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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

This significant decline has contributed to an overall reduction of 8% in the number of unauthorized immigrants currently living in the U.S.-to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the report.

The data is obtained mainly through U.S. Census data.  It is interesting that the most significant decrease in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico.  From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%.  The numbers of unauthorized immigrants from Mexico  (which accounts for about 60% of all unauthorized immigrants) peaked in 2007 at 7 million and has since remained mainly unchanged.  The study notes that the inflow of unauthorized immigrants from Mexico has decreased, which seems to suggest that unauthorized immigrants from Mexico have settled in the U.S. and are not going back even in an economic crisis.

The recent decrease in the unauthorized population has been especially notable along the nation’s Southeast coast and in its Mountain West, according to the new estimates. The number of unauthorized immigrants in Florida, Nevada and Virginia shrank from 2008 to 2009.  Other states may have had declines, but they fell within the margin of error for these estimates.  These states have been severely affected by the housing crisis which resulted in a significant decrease in construction jobs.

The report estimates that over the past two years, the annual inflow of unauthorized immigrants is 300,000 per year, down from about 550,000 per year between 2005 and 2007.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

Consular Sections are located at the U.S. Embassy in Beijing and U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.  The purpose of the rule is, according to the State Department, to “increasing mutual understanding between the United States and China through people-to-people exchange.”   According to Department of State numbers, in 2009, almost 500,000 people received U.S. non-immigrants visas in China and the new policy should serve to increase this number by eliminating barriers to application.

After a successful 7-month trial conducted with VWP travelers from New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer.  CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA VWP travel authorization became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.  By eliminating the paper Form I-94W, travelers will be able to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States.

However, some congressmen are pushing an immigration reform proposals forward.  A recent proposal for a bill, introduced by Senators Reid, Durbin, Schumer, Leahy, Feinstein, and Menendez aims to put more concrete plan out for discussion, despite what some may consider a poor timing for reform.  The Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal sets the framework for a comprehensive immigration reform.  We hope to outline selected parts of the proposal.

Better Enforcement and Ending Illegal Employment

The REPAIR proposal calls for better immigration law enforcement, at the borders and inside the country, in addition to establishing a new biometric identification and employment verification system to prevent the employment of unauthorized workers.  New tamper-resistant Social Security cards will be issued which would contain photo and biometric information.  The proposal calls for sophisticated technology that will protect information about the cardholder and will not store any of the biometric data contained in the card on any government database. The proposal does not state where the data will be stored. The proposal will make it unlawful for anyone or any private or government entity to use the card for any other purpose than employment verification.

All employers will be required to verify a new hire’s employment eligibility status through an electronic system.  Failure to do so would carry penalties.  The system would, in effect, be a build-up of the currently-existing E-Verify employment eligibility verification system.

High-Skilled Immigrants Will See Substantial Benefit

Permanent Residency.  The proposal provides for an immediate green card to foreign students with an advanced degree from a U.S. institution of higher education in the field of science, technology, engineering or mathematics (STEM), and who have an offer of employment in the field related to their degree, from a U.S. employer.  The proposal would also eliminate per country employment caps which have resulted in substantial delays under the current system for nationals of many countries, but particularly for India and China.

H-1B Visas.  The proposal creates new requirements on H‐1B visas including: 1) revising how wages are determined; 2) requiring web posting of job openings; 3) lengthening U.S. worker displacement protection; 4) applying certain dependent employer rules to all H‐1B employers; 5) prohibiting “for H‐1B only” job ads; and 6) limiting the number of H‐1B and L‐1 employees that an employer of over 50 workers in the U.S. may hire. The proposal also authorizes the Department of Labor (DOL) to investigate application fraud and conduct H‐1B compliance audits.

L-1 Visas.  The proposal also creates new requirements on the L‐1 visa prohibiting the hiring of an L‐1 for more than one (1) year who will: serve in a role involving specialized knowledge and be located at a worksite other than that of the petitioning employer.  The proposal specifies L‐1 visa employer petition requirements for a new office; wage rates and working conditions; and employer penalties.

Family Immigration Proposals

The proposal will clear the family immigration backlog over an eight (8) year period.  After the eight year period, family caps will return to the current levels. Spouses and children of lawful permanent residents (LPR) will be classified as “immediate relatives”.   Per country caps in the family immigration system will be raised from 7 percent to 10 percent.  The proposal will also allow permanent partners of U.S. citizens and LPRs to obtain LPR status; provide protection for children and people with special humanitarian considerations; and address technical issues related to stepchildren and adoptive children.

Unauthorized Aliens Must Register and Wait For Permanent Residency

With respect to those ~11 million unauthorized aliens, the proposal has a two-phase approach.

Phase I.  All undocumented persons will be required to come forward and register their presence through a rigorous process that includes identity, criminal background and security screening, fingerprinting, and the payment of fees, civil penalties and taxes. Upon completing registration, they will be considered for eligibility for a new interim status: “Lawful Prospective Immigrant” (LPI). In addition to the above requirements, undocumented persons must remain in the country continuously from the date of enactment to be eligible for LPI status.  Spouses and minor children living abroad will be eligible for legalization once their relative receives LPI status. Those found ineligible in Phase I will be placed in removal proceedings. Those who fail to register will remain undocumented and be subject to arrest and deportation.

Those convicted of three or more misdemeanors or any felony punishable with a prison term of more than one year; those who engaged in persecution of others; those “inadmissible” pursuant to INA 212(a) for national security and criminal grounds; those in the country in an “authorized immigrant or nonimmigrant status”; and those who entered illegally after the bill’s introduction date will not be eligible for LPI status.

Phase II.  It will begin eight years after enactment when current family visa backlogs are cleared at which time LPIs will be permitted to petition for adjustment to Lawful Permanent Resident (LPR) status. Requirements for eligibility include demonstrating basic citizenship skills, English language skills, and continuous residence in the United States; submitting to additional background and security checks; payment of all taxes, fees and civil penalties; and registration for Selective Service. The proposal allows for some administration and judicial review of denials.

Conclusion

The REPAIR proposals set forth a very interesting framework for comprehensive immigration reform.  It remains to be seen how the initial proposal will be taken by both parties here on Capitol Hill during an election year and during a political climate some political experts describe as “difficult.”  Also, it is important to note that REPAIR is just a proposal for law — it is not an introduced bill and it may (and will most certainly) will undergo substantial changes as it makes its way through the political system here in Washington.

If you have not already, please consider subscribing to our weekly free immigration newsletter to receive weekly updates on immigration reform, news and developments.

CRS Report on Permanent Admissions

The U.S. permanent admission policy is driven by four major principles: the reunification of families (family-based), the admission of immigrants with needed skills (employment-based), the protection of refugees (asylum), and the diversity of admissions by country of origin (DV lottery).

The CRS report on permanent admissions seeks to analyze the legal permanent residents (LPRs or green card holders) population in the U.S.   By way of contrast to the CRS report on unauthorized aliens, statistics on the permanent resident population and recent admissions are readily available and accurate.

During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties.  Other major categories in FY2008 were employment-based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.

Adjustment of Status v. Consular Processing

Many LPRs are adjusting status from within the United States rather than receiving visas issued abroad by Consular Affairs before they arrive in the United States. In the past decade, the number of LPRs arriving from abroad has remained somewhat steady, hovering between a high of 421,405 in FY1996 and a low of 358,411 in FY2003. Adjustments to LPR status in the United States has fluctuated over the same period, from a low of 244,793 in FY1999 to a high of 819, 248 in FY2006.

Approximately 58% (or 640,568) of all LPRs admitted in 2008 adjusted their status in the U.S. as opposed to going through consular processing abroad.     Most (89.8%) of the employment-based immigrants adjusted to LPR status within the United States in FY2008. Many (51.4%) of the immediate relatives of U.S. citizens also did so that year. Only
25.0% of the other family-preference immigrants adjusted to LPR status within the United States in FY2008.

Country Breakdown

In FY2008, Mexico led all countries with 189,989 foreign nationals who became LPRs. The People Republic of China followed at a distant second with 80,271 LPRs. India followed with 63,352 LPRs. The Philippines came in fourth with 54,030 LPRs. Three of these top countries exceeded the per-country ceiling for preference immigrants because they benefitted from special exceptions to the per-country ceilings. Mexico did so as a result of the provision in INA that allows 75% of family second preference (i.e., spouses and children of LPRs) to exceed the per-country ceiling, while India and China exceeded the ceiling through the exception to the employment-based per-country limits.

CRS Report on Unauthorized Aliens

The CRS report on unauthorized aliens seeks to describe and analyze the population of foreign nationals who are not authorized to be in the U.S.  By definition, such statistics are difficult to obtain, yet, the report does a good job in trying to put a profile on the population of unauthorized aliens.

Numbers.  The number of unauthorized aliens is not clear – according to recent estimates by the Department of Homeland Security (DHS), approximately 10.8 million unauthorized aliens were living in the United States in January 2009.   Using different sources, the Pew Hispanic Center has estimated the March 2008 unauthorized resident population at about 11.9 million.

Date of Arrival.  Most of the unauthorized aliens currently in the U.S. (29%) came between 1995 and 1999.  28% came between 2000 and 2004.  Only 8% came to the U.S. between 2005 and 2008.

Country of Origin. Mexico has historically been the greatest source country for unauthorized migration to the United States. According to DHS, there were an estimated 6.7 million unauthorized aliens from Mexico residing in the United States in early 2009, representing 62% of the total unauthorized resident population at the time. DHS further estimates that there were 8.5 million unauthorized aliens living in the United States in 2009 from North America, which includes Mexico as well as Canada, the Caribbean, and Central America (79% of the total). According to the DHS analysis, South America accounted for 0.7 million unauthorized aliens in 2009, yielding a combined North America and South America total of 9.2 million (85% of the total unauthorized resident population). Asia accounted for an additional 1.0 million unauthorized aliens.

U.S. State of Residence.  California is home to more unauthorized aliens than any other state (24% according to DHS). DHS and the Pew Hispanic Center estimate that about one quarter of the U.S. unauthorized alien population in January 2009 and March 2008, respectively, was living in California.  DHS and the Pew Hispanic Center also identify the same next three top states of residence for unauthorized aliens (in order from highest to lowest unauthorized population: Texas – 16%, Florida – 7%, and New York – 5%).

In comments from late yesterday, President Obama has said that “there may not be an appetite” to overhaul the nation’s immigration laws this year, even though he believes there is a pressing need to do so.  According to the Washington Post,  even though Mr. Obama considers immigration a top issue for his administration, he recognizes that it may not happen soon due to the  political climate in Washington.  According to the Washington Post,

“It’s a matter of political will,” Obama said [and] added, “This is a difficult issue. It generates a lot of emotions. . . . I need some help on the Republican side.”

Even though there has been increase in talk about immigration reform, especially after the recent passage of a strict anti-immigrant law in Arizona, Mr. Obama’s comments seem to put a cold shower on top of the recent talk and immigration reform proposals.    Despite Mr. Obama’s comments, many in Washington are still hopeful that a compromise and Republican help will arrive this year.  We will continue monitoring developments here in Washington relating to immigration proposals.

Biometric Social Security Cards to Prevent Illegal Employment

The plan would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card.  Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

Strong Border Security and Interior Enforcement

The plan aims to bolster efforts to secure the borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology.  Additionally, other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Creating a Process for Admitting Temporary Workers

The plan aims to attract the world’s “best and brightest.”   The legislation would award green cards to immigrants who receive PhD or master’s degree in science, technology, engineering or math (STEM) from a U.S. university.

Also, the plan calls for a system for admitting lower-skilled workers.  The plan would facilitate the circular migration” of lower-skilled workers by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.

Tough But Fair Path to Legalization for Unlawful Aliens

A tough but fair process is intended to allow unlawful aliens to find a way forward.  Such aliens would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes.  They would also be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

Conclusion

The Schumer/Graham plan has drawn an immediate vow of support by President Obama who has urged Congress “to act at the earliest possible opportunity.”    Mr. Obama’s pledge to support the plan should suggest that some sort of immigration reform may be forthcoming; however, the Senators have not offered a concrete plan and have not suggested a timetable.    Additionally, the White House has indicated that their top priorities (after health care, that is) are financial regulatory reform and campaign finance legislation.

Despite mixed messages from the White House, the Schumer/Graham proposal should help comprehensive immigration reform proponents in moving towards producing a bill and enacting it into law.  We will continue monitoring any developments and reporting them.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the Visa Waiver Program (WVP). ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

ESTA Registration Mandatory – New Enforcement Campaign

We have written in the past about the Electronic System for Travel Authorization (ESTA) which became mandatory more than one year ago, on January 12, 2009, for all Visa Waiver Program (VWP) travelers into the U.S.

The Department of Homeland Security (DHS) has recently announced a 60-day campaign to enforce ESTA registration.  Pursuant to this campaign, DHS will use its authority to deny entry to all VWP travelers to U.S. who have not registered with ESTA.   Beginning January 20, CBP will initiate a 60-day transition to enforce ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S.-bound plane.

According to the report, there are more than 670,000 foreign students in the U.S. – an increase of about 8% over the past academic year.  This rate of growth has not been seen since 1980s.

Distribution by Country

According to the report,

[There were] increases in foreign student enrollments from seven of the ten leading places of origin, and 19 of the top 25, with increases of more than 20% from four countries. India remains the leading place of origin for the eighth consecutive year, increasing by 9% to 103,260. Students from China, once again the second leading sender, increased 21% for a total of 98,510. South Korea, in third place, increased 9% to 75,065. Canada, the only non-Asian country in the top five, rose to fourth place with an increase of 2% to 29,697, surpassing Japan, now in fifth place after students declined for the fourth consecutive year, decreasing by 14% to 29,264. Taiwan remained in sixth place, with 28,065 students, a 3% decline. The number of students from Mexico, the seventh-leading sender, remained flat this year, with a total of 14,850.  

Distribution by University Location

Universities in California hosted the largest number of foreign students with 93,124, up 10%, followed by New York with 74,934, up 7%, and Texas with 58,188, up 12%. The New York City area continues to be the top city for international students, with 59,322 enrolled in area schools, up 8%. The Los Angeles metropolitan area is in second place with 42,897 international students, up 11%.

Distribution by Field of Study

The report also focused on the field of study.  Business and Management remains the most popular field of study for international students in the United States, increasing by 12% and comprising 21% percent of the total, followed by Engineering with an 11% increase and comprising 18% of the total. Math and Computer Science also increased significantly in 2008/09, up 10% from the prior year. After a 15% increase in 2007/08, Intensive English Language showed a slight decline in popularity, decreasing by 1%.

This rule becomes effective on January 4, 2010.

Under VWP,  a nonimmigrant alien applicant for admission to the U.S. under VWP must indicate on Form I-94W and on the ESTA application whether he has ever been refused a visa.   Consequently, the question arises at to whether a prior visa application’s “administrative processing” constitutes a denial which should be disclosed.  Administrative processing may take several months before completing the process and issuing a  visa.   Additionally, the U.S. Consulates consistently do not inform visa applicants that their visa has been denied; instead, the Consulate informs the visa applicant the visa application is under “administrative processing.” Some Consulates indicate that the “case has been suspended under Section 221(g).”

U.S. Customs and Border Protection (“CBP”) has provided some guidance after consulting with the Department of State.  Accordingly, 22 C.F.R. 42.81, 22 C.F.R. 40.6, and 221(g) processing do constitute visa refusal by the Department of State.
As a result, VWP applicants who  have had their visa application subject to “administrative processing” must  answer that they  have had their visa refused.  This does not necessarily mean that the VWP is not available to such applicants.  However, CBP will have to manually review these applications.  Under such manual review processing CBP has 72 hours to respond to a manual review, but according to CBP, the current average time is 1 hour for a manual review.   If after 72 hours, there is no response, the applicant should make a new ESTA application or go into the system and check on the application.

Reentry Permits Are Generally Valid for Two Years

One of the questions we receive very often in connection with the reentry permit applications is what would be the duration of the reentry permit, once issued.   For most of the applicants, the answer is that the reentry permit is valid for two (2) years starting from the date on which the reentry permit is issued.

But One-year Reentry Permits Are Given for Extended Absenses

However, pursuant to 8 CFR 223.2(c)(2), an LPR who, since becoming an LPR or during the past five (5) years, whichever is less, has been outside of the U.S. for more than four (4) years in the aggregate will be issued a reentry permit with validity of only one (1) year from the date of issuance.

There are exceptions.  If the LPR is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit can be issued for two (2) years despite extended periods of absence from the U.S.

Conclusion

The restriction described above on the validity of reentry permits makes it important for some applicants to be able to calculate the aggregate amount of time spent outside of the U.S. for the past five years (or since becoming LPR).  Such applicants should also make plans to renew their reentry permit within one year of issuance.

Please visit our Reentry Permit and Expedited Processing page for more information.

The DS-160 online NIV application form is being used at this time at the following U.S. consulates (said to represent about 10% of all NIV applications) –  Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica).   In a recent cable, DOS has indicated that it would hold off on adding additional consulates to the DS-160 list until it can add additional server capacity to ensure that all electronic applications can be handled efficiently.   More information by DOS can be found here.

It is important for all nonimmigrant visa applicants to verify the requirements of the U.S. consulate where they intend to apply for NIV visa and establish whether they must use paper or online application forms.  Checking-in with the local U.S. consulate also allows the applicant to become familiar with the exact rules, procedures and requirements imposed at that particular U.S. consulate.

The outbound fingerprinting is part of a pilot to test program implemented at this point only at Hartsfield-Jackson Atlanta International and Detroit Metropolitan Wayne County Airports.  Non-U.S. citizens leaving the United States from Detroit and Atlanta airports should expect to have their biometrics collected before boarding their flights. U.S. Customs and Border Protection (CBP) officers will collect biometrics at the boarding ate from non-U.S. citizens departing from Detroit; U.S. transportation Security Administration (TSA) officers will collect biometrics at security checkpoints from non-U.S. citizens departing from Atlanta.

The rationale behind outbound fingerprinting is that it would allow DHS “to determine faster and more accurately whether non-U.S. citizens have departed the United States on time or remained in the country illegally,” according to DHS Secretary Janet Napolitano.  It is not clear what measures, if any, DHS would take if, upon outboung fingerprinting, it recognizes that a traveler has overstayed his or her visa or has otherwise engaged in an immigration violation.

Filibuster Proof Majority?

With the very likely possibility that when Al Franken becomes Minnesota’s junior senator, the Democrats will have 60 Senate seats, which will give them a very strong filibuster-proof majority.

With Sen. Specter’s party switch, one of the immediate questions is how would that impact the possibility and the nature of a comprehensive immigration reform.  With 60 Senate seats in Democrat hands, passing a comprehensive immigration reform may be so much easier now because the Republicans would not be able to oppose and filibuster a proposal with which they do not agree.

Sen. Specter’s Immigration Record

Senator Specter’s record suggests that he would support many of the immigration proposals already circulating in Washington.  Sen. Specter supports “pathway to citizenship” and a “guest worker program” which some opponents call “amnesty.”  He introduced the Comprehensive Immigration Reform Act of 2006, which was passed by the Senate on 25 May 2006 before reaching a stalemate in the House.

Additionally, Sen. Specter has supported a Guest Worker program (in 2006), has supported allowing illegal aliens to participate in Social Security (2006), and supported visas for skilled workers (1998).  He is considered to hold an open-border stance.

Conclusion

While it is very early to talk about immigration reform, Sen. Specter’s switch to the Democrat party makes it more likely that a comprehensive immigration reform will happen and that it would contain some favorable provisions to aliens already in the country and for skilled workers applying for immigration benefits.   We will continue to be part of Washington’s immigration reform dialogue and provide updates and analysis on the issue over the next months.   If you have not already done so, you can subscribe to our Newsletter to receive weekly updates on this and other related topics.

Automatic Visa Revalidation Fact Sheet

March 9, 2009

Pursuant to 22 CFR 4 1.1 12 and 8 CFR 214.1 automatic revalidation applies to expired nonimmigrant visas of aliens who have been out of the U.S. for thirty days or less in contiguous territory (Canada and Mexico).
In the case of F-1 and J-1 students, automatic revalidation applies to contiguous territory and adjacent islands other than Cuba. An M-1 student can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territory. Nonimmigrants who are eligible to re-enter the U.S. pursuant to the authority of automatic revalidation are not able to benefit from the automatic revalidation process if the nonimmigrant’s passport reflects evidence that while in contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied
a new visa application.

Nationals of Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba are not eligible for automatic revalidation of an expired visa. Thus, for example, if a citizen of Iran travels to contiguous territory for a day and has an expired visa, but a valid extension approval notice of status; he will need to obtain a visa to return to the U.S.

Automatic revalidation does not apply to the Visa Waiver Program. Readmission to the U.S. after departure to contiguous territory or adjacent islands for Visa Waiver Program applicants is covered under 8 CFR 217. 3(b).

The report is interesting in that is compares the states’ immigration-related activity over the past few years and helps us draw some conclusions on where the states are going with respect to immigration.  Overall, the report concludes that the amount of immigration-related proposals in first quarter of 2009 is consistent with the record number of bills and resolutions introduced during the first quarter of 2008.

The report provides a breakdown of the proposed bills and resolutions by category (education, employment, drivers licenses, law enforcement, etc.).  The report also goes on to list the name and a short description of immigration-related bills in a particular state.

Although immigration law is federal in nature, there are many immigration provisions that are left to the states (education, drivers licenses, etc.) and which directly affect the lives of immigrants in the U.S. and this report provides an useful tool to monitor recent developments and trends.

Effective today, VWP travelers coming into the U.S. may be turned away if they have not registered at least 72 hours before their travel to the U.S.  Despite the advance notices, there is a significant chance that a fair percentage of the 50 million visa-free travelers to the U.S. will be turned away for non-compliance with ESTA.

If you are a VWP travelers and you will be traveling to the U.S., please make sure to visit the ESTA website and register in advance of your travel.

Effective January 18, 2008, CBP will subject all entering or exiting LPRS to biometrics processing at all air and seaports.  LPRS entering through land ports of entry will not be automatically subjected to biometrics, unless they are referred to secondary screening.

While the January 18, 2008, effective date is likely to include taking biometrics at entry, it is not clear from CBP whether biometrics will be taken upon leaving the U.S.  We will provide more information as we obtain it.

About the US-VISIT Program.  The US-VISIT program was established in 2003 to verify the identities and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers, and by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Visitors subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements, with certain limited exceptions.

The New Rule.  The new rule, which goes into effect on January 18, 2009, will subject legal permanent residents (LPRs or green card holders) to the fingerprinting and digital photos procedure which is currently applied to other non-immigrants entering the U.S.  The new rule has some very minor exceptions, so all green card holders between the age of 14 and 79 entering the U.S. after January 18, 2009, should expect to be subject to the US-VISIT biometric processing.   Opponents of the new rule cite privacy and lengthy border processing delays as some of the negative consequences of the new rule.  Although the new processing requirements will certainly slow down LPRs at their border inspection, regardless of whether they travel by land or by air, one piece of good news is that LPRs can still be processed in the faster “Citizens/LPRs” line on most airports and points of entry into the U.S.

For more information see our previous entry on DV 2010 or visit the DV 2010 website.

The DS-160 form is now filled out and submitted electronically.  Please see here for more information.

Among some of the other interesting statistics related to student and exchange visitor visas – there was a 40 percent increase in student and exchange visitor visas issued to Chinese nationals over fiscal year 2007, which in itself, was 40 percent higher than fiscal year 2006.   Also, visas issued to nationals from Middle East countries increased by 26 percent in fiscal year 2008 in comparison to fiscal year 2007.

These statistics may suggest a reversal of the downward trend following the events of 9/11.  The student and exchange visitor visa numbers dropped significantly in the years following 9/11, but the trend seems to be correcting itsel and the significant increases seem to suggest that the U.S. still remains a desirable place to study and engage in cultural exchange programs.

One note for nationals of these seven countries who wish to travel to the U.S. under VWP – you must register in advance for the Electronic System for Travel Authorization.

About the Visa Waiver Program

The Visa Waiver Program (VWP) is a program of the United States of America which allows citizens of specific countries to travel to the US for tourism or business for up to 90 days without having to obtain a visa.

To be eligible for a visa waiver under the VWP, the traveller seeking admission to the U.S. must be a citizen of a country that has been designated by the Attorney General, in consultation with the Secretary of State, as a “program country”. Permanent residents of designated countries do not qualify unless they hold a citizenship of another designated country. The criteria for designation as program countries are specified in Section 217 (c) of the Immigration and Nationality Act (Title 8 U.S.C. §1187). The criteria stress passport security and a very low nonimmigrant visa refusal rate: not more than 3% as specified in Section 217 (c)(2)(A) of the Immigration and Nationality Act, as well as ongoing compliance with the immigration law of the United States.

The full list of VWP countries, taking into effect the new seven countries is as follows:

• Europe: Andorra, Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France (including French overseas territories), Germany, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, Norway, Portugal, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom;
• Asia: Brunei, Japan, Singapore and South Korea; and
• Oceania: Australia and New Zealand.

As a reminder, citizens of all VWP countries traveling must register using the new Electronic System for Travel Authorization (ESTA). Registration is optional until January 12, 2009, when it becomes mandatory and a VWP traveler may be denied entry in the U.S. under the VWP if he/she has not registered using ESTA.

Nonimmigrant Admissions in the United States: 2007

The report seeks to assess the operation of the program and to analyze DHS’s efforts to expand it.  The GAO report found, among other things that although the government is trying to expand the VWP aggressively by discussing it with a number of countries who are hopeful to join it, there are a number of deficiencies which have created confusion among U.S. government officials who negotiate with candidate countries and has set unreasonable expectations among the countries themselves.

Membership in VWP is granted to countries which have between 3 and 10 percent visa refusal rates and which have 97 percent return rate, meaning that 97 percent of the nationals of a particular country who enter the United States must return to the home country.  In order to allow a country to join VWP, DHS must be able to certify that a particular country has 97 percent return rate,.  However, DHS is unable to properly account for those who remain in the U.S. beyond their authorized period of stay.

In addition, for DHS to to maintain its authority to admit certain countries into the program, it must incorporate biometric indicators (such as fingerprints) into the air exit system by July 1, 2009. However, DHS is unlikely to meet this timeline due to several unresolved issues. In addition, DHS does not fully consider countries’ overstay rates when assessing illegal immigration risks in the Visa Waiver Program.

The GAO report goes into great detail in outlining DHS’s performance under the VWP.  It is a helpful read for anyone who is interested or affected by the Visa Waiver Program or the Electronic System for Travel Authorization (ESTA).

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.