Labor Immigration Law

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

The Department of State rule, known as the “automatic revalidation” of visas is a rule which allows holders of almost all classes of U.S. visas to travel to a “contiguous territory” and return to the U.S. without a current valid stamp in the passport.

Persons in F, J, H and O status can travel to Canada or Mexico and return to the U.S. without a valid visa stamp.  Persons in F and J status can, in addition to Mexico and Canada, visit the “adjacent islands” (Caribbean islands except Cuba) and return to the U.S. without a valid visa stamp in their passport.

The automatic revalidation is a slight misnomer because it does not revalidate the visa in the passport in all circumstances.  If the visa stamp in the passport matches the current status in the U.S., then the stamp is considered to be automatically revalidated as of the date of the person’s trip back to the U.S.  If, on the other hand, the person has changed status in the U.S. so that the visa stamp does not match the current status, the visa stamp is considered to be changed to the visa type corresponding to the current status.

There are certain requirements, specified in the Department of State regulations.

• Citizens of countries which are considered sponsors of terrorism are ineligible.
• The time outside the U.S. must not exceed 30 days and must be spent solely in a contiguous territory - Canada, Mexico and, for F/J holders, the Caribbean islands, except Cuba.
• Upon return, the person must present valid and current supporting visa document such as I-20, DS-2019, I-797, etc.
• The passport must be valid and unexpired at the time of the return into the U.S
• The person must not have applied for a U.S. visa while in the contiguous country or adjacent island, as applicable.

The Automatic Visa Revalidation program is a very useful, yet somewhat undiscovered, tool for travel to/from Canada, Mexico and certain Caribbean islands.  Please contact us if you would like to obtain more information about this program.

We have written previously on several occasions about the Electronic System for Travel Authorization (ESTA) which is now live and operational.  Direct link.

The new system opened on August 1 and will be voluntary in nature until January 12, 2009, when it becomes mandatory for all individuals traveling under the visa waiver program (VWP).  We have not yet received a meaningful amount of feedback to judge the system’s usability, operation, and its actual effect on clearing U.S. border control, but we expect to do so over the next few days as ESTA-registered travelers make their entry into the U.S.

If you are a VWP traveler who used ESTA to pre-register your trip to the U.S. and would like to share your opinion of the ESTA system and your entry into the U.S. please let us know.

Update: we have heard that the ESTA system does not permit passports with expiration of more than 10 years to use the system.  We believe this is an oversight by the ESTA developers and will be corrected soon as there are legitimate reasons to have passports with expiration date of more than 10 years in the future.

A very frequent two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer who sponsored their green card is 1) whether they can travel abroad using advance parole (AP) document issued by the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.

Before we go into the technicalities - there is one major rule which warrants repeating - be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

Now, the American Competitiveness in the Twenty-first Century Act (AC21) was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application - including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a letter with USCIS.  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent unon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

The Department of Homeland Security has announced an Interim Final Rule which creates a new online system which is part of the Visa Waiver Program (VWP).  The new online system will require all nationals or citizens of VWP countries who plan to come to the United States under the VWP to register their travel in advance and obtain pre-authorization of their entry into the U.S.    The system will go into effect on August 1, 2008 and will be optional until the rule is published in the Federal Register, which is expected in January 2009.

To apply for authorization to travel to the U.S., VWP travelers will log-in to a web-based system and complete an application providing certain personal and eligibility information which is currently required on the I-94W form filled out by VWP travelers upon entry into the U.S.   The applications may be submitted at any time prior to travel to the United States and DHS encourages travelers to do so as soon as their travel plans are made.  The system will allow modification of travel plans and other information.

Once the application is completed, the information will be compared to various law enforcement databases and an instant response will be provided to the applicant.  The possible responses are: Authorization Approved, Travel Not Authorized, or Authorization Pending.  An Authorization Approved is valid for up to two years or until passport expiration, whichever is earlier, is valid for multiple entries to the U.S., and is not a guarantee for admission to the U.S.

According to DHS, once the program becomes mandatory (expected January 2009), VWP travelers who fail to complete the pre-travel authorization may be denied boarding on the airplane or may be turned at the U.S. port of entry.

The topic of re-entry permits for green card holders seems to resurface every few days.  We have written extensively about the new re-entry permit biometrics and the procedure to request expedited processing.

The main issue is that the new biometrics requirements create a great deal of uncertainty for international travelers who, most often, have planned and booked their trip months or even years in advance.  According to the March 2008 rule, re-entry permits cannot be issued unless the applicant remains in the U.S. and attends a biometric appointment.

Fingerprinting Appointment - Have Us Call USCIS on Your Behalf and Request Expedited Processing

Although, as we wrote recently, there is a procedure for expediting the fingerprinting appointment, such requests are not always honored in a timely manner.  Our law firm now offers a second alternative to have the fingerprinting appointment expedited by USCIS.  If you have a re-entry permit pending with USCIS or if you plan to file one, we can, as an attorney on your behalf, call the USCIS and request that your fingerprinting appointment be expedited.  Having an attorney call the USCIS and explain the situation warranting expedited processing has advantages and recent experience shows that, given the circumstances, can significantly expedite the biometric appointment and the issuance of re-entry permit.

The Department of State has published a final rule which, effectively April 29, 2008, eliminates the paper visa application and requires that all non-immigrant visa applications to be submitted electronically.

Until the new rule went into effect, U.S. consulates required applicants for non-immigrant visas to fill out an electronic application, then print, sign, and bring the paper to the consulate.  The new procedure eliminates the printing and signing.  A non-immigrant visa applicant will have to fill out and submit the application electronically.  The ink signature is replaced by electronic signature where applicants will have to check the box designated as “Sign Application” found within the certification section of the application.

The Department of Homeland Security (DHS) has proposed a new rule which would require airlines and certain ships to collect biometric information from departing non-U.S. citizens. This proposed rule comes to supplement the already established entry biometric procedures. The main difference would be that while the current entry biometrics are taken by the U.S. border agents, the departure biometrics would be taken by the airlines and then transmitted within 24 hours to DHS.

Currently, all airlines are already required to transmit to the DHS biographic information for all passengers prior to their departure from the United States, but just because someone has a ticket does not indicate with a level of certainty that the same person boarded a plane and left the country. Therefore, the new departure biometric system would provide a higher degree of certainty to DHS.

It is DHS’s intention to implement the air and sea biometric exit procedures by January 2009; such timeline would allow the DHS to maintain the Visa Waiver Program and if the new rule is not implemented by June 30, 2009, then DHS may not be able to extend the Visa Waiver Program to new countries.

We wrote recently about the new biometric requirements for I-131 re-entry permits which are required for all green card holders who plan to be outside the U.S. for more than six months and up to two years.

The new procedure went into effect on March 5 and requires all applicants for re-entry permit to submit to biometric (usually fingerprinting) appointment with the USCIS before departing. This new requirement has created some confusion and uncertainty as to how long the biometric processing will take.

We do not have any hard evidence on the timing of the processing, but we recommend that green card holders who plan to leave the U.S. in less than 6 months to use the expedited processing procedure outlined by the USCIS.

Expedited Processing

According to the USCIS, applicants may request an expedited processing of their fingerprinting appointment. To do so, applicants must indicated on the outside of the envelope “EXPEDITE.” Also, it is recommended that two pre-paid express mailers be included so that USCIS can mail the appointment notice and the approved re-entry permit to you via express mail.

Note that failure to submit for fingerprinting appointment will result in the re-entry permit application to be denied.

Although following this procedure does not guarantee priority processing by USCIS, we recommend it to our clients who have plans to travel abroad for extended period and whose travel plans are difficult to change.

In a Memorandum of Understanding, the Department of Homeland Security (DHS) is one step closer to adding Slovakia, Hungary and Lithuania as Visa Waiver Program (VWP) countries.  This comes after DHS signed similar agreements with Estonia and Latvia earlier in March 2008.

Although nationals of these countries cannot yet come to the U.S. without visas, based on these agreements, it is possible that final arrangements will be finalized later in 2008.

The VWP allows a national from one of the current 27 VWP nations to travel to the U.S. for 90 days or less without having to obtain a B-1/B-2 visitor visa. The VWP is limited to nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants.  Currently these countries are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.