Labor Immigration Law

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano announced that DHS will designate Greece as a Visa Waiver Program (VWP) yesterday, March 9, 2010. As a result, Greek nationals will be able to travel visa-free to the United States effective April 10, 2010.

The VWP will enable citizens of Greece to travel to the United States, beginning on April 10, 2010, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 35 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

The American Immigration Lawyers’ Association (AILA) has provided some guidance and information from Customs and Border Protection (CBP) at the Newark, New Jersey airport.

Background

Starting in December of 2009, our office has been receiving alerts from current and prospective clients about a number of incidents where holders of valid H-1B stamps were questioned and, in some cases, offered the opportunity to withdraw their request for admission into the U.S. or be subject to expedited removal proceedings;  in many cases, such H-1B holders were not admitted into the U.S. and sent back to their home country and have had their H-1B visas cancelled.

Due to the lack of information from CBP and the seriousness of the situation, a number of misleading and sometimes false rumors have began circulating among communities of H-1B holders on the Internet.    We hope that this alert will provide helpful information and understanding of what happens at Newarj, NJ airport and what can be done about it.

USCIS/ICE Employer Fraud Investigations Cause Scrutiny of H-1B Employees

CBP has confirmed that at least several of these cases involved companies which were under investigation by Immigration and Customs Enforcement (“ICE”) and/or USCIS for ongoing H-1B program fraud.  CBP noted that they use as much advance information as possible to target specific individuals who warrant additional inspection.  CBP also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations.  CBP stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.  CBP confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

Newark, NJ Airport New Policy to Verify L-1 and H-1B Employees

CBP has also announced that the Newark, New Jersey airport has instituted a new policy which involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

Public Information May be Consulted During or After Inspection

Employers should be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Conclusion: Proper Pre-Travel Preparation is Essential

It should be noted that although the recent news were linked with Newark, New Jersey airport, CBP may expand its policy and enforcement to other airports at any time.  In light of these developments, it becomes increasingly important for holders of H-1B and L-1 visas to prepare well for their return trip into the U.S., regardless of the port of entry they use to enter the U.S.

We advise all of our clients to thoroughly prepare for their trip to the U.S. and their inspection upon application for admission.  H-1B and L-1 visa holders should review all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.  In addition, the H-1B or L-1 employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should ensure that public information, such as websites and/or other materials, may be consulted by CBP agents to determine whether a particular H-1B or L-1 petition is valid.

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. 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.

In a final rule published in the Federal Register on November 2, 2009, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), is amending its regulations to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of communicable disease of public health significance and remove references to “HIV” from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).  While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact. As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

This rule becomes effective on January 4, 2010.

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.

H-1B Duration and Limits

By law, the maximum duration of stay in any H status is six years.  As a result, if a foreign employee held one or more kinds of H status, or held L status, then the total period spent in the U.S. in all of these statuses are added together to determine how much time towards the six-year maximum remains available.

There are some limited exceptions which allows an H-1B worker to extend his or her status past the six-year maximum.   If the foreign worker’s work in the United States is seasonal or intermittent in nature, or if he or she spends six months or less per year in the U.S., then the six year limit does not apply.  More notably for H-1B workers, the foreign worker can apply for one-year incremental extensions of H-1B status if he or she has remained in status and has had a labor certification or I-140 pending for 365 days or more.  Similarly, H-1B status can be extended by three years if the employee has a I-140 approved on his or her behalf.

Recapture of Time Spent Outside

The regulations’ limit on H status to six years refers to time spent in the U.S. on H status.  As a result, time spent outside of the U.S. does not count against the six-year maximum and can be added to the validity of the H-1B petition in a process referred to as “recapture.”

There are many circumstances in which a foreign worker needs to extend his or her H-1B petition past the sixth year validity.  Often such recapture is the only way an H-1B employee can bridge the gap and become entitled to the 1- or 3-year H-1B extensions described above.

Our office handles an increasing number of H-1B recapture of time petitions.  In almost all H-1B recapture cases, the main issue is providing sufficient evidence to show that the H-1B worker was outside of the U.S. between certain dates.

Types of Evidence to Show Time Spent Outside of the U.S.

The Department of Homeland Security has an electronic system for tracking entries and exits of foreign nationals.  Unfortunately, this system is not very reliable and any request for H-1B time recapture should be submitted with clear evidence establishing that the foreign national was outside of the U.S.

The best evidence is copies of I-94 cards and passport entry/exit stamps.  However, not many people remember to make a copy of their I-94 card or passport once they enter the U.S. or when they have to surrender  their passport when obtaining a renewal passport.  We always encourage our clients to make good clear copies of passports, I-94 cards and entry/exit stamps every few months or after international trips.

If I-94 cards and/or border entry/exit stamps are not available, the government can accept any credible documents  showing that the foreign national was abroad.  Such documents can be flight tickets (or paperless ticket confirmations), hotel itineraries, or frequent flier mile statements.

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.

Our firm has developed an unique expertise in processing expedited reentry permit and travel document applications.  Such applications are processed by the Nebraska Service Center (“NSC”) and in our experience, if the expedited processing request is granted, the biometric appointment may be scheduled in as little as 10-14 days.   However, even with these expedited processing timelines, sometimes the biometrics appointments may need to be rescheduled.

NSC has revised the rules for requesting rescheduling of biometrics.  NSC has indicated that they will deny all applications  where the applicant’s biometrics/fingerprinting have not been accomplished within the first 120 days of filing.  Applicants must appear for biometrics by their appointment date or request rescheduling prior to their appointment date.  The request for rescheduling must be accompanied by a reasonable excuse for failure to appear for the routinely scheduled biometrics appointment.

30-Days Permitted.  When making rescheduling requests, it is important to know that the application support centers (“ACS”) cannot reschedule the dates for more than 30 days and are instructed to provide applicants with a reschedule date within the 30-day time frame from the time of the reschedule request.   A rescheduling request seeking appointment for more than 30 days into the future will receive only up to 30 days.

Denials for Failure to Reschedule or Attend Within 120 Days.  Applicants who go overseas after filing the reentry permit/travel document application without completing the biometrics appointment and who do not timely file a request for their biometrics to be rescheduled will likely face a denial.  Also, NSC has advised that applicants should follow-up on their reschedule request to ensure that they are actually rescheduled.   Additionally, NSC has indicated that applicants who ask for rescheduling several times (which is ok) but never complete the biometrics within 120 days of the initial I-131 filing date will face a denial.

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.