation, and its actual effect on clearing U.S. border control, but we expect to do so over the next few days as ESTA-registered travelers make their entry into the U.S.

If you are a VWP traveler who used ESTA to pre-register your trip to the U.S. and would like to share your opinion of the ESTA system and your entry into the U.S. please let us know.

Update: we have heard that the ESTA system does not permit passports with expiration of more than 10 years to use the system.  We believe this is an oversight by the ESTA developers and will be corrected soon as there are legitimate reasons to have passports with expiration date of more than 10 years in the future.

Many of our clients and readers have asked us what kind of relief or changes they can expect once the new president takes office in January of 2009.  Although it is difficult to predict the exact type of policies they will implement once they take office, the Wall Street Journal created a helpful chart comparing Obama and McCain on immigration.

WSJ: Immigration - Obama v. McCain

As the chart suggests, both candidates are not very far apart on immigration.  Both support some part to legalization of illegal alient, both are for tougher penalties for hiring illegals, and both support increase in the number of visas, especially to reunite families.  Thus, we are hopful that the new administration will provide some long-expected relief for immigrants waiting in a processing backlog or waiting to be reunited with their families.

The Department of Homeland Security has announced an Interim Final Rule which creates a new online system which is part of the Visa Waiver Program (VWP).  The new online system will require all nationals or citizens of VWP countries who plan to come to the United States under the VWP to register their travel in advance and obtain pre-authorization of their entry into the U.S.    The system will go into effect on August 1, 2008 and will be optional until the rule is published in the Federal Register, which is expected in January 2009.

To apply for authorization to travel to the U.S., VWP travelers will log-in to a web-based system and complete an application providing certain personal and eligibility information which is currently required on the I-94W form filled out by VWP travelers upon entry into the U.S.   The applications may be submitted at any time prior to travel to the United States and DHS encourages travelers to do so as soon as their travel plans are made.  The system will allow modification of travel plans and other information.

Once the application is completed, the information will be compared to various law enforcement databases and an instant response will be provided to the applicant.  The possible responses are: Authorization Approved, Travel Not Authorized, or Authorization Pending.  An Authorization Approved is valid for up to two years or until passport expiration, whichever is earlier, is valid for multiple entries to the U.S., and is not a guarantee for admission to the U.S.

According to DHS, once the program becomes mandatory (expected January 2009), VWP travelers who fail to complete the pre-travel authorization may be denied boarding on the airplane or may be turned at the U.S. port of entry.

The topic of re-entry permits for green card holders seems to resurface every few days.  We have written extensively about the new re-entry permit biometrics and the procedure to request expedited processing.

The main issue is that the new biometrics requirements create a great deal of uncertainty for international travelers who, most often, have planned and booked their trip months or even years in advance.  According to the March 2008 rule, re-entry permits cannot be issued unless the applicant remains in the U.S. and attends a biometric appointment.

Fingerprinting Appointment - Have Us Call USCIS on Your Behalf and Request Expedited Processing

Although, as we wrote recently, there is a procedure for expediting the fingerprinting appointment, such requests are not always honored in a timely manner.  Our law firm now offers a second alternative to have the fingerprinting appointment expedited by USCIS.  If you have a re-entry permit pending with USCIS or if you plan to file one, we can, as an attorney on your behalf, call the USCIS and request that your fingerprinting appointment be expedited.  Having an attorney call the USCIS and explain the situation warranting expedited processing has advantages and recent experience shows that, given the circumstances, can significantly expedite the biometric appointment and the issuance of re-entry permit.

The USCIS announced yesterday that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a TN visa holder can remain in the U.S. before seeking readmission or extension of stay from one year to three years. The goal behind the proposed rule is to provide TN visa holders similar visa terms as other skilled worker visas, such as H-1B.

Under the current regulations, TN visa holders must seek extensions or readmission every year. While in many circumstances such extension or readmission is without issues, TN visa holders often complain of the cumbersome yearly readmission requirements to which H-1B or L-1 visa holders are not subject. The new rule seeks to address these concerns and provide more certainty and uniformity among skilled professional visa categories.

The NPRM, once implemented as a final rule, will provide a number of benefits to all stakeholders. TN visa holders will not have to travel outside of the U.S. or seek extension every year thus saving money and time. U.S. employers will have greater certainty that TN beneficiaries will be allowed longer terms. Finally, the USCIS will have a reduced work load due to the decreased number of TN visa extensions.

Update: an advance copy of the proposed rule can be found here.

About the TN Visa. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

USCIS just announced a couple of significant enhancements to the E-Verify program which should increase its accuracy and appeal to employers.  One of the main concerns of E-Verify is that a fair number of legitimately authorized workers receive a non-confirmation which has consequences, ranging from embarrassment to potentially losing their employment.

About E-Verify. E-Verify is a program which provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.  The program is operated by USCIS in cooperation with the Social Security Administration (SSA) and it has evolved over the past 10 years to allow employers a quick (and ideally) accurate way to determine the employment eligibility of a new hire.  Currently, there are 64,000 employers who participate in the program with approximately 1,000 new enrollments weekly.  Our firm regularly provides advice to employers on E-Verify participation and compliance and we have noticed increased interest from employers.

The Changes.  Starting immediately, the E-Verify system will include naturalization data, which will help instantly the citizenship status of naturalized U.S. citizens hired and subject to verification by E-Verify employers.  According to USCIS, naturalized citizens who have not yet updated their naturalization records with the SSA are the largest category of properly authorized employees who face an initial E-Verify mismatch.

The second immediate change is that E-Verify will also include real-time arrival data from the border inspection and arrival system.  The goal of this integration is to reduce the number of mismatches related to immigration status for newly arriving workers who enter the U.S. legally through a point of entry.

Among the future plans for E-Verify - have USCIS sent back information to SSA to avoid future mismatches from happening and integrate Department of State passport records.

The Department of State has published a final rule which, effectively April 29, 2008, eliminates the paper visa application and requires that all non-immigrant visa applications to be submitted electronically.

Until the new rule went into effect, U.S. consulates required applicants for non-immigrant visas to fill out an electronic application, then print, sign, and bring the paper to the consulate.  The new procedure eliminates the printing and signing.  A non-immigrant visa applicant will have to fill out and submit the application electronically.  The ink signature is replaced by electronic signature where applicants will have to check the box designated as “Sign Application” found within the certification section of the application.