Labor Immigration Law

The Department of State (“DOS”) has announced and launched an online system which allows applicants who have cases pending with DOS to check the status on their applications.    The system works for both Immigrant Visa (IV) and Non-Immigrant Visa (NIV) applications filed/pending at either the National Visa Center (NVC) or at a U.S. Consular Section abroad.

The system asks for a case number (for IV cases) or Application ID/Case Number of consular cases and displays (at this point, fairly limited) information about the designated case.   We hope that DOS would continue expanding the functionality and the availability of information to make it more valuable to applicants who have cases pending with DOS.

It is important to note that the DOS Visa Status Check system is different and separate than the U.S. Citizenship and Immigration Service (USCIS) online status check system which provides information on cases filed with USCIS (such as petitions for an immigration benefit or applications for status).

We welcome the introduction of DOS’s Visa Status Check system but hope that DOS would expand the system to allow more detailed information to be provided in order to make the system really useful and to allow applicants for visas to obtain timely information on the outcome of their case.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

The U.S. Citizenship and Immigration Service (“USCIS”) has announced that effective February 1, 2013, USCIS will begin collecting an additional USCIS Immigrant Fee of $165.00 from foreign nationals seeking admission as permanent residents to the U.S.    The fee will apply to immigrant visa applicants who have received their visa approval from a U.S. Consulate abroad and must be paid directly to the U.S. before the immigrants (and their families) travel to the U.S. for the first time as immigrants.

What is the USCIS Immigrant Fee?

In its press release, USCIS explains that the fee was established by the September 24, 2010 fee change rule (last time the fees were revised in a substantial manner) and will is being introduced now after collaboration between USCIS and the Department of State (“DOS”) on how to best collect the fee without disrupting the existing procedures.  The fee is imposed to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.    See Federal Register notice.

It is important to understand that this fee is in addition to the fees already collected by USCIS and DOS (via the National Visa Center).

How Should the New Fee be Paid?

The new fee will have to be paid online through USCIS website after immigrant visa applicants receive their visa package from DOS (usually the U.S. Consulate) and before they depart to the U.S.   DOS will be providing such applicants with specific information on how to submit payment when they attend their consular interview.  Acceptable methods of payment would be checking account information or debit/credit card, drawn on U.S. funds.

Who is Affected by the New Fee?

All immigrant visa applicants who process their immigrant visas through a U.S. Consulate abroad (including Canada and Mexico) will be required to pay the new fee, starting February 1, 2013.   USCIS processes approximately 36,000 immigrant visa packages (green card “activations”) each month.  Please note that permanent residency applicants who process their green cards from within the U.S. will not have to pay the new fee — for example, I-485 applicants to adjust status from within the U.S. will not have to pay the fee.   Also, prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

What Happens If the Fee is Not Paid?

The applicant will not receive a green card until the required USCIS Immigrant fee is paid.    However, failure to pay does not affect the lawful status of the applicant.   While the applicant can use their Customs and Border Protection (CBP) Form I-94, Arrival and Departure Record, for one year to document they are a lawful permanent resident, once that I-94 stamp expires, the applicant will need to possess a green card as evidence of their lawful permanent resident status.

Conclusion

We are hopeful that USCIS and DOS will establish a clear process to inform applicants, especially those who are currently undergoing their immigrant process, of the new requirement to pay the fee before the green card is produced.   Our office will continue to monitor this new fee and related procedures and provide updates.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer.    Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.

Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.

About the Interview Waiver Program

The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step.    According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.

Another reason behind this move is also the increasing demand in U.S. visas in India.    In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year.   At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India.   In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.

Interview Waiver Program Eligibility Requirements

Under the expanded program, the following types of visas are eligible for the interview waiver program:

• Business/Tourism (B1 and/or B2);
• Students (F-1) returning to attend the same school and same program;
• Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
• Dependent (J2, H4, L2);
• Transit (C) and/or Crew Member (D) – including C1/D;
• Children applying before their 14th birthday traveling on any visa class;
• Applicants applying on or after their 80th birthday traveling on any visa class.

There are additional requirements, all spelled out at the www.ustraveldocs.com website.  Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required);  (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).

Conclusion

We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster.    It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.

As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type.  As the U.S. consulates in India are implementing the new application processes, we recommend that you stay flexible, and build in extra lead time to accommodate travel itineraries.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

The United States Embassy in India announced modifications to the U.S. visa application procedures effective September 26, 2012.    The U.S. Embassy is introducing a new process to be followed by all U.S. visa applicants; these include H-1B and L-1 visa applicants as well as individuals applying for other type of visa for entry to the United States.

The New Visa Processing System

The new visa processing system will utilize a new website at www.ustraveldocs.com/in to further standardize procedures and to simplify fee payment and appointment scheduling.  Through the new website, all visa applicants will be able to fill out the necessary application forms, find out what documents are required, pay visa application fees, schedule an appointment for biometrics collection, and schedule an interview at the appropriate U.S. Embassy or Consulate.

For the first time, the new system will also allow the applicants to schedule their appointments online or by phone.  Visa applicants will be able to have their questions answered via telephone, email, or online chat.  See the phone numbers and hours of operations.  In addition, visa applicants will be able to pay application fees via Electronic Fund Transfer (EFT) or via mobile phone.   Applicants will also be able to pay in cash at more than 1,800 Axis bank branches.

Two Appointments Necessary

One important change is that under the new system, applicants will have to make two appointments.  Prior to their visa interviews, applicants will have to visit an Offsite Facilitation Center (OFC) to submit their fingerprints and a photo.   Located at different locations from the Embassy and Consulates in Delhi, Chennai, Hyderabad, Kolkata, and Mumbai, the OFCs will reduce overcrowding at U.S. consular facilities and speed applicant processing.   Most applicants will need to visit an OFC only once.

Visa applicants who plan to apply for a U.S. visa before September 26, 2012, should follow the established process.

Conclusion

We welcome the changes the U.S. Embassy in India is implementing in hope that it would provide clearer process, faster turnaround time and fair adjudication.   Our office supports a number of clients in their visa stamp applications and we are hopeful that the changes are positive.

As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type.  As the U.S. consulates in India are implementing the new application processes, we recommends that you stay flexible, and build in extra lead time to accommodate travel itineraries.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.   If our office can be of any help, please feel free to contact us.

Effective April 13, 2012, the Department of State is changing the visa processing fees.   Some of the fees will increase, while some will decrease.  For example, the fees for most nonimmigrant visa applications and Border Crossing Cards will increase.  On the other hand, all immigrant visa processing fees will decrease (some by a substantial amount).

Nonimmigrant Visas — Fees Increase

The Department of State is required to recover, as must as possible, the cost of processing a visa application and a stamp through the collection of application fees.  According to the Department of State, for a number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas. As a result, the nonimmigrant visa fee increase will support the addition and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand.

Although most categories of nonimmigrant visa processing fees will increase, the fee for E visas (treaty-traders and treaty-investors) and K visas (for fiancé(e)s of U.S. citizens) will decrease.

Immigrant Visas – Fees Decrease

Because of a reallocation of costs associated with immigrant visas, all categories of immigrant visa processing fees will decrease as shown below.  Some of the fee decreases are fairly significant.

Conclusion

We welcome the Department of State’s efforts to make its services more affordable and for its fees to reflect the actual cost of services provided.   It should be noted that it has been thought that some of the weaker demand in certain immigration visa categories, during the past few years, has been thought to be due to the high fees.    By lowering the immigrant visa fees, the Department of State may be addressing concerns that some of its services are pricing some applicants out.

Among increased scrutiny and often long waiting period to obtain an H-1B (and sometimes even H-4 for their dependents) visa stamp, a number of US-based IT consulting employees are understandably nervous about traveling abroad and attending the H-1B visa stamp interview.

Our office handles a substantial number of such H-1B petitions and H-1B visa stamp applications and while we can confirm that a well-prepared H-1B stamping application has a very good chance of success, nonetheless, the scrutiny and level of review/delay has increased.

US Consulate in Hyderabad, India Introduces Attestation Document for H-1B Workers

We have learned that the US Consulate in Hyderabad has started requiring certain H-1B applicants (most likely who would be working for IT consulting companies) to sign a notarized statement attesting to a number of facts in relation to their third-party client placement and employment.     See a real (but redacted) attestation document.

H-1B Applicants in Hyderabad Must Attest to the Terms of Their H-1B Employment

The attestation seems to require the H-1B worker to provide or confirm (under oath and under penalty of permanent bar on admission to the United States) a number of facts relating to the H-1B employment.    First, the H-1B worker must confirm that he or she has read the Wilberforce pamphlet which has been provided to them by the Consulate.   The Wilberforce pamphlet is a document which is usually given out by U.S. Consulates to certain visa applicants informing them of their rights under the human trafficking and labor laws in the United States.

In addition, the H-1B workers must attest to key facts describing the employment – including name of end client, identities and contact information of supervisors, terms of employment and other facts describing the employer-employee relationship between the sponsor employer and the H-1B worker.

Importantly, the H-1B worker submits the statement under oath and subject to a permanent ban on entering the U.S. for providing false information.   Since the information required in the attestation often comes from the H-1B sponsor employer, the fact that the H-1B worker has to attest to facts to which he/she may not have direct knowledge should cause an H-1B worker to pause and ensure that all information is correct before signing his or her name.

Conclusion

It seems that the H-1B worker attestation introduced by the US Consulate in Hyderabad is a new approach in the H-1B visa stamping procedure — at least for Hyderabad.   We do not have direct reports of this kind of attestation being used by other Consulates; however, it is possible the use may spread.   We hope that this kind of attestation is limited only to cases in which the employment terms and the employer-employee relationship is not amply documented.   When the H-1B sponsor is willing and able to document amply the facts and the terms of the H-1B employment at a third-party client site, this attestation should not be needed.

Have you received or have been asked to sign similar attestation?   Please let us know.

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

The Department of State has confirmed that as of January 1, 2012, the U.S. Consulate in Chennai, India will no longer accept and process immigrant visa (IV, or green card) applications.    The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for immigrant visas.

The change does not affect the substantive rules for qualifying for an immigrant visa or the underlying immigrant petitions, such as I-140 or I-130.     Applicants currently in the process of petitioning for an immigrant visa at Chennai may contact ChennaiIVU@state.gov for clarification on their status.

The U.S. Department of State has announced that all U.S. embassies and consulates will expedite the processing of F-1 student visa stamp applications to ensure that qualified foreign students are able to begin their studies on time.   According to the Department of State, the maximum wait for a student visa appointment (for all posts) is fewer than 15 days.  Foreign students can apply for their visas up to 120 days before their academic programs begin.

F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.

We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days.   Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S.     We routinely file a number of such applications; however, this approach is not always perfect for everybody.

Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status).   Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.

By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.

Conclusion

As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad.    This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.

Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.

The Department of State (DOS) has announced that effective December 1, 2011, the U.S. Consulate in Chennai will become the only acceptance center in India for all applications for intra-company transfers under the blanket L category.

The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.  Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

The Department of State has announced that as of August 26, 2011, the U.S. Consulate in Mumbai would resume processing of H and L visa stamp applications.   The earliest appointments available were for September 6, 2011 and as of today, the Consulate is in normal processing mode.

Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure.   We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.

Please see the Mumbai Consulate page for more information and details on scheduling an appointment.   Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.