The fast pace of immigration developments under the new Trump administration continues. The following are some of the issues that are most important to individuals and businesses in the United States: Continue Reading DHS Clarifies Policies Affecting Travelers and Applicants, As Details of Possible New Executive Orders Emerge
U.S. Citizenship and Immigration Services announced recently that US employers who petition for foreign workers in the H-1B, H-1B1 (Chile/Singapore), L-1, and O-1A categories will not be required to complete Part 6 of Form I-129 until February 20, 2011. Part 6 contains the employer certification regarding licensing requirements under export controls and ITAR, recently discussed in this blog. USCIS received a number of inquiries from stakeholders requesting that the agency delay implementation of this requirement in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements.
U.S. Citizenship and Immigration Services recently issued a new Form I-129, effective December 23, 2010. Part 6, “Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.,” requires an employer to certify it will not “release” controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate “export license,” if one is required. Under the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), a “deemed export” occurs when controlled technology or technical data is “disclosed” or “transferred” to a foreign person, whether in the United States or abroad. This can occur when a foreign-national employee reads technical specifications, plans or blueprints or has direct access to source code; or when technology is indirectly exchanged with the employee verbally or under the guidance or supervision of others who have knowledge of the technology. To comply with the law and properly complete the new form, an employer must first classify its technology or technical data to determine if an export license is required. The EAR’s Commerce Control List may be found here and the ITAR’s U.S. Munitions List here. Employers who are not certain if their technology requires an export license should consult with legal counsel who has expertise in export control law.
The U.S. Department of State has confirmed that contractors on a pre-approved list at the Kentucky Consular Center (KCC) are now auditing approved nonimmigrant petitions — including H-1B and L-1 petitions — in order to verify that information contained in the petitions is correct. The audits are creating significant delays for petition-based visa applicants at embassies worldwide.
In recent months there have been multiple reports that some H-1B workers arriving at Newark Liberty International Airport in New Jersey have been questioned extensively by U.S. Customs and Border Protection (CBP) officers about their employment in the United States. In some cases H-1B workers have been refused entry and/or had their visas cancelled. CBP headquarters has since confirmed that most of these incidents occurred as part of an enforcement action involving companies that are under investigation for immigration violations, presumably involving fraudulent H-1B petitions or inadequate documentation. Based on the types of questions being asked by CBP, there are also indications of increased scrutiny of H-1B workers who are employed by consulting firms, based on the January 2010 Neufeld memo discussed in our previous blog entry Indian nationals who are employed by consulting firms appear to be the primary targets of these enforcement efforts.
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.
U.S. Citizenship and Immigration Services (USCIS) has engaged outside contractors to conduct thousands of site visits to petitioners, including companies that have sponsored employees in H-1B, L-1 or O-1 status. Typically, the site visits are conducted after approval of the petition. The investigators may arrive unannounced at the work site, or call the company ahead of time to plan a time to visit the company office or facility. According to information provided by one such investigator, the purpose of the site visit is to verify that the company is a real operating business entity, and that the person sponsored in the petition is actually employed by the company in the manner described in the petition. Hunton & Williams clients should contact us immediately if your company is the target of such an investigation, so we can coordinate the process and assist with satisfying any legitimate requests by the investigator.