Labor Immigration Law

United States Labor Immigration Law News and Analysis

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CBP Makes Nonimmigrant Arrival/Departure History Available Online

Customs and Border Protection (CBP) just announced that they have launched an extension of their electronic I-94 arrival/departure system where now nonimmigrants can obtain their arrival/departure history going back five years from the requested date.     As a result of the new enhancement to the electronic I-94 retrieval system, nonimmigrants (only) can access their entry and departure dates, together with the CBP port of entry for each travel in or out of the United States for the previous five years.

How to Access the Travel History?

Once they visit the I-94 website, travelers will have to enter their name, date of birth, passport number and country of citizenship.   The system will then display a list of all U.S. entry and exit dates for the previous five years, in a format similar to the example below.

Please note that the travel history is available only for nonimmigrants such as B-1/B-2, H-1B, H-4, L-1, P-1, etc.   The information is not available for lawful permanent residents (green card holders) or U.S. citizens.    Also,  note that this website provides information for travel history only — it does not reflect immigrant status history, such as extensions or changes of status.

At the same time, the I-94 website allows nonimmigrants to continue to retrieve the electronic version of their I-94 card as a record of most recent entry into the U.S. (see our previous articles on this topic and also about what kind of documents one must carry while in the U.S.)

How Does CBP Have This Information?

It may not be a surprise to many, but CBP collects a number of pieces of information for every traveler who is arriving or departing the United States, especially via air.    Airlines are required to report passenger information to CBP and traveler information is stored during immigration border processing.   Similarly, while there is no requirement for biometrics screening upon departure from the U.S. CBP is working with the airlines and other carriers to get a record of passengers and track departure records.

Missing Records?

If a traveler discovers that an exit/entry date is missing from the travel record, they can file a Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document with U.S. Citizenship and Immigration Service.

Conclusion

CBP’s decision to make available nonimmigrants’ five years of travel history is interesting and is likely to allow them to decrease their backlog of Freedom of Information Act (FOIA) requests where nonimmigrants have been seeking to obtain such records for one reason or another.    In fact, the I-94 system now even allows convenient cancellation of a pending with CBP FOIA request.    Our office will continue to monitor developments surrounding this new capability of the I-94 CBP system and will report on any developments, especially with respect to accuracy and privacy of the information.

We invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.      Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Federal Government Shutdown and Immigration – Update (October 3, 2013)

Our clients and readers are aware that today is the third day the U.S. federal Government is partially closed due to the lack of congressionally-authorized funding.    A week ago, on the eve of the (possible, at the time) shutdown, we shared our expectations on what kind of immigration-related government services will be affected and how.    While our predictions were correct, our office continues to receive numerous calls and emails seeking clarification on how the shutdown may affect certain immigration services.    As a result, we would like to provide an update as to how the partial Government shutdown affects immigration-related services and cases.

USCIS Continues to Operate (Almost) Normally; E-Verify Closed

Because it is a fee-funded agency (applicants pay a fee when they submit an application),  USCIS is not affected by the shutdown and remains open.  Pending or newly filed applications with USCIS are reviewed within the normal processing times – including premium processing cases.    USCIS service centers and field offices continue to adjudicate cases normally; additionally, Infopass and ASC biometrics appointments should not be affected.

It should be noted that many USCIS cases are related to other agencies.  For example, H-1B petitions require a Labor Condition Application (LCA) be certified by the Department of Labor.  As a result, when the Department of Labor is closed (see below), at least some H-1B cases which are due to be filed will be delayed.

USCIS has indicated that the E-Verify system will be closed for the duration of the shutdown.    This means that E-Verify employers will not be able to process new hires’ E-Verify checks; in addition to any E-Verify system-related activities.   USCIS has advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown.   Please note that the fact that an employer does not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

Department of State/Visa Processing Normal

The Department of State has indicated that many Consulates’ visa processing functions would continue as scheduled and visa interviews and processing will not be affected.   We hear confirmations from clients and readers from different consular posts that visa processing is normal.    We still caution visa applicants to double-check with the Consulate whether there may be any changes in the interview scheduling or processing.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

CBP Border Processing Continues Without Disruption

Customs and Border Protection (CBP) operations should continue normally – most of CBP’s staff is to remain on the job.    While delays at the border processing are possible, they should not be significant and should not be primarily caused by CBP staffing issues.

Department of Labor – Most Operations Closed; LCA/PERM Applications On Hold

Unlike USCIS and the State Department, the Department of Labor (DOL) is significantly affected by the shutdown and its LCA/PERM operations (and websites) are suspended for the duration of the shutdown.

As a result, no new LCAs can be filed and pending LCAs are not subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This creates significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, no new PERM cases can be filed and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests are also shutdown so no new requests can be filed while pending requests are on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL means that processing times and backlogs would be significant once the Government and DOL reopen.    Once DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

While many immigration-related government operations remain open, there are many essential functions (at DOL, primarily) which are closed and will create substantial difficulty and anxiety to a  number of applicants – mainly those who  need to file a new H-1B or a PERM Labor Certification.     The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We urge clients who have time-sensitive cases which may be affected by the government shutdown to plan accordingly.   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.

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Group of Senators Releases Framework for Comprehensive Immigration Reform

Earlier today, a group of eight U.S. Senators released a proposed framework for a comprehensive immigration reform.   The document signed off by Senators Charles E. Schumer of New York, John McCain of Arizona, Richard J. Durbin of Illinois, Lindsey Graham of South Carolina, Robert Menendez of New Jersey, Marco Rubio of Florida, Michael Bennet of Colorado, and Jeff Flake of Arizona, outlines the framework for comprehensive immigration reform, including a pathway to U.S. citizenship for about 11 million undocumented immigrants currently in the U.S.

Our office has closely monitored Congress’ attempts to enact into law a comprehensive immigration reform over the past few years; however, this time around it seems that passing a comprehensive immigration measure is actually possible, and even likely.    After the November 2012 elections, the Republicans have embraced the idea of immigration reform more warmly.   As a result, we will continue monitoring serious developments on this topic and provide updates for the benefit of our readers and clients.

The Proposed Comprehensive Immigration Reform Framework

Create a Path to Citizenship for Unauthorized Immigrants Already in the U.S.

Under the proposal, the law would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes.   Such immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants.  Such measures would include border security, a new program to help employers verify the legal status of their employees and more stringent measures aiming to prevent immigrants to overstay their visas.

Minor children who are not documented and who were brought to the U.S. would not be subject to the “back-of-the-line” provisions and would have an easier path to citizenship.  Similarly, agricultural workers who have been working without documentation would have an easier path to citizenship.

Improve the Legal Immigration System and Attract the World’s Best and Brightest

The proposal seeks to reduce current backlogs  in the family and employment-based visa categories so that future immigrants see the lawful immigration system as the only way of entry into the U.S.   Also, a green card would be awarded to Ph.D. or Master’s degree holders in science, technology, engineering or math (STEM) from an American university.

Stronger Employment Verification

The proposal calls for a “tough, fair, effective and mandatory” employment verification system making employers liable for hiring undocumented workers and making it harder for undocumented workers to falsify documents and find employment.

Increasing Foreign Workers Quotas

The proposal seeks to improve the system for hiring lower-skilled workers by U.S. employers by allowing more lower-skilled workers’ quotas and making it faster and easier for U.S. workers (after following procedural safeguards to ensure no U.S. workers are available for the job) to bring foreign workers.

Other Immigration Proposals in Congress

There are other immigration proposals, in varying stages, intended to deal with related issues.   For example, Senator Orrin G. Hatch of Utah, a Republican, and Senator Amy Klobuchar of Minnesota, a Democrat, would propose a bill which would nearly double the number of H-1B temporary visas available each year to highly skilled immigrants. It would also free up more permanent resident visas, known as green cards, so those immigrants could eventually settle in the United States and go on to become citizens.

Conclusion

It seems as finally there seems to be broad enough consensus here in Washington, DC that the current immigration system must be reformed to deal with structural problems.   Our office faces and helps individuals who have to deal with such structural immigration system problems every day and we welcome these proposals.    Just because this is a framework, it is subject to (and will likely) change, negotiation and political manipulation by many; however, we hope that what would emerge as immigration reform law is a fairer system which would allow certainty and path to achieving the American dream to many.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

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US Consulates in India Expand Interview Waiver Program to Include H and L Visas

Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer.    Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.

Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.

About the Interview Waiver Program

The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step.    According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.

Another reason behind this move is also the increasing demand in U.S. visas in India.    In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year.   At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India.   In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.

Interview Waiver Program Eligibility Requirements

Under the expanded program, the following types of visas are eligible for the interview waiver program:

  • Business/Tourism (B1 and/or B2);
  • Students (F-1) returning to attend the same school and same program;
  • Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
  • Dependent (J2, H4, L2);
  • Transit (C) and/or Crew Member (D) – including C1/D;
  • Children applying before their 14th birthday traveling on any visa class;
  • Applicants applying on or after their 80th birthday traveling on any visa class.

There are additional requirements, all spelled out at the www.ustraveldocs.com website.  Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required);  (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).

Conclusion

We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster.    It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.

As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type.  As the U.S. consulates in India are implementing the new application processes, we recommend that you stay flexible, and build in extra lead time to accommodate travel itineraries.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

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Use of Paper Form I-94 To Be Eliminated

Almost all non-US nationals who have traveled to the U.S. at least once are familiar with the little white (or green) card inserted into one’s passport upon admission into the U.S.  (sample)  Many people do not fully realize the significance of the Form I-94 — most importantly, it records the entry date into the U.S. and determines how long a foreign national is entitled to remain lawfully in the U.S.   Form I-94 card is important document serving to establish valid status in the U.S. and to obtain certain benefits, including driving licenses.

Proposed Elimination of Form I-94

In the near future, the U.S. Customs and Border Protection (CBP,  the agency which admits foreign nationals in the U.S.)  is expected to stop issuing Form I-94s to most foreign national at the U.S. ports of entry.    The Department of Homeland Security (which oversees CBP and Citizenship and Immigration Service) is instead proposing to use an automated entry system to record each nonimmigrant’s arrival.   Travelers will receive a passport stamp annotated with their immigration status and the date their period of stay expires.  After the I-94 is eliminated, CBP may create an online portal to allow nonimmigrants to check their status and period of stay and print out a record of their admission.  But until such time, foreign nationals will only have their passport stamp to prove entry and validity of status.

It should be noted that foreign nationals entering at land ports of entry will, for the time being, continue to receive a functional I-94 card, as will refugees and some other classes of foreign nationals.

What the I-94 Change Means to Employers and Foreign Nationals

Currently, the I-94 card is used as proof of lawful immigration status and the permissible period of stay. In addition, numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number, a driver’s license, among others.  USCIS rules require nonimmigrants to carry the I-94 as proof of their status.

Further, along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database.  Since Form I-9 require employees to present and employers to inspect the actual paper I-94 card, it is important for employers to expect, and keep abreast of, the upcoming changes.  It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements pertaining to completing the Form I-9. Though CBP has been meeting for some time now with interested government agencies about its paperless I-94 implementation program, specific plans to revise regulations that currently require Form I-94 are not yet known.

Conclusion

While we applaud the government’s efforts to create a more efficient paperless system of recording foreign nationals’ entry information, the impact of eliminating the paper Form I-94 is significant and, in many cases, not fully understood and analyzed.   We will continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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Travel Warning: Passport Expiration Date May Affect Duration of Authorized Stay (I-94) Upon Entry into the U.S.

The summer has traditionally been a busy traveling season and as the summer start to approach and many of our clients and readers start making international travel plans, we see an increased flow of inquiries and consultations regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of (re)entering the U.S. after travel abroad?

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.   Please read our article on the Six-Month Club for more information.

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, by regulation, should 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).

Travel Preparations — Ensure Passport Has Sufficient Validity

We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity which is greater than the expiration date of their petition approval notice.    Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her I-94 card expiration date, as noted by the CBP officer and to address any questions or concern at that time with the CBP officer.    Addressing issued at a later time is usually complicated (and often, costly).

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.

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Admission of Canadian TN Workers

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.

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Report: Immigrant Workforce Now Predominantly High-Skilled

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.

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Can I Travel to U.S. with Valid H-1B Visa and Pending (or Approved) H-1B Transfer When Prior H-1B Petition Has Been Revoked?

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.

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Special Registration Program (NSEERS) Ends Effective Today (April 28, 2011)

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.

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