Labor Immigration Law

Under the North American Free Trade Agreement (NAFTA), certain Canadian and Mexican professionals are allowed to enter the U.S. under the TN nonimmigrant classification to engage in certain TN-eligible occupations.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   A Canadian citizen TN worker may apply for TN classification at the border, while Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     Because it is not necessary for citizens of Canada to obtain a TN visa stamp,  Canadian TN workers can seek admission as TN worker at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic or at a U.S. pre-clearance/pre-flight station.

Proper Period of Admission

A citizen of Canada may be admitted to the U.S. in TN status for up to three years, assuming that the individual’s passport will remain valid throughout the admission period.     A key document a Canadian TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Canadian TN workers are given a 3-year TN stay, however.    If the intended employment is of shorter duration, as described in a TN employer support letter, the TN worker is likely to be given TN status for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Canadian TN workers to prepare a proper application for admission into the U.S. on TN status.   Our office routinely handles emergency calls from would-be-TN Canadian workers who are held at the border due to irregularity with their employer support letter or related documents.   We are happy to assist with the preparation of proper TN admission paperwork.    Please feel free to contact us for assistance or with questions.

A Brookings Institution report, and a Washington Post article provide an updated overview of the composition of the immigrant labor force.   According to the Brookings report, for the first time the proportion of highly skilled immigrants exceeds that of low skilled immigrants in the United States.

The report cites that 30 percent of the country’s working-age immigrants, without taking into account legal status, have at least a bachelor’s degree (definition of highly skilled), while 28 percent lack a high school diploma (definition of low-skilled).   Although the foreign-born population in the United States has increased dramatically in the past 30 years, until 2007 or so, the number of low skilled labor exceeded that of high skilled immigrants.   Only after 2007, due to increased numbers of F-1 students and H-1B skilled work visas, has the proportion of skilled immigrants increased.

The report also looks as geographic areas and the highly skilled/low skilled composition for those areas.  Generally, coastal cities and established “gateway” metropolitan areas attract more highly skilled workers, while areas near the U.S.-Mexico border attract a higher percentage of low skilled immigrants.

The report will certainly fuel the debate over immigration reform in the U.S.   However, even without its political implications, the report provides an interesting analysis of the composition of highly/low skilled immigrants in the United States.

Our office receives a number of inquiries from current and prospective clients, employers and individuals, as to whether an H-1B worker who is beneficiary of a pending H-1B transfer petition can be readmitted into the U.S. based on the valid H-1B visa stamp and the pending H-1B transfer petition.

Reported Incidents of Refused H-1B Admissions

There is a lot of confusion on this subject, especially after reported incidents where Customs and Border Protection (CBP) agents have refused to admit H-1B workers attempting to enter the U.S. with a valid H-1B stamp (from a prior employer) and evidence of pending H-1B transfer petition.   Unfortunately, there are confirmed reports of CBP agents refusing to admit such H-1B workers in cases where the prior employer has withdrawn the H-1B petition (as the employer is required to do).

The Legal Framework

Pursuant to the relevant section of AC21 (§105) and as further discussed in the January 29, 2001 Pearson Memorandum, an H-1B beneficiary may be re-admitted to the United States in H-1B status to work for a different employer than the original petitioner if the alien possesses a valid, unexpired H-1B visa (unless exempt from the visa requirement), and if the alien can prove he or she was previously admitted in H-1B status and the alien’s current employer timely filed a new H-1B petition before the alien began work.

CBP Expected to Take Action to Ensure Uniform Application of the Legal Framework

During a recent AILA/CBP exchange, CBP has agreed that a former employer’s H-1B petition withdrawal should not impact a foreign national’s eligibility for AC21 H-1B portability based on a timely-filed H-1B petition by a new employer when the foreign national is seeking admission based on an H-1B visa issued pursuant to the prior employment.   CBP has further indicated that if the foreign national has an otherwise valid H-1B visa from the prior employment, and has evidence of a timely filed H-1B petition by a new employer (Form I-797 receipt or approval notice), the individual should be admitted on the basis of the old visa.

To ensure consistent application of these rules, CBP has agreed to send a reminder to their field offices that no new visa is required even though the prior petition has been withdrawn and revoked.

Conclusion

We are encouraged by CBP’s willingness to inform their field offices of the applicability of these regulations.   Despite this, it is possible that an H-1B worker may be denied admission by a CBP agent after misapplication of these regulations.    To complicate matters further, not all H-1B workers who have pending (or approved) H-1B transfer petition by a new employer and who seek to be admitted into the U.S. know whether their prior employer has withdrawn their H-1B petition.

As a result, a safer approach would be to for a H-1B worker seeking admission to the U.S. on H-1B status based on pending (or approved) H-1B transfer petition to be prepared to point to the relevant regulations discussed here and/or to ask to speak to a CBP supervisor at the point of entry and to explain that H-1B admission not be denied due to the fact that the prior employer’s H-1B petition has been revoked.

Our office also is happy to provide individual case consultations, which may include preparing a document package addressed to the CBP agents to explain the legal framework and to facilitate an H-1B worker’s admission into the U.S.   Please contact us if our office can be of any assistance.

The Department of Homeland Security (DHS) has announced that the National Security Entry-Exit Registration System (NSEERS) will be eliminated effective April 28, 2011.    See the Federal Register notice and WSJ article.

About NSEERS

The National Security Entry-Exit Registration System, NSEERS, required individuals from more than 20 predominantly Arab countries to register with the government on arrival and departure from the U.S.    Until today, nationals of Afghanistan,  Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq,  Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan,  Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab  Emirates, and Yemen had to register every time they entered or left the U.S. at a border post.

The manual process required about 30 minutes of additional inspection at a port of entry for those arriving on nonimmigrant visas. Visitors had to register again on exiting the country.

DHS Rationale for Ending NSEERS

According to DHS, the main reason for ending NSEERS is that since the NSEERS requirements were established, DHS has created a number of additional procedures and safeguards which, in effect, duplicate NSEERS’ need for manual registration upon entry into the U.S.

According to DHS,

Over the past six years, the Department of  Homeland Security (DHS) has implemented several new automated systems  that capture arrival and exit information on nonimmigrant travelers to  the United States, and DHS has determined that recapturing this data  manually when a nonimmigrant is seeking admission to the United States  is redundant and no longer provides any increase in security. DHS,  therefore, has determined that it is no longer necessary to subject  nationals from these countries to special registration procedures, and  this notice deletes all currently designated countries from NSEERS  compliance.

For example, the US-VISIT program, in effect since 2004, collects entry and exit information and collects biometrics, to be compared with other government records.   CBP also requires passenger manifests to be provided for passengers arriving by air or sea into the U.S.  There are also a number of international data-sharing agreements, which allow DHS to do better analysis of aliens applying for admission in to the U.S.

Conclusion

As a result of the DHS rule, nonimmigrant  nationals and citizens of these countries are no longer required to  comply with the requirements of 8 CFR 264.1(f), including the  requirement that they exit through designated ports of entry.  Accordingly, nationals and citizens from these countries are no longer  subject to the NSEERS registration requirement and DHS will  no longer register aliens under NSEERS effective on April 28, 2011.

Important Update: April 9, 2011: Short-term Government Funding Bill Passed.

As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue

The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad.  As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed).   U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.

As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995,  approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.

It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected.   We hope that it would be released before Monday when a possible shutdown would take effect.   Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.

With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.

Department of Labor – LCA, PERM and Audits

It is unclear exactly how the Department of Labor would be affected.   We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected.  This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.

ETA Form 9089 PERM labor certifications are expected to be similarly affected.  It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown.  This holds true for processing of PERM audits and appeals at the BALCA.

Conclusion

While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants.  Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

The Kentucky Consular Center (KCC) is a centralized processing facility for petition-based nonimmigrant visa programs and for the Diversity Visa program (also known as “green card lottery”).  Located in Williamsburg, Kentucky, KCC serves a variety of important functions affecting many visa applicants and foreign nationals who are selected under the Diversity Visa lotttery.  There are 300 employees, of which 97% are under private contracts.

Processing Statistics

For the Diversity Visa program, KCC processes approximately 100,000 selectees every year to ensure that all of the 55,000 allocated immigrant visa numbers are properly allocated.  KCC also receives 12,000 I-129 nonimmigrant visa petitions each week from USCIS and processes them for U.S. consular posts around the world.

Fraud Prevention Unit (FPU)

As part of its processing tasks, KCC houses the Fraud Prevention Unit which creates base files for petitioners and researches petitioner information in connection with visa stamp applications.   The purpose of the FPU is to allow the government to research the petitioner in more depth from within the U.S.  Often a U.S. consular post is not able (logistically or otherwise) to do proper petitioner research; as a result, the FPU allows such petitioner research or verification tasks to be conducted from within the U.S.

As part of its duties, the FPU could contact the petitioner directly to ask questions, or if an end-client is involved in the employment arrangement (such as with many IT consulting companies), the FPU could contact the end-client directly. The FPU researchers will identify themselves – they do not make pretext calls to gain information.    The researcher creates a memo regarding the information obtained, which is entered into the FPU database. Normally there is no need to research the same petitioner multiple times, in the absence of some particular need to do so.

The trigger for FPU review is either random (reportedly about 1% of all records) or upon specific request by a consular post.   Normally, electronic records are created from I-129 records for all petitioners whose petitions are processed by KCC.   All petitioners are verified and minimum research is conducted to verify the petitioner’s existence.  A more in-depth petitioner existence review is conducted randomly or upon consular post request.

Training in the FPU is category-specific. Researchers are trained on industries, company size and other factors. Agents in the FPU receive an overiew of all petition-based NIV categories;  however, they normally specialize regionally. Currently, there are two teams-India and Global (all non-Indian posts).

Petition Information Management Service (PIMS)

The PIMS system allows consular posts to obtain petition information in connection with visa applications (most often by the beneficiary of the petition).   KCC acts as the central processing facility of petitions processed by USCIS.  Normally, USCIS sends petitions to KCC’s PIMS systemwhich are then scanned and made available to consulates around the world in the PIMS system.

In the normal course of processing, KCC receives boxes of files from USCIS and electronically tracks them based on the USCIS barcodes on the files as they are received. I-129 petitions are scanned, 55 fields are entered for data capture, a petitioner is assigned, a quality control check is conducted, and then the hard copy is shredded.

KCC reports that it has processed 65,000 consular PIMS inquiries in FY2009 and 48,000 in FY2010. For the vast majority of these inquiries, sufficient information is in CLAIMS for KCC to update PIMS within 24 hours.  KCC’s PIMS processing completion target times for entry into the system are: COB the next day for “expedited petitions” (which do not necessarily include premium processing), 3 working days for O, P, T and U petitions, 5 working days for other petitions and for revocation/CIS notices, and 10 working days for any other extension or change of status petitions.  The processing time for USCIS affirmations of petitions returned by the consulate with a revocation recommendation is within 5 days.

About the Six-Month Club

Under U.S. law, every passenger who wishes to be admitted into the  U.S. must have a valid passport while they are in the U.S.  Furthermore, passengers must not only have a valid passport for the time they wish to be in the U.S., but also for an additional six months on top of the requested period of stay.   For example, a B-2 visitor who wishes to stay for one month in the U.S. must show a passport with a validity of at least seven months.

Certain countries are granted an exception from this rule.  The countries on this “exempt” list are commonly called the “six-month club.”   Passengers holding passports from one of these countries do not need to have an additional six months passport validity period.  They, however, still need to have the amount of time they wish to be in the U.S. — essentially, being able to present a passport which is valid for at least until the desired departure date.

Implications of Passport Validity Dates and Entry into the U.S.

Passengers who attempt to enter the U.S. for a specific period (for example, H-1B worker attempting to be admitted for a period of 30 months) would need to show passport validity for the entire requested period of stay  (for six-month club member countries) or the required requested period of stay plus six months (for non six-month club member countries).  If a passenger does not have a passport with such validity, the authorized period of stay, noted in the passenger’s Form I-94 card would be the passport expiration date with a notation “limited stay per passport validity.”

In a recent article, we wrote more extensively about the importance of having a passport with a validity date beyond the requested period of stay in the U.S.   Travelers to the U.S. who are given shorter period of authorized stay due to their passport expiration date may be eligible to apply for an extension of status from within the U.S.   We are happy to help evaluate such cases.

Current Six-Month Club Member Countries

The current countries members to the “six-month” club are listed in this CBP update.

Please note that while some countries are added to the list periodically, some countries are removed.  For example, recently countries such as Bangladesh, Ecuador, Kuwait and Tanzania were removed from the six-months club.  As a result, passengers to the U.S. should always ensure that they have either sufficient passport validity to cover their entire period of stay in the U.S. (if members of the six-months club) or validity exceeding the requested period of stay plus six months.

Passport Validity Waivers May Be Available

For travelers who are not members of the six-month club and who do not have at least six months validity beyond the requested period of stay, a waiver may be available.

As an example, if a citizen of Indonesia (not a six-month club member) requests admission as a visitor for one week but his or her passport expires in 5 months, he or she would not be admitted at all because the passport does not have the minimum validity of six months.    This kind of passenger may be denied admission from the U.S. pursuant to 8 CFR 212(a)(7)(A)(i)(II).  In such cases, a waiver of the passport requirement may be available (Form I-193, filing fee of $545).

Conclusion

To avoid any complications when entering the U.S. based on passport validity, we recommend that all travelers check whether the country issuing their passport is a member of the six-month club, and if so, ensure that they have a passport valid for the entire period of travel to the U.S.  For non-six-month club member countries, travelers to the U.S. should plan on having at least six additional months of validity.

In the event a shorter duration of stay is given than the one requested, there may be options to extend status from within the U.S.  Please feel free to contact us for a free initial case consultation.

The Pew Hispanic Center has released its most recent report on the unauthorized immigrant population.  As of March 2010, there were an estimated 11.2 unauthorized immigrants in the U.S., a number unchanged from the year prior.   This lack of change follows two years of decline from a high of an estimated 12 million in 2007.  According to the report, unauthorized immigrants were 3.7% of the nation’s population in 2010 and 5.2% of the labor force (down from the peak of 8.4% in 2007).

Additional key points of the report include:

• The number of unauthorized immigrants decreased from 2007 to 2010 in Colorado, Florida, New York and Virginia. The combined population in three contiguous Mountain West states-Arizona, Nevada and Utah-also declined.
• In contrast to the national trend, the combined unauthorized immigrant population in three contiguous West South Central states-Louisiana, Oklahoma and Texas-grew from 2007 to 2010.
• Although the number of unauthorized immigrants in the U.S. is below 2007 levels, it has tripled since 1990, when it was 3.5 million and grown by a third since 2000, when it was 8.4 million.

The complete report is available online in PDF format.

The winter holidays, together with the summer vacation season, create a steady flow of inquiries and consultations from our clients regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of entering the U.S.?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP will normally issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 with expiration date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.  Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Conclusion

The Form I-94 expiration date is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued a Form I-94 with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.

It is normal that during recession, western economies are not so attractive to any kind of immigration as they are during boom times.  The U.S. is no exception.  A recent report by the Brookings Institution has confirmed that the number of immigrants in the U.S. was estimated to have risen by about a half a million in the year that ended in 2009, a jump over the year prior when inbound immigration almost stopped during the recession.

According to the report,

The foreign-born population in the United States increased by 4.5 million in the decade ending in 1980. In the decade ending in 2000, it increased by 11.3 million, bringing the foreign-born population to about 13 percent of the total. In the early 20th century, after the last big wave of immigration to the United States, immigrants had reached 15 percent of the population.

In 2008, immigration came to a standstill, the first big slowdown in decades of surging numbers, according to the report, which was based on estimates by the Census Bureau. The foreign-born population increased by 7.4 million between 2000 and 2009.

Naturally, the geographic impact of the recession can explain the impact in terms of immigration.  The biggest immigration losses were in cities that had boomed in recent years, particularly in the housing industry, including Phoenix, Riverside and San Bernardino in California and Tampa, Fla.

Cities where the recession had less of an effect, including Austin, Tex., Houston, Raleigh, N.C., and Seattle, continued to gain immigrants.  The biggest increases came in smaller metropolitan areas that had little or no immigrant populations before.  Among them were Jackson, Miss., whose foreign-born population grew by half in the two years ending in 2009, Birmingham, Ala., where immigrants increased by a quarter, and Worcester, Mass., and Omaha, which both experienced growth of about 20 percent, according to the report.

While the report does not present any dramatic revelations, it confirms that the U.S. is not as desirable immigration destination during recessions as it is during boom times.  As the U.S. economy picks up steam again, a renewed interest and flow of immigrants is expected.