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.

As a result, there are a number of options for Japanese nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Japanese nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Japanese students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Japanese nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Japanese nationals who are impacted by the earthquake and the tsunami.   Our office stands ready to assist affected Japanese nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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.

The new combined EAD/AP card (I-766) looks like this sample image and has an annotation at the bottom reading “SERVES AS I-512 ADVANCE PAROLE.”    The new card would replace the paper-based (and often easy to damage) Form I-512 Advance Parole documents which one had to obtain under the previous guidance.

Who Would be Eligible to Obtain the New EAD/AP Card?

Not all I-485 adjustment of status applicants who also wish to obtain an advance parole would receive the new card.  According to USCIS, an applicant may be issued this card when he or she applies a I-765, Application for Employment Authorization and I-131, Application for Travel Travel Document concurrently with or after filing Form I-485, Application to Adjust Status.   Separate EAD and AP documents will still be issued for all other applicants.

Procedures for Using the New EAD/AP Card

The new EAD/AP card will continue to be an accepted employment authorization document as a List A document when completing Form I-9.  Holders of the new card can also use it to return to the U.S. as parolees after a short travel abroad without abandoning the pending I-485 adjustment application.  The holder of the EAD/AP card must present it at the port of entry to request that he or she be admitted as parolee.   As a result, it is important that holders of this card continue to follow closely its expiration and prepare timely renewal applications (at least 90 days in advance).

Our practice includes handling EAD and AP applications for I-485 adjustment of status applicants so please do not hesitate to contact us if our office can be of any help or if you have any questions.

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.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

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.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

The NSC processing of expedited processing reentry permit biometrics allowed us to have the required biometrics scheduled often within 7-10 days after filing of the I-131 reentry permit application.  This way we were able to accommodate clients who had a very limited period of stay in the U.S.

The New I-131 Reentry Permit Acceptance Procedure Delays Biometrics

Under the new procedure, all I-131 reentry permit applications are now filed at a USCIS lockbox.  The purpose of the lockbox is to accept the application and do initial processing such as issuing a receipt.  Following the initial processing, the case is transferred to the service center tasked with processing the reentry permits – NSC.

Only after the lockbox center forwards the I-131 reentry application to NSC the expedited processing biometrics appointment can be issed.  This adds an additional week or so of processing and scheduling a biometrics notice.

In light of these changes, we have had to advise our I-131 reentry permit expedited processing clients to adjust their travel accordingly and to plan on being in the U.S. 3-4 weeks (up from 2-3 weeks) to be able to accommodate their required biometrics appointment while in the U.S.

Unfortunately, USCIS has indicated that they intend to use the lockbox for the future and we do not foresee any improvement in the processing times or the efficiency of the expedited reentry permit application procedure.  USCIS has indicated that they are exploring ways to be able to process biometrics abroad; however, as of today, the biometrics can be done only in the U.S.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce.  There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.   Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.   Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green”  in color and design patterns.   Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card?  All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned.  USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card?  The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card?  A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card.  If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90.  Our office can help you with the green card renewal or replacement application – please contact us.

Visa Waiver Program (VWP) Travelers

Overstay of the period noted on the I-94W card may make one a VWP traveler ineligible for future travel to the U.S. under VWP and require visa application for future travel.   For those in the U.S. under the VWP, contact the CBP airport office or the nearest U.S. Citizenship and Immigration Services (USCIS) office. There will be a few travelers with no I-94W under the pilot paperless I-94W project.   There is a passenger service manager list for international airports.

Per relevant regulations, 8 CFR § 217.3:

Satisfactory departure: If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Travelers on Nonimmigrant Visas

For those in the U.S. under a nonimmigrant visa, CBP directs them to apply for an extension of nonimmigrant status. Even though an I-539 extension is normally recommended to be filed 45 days before expiration, CBP notes that some arrangement regarding this point has been made. Of course, the I-539 extension filing fee is $300. At present, it is not clear whether the satisfactory departure option is available for VWP or nonimmigrant visa holders unable to depart the U.S. due to the effects of the volcano.

In a USCIS alert regarding the situation, travelers on nonimmigrant visas are advised to to either (1) visit the local USCIS office and bring passport, cancelled flight itinerary and I-94 card or (2) apply for an extension of status as soon as possible by filing Form I-539.

However, many foreign nationals who are not eligible to extend their H-1B term past the 6th year based on pending PERM labor certification or approved I-140 immigrant petition are limited from being employed in the U.S. pursuant to H-1B status unless they spent at least one continuous year abroad before they are counted under the H-1B cap again and given another 6-year H-1B term.

The relevant rule is 8 CFR §214.2(h)(13)(i)(B) which states:

When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien’s employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.

Recently, the USCIS has confirmed this but has reiterated the point that any stay in the U.S. which is not a brief business or pleasure trip will not only not count towards meeting the one-year foreign residency requirement, but would also reset the one-year clock.

The question then becomes what is a brief business or pleasure trip to the U.S.  Unfortunately, no definition has been provided by USCIS, but generally a common-sense approach may be helpful.  If the trip to the U.S. contemplates employment, longer stay or is generally one which would require a visa other than business or tourist (B1/B2) visa, then it may be considered “not brief trip” and would reset the clock.   Of course, each trip would vary in its duration and circumstances, so we are happy to help our clients and readers when they are unsure whether their U.S. trip may reset the one-year foreign residency clock for new 6-year H-1B term purposes.

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.

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.

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.

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.

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.

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.

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.

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.

What is the Importance of Unlawful Presence?

Secton 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (the “Act”) renders inadmissible aliens who were unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the U.S. prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such depature from the U.S.  Similarly, Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible aliens who were unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the alien’s departure or removal.

These are significant bars to entry to the U.S. and it is important to understand what is unlawful presence and the circumstances under which unlawful  presence starts to accrue.  Under the Act, unlawful presence can accrue during any period in which the alien is present in the United States without having been admitted, paroled or after the expiration of the period of stay authorized by the Secretary of Homeland Security.

Important Distinction between Unlawful Status and Unlawful Presence

It is important to draw one very important distinction which, unfortunately, creates confusion (and often, unnecessary worry) among foreign nationals.   Unlawful status and unlawful presence are related, yet separate concept (one must be in present in an unlawful status in order to accrue unlawful presence, but being in unlawful status alone does not necessarily mean that the 3/10 year bans are triggered).

Unlawful presence is defined in Section 212(a)(9)(B)(ii) of the Act to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without  being admitted or paroled.   On the other hand, unlawful status may mean a violation of a previously valid status.  For example, a F-1 student  who drops out of school is said to be in unlawful status.  However, the alien will not start accruing unlawful presence until immigration judge or USCIS makes a determination that the alien was out of status.

Specific Guidance on When Unlawful Presence Starts

The Memorandum describes some specific situations and provides some guidance on when exactly does the period of unlawful presence in the U.S. start.

For Nonimmigrants Admitted until a Specific Date.  Generally the unlawful presence starts on the day following the date the authorized period of admission expires, as noted on the Form I-94, Arrival/Departure Record.  If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first.  Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.   Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Nonimmigrants Admitted for Duration of Status (D/S).  If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.   Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.  Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Conclusion

Hopefully the Memorandum and our short summary of a few important points would provide some clarity and understanding on the confusion unlawful status and unlawful presence concepts.  It is important to underscore again that falling into unlawful status (as a result of layoff or dropping out of school, for example) does not necessarily mean that the period of unlawful presence starts which (after 180 days) can subject the person to the 3-year ban.

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).

We have received many re-entry permits inquiries by permanent legal residents who are about to accept a job opportunity abroad and are interested in obtaining their re-entry permit using the expedited procedure.  In the recent guidance, NSC has confirmed that working and residing overseas is sufficient reason for requesting an expedited biometric processing.  We have been successful in obtaining a number of expedited processing re-entry permit applications and the NSC guidance confirms our experience.

There are approximately 200 expedite requests per day received by USCIS and most of the biometric appointments are scheduled within a few days to a week after receipt of the application.  For comparison, regular processing re-entry permits have biometric appointments scheduled  within 4 to 6 weeks.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

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.

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

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.

Passports Issued on or After October 26, 2006.  Any passport issued by a VWP country on or after October 26, 2006, must be an e-Passport which has an integrated computer chip capable of storing biographic information from the passport’s information page as well as certain biometric information.

Passports Issued between October 26, 2005 and October 25, 2006.  Older passports, issued between October 26, 2005, and October 25, 2006, can still travel to the U.S. without a visa, providing your passport has a digital photograph printed on the data page.

Passports Issued before October 26, 2005.  Passports issued before October 26, 2005, can still travel to the U.S. without a visa under VWP if the passport has a machine-readable zone.

Visa Required for All Other Passports.  If the VWP passport does not have any of the requirements described above, the VWP country national would have to obtain a U.S. visa in order to enter the U.S.

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 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.

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.

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.

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.

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.