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.

Procedure and Process

Notification of AC21 Change of Employer
I-485 applicants who wish to change employer and retain their adjustment process pursuant to AC21 are advised to follow the following steps:

1. Identify only one applicant in a single e-mail. E -mails must pertain to applicants whose I-485s have been pending for 180 or more days and who are eligible for AC21 porting.
2. Send an email to: EBUPDATE.Tsc@dhs.gov.
3. On the subject line,  write “EB I-485/AC21.” (Example: EB I-485/AC21)
4. In the text of the email, provide: A-number, old employer’s name and new employer’s name.  Attach a copy of the new employer’s letter of employment. The letter must identify the following information: the new employer, the letter’s author and his/her job title, the applicant’s new job title, start date of new employment, hours per week, salary, and specific description of the duties to be performed.
5. If the applicant has more than one A-number, they should be typed on the same line separated by a “/”. (Example: All 1222333 I A444555666). If there are multiple family members, they should be typed  all on the same line separated by commas. (Example: AIII222333, A222333444, A444555666). You should also indicate which of the A-numbers is that of the principal I-485 applicant / I I-140 beneficiary.

Notification When an Applicant Has Multiple I-140s With Available Priority Dates

Notification When Applicant is Eligible for Cross-Country Chargeability

Applicants who are eligible to obtain chargeability under a different country should follow the following procedure:

1. As with the categories described above,  identify only one applicant in a single e-mail. E-mails should pertain to applicants whose I-485s are currently eligible for processing because the applicant is entitled to receive a cross-charged priority date from a qualifying family member under Section 202 of the Immigration and Nationality Act.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line, write “I-485/ CC”
4. In the text of the email,  provide A-numbers, including the A-number of the I-485 applicant who will acquire the current priority date from the qualifying family member, and the country of cross chargeability. Also include the A-number of the family member who will confer the current priority date.  If the applicant who is to receive the cross-charged priority date has more than one A-number, or if there are multiple family members,  the instructions described above under AC 21 portability apply.

Notification of Case in Need of Transfer

Applicants can also notify TSC of cases which are in need of transfer.  The procedure is as follows:

1. Identify only one applicant in a single e-mail. E-mails must pertain to applicants whose I-485s are eligible for processing because the priority date of another petition relating to the I-485 applicant (such as an I-130) has a visa available.
2. Send an email to: EBUPDATE.Tsc@dhs.gov
3. On the subject line,  write “Transfer”.
4. In the text of the email, provide A-numbers or receipt numbers and the office to which the I-485 should be transferred. If the applicant has more than one A-number, or if there are multiple family members please follow the instructions described above under the AC 21 portability instructions.

Conclusion
TSC’s pilot notification program is a great idea; however, its success will depend on how well TSC will respond to legitimate notifications send to them via the new email address and how well TSC will advise applicants who use the notification tool of the status and progress of their request.  We will continue monitoring this pilot program and using it with selected clients who can benefit from it and will provide further updates on the pilot program’s usefulness.

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.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

First, U.S. consular posts in Canada are increasingly refusing to issue visas under INA 221(g) in cases where the H-1B visa applicant has a foreign (non-U.S.) degree and who does not have a previous H-1B stamp issued by the U.S. consulate in their home country.  This practice is dictated mainly by a concern about increasing fraud with foreign diplomas.

Second, U.S. consulates in Canada generally discourage TCNs from applying at Canadian U.S. consular posts if they last entered the U.S. in visitor status.

While these announcements are not change in policy, it is important that we share them with our clients and readers as we encounter, on a daily basis, a number of inquiries about the feasibility of obtaining a U.S. visa stamp in Canada.  These notes should certainly provide examples of cases where a visa application should not be submitted in Canada.  The notes do not seem to include Mexico, although we suspect that the U.S. consulates in Mexico may trend similarly to their counterparts in Canada.

Processing Times

TSC has confirmed that the pending application reports posted on the USCIS status check website are generally correct.  I-485s filed prior to March 26, 2009 that are still pending should be in for processing and for those I-485s, a streamline request is appropriate.  Similarly, TSC has completed review of derivative I-485 that have become separated from the primary I-485, so a streamline request may be appropriate in such cases as well.

AC21 Porting Notifications

TSC is expecting guidance from USCIS headquarters regarding cases in which the I-485 has been preadjudicated and waiting visa number but where a request for recent job verification may be necessary.  Currently, there are a high number of preadjudicated I-485 waiting for a visa number; however, many of these I-485 applicants have changed jobs pursuant to the AC21 portability provisions.

It is currently unclear whether TSC will issue an RFE requesting a more recent employment verification letter for these preadjudicated cases.  While TSC has indicated a preference to receive AC21 notifications generally, such notifications are not required.  Pending USCIS headquarters guidance, we still recommend that AC21 change of employer notifications be filed to “preemt” a possible RFE regarding employment verification even for preadjudicated I-485 cases.

Transfers from TSC to National Benefits Center (NBC)

TSC has confirmed that generally, the reason for transferring unadjudicated cases to NBC is when a I-485 requries an interview.  TSC transfers the “A file” to NBC which will then send it to a local office for interview.   Generally, TSC does not transfer cases to other centers for workload reasons.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.

It is helpful to describe the criteria which USCIS (and our office, in preparing such requests) uses in establishing whether a particular case warrants expedited processing:

• Severe financial loss to company or individual;
• Extreme emergent situation;
• Humanitarian situation;
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government);
• USCIS error; and
• Compelling interest of USCIS.

Expedited processing can be requested for both an application which is about to be filed (by indicating clearly EXPEDITED PROCESSING on the cover) or for a pending application (by contacting the National Customer Service Center at 1-800-375-5283 or by sending a fax to the applicable Service Center).

Additionally, our office routinely handles expedited processing requests and we are happy to discuss your case and whether it can be expedited and, if so, whether we can help you.  Please contact us for more information.

Overall Pending Immigrant Visa

Family-based.  As of November 1, 2009, there are 245,516 family-based first preference category applications pending; 842,762 second category (324,864 in 2A and 517,898 in 2B sub-category); 553,280 in third category; and 1,727,897 in fourth category.  The total family-based NVC pending cases are 3,369,455.

Employment-based.   As of November 1, 2009, there are 3,601 employment-based first preference category applications pending; 6,295 second category; 119,759 in third category (103,448 in skilled workers and 16,311 in other workers sub-category); 529 in fourth category; and 325 in fifth category.  The total employment-based NVC pending cases are 130,509.

Distribution by Country

Thirteen countries represent 79% of the total NVC pending immigrant petitions.  Mexico is number one with 1,178,761 cases (most of which are family-based);  Philippines is second with 482,694, China-mainland is third with 197,559, while India is fourth with 194,954.

Please see the full report for more detailed statistics.  It is important to note that the annual FY-2010 maximum of family-based immigrant visas issued for any one country is 15,820.  The maximum employment-based immigrant visas issued for any country is 10,440.

About Section 221(g)

Section 221(g) of the Immigration and Nationality Act (INA)  provides for temporary refusal of visa when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional “security clearance” is appropriate and needed.  Consular officers mainly use 221(g) as a way of giving the visa applicant another opportunity to supplement their applications in order to address concerns or deficiencies in the initial application.   Once the deficiency is addressed, the 221(g) refusal is “overcome” and the visa may be issued.

Reasons for 221(g) Refusals

There are several reasons for issuing a 221(g) refusal.  Among the most common are:

• The applicant is asked to provide additional supporting documents, such as proof of employment.
• The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion.   This is one of the most common reasons for issuing 221(g) to applicants in India, China and elsewhere where the applicants are told that their application requires “administrative processing.”
• The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the grounds of inadmissibility.
• There are no empty visa pages in the applicant’s passport, or the application photo does not meet the requirements.
• The applicant’s petition approval is not yet listed in PIMS.

Section 221(g) Refusals Are Very Common

The Department of State has acknowledged that 221(g) refusals happen too often and may be subject to overuse.  According to the Visa Office, in fiscal year 2008,  there were 589,418 nonimmigrant visa refusals under 221(g).  Of those, 510,549 were successfully overcome and visas issued – a success rate of 87%.

Section 221(g) Impact on Future Applications

Since Section 221(g) is technically a refusal, our office often is asked whether a 221(g) should be disclosed on future visa applications, or, in the case of Visa Waiver Program travelers, on their electronic registration forms.

The answer is that 221(g) is a refusal and the applicant, in a subsequent visa application, must answer “YES” to the question “Have you ever been refused a U.S. visa?” on Form DS-156 or DS-160.   This applies even if the 221(g) refusal is based on something as innocent as lack of information in the PIMS database.   Of course, after disclosing YES, on this question in a subsequent visa application, the applicant should be prepared to explain the circumstances of the 221(g) refusal.

Similarly, Visa Waiver Program travelers,  must disclose any 221(g) refusals in their ESTA forms.  We wrote about this topic earlier in November 2009.

Help With 221(g) Refusals

Despite the reason of the 221(g) refusal, we urge applicants who are issued a 221(g) to contact an immigration attorney to better understand the reasons for the 221(g) refusal and to evaluate their case for options and alternatives.  Often, we are in a position to explain the deficiency and help an applicant take steps to address it, either by preparing additional documents or by explaining the circumstances directly to the consular officer who issued the 221(g).  Please contact us if you received a 221(g) and need assistance with your application.

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.

For applicants who need to obtain evidence of their permanent residency, the local USCIS offices can issue temporary Form I-551 stamps at an Infopass interview.

Backlog.  The net overall backlog at the end of first quarter of FY2009 was 250,000 cases; reduced to 87,500 cases by the end of the 2nd quarter of FY2009.  NSC expects that by June 2009 there would be no case backlog.  Additionally, the I-140 backlog was 40,000 in October 2008, as of May 2009 it is down to 10,000.

Receipts.  There has been a notable decrease in receipts in new cases.  There were 80,000 issued in October 2008 while there were less than 40,000 receipts issued in January 2009.  There has been a slight increase since January to about 50,000 receipts per month.  Since receipts have decreased, the adjudicators have been able to catch up and even review cases from other centers.  NSC has been reviewing I-130 from the California Service Center and some standalone I-140s from the Texas Service Center to help reduce the national backlog.

Preadjudicating I-485s.  The EB-485 at NSC has been “pre-adjudicating” cases to try and have them done but-for the priority date being current.  This means that it is possible to obtain RFEs or NOIDs on cases which do not have current priority dates.

We have seen USCIS deny change of status to F-1 applications on seemingly due to the lesser-known name of the college.  Similarly, U.S. consulates abroad have been denying F-1 visa applications where the foreign student wishes to study at a lesser-known college.  In a specific response to these situations, the Department of State has issued a note which is aimed to remind consular officers that “attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education.”

What this means is that the F-1 visa or change of status applicant must show an educational plan which may include an ESL or a community college but which must, at some point, indicate that the student would transfer to a four-year college or another more advanced school.  According to the Department of State, “a plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.”

Considering this guidance, it becomes even more important for the F-1 applicant to be able to tell a story and present an educational plan as part of his or her F-1 visa application process.  This educational plan must be as detailed as possible and must present a clear picture of the applicant’s educational goals and where and how they would be achieved.  Please contact us if we can help you prepare your F-1 visa application.

The National Benefits Center (NBC) Liaison Committee has confirmed that a problem with the interface tool for the “Case Status Online” has caused delays in the entry of new receipt numbers into the system and in the updating of status information for filings already in the system. The problem, which is not limited to NBC filings, has been recurring and, unfortunately, USCIS has not provided a time estimate as to when the interface tool will be fixed.

The goals are intended to be met  by the end of Fiscal Year 2009 (FY2009) which ends on September 30, 2009.  There are many goals which are met (indicated in blue on the chart) but there are many goals, in some very popular categories which (in our opinion, which is based on demand and on our experience) may not be met by September 30th.

Below we provide a brief analysis and comments on some of the more popular petition types.

• I-130 family-based immigrant petitions currently take an average of 6.2 months (goal is 5 months) with a backlog of ~60,000 cases;
• I-129 fiancee petitions currently take an average of 6.1 months (goal is 5 months) with a backlog of ~5,000 cases;
• I-131 reentry permit applications currently take an average of 3 months (goal is 3 months) and no backlog;
• N-400 naturalization petitions currently take an average of 8.4 months (goal is 5 months) with a backlog of ~75,000 petitions;
• I-129 temporary worker petitions currently take an average of 2 months (goal is 2 months) and no backlog;
• I-140 employment-based immigrant petitions currently take an average 9 months (goal is 4 months) with a backlog of ~31,000 cases;
• I-539 applications to change status currently take an average of 2.6 months (goal is 2.5) months with a backlog of ~1,000 cases;
• I-485 employment-based adjustment of status applications processing times are not provided (goal is 4 months) but the backlog is a significant ~221,000 cases;
• I-485 family-based adjustment of status applications take an average of 7.3 months (goal is 4 months) with a backlog of ~80,000 cases;
• I-131 advance parole and I-765 EAD applications take an average of 3 months (goal is 3 months); and
• FOIA requests take an average of 20 business days (goal is 20 business days) with a backlog of ~56,000 cases.

We will continue monitoring USCIS’s processing time goals and provide updates on trends.   While we remain skeptical that USCIS will be able to meet these goals by the end of FY2009 on September 30th, we see encouraging signs of improvement in many case categories.

We have been receiving an increasing number of calls from foreign workers who have been or are about to be laid-off from their jobs and we have been advising them on the best options for preserving their visas or immigration process.  Many other immigration attorneys report similar uptick in such inquiries. Newspapers write more and more stories about immigrants losing their jobs and facing difficult challenges to their immigration status in the U.S.

In our experience, the key for foreign nationals employed in the U.S. to being able to survive a layoff is early preparation.  Many visas are restricted to a specific employer but allow for transfer from within the U.S. if the transfer is filed early enough.  Many green card applications can be preserved upon layoff by finding a substitute employer and preparing job transfer documentation.  There are also alternative types of visas which would allow laid-off workers to remain in the U.S. with their families and wait for better employment markets.

If you are concerned about your job or have already been laid-off, please contact us.  Many are afraid to call an immigration attorney until it is too late because they are concerned about cost.  This is why we offer a free initial consultation so that we can hear your case, determine and present your options.

For more information see our previous entry on DV 2010 or visit the DV 2010 website.

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

What may be of the greatest interest are the current average processing time compared to the FY 2008 and FY 2009 goals for the following categories :

• I-140, Immigrant Petition for Worker – current goal:  6 months, FY 2009 goal: 4 months.  Actual average time: 11.8 months.
• I-485, Adjustment of Status- current goal: 6 months, FY 2009 goal: 4 months.  Actual average time: 13.6 months.
• I-131, Reentry Permit – current goal: 3 months, FY 2009 goal: 2.5 months.  Actual average time: 3.9 months.

The USCIS has acknowledged that the goals were set before the new fee rule came into effect during the summer of 2007 and which resulted significant increase in the filings.  However, USCIS has declined to realistically adjust (decrease) the goals for FY 2008 and 2009.  As a result, although we expect that the processing times will improve, the gap between the goals for FY 2009 and the actual processing times will remain significant.

Among some of the other interesting statistics related to student and exchange visitor visas – there was a 40 percent increase in student and exchange visitor visas issued to Chinese nationals over fiscal year 2007, which in itself, was 40 percent higher than fiscal year 2006.   Also, visas issued to nationals from Middle East countries increased by 26 percent in fiscal year 2008 in comparison to fiscal year 2007.

These statistics may suggest a reversal of the downward trend following the events of 9/11.  The student and exchange visitor visa numbers dropped significantly in the years following 9/11, but the trend seems to be correcting itsel and the significant increases seem to suggest that the U.S. still remains a desirable place to study and engage in cultural exchange programs.

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.

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.

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.

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.

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.

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.

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.

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.

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.