Even though the United States ended the compulsory military draft on January 27, 1973, it maintains a database of eligible men used to provide “trained and untrained manpower to the Department of Defense in a national emergency.” The agency that manages this database, the “Selective Service System”, is alive and well, as is the requirement to register.

 Who must register?

Current law requires that all male US citizens who are 18-25 register with the Selective Service.  But did you know that non-citizens must register as well?  With a few exemptions, the following males who are 18-25 must register:

  • US born citizens (including dual nationals)
  • Naturalized citizens
  • Lawful permanent residents (“green card” holders)
  • Parolees
  • Asylum seekers
  • Refugees
  • Undocumented immigrants who entered without inspection
  • All males with visas of any kind that have expired more than 30 days ago

Those who would claim that they are “conscientious objectors” if drafted also must register, but can file for the exemption from military service if drafted, as too must disabled men living at home, even if their disabilities would exempt them from military service.  Those hospitalized, incarcerated, or in a nursing/mental/rehab institution must register within 30 days of being discharged.

Who is exempt?

There are a few categories of individuals exempt from Selective Service registration:

  • Nonimmigrants who are maintaining valid nonimmigrant status (such as H-1B, H-2A, L-1, F-1, etc)
  • Members of the armed forces on active duty
  • Cadets and midshipman at Service Academies or the Coast Guard Academy
  • Students in Officer Procurement Programs at certain educational institutions
  • Transgender men who were assigned female at birth and have corrected their gender to male (transgender women assigned male at birth must register, however)

Selective Service and applying for permanent residence

Foreign nationals applying for permanent residence in the United States using Form I-485 must sign a declaration that they understand that submitting the application will automatically register them in the Selective Service if they are 18 to 25 (the form actually says “26”, but the law requires registration up to, but not including, the 26th birthday).  Those filing this form who are younger than 18 when granted lawful permanent resident status are not automatically registered, but must do so when they turn 18.  Those issued immigrant visas at a US consulate are not automatically registered, but must do so within 30 days of arriving in the United States if they fall between the required ages.

Selective Service and applying for naturalization

Lawful permanent residents who qualify to become US citizens through naturalization can file Form N-400, which asks “Are you a male who lived in the United States at any time between your 18th and 26th birthdays?”.  If you answer “yes”, you are required to list the date you registered and the registration number assigned.  However, if you answer “yes” but did not register, the form says

  • you must register if under 26 before filing the application (so that you can complete the registration date and number section) or
  • if between 26 and 31 (or 29 if filing under INA 319(a) as the spouse of a US citizen), you must attach a statement explaining why you did not register and provide a status information letter from the Selective Service (instructions to do so can be found here).

Selective Service registration goes to a person’s good moral character, which is a key requirement for naturalization.  While failure to have registered when required is not an automatic bar to naturalization, it is an issue that requires legal advice before filing for naturalization.

Are you frustrated with the increasing level of documentation required to support employment-based immigration filings? You are not alone.

Gone are the days when a company letter and organizational chart were enough to support an L-1A manager case or just quoting the Occupational Outlook Handbook was enough to demonstrate specialty occupation status for an H-1B petition. US Citizenship and Immigration Services (USCIS) now requires pages and pages of supporting evidence for all employment-based filings, including I-129 nonimmigrant petitions for L-1 or H-1B status and I-140 immigrant petitions for multinational executives and managers. Immigration law firms, scrambling to keep up with the government’s ever-changing adjudications standards, increasingly turn to clients’ HR contacts and employees with requests for voluminous amounts of initial and additional evidence.

Below are answers to some frequently asked questions our firm has received regarding this issue:

My friend’s case was approved without extensive documentation. Why do I need to provide it?

Does your friend work for the same employer? In the same position? Does your friend have the same education as you? Each case is different. Each requires a different strategy and therefore, different amounts and types of documentation. USCIS scrutinizes certain occupations and industries more closely than others. Smaller companies also endure more scrutiny, but even large multinational companies are not immune to the government’s whims. In fact, those whims illustrate the last reason your friend’s case could have been approved with minimal documentation — luck. Despite the government’s recent efforts to standardize adjudications across officers and service centers, huge discrepancies still exist in outcomes. Strong cases are denied and weak cases are approved, for no apparent reason other than a single officer’s discretion.

We filed the initial petition three years ago, and it was approved without documentation. Why do we need to provide it now? Have the laws changed?

While immigration laws and regulations have not significantly changed, the agency’s adjudications policies and procedures have. USCIS no longer accepts as fact statements made by a petitioning employer in company support letters. All such statements must be backed up by documentary evidence.

The original petition was filed with extensive documentation. Why did USCIS issue a Request for Evidence asking for even more documents? Did USCIS lose my documents?

Possibly, but some occupations will almost always receive an RFE no matter what is submitted up front. While we are aware of no reliable evidence that USCIS officers have an RFE quota, there is much speculation that they do. We do know that the Trump administration is concerned by the generally high approval rate for immigration cases and is using the “Buy American, Hire American” executive order to scrutinize petitions through increased RFEs in order to decrease legal immigration. In addition, in cases filed using the USCIS 15-day premium processing service, RFEs may be issued on the 13th or 14th day to give officers more time to process their caseloads.

What if we do not provide any documents? Will the case still be approved?

Possibly, but why take the chance? When cases are denied, there can be severe consequences for nonimmigrant workers and any family members dependent on their immigration status. Denials jeopardize the ability to legally remain and work in the United States. Like RFE rates, denial rates have also increased considerably in recent years, mainly due to a new USCIS policy to outright deny cases for lacking initial evidence at the time of filing.

Why do I need to provide the documentation? Can’t the paralegal/attorney gather it for me? 

We gather as much as we can, but we are not familiar with every occupation. Employees, their hiring managers, and their companies are the ones who know best what the job involves on a daily basis and what education and experience are required to perform those duties.

The next time your immigration lawyer or paralegal sends a lengthy email requesting clarification of duties or additional evidence to back up a case, know that they are not being difficult. They simply want to do everything possible to ensure that the case will be approved.

If you have specific questions about your case, please contact an immigration lawyer.

Since mid-June, the White House has been promising massive U.S. Immigration and Customs Enforcement (ICE) coordinated immigration raids around the country.  The goal: arrest and quickly remove approximately 2,000 recently arrived individuals with deportation orders.  This, according to the White House, would serve as a deterrent to others seeking to enter the U.S. unlawfully.  The raids were expected to begin in earnest on Sunday July 14, 2019.

What happened?

That date has come and gone, without the expected nationwide show of force.  There were no large-scale raids with weapons drawn, no helicopters, and no associated big media splash. Various media outlets reported on small-scale ICE enforcement actions and a small number of arrests.

Despite the lack of large-scale enforcement operations, the political and media attention escalated fear among immigrants and in their communities.  Scare tactics, whether intended or not, were successful in this measure; however, immigration rights advocacy groups helped counterbalance the fear by educating immigrants on how to handle encounters with ICE.

Enforcement actions are part of ICE’s mission as the immigration law enforcement component of the Department of Homeland Security.  This past weekend was simply business as usual for ICE.  Small-scale raids will likely continue throughout the week, but, for the same reasons the raids were delayed (logistical hurdles, safety concerns, political pressures, etc.) we are unlikely to see raids on the scale of what was promised.

Ongoing worksite enforcement – part of the smoldering fire behind all the rhetorical smoke?

While the current hot topic is the threatened raids to arrest and remove individuals, employers should not lose focus on the continued rise in worksite enforcement actions.  Worksite investigations, I-9 audits, and criminal and administrative workplace arrests all surged by 300 to 750 percent in FY2018 over the previous year.  These actions, for the most part, do not draw a lot of media attention (or tweets) but can cost employers millions of dollars in fines and penalties.

In the coming months and years, ICE will continue to focus on worksite enforcement activities.  No business is immune and ICE continues to expand its worksite enforcement effort beyond industries that traditionally rely on low-skilled foreign workers to include those that have not previously been investigated or only have a handful of foreign workers.

The media storm over this round of ICE enforcement will blow over, the media will move on, but companies need to remain vigilant.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the August Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 retrogresses to July 1, 2016; EB-2 advances two months to January 1, 2017; and EB-3 moves forward six months to July 1, 2016
  • India: EB-1 remains stalled at January 1, 2015; EB-2 crawls ahead eight days to May 2, 2009; and EB-3 falls back more than three years to January 1, 2006
  • Philippines: EB-1 recedes two years to July 1, 2016; EB-2 retrogresses to January 1, 2017; and EB-3 reverts back to July 1, 2016
  • All Other Countries: EB-1 retrogresses two years to July 1, 2016; EB-2 falls back to January 1, 2017; and EB-3 retrogresses to July 1, 2016

NOTE 1:     The August Visa Bulletin includes a veiled warning that dates for the All Other Countries group will not immediately return to current in October.

NOTE 2:     USCIS has not yet announced if they will accept I-485 applications in August based on the Department of State’s Dates for Filing chart.

Sunday as the country watched the US women cruise to victory over the Dutch, some immigration lawyers were wondering:

How many of the players are immigrants?

We know soccer teams draw their stars from around the world. For example:

  • the current Manchester United F.C. first-team squad features players from 14 different countries,
  • the current D.C. United MLS team features players from 10 countries, and
  • the Washington Spirit, DC’s local women’s professional team that includes Rose Lavelle who scored a beautiful goal in the World Cup Final, features players from 3 countries.

This has even been true in international competition. As recently as the 2018 men’s World Cup, teams were notably diverse. The Moroccan team had the greatest percentage of foreign-born players, with 61% born outside of Morocco, and many other teams had a large percentage of players from migrant backgrounds.

However, that diversity is not present in the international women’s game. The vast majority of players on the US and Dutch teams from this weekend’s final were native born. This may be due to the fact that the women’s game is still relatively young, or due to FIFA’s National Team Eligibility Rules. Whatever it is, of the 46 players capped for the final, only one player was not born in the country she represented – Liza Estafany van de Most, a Dutch defender, was born in Colombia and adopted by a Dutch family as an infant.

So where are the immigrants at the World Cup? Look to the sidelines.

While countries are restricted to fielding just citizen players in the World Cup, those same rules do not apply to coaching staff. As many companies know, sometimes the search for the best person for the job is an international search, and companies who want the best talent often end up going abroad to find it.

So too do soccer teams, and in this year’s World Cup, twenty-five percent of head coaches were not native-born citizens of the country whose team they managed.

This includes Team USA’s Coach Jill Ellis, who was born in the United Kingdom and immigrated to the United States in her youth. Other non-native-born coaches include Canada’s Danish coach Kenneth Heiner-Moller, and the coaches of Nigeria and Norway, both of whom are from Sweden.

The number of international coaches is even more notable in men’s soccer. In the 2018 men’s World Cup, 13 of the 32 teams competing had non-native-born coaches. 40 percent! Some of the coaches have coached multiple international teams during their career. For example, Carlos Queiroz, who coached the Iranian team during the 2018 World Cup, has had quite the immigration story. He was born a Portuguese citizen in what is now Mozambique. He never appeared in an international match as a player, but has coached the national teams of Portugal, the UAE, and South Africa, and also coached club teams in the United States, Japan, the United Kingdom, and Spain. He is currently the coach for the Colombian national team.

We know businesses like those involved in financial services, information technology, and healthcare are increasingly crossing borders in search of needed talent, and that workers are willing to change countries in pursuit of opportunities. Looking at the World Cup, we see the business of sports reflecting the same immigration trends.

Where are the immigrants? Everywhere.

While employment-based green card applicants are seeing unprecedented backlogs in their priority dates, notably in the EB-1 category reserved for “priority workers”, family-sponsored green card applicants are seeing their priority dates advance at a pace not seen in the last few years.

This development is happening almost unnoticed in the shadow of the media’s focus on the southern border and other aspects of preference-based immigration such as the administration’s proposal for a point-based system and a proposal in Congress to eliminate per-country limitations for employment-based green cards.

What are priority dates?

 A “priority date” is, essentially, an individual’s “place in line” to apply for a green card. An individual can determine how close they are to the front of the line by comparing their priority date to the dates for their category and country listed in the visa bulletin. Additional information about visa availability and priority dates can be found on the USCIS website. In general, for family-sponsored categories, the wait to apply for a green card ranges from a few years to over twenty years.

 Who is eligible for a green card under the family-sponsored eligibility categories?

 Each year, the number of family-sponsored immigrant visas is subject to a quota of between 226,000 and 480,000 as determined by a calculation based on the prior year’s family-based immigration statistics.  Immediate relatives (spouses, unmarried minor children, and parents of US Citizens) are exempt from this quota. The annual quota is divided across five categories of eligible family-sponsored individuals: (F1) unmarried adult sons and daughters of US citizens, (F2A) spouses and children of permanent residents, (F2B) unmarried sons and daughters (21 years of age or older) of permanent residents, (F3) married sons and daughters of US citizens, and (F4) brothers and sisters of adult US citizens.

Why are the advances in the family-sponsored categories significant?

 Historically, family-based categories other than immediate relatives have seen multi-year long backlogs that advance by just a few weeks with each new visa bulletin and often stall during the summer. Not this year. For the past year, most family-sponsored categories have been advancing by several weeks or months with each new visa bulletin. This culminated with the F2A category becoming “current” (available) on July 1, 2019 for all individuals.

These advances are significant because it means that family-sponsored applicants now have shorter wait times to apply for their green cards. This is even more significant for individuals who are seeking a green card under the F2A category because they are now able to pursue a green card application without delay, similar to spouses, unmarried minor children, and parents of adult US Citizens.

What does this mean for applicants waiting for employment-based green cards?

Unfortunately, nothing. Theoretically, if overall demand for family-based green cards across all categories is lower than the overall quota for family-based visas, unused visas could be reallocated to employment-based categories. However, in reality, even when one family-based category is current, demand in other family-based categories will absorb the remaining visas, with none flowing over to employment-based categories.

 Why are priority dates for family-sponsored categories advancing faster than for employment-based categories?

The advancement of priority dates and related availability of visas is determined by Department of State officials who compare the supply of visas available for the fiscal year to demand for visas in specific categories. Priority dates are “current” when the authorities expect actual demand will be lower than supply. As an example, according to the notes for the July 2019 Visa Bulletin, for the F2A category, “[d]espite the large amount of registered F2A demand, currently there are not enough applicants who are actively pursuing final action on their case to fully utilize all of the available numbers under the annual limit.” In other words, while there are many people who have taken the preliminary steps to get a green card by filing petitions, for some reason, they aren’t actually taking the final steps to apply for green cards.

One can only speculate as to what is causing this low level of demand. Can it be that individuals are simply giving up on applying for green cards through family ties due to the previously lengthy wait periods? Are individuals finding other ways of immigrating to the United States? Is the United States increasingly less attractive compared to other developed nations? Are individuals perhaps now “immediate relatives” of newly naturalized US Citizens? Whatever the case may be, this is good news for all individuals who have been and continue to patiently wait to apply for a green card based on their family ties.

It is important to note that should the Department of State see a change in this trend and see demand start to increase across family-based categories, the advances that we have seen in the last year could “retrogress” quickly and at any time.

Bottom line: If you are eligible to file a family-sponsored green card application, specifically under the F2B category, now is the time to seek advice from a qualified immigration practitioner regarding your options.

Since March 2019, all applicants who file Form I-539 Application To Extend or Change Nonimmigrant Status have been required to appear for biometrics appointments so that US Citizenship & Immigration Services (USCIS) can compare their biometric data against their identity documents and forward the data to the FBI for security screenings.

Why Is USCIS Taking Fingerprints from Applicants for Temporary Status?  According to USCIS, this new biometric requirement is to aid in identifying threats to public safety and national security, and to protect the integrity of the immigration system under President Trump’s Protecting the Nation From Foreign Terrorist Entry into the United States executive order.  There are no exemptions:  minors, including infants, and the elderly are required to comply.

What Impact Will This Have on Processing Times?  Many nonimmigrants use Form I‑539 to change or extend status without having to leave the US, including the spouses and children of professional workers in H-1B or L-1 status.  Within certain criteria, these H-4 and L-2 spouses are eligible to apply for Employment Authorization Documents (EADs) that are valid for up to two years at a time.  Spouses frequently file their EAD applications along with their Forms I-539 in order to extend both status and employment authorization at the same time.  The new biometrics requirement has added months of processing time to both types of applications because:

  • USCIS no longer extends its prior courtesy of adjudicating dependent applications within 15 days when an employer filed its own petition requesting premium processing on behalf of the H‑1B or L‑1 worker; and
  • Adjudication is now dependent on security screenings conducted by an outside agency (the FBI). As a result, what once took 15 days is now taking 3 months, and counting.

Because the biometrics requirement is relatively new, processing data is insufficient to get a good sense of how much longer than 3 months these applications may take.  However, USCIS Service Centers are currently reporting processing times of 2.5 to 8.5 months.  Whether this broad time range will match actual practice remains to be seen.

How Will Dependents Show Ongoing Status and Employment Authorization to Driver’s License Offices and Employers?  If logistics or finances are not a consideration, it may become more appealing for dependents to renew their visas abroad, based on the principal worker’s already extended status, rather than filing extension applications with USCIS.  The majority of visa applications at U.S. consulates are processed within 2 weeks, and when dependents return to the US with their new visas, their status is automatically extended on admission.  However, in a relatively small – but growing – number of cases, “administrative processing” may delay visa issuance for up to 6 weeks or longer.

Even with quick visa issuance, it is not clear whether a spouse’s EAD renewal application, which must still be filed with USCIS after the spouse re-enters the US, will be processed any faster than if the spouse simply remained in the US and filed both EAD and extension applications with USCIS.  Therefore, H-4 and L-2 nonimmigrant spouses who are considering this alternative should consult with an immigration attorney to determine the best strategy to accomplish their desired outcome.

While TSA pre-check may get you through US security faster, expediting departure, there are also benefits available on the other end of the trip through a variety of other programs that expedite international arrival processes.

Collectively known as Trusted Traveler Programs, most of these programs feature:

  • Fast-track lanes and streamlined entry processes
  • Facial recognition software and other technologies used to screen passengers
  • Eligibility limited to a specific list of nationalities that vary by program
  • A pre-approval process that includes a background check and biometrics
  • An enrollment fee of up to US$200
  • Availability at a limited set of airports

While these programs do not completely replace standard visas, they can still result in major time savings for frequent travelers. An overview of some of the most popular programs are below. If you have specific questions about your eligibility, contact your immigration advisors.

Multi-Country Options

Global Entry with Reciprocal Benefits

Global Entry is the most popular program for US citizens and one of the best known trusted traveler programs in the world. Eligibility is limited to US citizens, permanent residents, and citizens of 11 other countries, including India. It does not replace a visa though and members must maintain updated visa information with CBP.

Through reciprocal agreements, US citizen Global Entry members may also use expedited processes to enter  Australia (SmartGate), Canada (Nexus),  New Zealand (dedicated lane), Panama (Global Pass), Republic of Korea (Smart Entry Service), and the UK (Registered Traveller).

APEC Business Travel Card

The Asia Pacific Economic Cooperation Business Travel Card (ABTC) facilitates travel to 21 countries on the Pacific Rim, including the US, Australia, and Canada. Eligibility is limited to citizens of APEC countries who travel frequently for business and have no criminal convictions. Applicants apply through their home country which assesses the application before forwarding it for review by other participating countries who each make individual determinations. It is possible to get approval by only a subset of countries, all of which will be listed on the issued card.

Unlike Global Entry, the ABTC also serves as a visa for some countries. For example, pre-approval from China serves as a multi-entry visitor visa.

Single Country Options

For those not eligible for Global Entry or an ABTC, but who travel frequently to a specific country, there are many country-specific programs that can help get you through the airport faster. They include:

  • Australia (SmartGate): A fast lane open to citizens of 15 countries. Pre-registration is not required.
  • Canada (Nexus): Available to citizens of the US and Mexico, as well as some permanent residents of those countries. An application process is required for those not already enrolled in Global Entry.
  • Germany (EasyPass): A fast lane available to citizens of the EU, Switzerland, Hong Kong SAR, Republic of Korea, and the US. An application is required.
  • Mexico (Viajero Confiable): A fast lane open to Mexicans and permanent residents of Mexico who are citizens of the US or Canada. An application is required.
  • Panama (Global Pass): Open to US citizens and permanent residents. An application is required.
  • Republic of Korea (Smart Entry Service): Open to Koreans and residents of the US, Hong Kong SAR, Macao SAR, Taiwan, and Germany. Prior registration is required.
  • United Kingdom (Registered Traveller): Open to citizens of 33 countries who either have a current visa/entry clearance or who frequently visit the UK. An application is required.

Given the variety of programs out there, finding the best fit for a specific need can be challenging. If you have questions, contact your immigration team who can provide guidance tailored to your situation.

Safe travels!

In October 2017, the Department of Homeland Security implemented Trump’s Executive Order, “Protecting the Nation From Foreign Terrorist Entry,” by requiring all applicants sponsored for green cards by their employers to be interviewed in person at a US Citizenship & Immigration Services office.  The first batch of interviews were scheduled quickly, but over the last year, wait times have skyrocketed, now reaching 1 to 2 years in large metro areas.  Waits for family-based applicants (who have always been interviewed) have steadily climbed also, as a result of the growing workload at local USCIS field offices.

The chart below, compiled from data at USCIS’s Processing Times web site, shows current wait times in ten major cities:

City Wait Time for Green Card Interview
Employment-Based Family-Based
Atlanta 10.5 to 25 months 11 to 17 months
Dallas 10.5 to 25 months 15.5 to 21 months
Houston 11 to 21.5 months 17 to 27 months
Los Angeles 10.5 to 25 months 10.5 to 17.5 months
Miami 10.5 to 25 months 11 to 23.5 months
New York City 12.5 to 22 months 20.5 to 31.5 months
Raleigh 10.5 to 25 months 7 to 24.5 months
San Diego 10.5 to 25 months 7.5 to 18.5 months
Seattle 10.5 to 17 months 11 to 23.5 months
Washington DC 10.5 to 25 months 10 to 22 months

This week, USCIS announced a plan to shorten these long waits by equalizing field office workloads and interviewing applicants outside their normal USCIS jurisdiction.  USCIS has published no details on how far applicants might be required to travel or how much wait times are expected to rise at smaller field offices as a result of the redistribution.

For example, depending on their zip codes, residents of South Florida are now required to interview in Miami, Hialeah, Kendall or Oakland Park.  All four of those offices have wait times of up to 2 years for both family- and employment-based interviews.  Those Floridians may now have to travel 70 miles to West Palm Beach or 150 miles to Fort Myers to be interviewed, yet that shift will shorten their waits by only a few months, according to USCIS’s Processing Times website.

The same is true in the New York metro area, where green card applicants now are interviewed at field offices in New York City, Queens, Brooklyn, or Long Island – all with up to 2-year waits.  Nearby field offices in New Jersey have similar wait times.  New Yorkers may have to go as far as Rhode Island or Vermont, perhaps only to shave a few months off wait times.

While Trump’s DHS has prioritized a surge in hiring for its investigation and enforcement branches, the service side of the agency enjoys far less support.  In its FY2020 budget proposal, DHS seeks $5 billion for building border walls, $2.7 billion for housing detainees, $550 million for removing detainees, and $470 million for hiring law enforcement and Border Patrol agents.  A full 53 percent of its total FY2020 budget authority is allocated to its enforcement arms:  ICE, Customs & Border Protection, US Coast Guard and TSA.

USCIS’s allocation is only 5 percent, and its total budget request only $120 million.  About 10 percent of that amount is earmarked for Operations and Support, which would include hiring and training new officers to adjudicate applications and interview applicants.  While it is true that USCIS operations are largely funded by filing fees paid by the public, DHS this year plans to rob Peter to pay Paul.  Some $207 million of USCIS’s filing fees will be transferred to ICE to fund its investigation and enforcement activities.  With these priorities, we are unlikely to see green card wait times substantially reduced any time soon.