Hunton Immigration and Nationality Law Blog : Immigration Lawyer & Attorney : Hunton & Williams Law Firm : Workplace Enforcement, Immigration Visas

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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".

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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.

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Under its Validation Instrument for Business Enterprises (VIBE) program, through a data partnership with Dun & Bradstreet (D&B), USCIS verifies "business existence" for each US employer who files a petition for a foreign-national employee.

If data on the employer is unavailable in D&B, or does not match data in the employer's petition, USCIS sends the employer a Request for Evidence, asking for additional documentation of the company's business existence, which delays approval of the petition.  Although a single employer is not supposed to receive a VIBE Request for Evidence more than once, immigration practitioners have found that this standard is not 100% consistent.

USCIS and D&B have now announced a streamlined process for proactively updating a company's business data before a petition is filed.  This could prevent delays and additional legal fees associated with a Request for Evidence (although responding to a VIBE RFE is generally routine).  Employers may wish to avail themselves of this opportunity.

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DHS announced that it is extending Temporary Protected Status (TPS) for nationals of El Salvador who already hold TPS.  TPS allows qualifying individuals to remain and work lawfully in the United States until conditions in their home countries improve.  The new extension allows qualifying individuals from El Salvador to reapply for TPS and work authorization that will be valid until September 9, 2013.  The re-registration period runs until March 9, 2012.  The USCIS will issue new employment authorization documents for those who timely re-register.  The USCIS is automatically extending employment authorization documents bearing March 9, 2012, expiration dates for an additional six months, until September 9, 2012.  This will allow TPS beneficiaries to continue working until their new employment cards are issued.  The DHS press release can be found here.

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Department of State Managing Director for Visa Services, Ed Ramotowski, announced yesterday that, due to their robust economies and currency strength against the U.S. dollar, 44% more U.S. visas have been issued in Brazil this year than last year and 35% more in China.  DOS described its efforts to keep up with this skyrocketing demand.

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In late July 2011, the US Department of Labor's National Prevailing Wage Center temporarily suspended processing of Prevailing Wage Requests (PWRs) in connection with labor certification applications. The suspension also affects redeterminations and Center Director Reviews. DOL has not announced how long the suspension will last or how long it will take to clear the PWR backlog once the suspension is lifted.

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The Department of Homeland Security (DHS) has removed the remaining countries from the National Security Entry-Exit Registration System (NSEERS). Under NSEERS, nationals of certain predominantly-Muslim countries were required to register with DHS, and have their fingerprints and photographs taken by immigration officials. Newer systems, including the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), are able to record the arrival and departure of foreign nationals visiting the United States, making the use of NSEERS redundant. DHS has not addressed how it will treat those in proceedings for NSEERS-related charges.

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The US Citizenship and Immigration Services sent three officers to Kandahar, Afghanistan, to naturalize 98 soldiers, sailors and Marines. Four of the new US citizens received Purple Hearts for wounds received during their deployment. Photos from the ceremony can be viewed HERE.

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Beginning January 10, 2011, applicants for nonimmigrant visas at the U.S. embassy and consulates in Mexico must visit an Applicant Service Center (ASC) for biometrics (digital photos and fingerprints) before their visa interviews.  Applicants will no longer pay separate fees to schedule an appointment, apply for a visa, and have a courier service deliver their passports.  Instead, one fee will cover everything:  USD140 for tourist visas, USD150 for petition-based visas (H, L, O and P), and USD390 for E treaty/trader visas.  An applicant with a Mexican passport who is renewing a visa in the same category that is still valid or that expired less than one year ago will not have to attend a visa interview as long as he/she has no history of criminal or immigration problems and does not hold a passport from another country that is not a Visa Waiver country.  For additional information, see the website of the US embassy in Mexico City or the embassy's press release.

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On August 11, 2010, the State Department published its final revised rule on J-1 Interns and Trainees.  The revised rule makes 3 key changes.  First, host companies no longer must provide a Dun & Bradstreet report  Second, program sponsors may interview candidates by phone rather than only in person or by videoconference.  And third, both interns and trainees may participate in unlimited J-1 programs as long as they will develop more advanced skills or train in a different field of expertise in each new program.  Interns must still be enrolled full-time in a foreign college or university or have graduated within the 12 months just preceding the new J-1 program.  Trainees (and interns who do not meet the preceding criteria) must reside outside the United States for at least 2 years before they are eligible for any additional J-1 program.

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In an effort to strengthen security at the nation's airports, and create local jobs, the Department of Homeland Security (DHS) has announced the deployment of its advanced imaging technology (AIT) at 28 additional airports, bringing the total to 142.  Up to 450 will be in operation in 2010.  AIT technology is designed to bolster airport security by screening passengers for metallic and non-metallic threats, such as weapons, explosives and other objects concealed under layers of clothing.  The machinery is funded by the American Recovery and Reinvestment Act.  AIT screening is optional, allowing passengers to opt for physical pat-downs if they have privacy or other concerns.  The DHS press release, which contains the list of the 28 additional airports, can be found here.

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The U.S. Department of State (DOS) has announced that, as of June 4, 2010, nonimmigrant visa fees have increased at its U.S. embassies and consulates worldwide.  In the Federal Register notice announcing the move, DOS explained that increases are necessary because an independent study from August 2007 to June 2009 concluded the agency "is not fully covering its costs ... under the current cost structure."  Petition-based visa fees for temporary workers -- such as H-1B, L-1 and O-1 -- increased from $131 to $150.  E-1 (treaty trader) and E-2 (treaty investor) visa fees increased almost 300 percent, from $131 to $390.  For additional detail, please consult the Federal Register notice.

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Since 2009, the Department of State has been phasing in a new, online visa application form at embassies worldwide.  The new DS-160 combines all previously used forms (DS-156, DS-157 and DS-158) for all nonimmigrant visa applications except Ks and Es.  DOS's goal is to use the DS-160 exclusively worldwide by April 30, 2010.

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On September 8, 2009, U.S. Citizenship and Immigration Services published additional guidance for contractors subect to FAR E-Verify.  The new guide may be read and downloaded here. 

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The US Citizenship and Immigration Services (USCIS) has issued a new Form I-9 that employers must use as of April 3, 2009.  Under the Immigration Reform and Control Act of 1986 (IRCA), employers must complete Form I-9 for each new employee within three days of hire, and retain the form in the event of governmental investigations.  Employers can be fined for failing to complete the forms properly and for knowingly employing unauthorized workers.  The USCIS memo announcing the new Form I-9 can be read here and the new Form I-9 can be downloaded here.  A new Handbook for Employers that provides useful information on the I-9 process can be found here.

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Qualifying foreign nationals planning to visit the United States under the Visa Waiver Program (VWP) must now register under the Electronic System for Travel Authorization (ESTA) before traveling to the United States without a visa.  ESTA is designed to identify those individuals who may be a security or law enforcement risk.  The application takes only a few minutes to complete and can be completed online. Once approved, the ESTA authorization is valid for two years and can be renewed as often as required.  Individuals who qualify for the VWP but who will be traveling to another country and stopping in the United States en route must also register under ESTA since the termination of the "Transit without a Visa" program.  The USCIS Questions and Answers on ESTA fact sheet, which contains a list of participating VWP countries, can be read here.

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