Labor Immigration Law

This question arises often in the context of Visa Waiver Program (VWP) travelers who seek to enter the U.S. under VWP while their visa application (for H-1B, for example) has been “delayed” by the U.S. consulate.

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.

Our office has been handling an increasing number of expedited processing Form I-131 reentry permits for legal permanent residents (“LPR”) who are or are planning to spend extended periods of time abroad and who wish to maintain their legal permanent resident status.

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.

We have reported previously on the Department of State’s (DOS) efforts to introduce an electronic form (DS-160) for submitting nonimmigrant visa (NIV) application at its consulates around the world.   The goal is to have DS-160 replace the paper forms currently used for NIV applications at all U.S. consulates.

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.

Effective May 28, 2009, the Department of Homeland Security (“DHS”) began collecting biometric digital fingerprints from non-U.S. citizens departing the U.S.  We wrote last April about the possibility of exit fingerprinting and it seems that DHS is underway to test the system and to implement it throughout other points of departure from the U.S. within one year.

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.

The nation (and particularly here in Washington, DC) is still abuzz with Senator Arlen Specter’s switch from Republican to Democrat (CNN news article).   The political implications are important – the U.S. Senate’s balance of power will be 59 in favor of the Democrats.

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.

We have written about the Automatic Visa Revalidation (AVR) program in the past.  The Customs and Border Protection (CBP) has released a fact sheet which seeks to clarify some of the AVR provisions.  We reprint it here in its entirety:

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 National Conference of State Legislatures has released its 2009 Immigration-Related Bills and Resolutions in the States, dated as of April 22, 2009, and covering the first quarter of 2009.

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.

Today, January 12, 2009, the Electronic System for Travel Authorization becomes mandatory for all Visa Waiver Program (VWP) travelers.   We wrote earlier about the mandatory cutoff of January 12, 2009.

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.

We wrote in December about the Custom and Border Protection (“CBP”) decision to include legal permanent residents (“LPR”) into the US-VISIT program.

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.

The Department of Homeland Security has released a final rule, with targeted effective date of January 18, 2009, which would dramatically expand the number of aliens who are subject to the US-VISIT program biometric requirements.

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.