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

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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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 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.

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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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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.

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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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Although immigrant visa beneficiaries from India and China have enjoyed the recent priority date advancement in the EB-2 visa category, that will likely change soon.  Charles Oppenheim, Chief of the Visa Control and Reporting Division at the State Department, predicts a priority date retrogression in the coming months that will last the remainder of the fiscal year.  Mr. Oppenheim stated that the EB-2 category for India and China will likely move from May 2010 back to August 2007, as early as May.  Those able to file their adjustment of status applications during the priority date advancement in recent months may find themselves back in the visa backlog, although they will be able to continue to apply for interim work and travel permission since their adjustment applications will remain on file.  Those who missed the opportunity to file will keep their priority dates, and will need to continue to maintain valid nonimmigrant status until their priority dates are current.

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On September 22, 2011, Rep. Jason Chaffetz (R-UT) introduced HR 3012 in the House.  The Fairness for High Skilled Immigrants Act would eliminate the annual cap on green card numbers for employment-based immigrants and increase the cap for family-based immigrants.  Currently, foreign nationals who are sponsored by their employers for permanent jobs in the US wait up to 8 or 9 years for a green card because per-country allocations -- originally set by Congress decades ago -- have never been raised to keep pace with changing economic and technological needs.  The long waiting lists create additional hardship and expense for employers and employees alike.  Employers who wish to contact their representatives to express support for HR 3012 may do so online at this House of Representatives link.

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The State Department has announced the registration period for the Congressionally mandated 2013 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 begins on Tuesday, October 4, 2011, at noon EST, and ends on Saturday, November 5, 2011, at noon EST.  Complete eligibility requirements and filing instructions can be found HERE.

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As the results of the 2012 Diversity Visa Lottery are released, the State Department is again warning applicants about the increase in visa lottery scams.  The scams include letters notifying applicants that they have "won" and that they must quickly pay a fee in order to continue with the process.  Those chosen for participation in the program will not be notified by mail; rather, applicants must check their status online, and follow the instructions for registration.  The State Department's FAQs on this issue can be found HERE.

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The USCIS announced that it will begin issuing combined advance parole and employment authorization documents (EADs) to adjustment of status applicants who apply for both concurrently with their Form I-485 adjustment of status applications. The new cards, which will resemble the current EADs, will be endorsed “Serves as I-512 Advance Parole”. Recipients of EADs should review them carefully to ensure they are endorsed for travel as well, otherwise they will need to have the "old style" advance parole document in-hand when departing the United States (unless they are exempt from this requirement based on their nonimmigrant visa status).

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The State Department has announced the registration period for the Congressionally mandated 2012 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 begins on Tuesday, October 5, 2010, at noon EST, and ends on Wednesday, November 3, 2010, at noon EST.  Complete eligibility requirements and filing instructions can be found HERE.

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In its continuing effort to deter immigration fraud, the US Citizenship and Immigration Services (USCIS) has unveiled a new permanent resident ("green") card with additional security features.  The new card is already being produced and issued to those granted permanent resident status.  A sample of the new card can be viewed here.  The new card contains a pre-printed return address for easy return of the card to the USCIS if lost.  Employers should ensure that those responsible for completing I-9 verification forms are familiar with the new design.

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As of December 14, 2009, foreign nationals who apply for immigrant visas or adjustment of status are no longer required to receive the Human Papillomavirus (HPV) vaccination.  CDC will continue to require vaccination for mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B.  Others will be required only if a public health need exists at the time, and the vaccine is (a) age-appropriate and recommended by the Advisory Committee on Immunization Practices for the general U.S. population; and (b) against a disease that could cause an "outbreak" or has been eliminated (or is being eliminated) in the United States.  For additional information, please refer to the Federal Regulations.

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On November 2, 2009, the Centers for Disease Control of the U.S. Department of Health and Human Services issued a final rule removing HIV infection from the list of "communicable diseases of public health significance," effective January 4, 2010.  The rule means that HIV-positive foreign nationals will no longer be inadmissible to the United States or require waivers in order to be approved for nonimmigrant or immigrant visas.  It also means HIV testing will no longer be part of immigration medical exams.  The entire rule may be read here.

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On September 10, 2009, the U.S. Department of State released the October 2009 Visa Bulletin.  As anticipated, the news is not good.  Waiting lists for Indian and Chinese nationals whose U.S. employers have sponsored them for positions that require advanced degrees are backed up to early 2005.  For positions that require at least a bachelor's degree, wait lists stand at early 2002 for all nationalities except Indians (mid-2001).  Family-based categories are also painfully oversubscribed.  Depending on their nationalities, spouses and children of U.S. permanent residents must wait 4 to 6 years, and unmarried adult children of U.S. citizens must wait 6 to 16 years.  The complete October Visa Bulletin may be read here.

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After nearly 2 years, the USCIS has resumed the Premium Processing program for most immigrant visa petitions.  Under this program, employers and foreign nationals eligible to self-petition may request 15-day processing of their immigrant visa petitions (Form I-140) for an additional $1,000 filing fee.  If the USCIS issues a request for evidence, the 15-day processing period begins again upon receipt of the petitioner's response.  Unfortunately, this program does not apply to those qualifying under the EB-1 multinational executive/manager or EB-2 national interest waiver categories.  Use of Premium Processing for immigrant visa petitions may also speed the processing of adjustment of status applications filed concurrently.

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