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

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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