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Total Articles: 53

In-Person Interviews Mandated for Employment–Based Green Card Applicants and Others

On August 25, 2017, the U.S. Citizenship and Immigration Services (USCIS) confirmed that, as part of President Trump’s “extreme vetting” directives, potential legal immigrant workers will be required to undergo in-person interviews with USCIS. The interview requirement will apply to anyone moving from an employment-based visa to lawful permanent residency. The new mandate will also require visa holders who are family members of refugees or individuals who receive asylum to undergo an in-person interview when they apply for provisional status—a stage that precedes permanent residency. USCIS announced that the interviews will be “phased-in” starting on October 1, 2017. There is not yet any additional guidance as to how long the phase-in period will be. It will also take time to determine the extent of the impact that these new interviews will have on overall processing times.

Practice Alert: Trump Creates New Hurdles and Delays for Employment Based Green Card Applicants

Beginning on October 1, 2017, United States Citizenship and Immigration Services (USCIS) will start phasing in the requirement for an in-person interview for anyone obtaining employment-based permanent residency. For almost the past 20 years, interviews of employment-based applications were generally waived as there was little value that local adjudication added to the process.

Changes to Foreign Affairs Manual and Developments in the Adjudications of Nonimmigrant Visas Signal Increased Scrutiny of Visa Petitions

Recent actions by the U.S. Department of State (DOS) and Citizenship and Immigration Service (USCIS) indicate that employers seeking to hire foreign workers will likely face a more stringent visa approval process.

The FICA Tax Exemption for Non-Resident Aliens in the U.S. Under F, J, M, or Q Visas

A common issue for employers of non-resident aliens authorized to work in the U.S. is whether (and when) such individuals are exempt from FICA taxation. Under the Internal Revenue Code, a nonresident alien (“NRA”) in the United States under a teacher, researcher, trainee, or student visa is exempt, within certain limitations, from FICA taxation.

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Green Card Applicants Subject to Heightened Scrutiny Via New Edition of Form I-485

In keeping with the Trump administration's call for "extreme vetting" of immigrants, US Citizenship and Immigration Services (USCIS) has published a new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, that subjects applicants to heightened scrutiny.

Labor Secretary Announces Aggressive Stance on Visa Fraud and Abuse

Secretary of Labor Alexander Acosta has announced that the Department of Labor (DOL) will more aggressively enforce laws governing the administration and enforcement of non-immigrant visa programs. The DOL will continue to work with the Departments of Justice and Homeland Security to prioritize and publicize investigations into violations of visa programs, such as the H-1B, H-2A, H-2B and PERM (Labor Certification-Green Card processing) programs. The agency plans to increase its exercise of authority to refer cases of alleged criminal fraud to its Office of Inspector General (OIG).

Optional Practical Training: As this workforce grows, so does HR professionals' need to have hiring plan for the visa program

Optional Practical Training (OPT) workers are becoming an indispensable part of the American workforce. Small and mid-sized companies are the largest beneficiaries, as just 4 percent of all OPTs work at the 10 largest tech companies in the Fortune 500. So what are OPT workers? What are the challenges and benefits of this visa category?

Extreme Vetting for Visa Applicants – Just not for the Countries in the Travel Ban

Subsequent to President Trump’s March 6, 2017 Executive Order Suspending travel to the US of certain nationals and Presidential Memorandum directing the Secretary of State, the Attorney General, and the Secretary of Homeland Security to implement “immediate heightened screening and vetting of applications for visas and other immigration benefits,” Secretary of State Rex Tillerson has issued cables (CABLE 23338, CABLE 24324, CABLE 24800, CABLE 25814) to his consular chiefs regarding the implementation of “extreme vetting” procedures.

What Does the President's Executive Order Blocking Foreign Nationals From Seven Countries Mean for Employment-Based Visas?

On January 27, 2017, President Trump signed an executive order (among others) titled: “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”). The Order purports to “suspend entry” of both “immigrant and nonimmigrant” individuals from the seven countries currently subject to visa waiver restrictions: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1

Forward Movement in January 2017 Visa Bulletin Could Be Offset by Increased Demand

Perhaps in response to the recent presidential election, the demand for immigrant visas has noticeably surged across most employment-based immigrant visa preference categories. While the final action dates for most preference categories have moved forward, meaning additional numbers of foreign nationals may proceed with applications for immigrant visa processing or adjustment of status, Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State (DOS), forecasts that additional final action cutoff dates are likely be imposed for several of the preference categories that are “current” as of today.

Matter of Dhanasar: A New Standard for National Interest Waivers in the United States

On December 27, 2016, the AAO issued a decision that modifies the standards for granting a National Interest Waiver (NIW) in Matter of Dhanasar. This decision will impact thousands of applicants seeking U.S. permanent residency based solely upon the importance of their work in the United States or their unique accomplishments/qualifications. The decision fundamentally alters the NIW standard by providing more flexibility to individuals such as entrepreneurs who have traditionally been self-employed, and whose employment was not well-suited for this benefit under the prior NIW test.

Reminder: USCIS Filing Fees Will Increase on December 23, 2016

Beginning on December 23, 2016, filing fees for many United States Citizen and Immigration Services (USCIS) visa petitions and applications will increase. This is the first time since 2010 that USCIS has increased its filing fees. On average, fees will increase by 21 percent. The premium processing fee of $1,225 will not increase.

Drinking + Driving = Losing Your Visa?

With Thanksgiving and the holidays right around the corner, Fisher Phillips would like to remind our clients to be extra careful when driving home after a night out. In addition to the criminal and financial ramifications of drunk driving, there are other consequences for foreign nationals on nonimmigrant visas who are arrested or convicted of driving under the influence (DUI). Since the implementation of a new policy in November of 2015, consular officers have been required to prudentially revoke nonimmigrant visas upon notification of a DUI arrest or conviction, even if that individual is in the United States.

Plan to Grant Work Authorization to Millions Remains on Hold After Supreme Court Denies Request for Rehearing

On the first day of its new term, the United States Supreme Court sidestepped another opportunity to determine the constitutionality of President Obama’s executive immigration reforms. On October 3, 2016, the Court denied the government's request for a rehearing in United States v. Texas, upholding an injunction against the administration's ambitious program to provide work authorization to millions of individuals living in the United States without lawful immigration status.

DOL Judge Says Flagging Economy Insufficient Basis to Relieve H-1B Employers of Wage Obligations

Employers employing foreign nationals in H-1B nonimmigrant visa status must pay their H-1B employees the wage specified on the Labor Condition Application (LCA) certified by DOL, regardless of whether the H-1B employer is enduring difficult economic or financial periods due to struggling national economy, an Administrative Law Judge for the Department of Labor has ruled in Department of Labor Wage and Hour Division v. Shriiji Krupa Inc.

Beware of Limits on Workers in U.S. on Tourist Visa

Noting media reports that up to 200 foreign workers hired by a Tesla contractor were able to come to the United States in tourist visa status to perform work at a construction project at a Tesla Motors Inc. paint facility in the United States, Senator Charles Grassley (R-IA) sent a letter, dated June 7, 2016, to the heads of the State Department, Justice Department, Department of Labor, and Department of Homeland Security questioning how such individuals would be eligible to perform work in the U.S. in B visa status.

Federal Court Judge Quashes Challenge to Revised Visa Bulletin Dates

A U.S. District Court in Seattle has ruled that the U.S. Department of State’s Visa Bulletin which governs how immigrant visas subject to numerical limitations are allocated, and indicates when intending immigrants may apply for the last stage of the permanent visa process is not a final agency action or decision and, therefore, cannot be challenged in court. While it is estimated that 20,000 or more individuals relied upon the published dates to initiate filings prior to the roll-back, Chief Judge Ricardo S. Martinez determined that the court lacked jurisdiction because the bulletin does not constitute a final action under the Administrative Procedure Act (APA), but instead merely sets out “informative” data.

Libya, Somalia, and Yemen Added to the Visa Waiver Program Travel Restrictions List

Last month, the U.S. Department of Homeland Security (DHS) began implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. In addition to making several important changes to the Visa Waiver Program (VWP), the act prohibits anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program. The act also prohibits citizens of VWP-eligible countries who are also “nationals” of Iraq, Syria, Iran, or Sudan from further participation in the program.

Four Countries Highlighted under Tighter Visa Waiver Program

The United States has begun implementing changes to its visa policies that will make it harder for some travelers to enter the country under the Visa Waiver Program (VWP). One result of the changes means certain countries’ nationals are no longer eligible to enter the U.S. under the VWP.

Form M-1 Filings Due March 1, 2016 for MEWAs

Executive Summary: Multiple Employer Welfare Arrangements (MEWAs) must file a Form M-1 annually and shortly after inception. The annual Form M-1 filing deadline for the 2015 calendar year is March 1, 2016.

DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants

On January 15, 2016, the Department of Homeland Security (DHS) posted a final rule in the Federal Register which revises its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile/Singapore (H-1B1), Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification, and the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers;

Changes to the Visa Waiver Program Become Law

On December 18, 2015, President Obama signed the “Consolidated Appropriations Act, 2016” (H.R. 2029) into law. The law includes several important changes to the Visa Waiver Program (VWP) that are fundamentally identical to the VWP changes that the U.S. House of Representatives passed last month. The VWP allows eligible citizens of specified countries to enter the United States for tourism or business and remain for 90 days or less without B-1 or B-2 visitor visas. (The House bill is covered in detail in our December 2015 article, “House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks.”)

Proposed Rule Would Expand Cap Exempt Status for Non-Profit Entities that are 'Related or Affiliated' with Institutions of Higher Education

On December 30, 2015, the Department of Homeland Security (DHS) issued a proposed rule to amend certain regulations related to employment-based immigrant and nonimmigrant visa programs. One of the key proposed changes is an expansion of the current definition of nonprofit organizations that qualify for “cap exempt status” as a result of a “related or affiliated” agreement with an institution of higher education. Littler will provide a more comprehensive summary of the entire proposed rule later this week.

Congress is Considering Changes to the Visa Waiver Program

A bill winding its way through Congress could impact business travel and the U.S. tourism industry. On December 8, 2015, the House of Representatives passed by a vote of 407-19 the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (H.R.158). This bill would amend the Immigration and Nationality Act to include terrorism risk as a factor the Department of Homeland Security (DHS) must consider under the agency’s Electronic System for Travel Authorization (ESTA) used to determine an alien's eligibility to travel to the United States under the Visa Waiver Program (VWP).

House Bill Changes to the Visa Waiver Program: Inclusion in the Omnibus Appropriations Bill and Passage Expected

The U.S. House of Representatives on Tuesday, December 8, voted overwhelmingly to limit visa-free travel to the United States through the Visa Waiver Program (“VWP”). This legislation is expected to be added to the year-end Omnibus spending bill that is currently being debated and finalized on Capitol Hill. If implemented, the bill would impact the nationals of certain countries who regularly engage in visa-free travel and force them to obtain visas before traveling to the U.S. Many business travelers regularly use the VWP program, and could be impacted by these changes.

House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks

In the wake of the Paris terrorist attacks, the U.S. House of Representatives passed a bill on Tuesday, December 8, 2015, to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP). The VWP permits citizens of 38 designated countries, mostly in Europe, to travel to the United States for business or tourism for 90 days or less without a visa. The bill, which passed in the House by a vote of 407 to 19, would prohibit anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program; require the U.S. Department of Homeland Security to terminate a country’s participation in the program if the country fails to share counterterrorism information; require all VWP countries to use electronic passports with chips that contain biometric information; and mandate that participating countries more thoroughly screen travelers against international counterterrorism databases. The bill is expected to be included in a spending bill later this week and could become law by the end of the year.

Department of State and Department of Homeland Security Announce a Major Change to the Visa Bulletin

On September 9, 2015, the Department of State and Department of Homeland Security, acting through United States Citizenship and Immigration Services, announced that they were significantly revising Visa Bulletin procedures. The Visa Bulletin is the monthly bulletin issued by the Department of State that determines whether a particular foreign national is eligible to file their “green card” in a particular month. This change is effective October 1, 2015, and will provide foreign nationals and businesses with more stability as they forecast their immigration budgets. It will also result in increased portability of foreign nationals waiting for their green cards.

USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

Important Changes to the U.S. Department of State’s Visa Bulletin

On September 9, 2015, the U.S. Department of State (DOS) and United States Citizenship and Immigration Services announced important changes impacting certain individuals in the permanent residence (“green card”) process. This change will allow some individuals to file the last step of the green card process, the application for adjustment of status, even if their priority date is not current.

USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

Business Immigration Zone (BIZ): It's Easier Being Green

There is good news for employers who hope to obtain employment-based visas for certain job categories.

Business Immigration Zone (BIZ): Supreme Court's Gay Marriage Ruling Gives Same-Sex Couples Access to Spousal Visas

The Supreme Court’s ruling in favor of same-sex marriage will make it easier for same-sex couples to obtain immigration benefits through marriage. The ruling may also encourage more LGBT executives and entrepreneurs to come to the United States, now that their ability to obtain marital immigration benefits is less expensive. In an historic 5-4 decision, the Supreme Court recently ruled that the 14th Amendment requires states to issue licenses to same-sex couples that want to marry. Indeed, Justice Anthony Kennedy opined that same-sex couples now exercise “the fundamental right to marry.”

U.S. Department of State Announces Two-Thirds of its Consular Posts are Online and Processing Visas

Executive Summary: On June 23, 2015, the U.S. Department of State (DOS) updated its alert regarding the technical problems that resulted in world-wide delays in visa processing, announcing that 39 consular posts, representing more than two-thirds of the agency's normal capacity, are now online and issuing visas. DOS also stated that it expects the system to be fully reconnected this week and will work over the weekend to clear the backlog of visas. DOS is currently rescheduling more than 1,500 visa applicants who were unable to be interviewed last week because of the systems problems.

Department of State Visa Issuance Update: 39 Consular Posts Are Online and Operational

The U.S. Department of State (DOS) continues to experience worldwide technical problems with issuing visas, the result of an apparent hardware failure. On June 23, 2015, the DOS announced that the visa issuance problems had been resolved at 39 consular posts, listed below. However, delays will continue with the scheduling of appointments and visa issuance as the backlogs are addressed.

Department of State Visa Issuance Problems Resolved in 22 Posts but Delays Continue

The U.S. Department of State (DOS) continues to experience worldwide technical problems with issuing visas, the result of an apparent hardware failure. On June 22, 2015, the DOS announced that the visa issuance problems have been resolved in 22 consular posts. However, delays continue with both scheduling appointments and visa issuance. More information is available on the Bureau of Consular Affairs website.

Update to Department of State Visa Shutdown

The U.S. Department of State (DOS) has provided an update on its ongoing technical problems with issuing visas. According to the update, the visa shutdown appears to be the result of a hardware failure. The DOS has over 100 computer experts (both public and private sector) working to identify the issues and restore functionality. The DOS is hopeful that the system will be back online by next week.

U.S. Diversity Visa Opens October 1, 2014, May Help Workers Obtain Residency More Quickly

The U.S. Department of State has announced that it will open the Diversity Visa lottery registration for FY 2016 on Wednesday, October 1, 2014. The program allows nationals of states with historically low rates of immigration to the United States to obtain permanent residence (i.e., a green card) in the United States. Registration for the diversity visa (DV) program is free. On October 1, 50,000 immigrant visas will become available. The lottery may allow certain employees to obtain permanent work authorization, more quickly and at lower cost, when normal routes are unavailable.

Global Visa Delays Follow Technical Difficulties with State Department System

Last week, the U.S. Department of State’s visa processing database, which controls the issuance of visas and passports at the U.S. consulates abroad, experienced system performance issues (including outages) leading to worldwide delays in visa issuances for individuals seeking entry into the United States. The malfunction in the Consular Consolidated Database stalled the processing of U.S. visas for foreign nationals at consulates around the world, and was not limited to one consulate or country.

U.S. Consulates in Canada Temporarily Suspend TCN Visa Processing Over the Summer

U.S. visa processing posts in Canada are urging third-country national (TCN) applicants to seek appointments at other U.S. Embassies and Consulates, such as those located in the applicants’ home countries. A TCN is an individual who applies for a visa at a U.S. Embassy or Consulate in a country where the individual is not a citizen or national.

Misuse Of Visas Lands Tech Giant In Hot Water

Infosys, an Indian technology outsourcing company, has agreed to pay a fine of $34 million after an extensive investigation by federal prosecutors in Texas. The investigation alleged that the tech giant misused the B-1 business visitor visa, which is normally issued to foreign workers travelling to the United States to attend meetings or training. Opting out of the long-term and more appropriate—but albeit expensive—H-1B visa, Infosys allegedly utilized B-1 visas to bring thousands of foreign workers to the United States to engage in productive work. Federal prosecutors accused Infosys of falsifying business invitation letters and instructing foreign workers on how to mislead immigration authorities during visa interviews. Infosys was first brought to the attention of authorities as the result of a whistleblower case that was filed by a consultant in 2011. The fine is the largest ever in this type of case and proves that the misuse of visas can land a company in hot water.

From Couch Potatoes To Pro Athletes: USCIS Includes Video Gamers in P Visa Category

After intensive lobbying by Riot Games, a Santa Monica-based gaming company, U.S. Citizenship & Immigration Services (USCIS) is now issuing visas that are normally given to foreign professional athletes to professional gamers. This breaking news comes just in time for the League of Legends Championship Series (LCS) held at the famous Staples Center in Los Angeles during the first week of October. National and international gamers have the opportunity to showcase their gaming talent at the LCS in hopes of winning a $1 million prize.

Bromance Gone Bad: The Immigration Bunkers of a Golfer’s Marriage

The P-1A visa category is reserved for those “internationally recognized” individual athletes or teams that seek to enter the United States temporarily for the sole purpose of performing in a competition, event, or performance. The P-1 visa category also allows for “essential support personnel” to accompany the athlete to the United States in P-1S status, a derivative designation of the P-1 category. Eligibility for the P-1S category hinges on the integral nature of the relationship between the P-1 and the P-1S as well as the essential need for unique services that cannot be readily provided by any U.S. citizen.

Automatic Visa Revalidation - Skip the Daunting Visa Interview at the U.S. Consulate Abroad

Many global companies regularly send workers to train or attend meetings in Canada or Mexico. One issue often facing these employers is having to factor in the time and expense for their foreign workers to attend daunting visa interviews at the U.S. Consulate abroad to renew expired U.S. visas before being allowed back into the U.S. to resume their U.S. responsibilities. The Automatic Visa Revalidation Rule resolves this issue by permitting foreign nationals with expired nonimmigrant visa stamps to travel to Canada, Mexico or a contiguous territory for thirty days or less without obtaining a new visa for re-entry into the U.S.

Visa Lottery Coming?

Experts predict the H-1B cap will be virtually instantaneously reached

Bad "VIBES" – New validation tool will give employers of foreign nationals the "willies".

Employers who hire foreign nationals are about to face new challenges in obtaining work-related visas. The United States Citizenship and Immigration Service (USCIS) is moving a test project into the real world. So, the already enforcement-rich environment is getting richer. It’s called VIBE and business leaders need additional preparation when looking to add the expertise foreign nationals can provide.

Green Card Lottery Deadline is November 30.

The registration period for the annual immigrant visa (“green card”) lottery will close on November 30. Approximately 50,000 immigrant visas are available pursuant to the “Diversity Lottery.” Persons born in countries that have sent a large number of immigrants to the United States within the past five years are ineligible. This includes persons born in Canada, mainland China, Mexico, the Philippines and the United Kingdom. Applicants also must possess a high school education or equivalent OR possess two years of recent experience in an occupation that requires two years of training or experience to perform.

USCIS Updates: Premium Processing for I-140’s, FBI Clearances and P-1 Athletes.

United States Citizenship and Immigration Services (USCIS) has recently provided some good news on a few different fronts, though the benefits of these items accrue to relatively narrow classes of immigration applicants.

Visa Waiver Program Expansion Update.

The Visa Waiver Program (VWP) was expanded on November 17, 2008 to add nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea. According to the Department of Homeland Security press release, nationals of those countries can now travel to the United States for business or tourism for a period of 90 days without the need for a visitor visa provided they hold an e-Passport and have completed their registration for the Electronic System for Travel Authorization (ESTA) program.

Voluntary ESTA Registration For Visa Waiver Travel Starts August 1.

On August 1, 2008, the Department of Homeland Security (DHS) will begin accepting voluntary registrations for the Electronic System for Travel Authorization (ESTA) program. ESTA is an automated system used to verify the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP). (The program allows citizens and nationals of selected countries, including Australia, Japan, Singapore and most Western European countries, to travel to the United States for business or tourism for a period of up to 90 days without the need for a visa.) ESTA registration is expected to become mandatory for VWP travelers in January 2009. At that time, all VWP travelers will be required to obtain an ESTA approval prior to boarding a carrier to travel by air or sea (land ports from Canada and Mexico are exempt).

PIMS Causes Visa Processing Delays.

Last November, United States Consulates initiated a policy of accessing nonimmigrant (H-1B, L-1, etc.) visa petitions through a new computerized report called the Petition Information Management Service (PIMS). The electronic PIMS record became the primary evidence required by Consulates to confirm petition approval and thereby authorize visa issuance. As the system had incomplete data, visa applicants often faced visa issuance delays ranging from a few hours to several days. While the number of delays caused by PIMS verifications has seemingly been reduced, issues remain.

DOS and USCIS Reverse Decision - All Employment Based Numbers Are Current.

The U.S. Citizenship and Immigration Services (USCIS) and Department of State (DOS) have just announced that the July 2 update has been withdrawn and the initial July Visa Bulletin is in effect. It will remain valid for 31 days – i.e., all employment-based green card categories (except for the “Other Workers” category) will be “current” and USCIS will accept applications filed not later than August 17, 2007.

Visa Alert - Retrogression Effective July 2, 2007.

The Department of State (DOS) has announced that, effective Monday, July 2, 2007, the full supply of employment-based visa numbers available for FY2007 (ending September 30, 2007) has been depleted. The U.S. Citizenship and Immigration Services (USCIS) has also announced that it will reject Form I-485 Adjustment of Status applications received in July following the DOS announcement.
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