Hunton Immigration and Nationality Law Blog

ICE Says Electronic I-9 Programs Are Not Allowed To Pre-Populate Section 1

Hunton & Williams LLP — Tue, 07 May 2013 07:47:29 -0500

Last month, the Homeland Security Investigation Worksite Enforcement Unit of Immigration & Customs Enforcement (ICE) announced a significant change in policy regarding use of electronic I-9 software.

Many such systems integrate data from other HR databases in order to prepopulate information on Section 1 of Form I-9, the section employees fill out during the employment eligibility verification process.

In an April 11, 2013, meeting with the Verification and Documentation Liaison Committee of the American Immigration Lawyers Association (AILA), ICE has now confirmed its position that this practice is impermissible, even if the preparer/translator section of Form I-9 is completed, and even though the employee provided the prepopulated information in the first place. ICE also confirmed that the pre-population prohibition applies to both existing and future I-9s.

CBP To Eliminate Paper I-94s by May 21, 2013

Hunton & Williams LLP — Wed, 01 May 2013 11:32:39 -0500

On April 30, US Customs & Border Protection began a phased elimination of the paper I-94 Admission/Departure Record that visitors to the United States have become so familiar with.

By May 5, CBP will no longer issue paper I-94s at airports in Charlotte, Orlando, Las Vegas, Chicago (O’Hare), Miami, and Houston (IAH). By May 21, I-94s at all other air and sea ports will be systematically phased out, per the schedule in CBP’s Travel Advisory. Paper I-94s will continue to be issued at all land ports of entry.

Under the new procedures, CBP officers are instructed to stamp travelers’ passports with admission/expiration date and class of admission and provide travelers with an I-94 Automation Fact Sheet, explaining how to obtain their I-94 numbers. The admission record and number will be immediately available for viewing and printing at www.cbp.gov/I94. CBP intends to make these records available only for two years from date of admission and only while the traveler remains in the United States.

Travelers are strongly encouraged to access, print and save their I-94 data from this website immediately upon each arrival. Many government agencies – including state motor vehicle bureaus and US Citizenship & Immigration Services – will continue to require print-outs as evidence of lawful status and expiration date for applications requesting various types of benefits. The Social Security Administration has expanded its definition of I-94 to include the new endorsed admission stamp.

Employment-authorized travelers must also have their I-94 print-outs. Under current I-9 verification rules, US employers may accept only the print-out, not the new passport admission stamp, as evidence of employment eligibility.

H-1B Lottery Held on April 7, 2013

Hunton & Williams LLP — Mon, 08 Apr 2013 15:10:53 -0500

The USCIS announced that it received 124,000 Fiscal Year 2014 H-1B petitions between April 1, 2013, and April 5, 2013, including petitions filed for the advanced degree H-1B visas. The lottery, which was held on Sunday, April 7, 2012, was conducted by a computer-generated random process for the 20,000 advanced degree H-1Bs. Those not selected were added to a second lottery for the other 65,000 H-1Bs. Receipt notices for those selected should arrive in the coming weeks. The USCIS confirmed that it will begin adjudicating petitions filed under the expedited “Premium Processing” service on April 15, 2013.

Biometrics/Fingerprints To Be Required at USCIS Field Offices

Hunton & Williams LLP — Mon, 08 Apr 2013 11:28:55 -0500

Beginning on May 6, 2013, anyone attending an interview at a local USCIS field office or seeking to obtain evidence of an immigration benefit — e.g., employment authorization document, temporary I-551 stamp, or advance parole travel document — will be required to submit digital fingerprints and photos, under USCIS’s new “Customer Identification Verification” (CIV) program.

This biometric data will be input into the “US VISIT” database and will be available to USCIS for future benefits adjudications, and to USCBP, during primary, secondary and deferred inspections for admission to the United States.

Individuals who visit USCIS field offices for other purposes, such as Infopass informational appointments, will not be required to submit biometric data.

USCIS Announces that H-1B Cap Has Been Reached for Fiscal Year 2014, Lottery Planned

Hunton & Williams LLP — Fri, 05 Apr 2013 15:08:25 -0500

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of April 5, 2013, it has received sufficient H-1B petitions (regular and master’s cases) to reach the statutory cap for Fiscal Year 2014 (10/1/2013 through 9/30/2014). This is significantly faster than the current fiscal year, when the cap was not reached until June 11, 2012. Because the cap was met during the first five business days that employers could file Fiscal year 2014 petitions, a lottery will be held in the coming weeks to determine which cases will be accepted for processing, and which will be rejected. Those chosen in the lottery will be issued receipt notices; those rejected will receive the original filings back from USCIS.

The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers, or those employers exempt from the cap. Cap-subject H-1B petitions received by USCIS after April 5, 2013, will be rejected. Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available or to develop the best strategy for mitigating the effects of the cap being reached.

H-1B petitions for Fiscal Year 2015 may be submitted as early as April 1, 2014, for employment beginning on October 1, 2014.

USCIS Issues Revised Form I-9; Prior Versions Become Invalid on May 7, 2013

Hunton & Williams LLP — Fri, 08 Mar 2013 13:20:47 -0500

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.

Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013. On that date, all prior versions of Form I-9 – (Rev. 08/07/09) Y and (Rev. 02/02/09) N – will become invalid.

USCIS Begins Accepting Provisional Waivers from Immediate Relatives of U.S. Citizens

Hunton & Williams LLP — Mon, 04 Mar 2013 13:01:15 -0500

Starting today, March 4, 2013, USCIS will begin accepting applications for “provisional waiver” of unlawful presence from spouses, children and parents of U.S. citizens on Form I-601A.

As we explained in more detail in a previous post, these “immediate relatives” who qualify for the provisional waiver may now apply while they are still in the United States, and before they depart for their immigrant visa interviews at U.S. embassies and consulates in their home countries. Before the provisional waiver process was established, they were required to travel abroad and be found inadmissible at their interviews before they could apply for the waiver, dramatically lengthening the time periods they were separated from their U.S. families.

For details on eligibility and additional information, please visit: http://www.uscis.gov/provisionalwaiver.

Sequestration May Impact Visa Wait Times

Hunton & Williams LLP — Fri, 01 Mar 2013 13:33:58 -0500

If automatic spending cuts ("sequestration") take place at midnight tonight, wait times for visa appointments at US embassies and consulates will likely increase.

At its Daily Press Briefing on February 27, 2013, the Department of State warned that it will have to reduce the numbers of officers who process visa applications worldwide, and said, "We could have major setbacks in really the herculean effort we’ve made to reduce wait times."

At its press briefing on February 28, 2013, the Department elaborated: "Sequestration threatens all of our operations because it cuts across the board … we’ve had a huge consular surge, it’s been good for the American economy. We estimate that for every 65 visitors to the U.S., that creates one American job … we’ve particularly had a surge in hiring … on visa adjudicators, and sequestration certainly could have an impact in that regard."

Watch our blog for updates, if the sequester takes effect.

DHS Announces Final Rule for Certain Family Members of US Citizens to Obtain "Stateside Waivers" of Unlawful Presence

Hunton & Williams LLP — Thu, 17 Jan 2013 09:08:17 -0500

On January 3, 2013, DHS announced publication of its final rule for certain spouses, children and parents of U.S. citizens to obtain provisional waivers of unlawful presence from within the United States, prior to leaving in order to apply for required immigrant visas at US consulates in their home countries. The new rule and procedures will become effective on March 4, 2013.

Under current U.S. immigration law, relatives of U.S. citizens who entered the country illegally may not apply for green cards from within the United States, but instead must apply at a U.S. consulate or embassy in their home county. Those who have been unlawfully present for at least six months may not return for three years, unless they first obtain waivers by showing that their U.S. citizen relatives will suffer extreme hardship. Those who have been unlawfully present for one year or more face a ten-year bar to returning.

Because, under current procedures, these relatives must first apply for, and be denied, immigrant visas before they can even file their waiver applications at U.S. consulates, they are separated from their families for many years, awaiting approvals; some also face dangerous, even deadly, conditions in their home countries. The new “stateside waiver” process is designed to dramatically reduce waiting times abroad for eligible relatives so they may rejoin their U.S. families sooner. Those who are not eligible must continue to follow existing procedures.

Family members are eligible if they: (1) are currently in the United States; (2) are at least seventeen years old; (3) have approved I-130 petitions; (4) have already paid their immigrant visa fees to the Department of State; and (5) meet all other waiver requirements. Most people with criminal issues of any kind will not be eligible.

Prior to the effective date of March 4, 2013, U.S. Citizenship and Immigration Services will release a new waiver form – the Form I-601A Application for Provisional Unlawful Presence Waiver – and announce further procedural details.

California Service Center Enforces New Interpretation of H-1B Requirements for Changes in Job Location

Hunton & Williams LLP — Sun, 02 Dec 2012 08:49:20 -0500

The USCIS California Service Center recently changed the way it interprets H-1B requirements when job location changes, but duties and all other employment terms remain the same.

Previously, according to a 2003 USCIS memo, a simple change in job location did not require that a new petition be filed with USCIS. The employer was required to analyze prevailing wage for the new location, file a new Labor Condition Application (LCA) with the Department of Labor, and post the required LCA notice at the new work site, but did not have to file an amended petition with USCIS.

Under the CSC’s new interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed suit.

Law, regulations and long-standing USCIS guidance still indicate that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should consult with competent immigration counsel whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. For the same reasons, employers should be certain to make counsel aware of all possible work sites for each new H-1B worker at the outset of the H-1B process.

ICE Defines Same-Sex "Family Relationships" For Purposes Of Exercising Prosecutorial Discretion

Hunton & Williams LLP — Wed, 10 Oct 2012 14:08:42 -0500

On October 5, 2012, U.S. Immigration and Customs Enforcement (“ICE”) issued additional criteria for determining when individuals who are in committed, long-term, same-sex partnerships may avoid removal (i.e., deportation) from the United States. According to the memorandum, the following factors are relevant (though not sufficient) in exercising favorable prosecutorial discretion:

The partners are each other’s sole domestic partner and intend to remain so indefinitely;
The partners are not in a marital or other domestic relationship with anyone else; and
The partners typically maintain a common residence and share financial obligations and assets.

2014 Diversity Visa "Green Card" Lottery Underway

Hunton & Williams LLP — Mon, 08 Oct 2012 12:41:17 -0500

The State Department has announced the registration period for the Congressionally mandated 2014 Diversity Visa (DV) lottery. The DV lottery allows nationals from certain countries to apply for immigrant visas ("green cards") outside of the normal immigrant visa process. Individuals already being sponsored for immigrant visas by family members or employers may participate as well. Requirements include being a national of an eligible country (although an applicant may qualify based on his or her spouse's nationality) and high school education or work experience. The online registration period began on October 2, 2012, at noon EST, and ends on Saturday, November 3, 2012, at noon EST. Complete eligibility requirements and filing instructions can be found here.

USCBP Announces Immediate Changes to I-94 and I-20 Admission Procedures

Hunton & Williams LLP — Fri, 17 Aug 2012 14:41:26 -0500

On August 7, 2012, U.S. Customs and Border Protection posted a Travel Update to its website, confirming that CBP agents will systematically stop issuing paper Forms I-94 (Arrival/Departure Records) at all airports and some sea ports of entry in the very near future. Travelers who enter at land ports of entry will continue to receive paper Forms I-94, until further notice.

Instead of issuing an I-94, agents will stamp an admission date into the passport, and handwrite status and authorized period of stay on the stamp, similar to what is done for travelers under the Visa Waiver Program now. CBP will maintain electronic arrival/departure records, and may eventually open a web portal into these databases so that travelers may print copies of their admission records, but has not announced a specific date for implementing that proposal.

Because the I-94 is central to documenting proper admission and maintenance of status, its virtual elimination will have wide-reaching consequences on a variety of immigration processes and benefits. It remains unclear, for example, how U.S. employers will verify identity and employment eligibility for new hires on Form I-9, nor how applicants for driver's licenses, Social Security numbers, and other government benefits will demonstrate valid status, without the I-94. We will publish additional information as more details become available from the relevant government agencies.

In addition, on August 15, 2012, CBP unofficially confirmed that its agents at both land and air ports of entry will no longer stamp foreign students' I-20s with the usual admission data: date of admission, category of admission, and "D/S" for "duration of status." This may be problematic for foreign students and their dependents who apply for driver's licenses or other government benefits, where government employees are trained to look for the I-20 stamp as proof of valid F-1/F-2 status.

Employers Should Continue to Use Current Form I-9 Despite 8/31/2012 Expiration Date

Hunton & Williams LLP — Mon, 13 Aug 2012 10:48:49 -0500

US Citizenship and Immigration Services (USCIS) is advising that the current version of Form I-9 should continue to be used by employers despite the August 31, 2012 expiration date specified on the form. USCIS is in the process of updating the form once again, and presumably the new version will be available in the coming months.

Form I-9, Employment Eligibility Verification, must be used by U.S. employers to verify the identity and employment eligibility of all newly-hired employees.

Please contact Hunton & Williams if you have any questions about Form I-9 or related requirements.

Many Visa Renewal Applicants in Mexico Now Exempt from Interview

Hunton & Williams LLP — Fri, 06 Jul 2012 15:32:37 -0500

The U.S. Embassy in Mexico City has announced that, as of July 1, 2012, individuals seeking to renew their visas at the embassy and consulates in Mexico no longer must attend a visa interview appointment, as long as their current visas are still valid or expired within the past 48 months. Previously, only those whose visas had expired within the past 12 months were exempt from interview.

Note that even those applicants who are exempt from interview under the new policy must still attend an appointment at the Applicant Service Center ("ASC") for biometrics and fingerprinting. Additional details and qualification requirements may be be found at the websites of the embassy and each consulate, including this link for the consulate general in Cd. Juarez.

Obama Gives DREAMers Relief from Deportation

Hunton & Williams LLP — Fri, 15 Jun 2012 11:29:07 -0500

DHS Secretary Janet Napolitano announced today that undocumented youth who were brought here as children and who meet certain criteria are now eligible for "deferred action," a form of long-term relief from deportation that allows employment authorization and college attendance, but does not lead to a green card. Known as DREAMers (after the Development, Relief and Education for Alien Minors Act, which Congress has failed to pass each time it has been introduced since 2001), these young people have become increasingly vocal and visible in public protests and in the media.

To be eligible for deferred action DREAMers must be under age 30 and physically present in the United States, must have arrived before the age of 16; must have continuously resided here for at least 5 years prior to June 15, 2012; must be a high school graduate, have a GED, be in school currently, or or be an honorably discharged veteran; and must have no convictions for felonies, "significant misdemeanors," or multiple misdemeanors. Napolitano directed the agencies under her charge -- Citizenship & Immigration Services, Immigration & Customs Enforcement, and Customs & Border Protection -- to create a "clear and efficient process" and begin implementing deferred action for eligible DREAMers within 60 days.

USCIS Announces that H-1B Cap Has Been Reached for Fiscal Year 2013

Hunton & Williams LLP — Tue, 12 Jun 2012 17:00:38 -0500

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of Monday, June 11, 2012, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2013 (10/1/2012 through 9/30/2013). Perhaps a sign of an improving economic situation in the United States, this is significantly faster than the current fiscal year, when the cap was not reached until November 22, 2011.

The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers. Cap-subject H-1B petitions received by USCIS after June 11th will be rejected. Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available or to develop the best strategy for mitigating the effects of the cap being reached.

H-1B petitions for Fiscal Year 2014 may be submitted as early as April 1, 2013, for employment beginning on October 1, 2013.

State Department Announces Severe Cut-Back in Immigrant Visa Numbers for Remainder of Fiscal Year 2012

Hunton & Williams LLP — Thu, 10 May 2012 07:52:22 -0500

The serious immigrant visa retrogression we notified you about recently has worsened for Indian and Chinese nationals, and is now affecting previously unaffected visa categories, including EB-1 and EB-2 "Worldwide".

The State Department's Visa Control and Reporting Division ("Visa Control") has just announced that EB-2 immigrant visa numbers for China and India have now been exhausted for Fiscal Year 2012. Beginning with the June Visa Bulletin and continuing through the September Visa Bulletin, these categories will be shown as "Unavailable." EB-2 numbers are for individuals who are being sponsored by US employers for positions that require an advanced degree or the equivalent. Visa Control projects that these numbers will be available again at the beginning of Fiscal Year 2013 (October 1, 2012), and says that "every effort will be made" to return the cut-off date to May 1, 2010, the date that had been reached as of April 2012.

Visa Control also announced that, due to unanticipated demand, cut-off dates may soon be established in both the EB-1 category and the EB-2 non-China/India categories. This is an unusual step, as numbers are generally available in these categories year-round. EB-1 numbers are for "Aliens of Extraordinary Ability," "Outstanding Professors and Researchers," and "Multinational Managers and Executives."

EB-2 Visa Unavailable for Certain India/China Applicants

Hunton & Williams LLP — Thu, 05 Apr 2012 08:00:05 -0500

While retrogression in the EB-2 China-mainland and India visa categories has been expected for some weeks, the State Department has now stated that effective March 23, 2012, no additional visas will be authorized for applicants in these categories with priority dates of August 15, 2007 or later. Fortunately, USCIS will continue to receive and process applications to adjust status for those with current priority dates under the April Visa Bulletin. Individuals who submit their applications by the end of this month may be looking at an extended wait to receive permanent resident status, but can at least enjoy the benefits that come with having a pending adjustment of status application. The critical question for affected applicants and their employers is whether retrogression in these categories will again begin to ease up starting with the October 2012 Visa Bulletin, but the answer will most likely not be known until September of this year.

DOS Announces Increases in Visa Fees Effective April 13, 2012

Hunton & Williams LLP — Thu, 29 Mar 2012 13:42:44 -0500

The Department of State announced increases in visa fees, effective April 13, 2012. The machine-readable visa (MRV) fees will increase from $140 to $190 for the following nonimmigrant visas: H, L, O, P, Q and R. MRV fees for E and K visas will drop from $390 (E) and $350 (K), to $270 and $240, respectively. All other nonimmigrant visas will increase from $150 to $160. In addition, immigrant visa fees will drop for family-based cases ($330 to $230) and employment-based cases ($720 to $405). Finally, Border Crossing Card (BCC) fees for Mexican nationals will increase from $14 to $15. The rule is an interim final rule, with request for comments (due May 29, 2012). Once comments are received, and the rule becomes final, we will update this post if any additional changes are made.