Labor Immigration Law

United States Labor Immigration Law News and Analysis

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Reentry Permit Timing Strategies and Considerations

U.S. permanent residents (green card holders) who spend extended period of time are likely (or should be) aware that the reentry permit is a document, issued by U.S. Citizenship and Immigration Service (USCIS) allowing its holder to remain outside of the U.S. for an extended period of time without causing their green card to be considered abandoned (or facing hostile questioning at the U.S. port of entry).       However, during the reentry permit application process, one of the main factors of success is the careful planning for the application filing and completing the required biometrics.

Filing of Reentry Permit Requires Physical Presence in the United States

The reentry permit regulations require that the green card holder applicant be in the U.S. physically at the time of filing.   The time of filing refers to the date USCIS receives the reentry permit application and start processing it – and normally this is the day FedEx delivers the application documents to USCIS.

Because of this requirement, reentry permit applicants, and especially those who are abroad and are considering filing a reentry permit application, must carefully plan the timing of their travels to the U.S. and coordinate their reentry permit application filing (with their attorneys, if they use an attorney for the filing).   It is generally okay for the application to be received by USCIS on the day the applicant has landed in the U.S.  In fact, our office routinely plans the filing of reentry permit applications for our green card holders who reside abroad in such way to ensure the application is filed on the day of arrival or the first available business day afterwards in order to maximize the time the green card holder has in the U.S. in order to complete the required biometrics appointment during the same trip to the US.

The Required Biometrics Must be Done in the U.S. Only

In addition to the requirement that the applicant must be in the US at the time of filing of the reentry permit application, the reentry permit process requires the applicant to submit to required biometrics – digital fingerprinting and digital photo.   This is a required step and must be completed even if the applicant has done biometrics previously (even if it was recently).    Normally, several weeks after filing USCIS issues a biometrics appointment notice and mails to the applicant inviting them to appear and have their biometrics taken.

When our office files reentry permit applications and when we request expedited processing of the biometrics appointment (which we often do), USCIS is able to schedule the biometrics appointment in anywhere between two and four weeks from the filing date.   As a result, reentry permit applicants should consider the timing of their biometrics process when they plan for reentry permit.     One option is to plan to remain in the US for at least 3-4 weeks in order to do the filing and the biometrics during the same trip to the US.

Another option is to do two trips – one short trip to the US for filing of the application and then, within no more than 120 days of the date of filing, taking another trip to the US to complete the required biometrics.   Traveling to the US again for biometrics makes this an expensive alternative, but it is an option nonetheless for green card holders who are unable to remain in the US for 3-4 weeks at a time to do filing and biometrics during a single trip.    In addition to continental US, the required biometrics can be completed in Guam or Hawaii which makes it a desirable alternative to green card holders residing temporarily in the Asian region.


The reentry permit application process may be deceivingly straightforward, especially for green card holders who must depart the US relatively quickly or for green card holders who reside abroad.    We urge careful and early planning for the various stages of the reentry permit application process and we also urge using the services of an attorney who can coordinate the process and assist from within the US should any issues with the process arise.

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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US Consulate in Kingston, Jamaica Restricts Third-Country Nationals’ Visa Stamp Applications

The U.S. Consulate in Kingston, Jamaica has announced that effective October 31, 2014, it will restrict the ability of certain (but not all) third-country nationals (TCNs) to apply for and obtain a U.S. visa stamp at the Kingston Consular Section.

TCN Visa Stamp Application Restrictions Effective October 31, 2014

Effective October 31, 2014, the U.S. Consular Section in Kingston, Jamaica will not accept interview applications from third country nationals for the following visa categories and cases:

  • Applicants who have changed their status in the U.S. and who are now seeking a new visa in the new visa category;
  • Applicants who entered the U.S. in one visa category and are seeking to reenter the U.S. in a different visa category;
  • Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I- 94s;
  • Applicants who obtained their current visa in a country other than that of their legal residence;
  • Petition-based first time applicants; and
  • Third country nationals who are not resident in Jamaica and who are applying for a B1/B2 visa (including B1/B2 renewals).

According to these restrictions, it is still possible for certain TCNs to obtain an interview appointment and successful U.S. visa stamping in a number of situations but we urge TCNs who consider Jamaica for their stamping to review the requirements very carefully and ensure that they are actually eligible to appear for an interview.

TCNs Should Carefully Consider and Research Their Destination U.S. Consular Section in Advance

As a general matter, even in cases where none of the exclusions apply and even for other U.S. Consular Sections popular for visa stamping with third-country nationals, we recommend that visa applicants contact the desired U.S. Consular Section well in advance of their planned U.S. visa stamping in order to confirm that the Consular Section can actually accept and accommodate their request.    For example, last summer U.S. Consular Sections in Canada restricted their TCN visa appointment availability due to high demand for U.S. visas from Canadian residents.

U.S. Consulates (and our office) generally recommend that the best place to obtain a U.S. visa stamp is at the U.S. Consulate in the applicant’s home of legal residence.    Applicants who appear at a U.S. Consulate at a third country should understand that in many cases, if their visa application is delayed or denied, they may not be able to travel back to the U.S. until they wait for the resolution of their application,  in many cases requiring them to travel to their home country and reapply.

Finally, TCNs going for U.S. visa stamping to Canada, Mexico or some of the adjacent islands should remember that the Automatic Visa Revalidation program would not allow them to travel back to the U.S. if their U.S. visa stamp application is denied/delayed.


While TCN visa applications in Kingston, Jamaica have not been completely eliminated, the restrictions in effect make it unavailable as a destination Consular Section for many U.S. visa stamp applicants.    As noted above, we recommend third-country nationals who consider going for a U.S. visa stamp application at a country other than their country of legal residence to research and consider their options well in advance of their anticipated visa application date.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.

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US and China Agree to Issue Longer-Term Visas for Visitors and Students

The Department of State announced earlier today that starting November 12, 2014, the U.S. and PR China have agreed to start issuing longer-term visas for visitors and students.     Chinese nationals who qualify for a B-category nonimmigrant visa (NIV) may now be issued multiple-entry visas for up to 10 years for business and travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J-category visas are now eligible for multiple-entry visas valid for up to five years or the length of their program.   This announcement would provide great relief to the increasing number of Chinese visitors and students in the United States who, under the current regime, are issued single-entry and/or one-year visas to the United States.

Fees and Process for Obtaining U.S. Visas Remains Unchanged

The eligibility, process and the fees for obtaining a U.S. visitor or student visa remain unchanged as a result of this announcement.    The basic visa fee remains $160 and includes passport delivery.   More information on the process, steps and fee payment can be obtained at   The changes are expected to be very popular among Chinese nationals and higher visa application load is expected with a possibility of increased visa processing times.    As it is always the case with U.S. visa stamp applications, proper advance planning is strongly recommended.

Longer Visa Validity Does Not Mean Longer Authorized Stay in the United States

It should be noted specifically that because a U.S. visa stamp has longer validity, it does NOT mean that its holder will be allowed to stay in the United States for longer period.

There is an important distinction between a U.S. visa stamp and authorized stay in the U.S.     A visa allows a foreign citizen to travel to a U.S. port of entry where a Customs and Border Protection (CBP) officer will grant admission.   In doing so, the officer will inform the traveler of the permitted length of stay (expiration should be noted in the passport).   The current change in visa validity does NOT change the permitted duration of stay for any visa class.  Remaining in the United States beyond the allowed duration of stay can result in a violation of U.S. immigration laws and may cause ban on entering the United States in the future.


We welcome these rules seeking to make it easier for Chinese nationals to travel to the United States.   The reciprocal rules would also help U.S. passport holders to obtain longer visas to visit China.

We will continue to monitor developments on this topic and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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ESTA Questionnaire for Visa Waiver Program Travelers Expanded

Business or pleasure travelers to the United States from a number of visa waiver program (VWP) are already familiar with the requirements of the Electronic System for Travel Authorization (ESTA) and specifically that the ESTA questionnaire must be completed, paid for and approved before visa waiver program travel to the U.S.      On November 3, 2014, the U.S. Customs and Border Protection (CBP) agency announced that it is expanding the ESTA questionnaire to require additional information from each VWP traveler’s other names/aliases, parents’ names, national ID numbers, contact and employment information and city of birth.

About the Electronic System for Travel Authorization

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.

What New Additional Information Does ESTA Require?

The additional information required as of November 3, 2014 for each ESTA submission is:

  • Other Names or Aliases
  • Other Country of Citizenship.  If yes, passport number on additional citizenship passport
  • City of Birth
  • Home Address
  • Parents’ Names
  • Email Address
  • Telephone Number
  • National Identification Number
  • Current Job Title
  • Current or Previous Employer Name, Address, Telephone Number
  • Emergency Point of Contact Name, Telephone Number, Email Address
  • US Point of Contact Name, Address, Telephone Number

CBP’s Justification for Requiring Additional Information

CBP cites increased security concerns and CBP’s goal to be able to do better background checking to all VWP travelers to the US by requiring the new information.  According to CBP, the new information would allow the government to better track and identify VWP country travelers to the US who may pose threat to US national security.

When a person submits an ESTA application, CBP examines the application by screening the applicant’s data through ATS (to screen for terrorists or threats to aviation and border security) and TECS (for matches to persons identified to be of law enforcement interest). The additional data elements will help resolve potentially inconclusive matches by providing additional data to confirm an applicant’s identity. Inconclusive matches ultimately result in a denial of the ESTA application, which results in an applicant being directed to a U.S. embassy or consulate to apply for a visa.

ESTA Process Should Generally Remain Unchanged

Other than the additional information required by each VWP traveler submitting ESTA application, the process should remain unchanged and it should not, according to CBP, add additional processing times.     Cases which are flagged by ESTA for additional review will indicate to the VWP traveler that he or she must apply for a visa at a US Consulate abroad.   As a result, early planning and ESTA submission, especially with the new additional fields, is recommended.


We are hopeful that the rollout of the additional ESTA required information would not create unintended consequences such as ESTA processing delays.   There have not been major issues reported over the first couple of days since the rollout of this enhanced form but we encourage our readers and clients to reach out to us if they experience ESTA issues or if we can be of any assistance.

We will continue to monitor developments on this topic and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Overview of Reentry Permit Extensions and Validity Terms

Our office serves many first-time and returning reentry permit applicants and one of the most frequently asked questions or concerns related to the ability to extend a reentry permit after its initial term (of often two years) and about the validity of subsequent renewal reentry permit documents.    The good news is that there is no limit on how many times a reentry permit can be renewed but there are rules and restrictions on the validity of reentry permit renewal documents.

Unlimited Reentry Permit Renewals Are Permitted

There is no restriction on how many times a reentry permit can be renewed.    In theory, and subject to renewal term limits and renewal frequencies described below, a green card holder can apply for and obtain an unlimited number of reentry permits, thus extending their stay abroad for a number of years while preserving their green card status.

Even though a green card holder is eligible to apply for a renewal reentry permit for a number of times, each individual application is reviewed separately, on its own merits, and a prior reentry permit approval does not guarantee subsequent reentry permit renewal approvals.     However, as long as the application requirements are met and the application is properly prepared and filed and as long as the applicant submits to the required biometrics, chances of approval of a reentry permit application are good.

Reentry Permit Validity – 1-Year vs. 2-Year Terms

While the reentry permit may be renewed for a number of times, without limit, there are certain limits on the terms of renewal reentry permits.    For most reentry permit holders, their first, second and perhaps even third reentry permits will be valid for two years.   However, subsequent reentry permits may be valid for one year only.    The government has put in place regulations which restrict the validity of a reentry permit depending on how much time the applicant green card holder has spent outside of the US.    The effect of these regulations are to make it harder (and more expensive) for green card holders to remain outside of the US for more than a few years.

Here are the rules.   If a green card holder has spent more than four years total outside of the US since becoming a green card holder (or during the last five years, whichever is less), then the reentry permit will be issued with 1-year validity term.     Otherwise, for folks who have spent outside of the US less than four years, the reentry permit validity term will be the default of two years.

There are some very limited exceptions.  If the green card holder is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit may be issued for two (2) years despite extended periods of absence from the US.

As a result of this rule, and with a little bit of proper application planning, many green card holders are able to get their first two to three reentry permits with a 2-year validity.   Green card holders who wish to reside outside of the US for a number of years can still do so and retain their green cards, but they will need to renew their reentry permits every year, after the first four, and each reentry permit renewal becomes an annual filing expense plus a required trip to the U.S. (or Guam, for some) for biometrics.


Contrary to some Internet myths and stories, there are no limits on how many times a reentry permit can be renewed.   However, there are validity term restrictions on reentry permits after spending four years or more abroad so proper planning for renewals is essential.    For green card holders who do not mind the cost and the inconvenience to apply and travel to the US for biometrics every year, it may be possible to remain abroad for a substantial period of time and still keep one’s green card status.

Our office has developed expertise in handling reentry permit in a variety of situations, including multiple renewals, and we will be happy to analyze a particular situation and provide options.   Please give us some details for a free attorney reentry permit case review and options or feel free to contact us with any other questions or concerns.

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Visa Processing System Experiencing Problems – Global US Visa and Passport Processing Delays Possible

We are getting updates from the U.S. Department of State and from other sources that the global visa processing system used by the Department of State to process U.S. visa applications and passports is experiencing technical problems — as a result, U.S. Consulates around the world are unable, at least temporarily, to complete visa application processing.

Database Glitch Causing Increasing U.S. Visa Processing Backlogs

The database which seems to be causing problems is the State Department’s system of record and is used to approve, record and print visas and other documents to ensure that national security checks are conducted on applicants.

The problems have reportedly started on Saturday and the inability to properly process visas has already created a huge backlog of visa applications waiting to be processed.   We are hearing that there may be as many as 50,000 visa applications being on hold in one country only (and growing), as a result.

Are You Experiencing Delays?  Share Your Experience With Us

Are you experiencing delays with your U.S. visa or passport processing as a result of this?   Are you getting any information from the U.S. Consulate?   Please contact us and share your experience.  You can also tweet us at @cilawgroup.   We are trying to combine information from various parts of the world so that we can share with our contacts in Washington, DC and also to report to our readers.


At this time, it is unclear how long this outage would last.  Hopefully, it is something which can be fixed over the next day or two so that normal operations would continue.   However, we caution that residual delays in U.S. visa processing may still linger for days or weeks, especially considering the growing backlog of U.S. visa cases around the world for each hour the system remains down.   If you are planning to apply for a U.S. visa or a U.S. passport, please ensure you plan early in advance and take into consideration that there may be delays in the process.

We will be providing updates on this outage as we have more information.   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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Visa Stamp in Canada Alert – TCN Processing Limited Over the Summer

The Department of State (DOS) has just confirmed that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts (U.S. Consulates) in Canada are extremely limited in their ability to accept TCN cases during the peak demand period of June, July, and August.

TCN refers to “third-country nationals” or non-Canadians who seek to apply for a U.S. visa stamp at a U.S. Consulate in Canada.   Normally, U.S. Consulates prefer for a national of a particular country to appear for a visa stamp at the U.S. Consulate in their own country or at the Consulate serving their country.   When a foreign national appears for a visa stamp at a U.S. Consulate in a third country, where such practice is accepted, the applicant is referred to as a “third-country national.”

According to the Department of State, U.S. Consulates in Canada encourage such TCN applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Canadian posts offer increased appointment availability for TCNs during non-peak processing times, such as October and November, and January through May.   Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting

While it is important to stress that visa interviews and appointments by third-country nationals already scheduled at a U.S. Consulate in Canada will be honored, our office would like to stress proper planning for any international travels for those foreign nationals who are in the U.S. but who would need to obtain a U.S. visa stamp before their return to the U.S.

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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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.


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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Foreign National in the U.S.: What Documents Should I Carry With Me?

Our foreign national clients and readers often ask us about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel.     We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States.     This article seeks to explain the law and provide answers to this and related questions.

The LawRegistration and Carrying of Registration Documents

Section 262 of the Immigration and Nationality Act (INA) dictates that almost all foreign nationals in the U.S. must be “registered” with the proper government agency.   For example, registration happens when someone is admitted into the U.S. at the border or if someone’s status in the U.S. is extended or changed.     The registration is a mechanical process, set in the law and in existence for many years, and has been well established and are fairly transparent – many foreign nationals do not even realize (nor do they often need to) that their status in the U.S. has been “registered” with the  government.    After the registration takes place, Section 264(d) requires the U.S. government to provide a “registration certificate” to the foreign national.

This is where the requirement to carry registration evidence comes in.   Section 264(e) of INA requires every individual over the age of 18 to carry their “registration” documents with them at all times.   Specifically, section 264(e) reads:

e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) [where the government issues a "registration certificate" after each foreign national's registration]. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Many of our clients and readers are surprised to learn about this requirement – and the reason is simply that the Department of Homeland Security (DHS) has generally not enforced the “at all times” language.    Often the requirement has been satisfied by an expectation (and ability) that the foreign national would be able to produce the registration document within certain period of time — perhaps by getting them from home or from a safe deposit box.

What Exactly Should I Carry:  What is the Registration Certificate?

As explained above, the law requires every foreign national to carry their “registration certificate” so the natural question is – what is this document?     The list is described in the federal regulations under 8 CFR. § 264.1(b).   Notable registration documents are the Form I-94 card, I-551 (green card), I-766 (EAD card).

For many people in the U.S., their registration certificate would be the Form I-94 card which is issued either at the port of entry (see below) or upon approval of someone’s extension or change of status (usually attached to the bottom of the Form I-797 approval notice).

It is important to note that effective May 2013, Customs and Border Protection (CBP) stopped issuing paper Form I-94 cards at the port of entry for most foreign nationals (exceptions are certain land entry points where paper is still used).   Under the new and current procedure (more details), most foreign nationals who are admitted into the U.S. have their passport stamped with a notation of the status type and the status expiration date.    To obtain their Form I-94 card (the “registration certificate”), a foreign national must take an extra step by going to the CBP I-94 website, completing the requested information and printing their electronic Form I-94 on paper.

In addition to the Form I-94 card (the registration certificate), we recommend foreign nationals carry with them a photo ID and, if applicable,  their visa document (such as Form I-20, Form DS-2019, or I-797 approval notice).

Enforcement and Applicability of the Requirement to Carry Registration Documents

As mentioned above, this requirement is very old and has been on the books for many years.   And yet, many people do not know about it and have never encountered a situation where they had to present their immigration registration document to an officer.     In certain parts of the U.S., it is more common for officials to ask for these documents.   For example, it is significantly more likely for an official to ask for the immigration registration documents in southern California or the southern border states (Arizona, Texas) compared to the Midwest or Northeast states.

Although domestic transportation lines and law enforcement officers do not often ask for these documents, in many cases they have the right to do so.   And if asked, a foreign national is supposed to have those documents with them.   We recommend foreign nationals to consider the possibility of requests for their  registration documents at transportation terminals or elsewhere even if they will never leave the territory of the United States.     Again, for foreign nationals the most common item of identification is the passport and the most common forms of evidence of lawful status in the U.S. are the I-94 card accompanied by the appropriate visa document (I-20, DS-2019, I-797, etc.).


We hope that this article alert would be helpful to many of our clients and readers to understand the requirements to carry immigration documents even while they are within the U.S. and even when they do not travel out of town.    We would love to hear stories or reports on officials requesting registration documents from our clients and readers.   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.      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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Government Shutdown and Immigration: (How) Will It Affect Me? (September 2013 Edition)

While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st are increasing.   We would like to provide some information as to how a possible government 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 October 1 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.  It is also helpful to look at the preparations for the averted April 2011 government shutdown.


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 November 2013 Visa Bulletin, which is expected to be issued in early October by the Department of State, will be affected.   Many of our readers are eagerly expecting each Visa Bulletin.

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.   Shutdown in PERM processing would further cause PERM case processing delays, on top of the already significant PERM processing times.


While the full extent of the federal government shutdown (if it were to happen over the next couple of weeks) 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 urge clients who have time-sensitive cases which may be affected by a possible 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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