Labor Immigration Law

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 Government Accountability Office (GAO) has commented on the program announced recently by USCIS which aims to pre-register all travelers to the U.S. coming from Visa Waiver Program (VWP) countries.  We wrote extensively about the program earlier in June.

Under the new program, which is optional until January, when it becomes mandatory for all of VWP travelers from 27 countries, all travelers to the U.S. must pre-register before traveling to the U.S. through an online system by entering personal information such as passport number, intended dates of travel, etc.  If the system rejects the pre-registration, the traveler must apply for a visa at the U.S. consulate.

The GAO estimates that between 1% and 5% of the travelers could be rejected by the online pre-registration system. This amounts to an estimated 500,000 additional visa applications.  Given the relatively short timeline between announcement (early June 2008), the optional launch date (August 2008)  and the mandatory cut-off date (January 2009), there will  be many travelers who either 1) do not know about the pre-registration until shortly before their travel or 2) do not apply for pre-registration until a point when a rejection from the pre-registration system would make it impracticable to schedule a visa appointment and apply for a U.S. visa.

Homeland Security and the State Department indicate that they are aware of the potential of increased demand in visas early next year, but they say they are prepared to handle it.

We are advising our VWP clients  to apply as early as possible for their pre-screening clearance and be flexible in case they need to schedule a visa appointment and interview.  We also urge our clients to check the Consulate Wait Times website for some idea on how long it takes to schedule and attend a visa interview.

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 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 released a report about the green cards obtained by foreign nationals during 2007. The report provides breakdown by preference category and sub-category, by type of petition, by country of origin, and by U.S. state of residence.

In addition, the report provides an interesting historical distribution analysis of the number of green cards given out since 1900.

The report can be found here and the graphs with the data can be found here.

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.

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.

The USCIS Director Emilio Gonzalez appeared yesterday (01/17/2008) in front of the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and in written testimony he talked about the unprecedented volume of immigration applications filed with his agency.

As the chart illustrates, the number of visa applications following the July 2007 visa fees increased dramatically. This is ironic since the goal behind this July 2007 visa fee increase was to eliminate the processing backlog that plagued many visa applications. According to Gonzales, however, the USCIS did not anticipate the extremely high volume of applications, mainly resulting from the forward movement in many visa priority dates in the July 2007 Visa Bulletin. As a result of this forward movement in the employment-based visa numbers, the USCIS received in the summer months of 2007 approximately 300,000 adjustment of status applications, along with work authorization and travel (advance parole) documents, making a total of approximately 800,000 applications. From June through August 2007 the USCIS received over 3 million applications and petitions of all types (compared with 1.8 million for the same period in 2006).

In Fiscal Year 2007, the agency received almost 1.4 million citizenship applications which is almost twice the number received during the previous fiscal year. Gonzalez stated that his agency has responded to this surge in applications by increasing work hours, adding shifts and hiring contract workers to help meet the demand. However, the backlog remains and is not likely to decrease in the near future. The unfortunate news from Gonzalez is that, “[t]his surge will have a serious impact on application processing times for the next couple of years. As a result, based on our response plan, most customers will wait much longer to have their applications completed.”

The average processing times of citizenship applications are expected to increase from seven to 18 months and adjustment of status applications for family-based immigration applications would increase from six to 12 months. Although the increase in waiting times are expected to be temporary, this is expected to create a number of difficulties and challenges to foreign nationals. Gonzalez said that he expects a return to current processing times (which according to many are too long anyway) is expected in the second half of Fiscal Year 2010). He also said that his agency has taken tremendous efforts to be able to process employment authorization applications within the statutory period of 90 days in light of the large applications backlog.

The U.S. Department of State has announced that effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131 and the fee for a U.S. immigrant visa will increase from $335 to $355.

This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico.

It is important for our readers to note that applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview on or before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference — $31 — before they will be interviewed.