Law Offices of Richard S. Goldstein | Recent Changes in US Immigration Law & Visa Processing

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temporary visa topics immigrant visa topics other visa topics london visa processing paris visa processing tokyo visa processing seoul visa processing recent changes faqs links Law Offices of Richard S. Goldstein New York 145 West 57th Street 16th Floor, New York New York 10019 tel: 212-957-0500 fax: 212-957-2020 London 96A Mount Street First Floor Mayfair London W1K 2TB tel: 020-7499-8200 fax: 020-7499-8300	important recent changes In U.S. Immigration Law and Visa Processing DRUNK DRIVING The US Department of State now requires a medical examination for any applicant who has been arrested or convicted for drunk driving within the past five years or who has been arrested or convicted of drunk driving two or more times in their lives. The applicant must first appear at the US embassy for a visa interview and disclose the arrest. The Consular Officer will then refer the applicant to the Embassy’s panel physician for the examination, which the applicant must schedule. These appointments are generally scheduled within several days of the visa interview. After the examination, the blood sample is sent to a processing laboratory where tests are conducted to determine whether the applicant has a long-term history of alcoholism. The results are returned to the interviewing Embassy approximately two weeks later and the applicant is contacted. If the results of the blood test are satisfactory the applicant will be instructed to send his/her passport to the Embassy for Visa issuance. SAFE-HARBOR PROCEDURES FOR EMPLOYERS RECEIVING NO-MATCH LETTERS FROM THE SOCIAL SECURITY ADMINISTRATON OFFICE New Social Security No-Match Regulations will take effect on September 14, 2007. This new regulation relates to the unlawful hiring or continued employment of unauthorized aliens. The regulation describes the legal obligations of an employer, under current U.S. immigration law, when the employer receives a “no-match” letter from the Social Security Administration or receives a letter regarding employment verification forms from the Department of Homeland Security. Employers annually send the Social Security Administration millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number does not match Social Security Administration (“SSA”) records. In some cases, the SSA will send a letter, such as an “Employer Correction Request”, that informs the employer of the mismatch. The letter is commonly referred to as a “no-match letter.” There can be many causes for a no-match, including clerical error and name changes. One potential cause may be the submission of information for an alien who is not authorized to work in the United States and who may be using a false Social Security Number or a Social Security Number assigned to someone else. Such a letter may be one indicator to an employer that one of its employees may be an unauthorized alien. U.S. Immigration and Customs Enforcement (“ICE”) sends a similar letter (currently called a “Notice of Suspect Documents”) after it has inspected an employer’s Employment Eligibility Verification forms (Form I-9) during an investigation audit and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person. The new regulation also describes “safe-harbor” procedures that the employer can follow in response to such a letter and thereby be certain that the Department of Homeland Security will not use the letter as any part of an allegation that the employer possessed constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. To summarize, the final rule adds two more examples to the current regulation’s definition of “knowing” to illustrate situations that may lead to a finding that an employer had such constructive knowledge. These additional examples involve an employer’s failure to take reasonable steps in response to either of two events: The employer receives a written notice from the Social Security Administration (such as an “Employer Correction Request” commonly known as a employer “no match letter”) that the combination of name and Social Security account number submitted to the Social Security Administration for an employee does not match agency records; or The employer receives written notice from the Department of Homeland Security (“DHS”) that the immigration status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to the Department of Homeland Security records. (Form I-9 is retained by the employer and made available to DHS investigators on request, such as during an audit). The new rule also states that the DHS will continue to review the totality of relevant circumstances in determining if an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in any of the regulation’s examples. The “safe-harbor” procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization through a specified process. H-1B CAP On April 3, 2007, USCIS announced that it had received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008. USCIS determined that the “final receipt date” was April 2, 2007. Any cap-subject petitions received on April 2, 2007 and April 3, 2007 will be subject to the random selection process. USCIS then rejected any petitions that were subject to the FY 2008 annual cap that were not randomly selected as well as those that were received after the “final receipt date.” Congress has established an annual H-1B cap of 65,000. Of that number 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available for FY 2008 was therefore 58,200. The law provides that any of the unused Chile/Singapore numbers be reallocated back to the FY 2008 H-1B cap. These unused numbers will be made available on October 1, 2007, the start of FY 2008. The law authorizes USCIS to make such unused numbers available within the first 45 days of FY 2008 to aliens who had applied for such visas during FY 2007. At that time, USCIS will announce how many Chile/Singapore numbers went unused and can be reallocated. USCIS will announce the process for distributing any reallocated numbers in the near future. Cap Procedures. USCIS has implemented the following process for FY 2008 H-1B filings in accordance with the procedures announced in the USCIS Press Release dated April 3, 2007. Petitioners may re-submit their petitions when H-1B visas become available for FY 2009. The earliest date for which a petitioner may file a petition requesting FY 2009 H-1B employment with an employment start date of October 1, 2008, is April 1, 2008. Arrest or Criminal Record Bars Travel Under Visa Waiver Program Travelers who have been arrested, even if the arrest did not result in a criminal conviction, and those with criminal records are not eligible to travel visa free under the Visa Waiver Program. This is not a new policy. There has been no change to this regulation since the Visa Waiver Program was implemented in July 1988. Transit Without a Visa Program and International-to-International Transit Program Suspended As of August 2, 2003, the Transit Without a Visa Program (TWOV) and the International-to-International Transit Program (ITI) have been suspended indefinitely by the Department of Homeland Security. Travelers whose return journey will take them through the United States are required to either apply for a visa or to change their travel itinerary to exclude a stop in the United States. Note that the suspension of the TWOV program does not affect visa free travel under the Visa Waiver Program. Qualified visa free travelers may continue to travel to the United States for business or pleasure or in transit through the United States. Permanent Residents/Landed Immigrants of Canada and Bermuda Beginning March 17, 2003, permanent residents/landed immigrants of Canada and Bermuda who carry a passport from a Commonwealth country or Ireland may require visas for travel to the United States. Permanent residents of these countries who are traveling to the U.S. for business or pleasure may travel visa free under the Visa Waiver Program, if they are a national of a country designated eligible to enter under the Visa Waiver Program. U.S. PORT-OF-ENTRY ENTRY/EXIT SYSTEM (US VISIT PROGRAM) US-VISIT Moves Out of Biometric Exit Pilot Phase The U.S. Department of Homeland Security (DHS) announced on May 4th 2007 that it intends to integrate biometric exit procedures into the existing international visitor departure process. The change will make the process of departing the United States more convenient and accessible for international visitors. DHS will take a number of steps in the next year toward full implementation of biometric exit procedures at airports. The first step will be the completion of the three-year pilot program that required international visitors to biometrically check out at select airports and seaports. Effective May 6, 2007, international visitors will no longer be required to use the US-VISIT exit kiosks when they leave the United States. International visitors who received a U.S. Customs and Border Protection (CBP) Form I-94, Arrival-Departure Record, upon arrival must still return the form to an airline or ship representative when departing the United States. DHS recently submitted an exit plan to Congress as part of the US-VISIT 2007 Expenditure Plan that incorporates lessons learned from the biometric exit pilot program. While the program demonstrated that the technology works, it also revealed low traveler compliance. DHS has determined that US-VISIT air exit procedures should be incorporated into the existing international visitor departure process to minimize the effect on visitors and to ensure seamless biometric collection regardless of the visitor’s departure point. DHS, Congress and the 9/11 Commission have consistently recognized biometric exit control as a priority in order to fully secure our nation’s borders. Development of an automated exit capability is one of the department’s congressional mandates. Since 2003, DHS has systematically tackled technical and operational challenges and deployed a biometrics-based entry process through US-VISIT. DHS is now prepared to begin implementing exit procedures in the commercial air environment, where the significant majority of those subject to US-VISIT depart the United States. The department recently began discussing the air exit strategy with the airline industry and will be working with air carriers to implement it. DHS will publish a regulation in the future outlining its plans for implementing an integrated air exit strategy. The following locations tested biometric exit procedures: Atlanta, Ga. (Hartsfield-Jackson Atlanta International Airport) Baltimore, Md. (Baltimore/Washington International Airport) Chicago, Ill. (Chicago O’Hare International Airport) Dallas/Fort Worth, Texas (Dallas/Fort Worth International Airport) Denver, Colo. (Denver International Airport) Detroit, Mich. (Detroit Metropolitan Wayne County Airport) Fort Lauderdale, Fla. (Fort Lauderdale-Hollywood International Airport) Los Angeles, Calif. (San Pedro and Long Beach Seaports) Miami, Fla. (Miami International Cruise Line Terminal) Newark, N.J. (Newark Liberty International Airport) Philadelphia, Pa. (Philadelphia International Airport) San Juan, Puerto Rico (Luís Muñoz Marín International Airport) San Francisco, Calif. (San Francisco International Airport) Seattle, Wash. (Seattle-Tacoma International Airport) The US-VISIT program provides biometrics-based identity management services to entities throughout the U.S. government. Most international visitors applying to enter the United States experience US-VISIT procedures—digital fingerprint collection and a photograph. Department of State consular officers and U.S. CBP officers use US-VISIT biometric identity management services to establish and verify international visitors’ identities in order to make visa-issuance and admission decisions. For more information, please visit www.dhs.gov/us-visit. “US-VISIT” is a crucial border security and enforcement tool that captures point of Entry and Exit information by visitors to the United States implemented as of January 2004. This system is capable of using information, coupled with biometric identifiers, such as photographs, fingerprints – to create an electronic check-in/check-out system for people who come to the United States to work or to study or visit. US-VISIT also provides a useful tool to law enforcement to find those visitors who overstay or otherwise violate the terms of their visas. The US-VISIT system processes information when a foreign national applies for a visa at an overseas embassy or consulate, and continues to maintain information on that individual when he or she enters the country at a port of entry, requests benefits such as change of status or adjustment of status, or departs the United States. As recommended by the National Institute of Standards and Technology, the system will be supported by biometrics and will allow biometrics to be collected from each individual upon entry and exit from the country, and compare against biometrically enabled documents to validate identity. All appropriate officials and agencies including consular officers, inspectors, adjudicators, investigators, and state and local law enforcement officials will share the information provided by this system, including Department of State consular officers, Department of Homeland Security officers, and State and Local law enforcement. Since starting US VISIT, more than 23 million visitors have registered through the system at inspection lines, without increasing wait times at air or seaports of entry. The biometric capability of US VISIT has made it possible to identify and arrest or deny entry to people who were attempting to enter the U.S. under false pretenses. Some had made repeated trips to and from the U.S. using false biographic information. US VISIT not only improves the integrity of our nation’s immigration system, but also, through the use of biometric identifiers, improves the Immigration at the US border. It should be noted that information obtained, reviewed and input during immigration screening at U.S. borders will now be interconnected with foreign and federal agencies on a global level. Therefore, searches will reveal global information about travelers, including any kind of searches performed or interrogations, questionable background information etc. A Washington File distributed by the Bureau of International Information Programs and dated 16 September 2003, stated that the U.S. Terrorist Screening Center [was] to be operational by December 1, 2003. This multi-agency facility consolidates terrorist watchlists. The U.S. government has consolidated numerous terrorist screening mechanisms into a single, comprehensive, anti-terror watchlist operational as of December 1, 2003. The establishment of the Terrorist Screening Center (TSC) consolidates terrorist watchlists and provides 24-hour-a-day, seven-day-a-week operational support for thousands of federal screeners across the country and around the world. The center ensures that government investigators, screeners and agents are working from the same comprehensive information – and that they have access simultaneously to information and expertise that will allow them to act quickly when a suspected terrorist is screened or stopped. The Department of State and the CIA are collaborating to ensure that the identities of thousands of known and suspected terrorists are integrated into the State Department’s TIPOFF system and accessible to consular officers and Department of Homeland Security border inspectors worldwide. The TIPOFF program will form the basis for the TSC database. THE U.S. BORDER POST PROGRAM Any third country national (TCN) present in the U.S. and visitors present in Canada can apply for a U.S. nonimmigrant visa at any of the U.S. border posts in Canada listed below (excluding individuals from the 7 countries designated as sponsoring state terrorism). You have to make an appointment for an interview in advance. Some applicants may not be successful in obtaining a visa and will be advised to apply for their visa at U.S. Embassy/Consulate in their home country. Applications of certain nationals will be more highly scrutinized. The U.S. Consular offices in Canada: Calgary, Halifax, Montreal, Ottawa (Embassy), Quebec City, Toronto, Vancouver TEMPORARY WORKERS IN SPECIALTY OCCUPATIONS – H VISAS New Filing Fees As of December 8, 2004, The Consolidated Appropriations Act of 2005 requires all H-1B petitioners to pay American Competitiveness and Workforce Improvement Act (ACWIA) Fee of $1500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may pay a reduced ACWIA Fee of $750. All new H-1B visa petitions filed on or after March 8, 2005 are also required to pay an additional Fraud and Detection Fee of $500. Any petitions to amend or extend an existing H1-B with the same employer are exempt from the $500 fee. The above fees are in addition to the base processing Filing Fee of $190 (subject to change), and any premium processing fee, if applicable. Please also note that now 100% of the prevailing wage must be met by the employers in H-1B visa petitions, as compared to 95% of the prevailing wage that was previously required. Please refer to the H Visa section under the Temporary Visa Topics link for further information. INTRACOMPANY TRANSFEREES - L VISAS As of December 8, 2004, The Consolidated Appropriations Act of 2005 requires all new L visa petitioners, filing new L visa petitions on or after March 8, 2005, to pay an additional Fraud Prevention and Detection fee of $500. Any petitions to amend or extend an existing L with the same employer are exempt from the $500 fee. The above fees are in addition to the base processing fee of $190. (subject to change), and any premium processing fee, if applicable. L-1B Specialized Knowledge Capacity visa petitions extensions, and amendments filed on or after June 6, 2005 do not permit “outsourcing.” Meaning the L-1B visa holder cannot work primarily at a worksite other than their petitioner employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than the specialized knowledge of the petitioning employer. All new L-1 visa petitions including new “Blanket L-1” visa petitions, filed on or after June 6, 2005 require the applicants to have worked for a period of no less than one year outside the U.S. for an employer with a qualifying relationship to the petitioning employer. Previously, applicants in the “Blanket L-1” program could participate after as little as 6 months of qualifying employment) outside the U.S. CHANGES TO NONIMMIGRANT VISA PROCESSING Department of State regulations require that, as of October 26, 2004, all overseas posts collect electronic finger scans from people applying for visas. As finger scans can only be collected in person, this will mean that almost all visa applicants will be required to apply for a visa in person through a prearranged appointment. The U.S. Embassy in London introduced the finger scan requirement on August 11, 2004. From that date, all nonimmigrant visa (NIV) applicants aged 14 to 79 are required to submit fingerscans at the time of their visa interview at the U.S. Embassy in London. The U.S. Embassy in Paris, the U.S. Embassy in Tokyo, and the U.S. Embassy in Seoul have introduced the requirement as well. This quick, inkless procedure captures two electronic scans, creating a biometric identifier that is incorporated into NIV applicants’ machine-readable visas. Each applicant is simply required to place his/her index finger on an electronic scanner in a procedure that is completely inkless and adds only a few seconds to the processing time for the NIV. Applicants under the age of 14 and age 80 and over may be eligible to complete the NIV application process by mail. Diplomats and government officials traveling on official business will be exempt from this requirement. MACHINE-READABLE AND BIOMETRIC PASSPORT REQUIREMENT UNDER THE VISA WAIVER PROGRAM As of October 26, 2004, visa waiver travelers from ALL 27 Visa Waiver Program (VWP) countries must present a machine-readable passport (with an electronic bar code) at the U.S. port of entry to enter the U.S. without a visa, otherwise a U.S. visa is required. This requirement applies to both adults and children alike. NOTE: Children who are included on a parent’s passport will not be allowed to enter the United States without their own machine-readable passport. They will require their own machine-readable passport for such travel on or after October 26, 2004. As of September 30, 2004, all Visa Waiver travelers arriving at U.S. ports will be enrolled in US-VISIT at airports implementing the US-VISIT program. Adoption of biometric passport identification standards (meaning iris, fingerprint and face recognition) was implemented as of OCTOBER 26, 2005 to provide more secure passport standards as part of the Enhanced Border Security and Visa Entry Reform Act of 2002. The above requirements do not apply to travelers who hold a valid visa, or intend to apply for a visa before traveling to the United States. Note that as of April 15, 2003, Uruguay was removed from the list of countries participating in the Visa Waiver Program. Therefore, Uruguay passport holders traveling to the United States are now required to apply for either a B-1 (business) or B-2 (tourist) visa. Arrest or Criminal Record Bars Travel Under Visa Waiver Program Travelers who have been arrested, even if the arrest did not result in a criminal conviction, and those with criminal records are not eligible to travel visa free under the Visa Waiver Program. This is not a new policy. There has been no change to this regulation since the Visa Waiver Program was implemented in July 1988. Transit Without a Visa Program and International-to-International Transit Program Suspended As of August 2, 2003, the Transit Without a Visa Program (TWOV) and the International-to-International Transit Program (ITI) have been suspended indefinitely by the Department of Homeland Security. Travelers whose return journey will take them through the United States are required to either apply for a visa or to change their travel itinerary to exclude a stop in the United States. Note that the suspension of the TWOV program does not affect visa free travel under the Visa Waiver Program. Qualified visa free travelers may continue to travel to the United States for business or pleasure or in transit through the United States. Permanent Residents/Landed Immigrants of Canada and Bermuda Beginning March 17, 2003, permanent residents/landed immigrants of Canada and Bermuda who carry a passport from a Commonwealth country or Ireland may require visas for travel to the United States. Permanent residents of these countries who are traveling to the U.S. for business or pleasure may travel visa free under the Visa Waiver Program, if they are a national of a country designated eligible to enter under the Visa Waiver Program. U.S. PORT-OF-ENTRY ENTRY/EXIT SYSTEM (US VISIT PROGRAM) “US-VISIT” is a crucial border security and enforcement tool that captures point of Entry and Exit information by visitors to the United States implemented as of January 2004. This system is capable of using information, coupled with biometric identifiers, such as photographs, fingerprints – to create an electronic check-in/check-out system for people who come to the United States to work or to study or visit. US-VISIT also provides a useful tool to law enforcement to find those visitors who overstay or otherwise violate the terms of their visas. The US-VISIT system processes information when a foreign national applies for a visa at an overseas embassy or consulate, and continues to maintain information on that individual when he or she enters the country at a port of entry, requests benefits such as change of status or adjustment of status, or departs the United States. As recommended by the National Institute of Standards and Technology, the system will be supported by biometrics and will allow biometrics to be collected from each individual upon entry and exit from the country, and compare against biometrically enabled documents to validate identity. All appropriate officials and agencies including consular officers, inspectors, adjudicators, investigators, and state and local law enforcement officials will share the information provided by this system, including Department of State consular officers, Department of Homeland Security officers, and State and Local law enforcement. Since starting US VISIT, more than 23 million visitors have registered through the system at inspection lines, without increasing wait times at air or seaports of entry. The biometric capability of US VISIT has made it possible to identify and arrest or deny entry to people who were attempting to enter the U.S. under false pretenses. Some had made repeated trips to and from the U.S. using false biographic information. US VISIT not only improves the integrity of our nation’s immigration system, but also, through the use of biometric identifiers, improves the integrity of travel documents such as passports and visas. DEPARTMENT OF STATE REVALIDATION DIVISION HAS DISCONTINUED ITS RENEWAL/REVALIDATION (OR REISSUANCE) SERVICE IN THE U.S. The Revalidation Division of the Department of State has discontinued its renewal/revalidation (or reissuance) service in the United States as of July 16, 2004. Therefore, for renewals or revalidations of E, H, I, L, O and P visas, you must now apply abroad, generally in your country of residence. Diplomatic and official visas (A,G, and NATO) will continue to be processed in Washington and at the U.S. Mission to the United Nations in New York. I-901 SEVIS FEE FOR F, M, AND J NONIMMIGRANT STUDENTS AND EXCHANGE VISITORS Effective September 1, 2004 the Department of Homeland Security will collect a congressionally mandated fee of $100 U.S. dollars to cover the costs for the continued operation of the Student and Exchange Visitor Program (SEVP). IMMIGRATION AT THE U.S. BORDER It should be noted that information obtained, reviewed and input during immigration screening at U.S. borders will now be interconnected with foreign and federal agencies on a global level. Therefore, searches will reveal global information about travelers, including any kind of searches performed or interrogations, questionable background information etc. A Washington File distributed by the Bureau of International Information Programs and dated 16 September 2003, stated that the U.S. Terrorist Screening Center [was] to be operational by December 1, 2003. This multi-agency facility consolidates terrorist watchlists. The U.S. government has consolidated numerous terrorist screening mechanisms into a single, comprehensive, anti-terror watchlist operational as of December 1, 2003. The establishment of the Terrorist Screening Center (TSC) consolidates terrorist watchlists and provides 24-hour-a-day, seven-day-a-week operational support for thousands of federal screeners across the country and around the world. The center ensures that government investigators, screeners and agents are working from the same comprehensive information – and that they have access simultaneously to information and expertise that will allow them to act quickly when a suspected terrorist is screened or stopped. The Department of State and the CIA are collaborating to ensure that the identities of thousands of known and suspected terrorists are integrated into the State Department’s TIPOFF system and accessible to consular officers and Department of Homeland Security border inspectors worldwide. The TIPOFF program will form the basis for the TSC database. THE U.S. BORDER POST PROGRAM Any third country national (TCN) present in the U.S. and visitors present in Canada can apply for a U.S. nonimmigrant visa at any of the U.S. border posts in Canada listed below (excluding individuals from the 7 countries designated as sponsoring state terrorism). You have to make an appointment for an interview in advance. Some applicants may not be successful in obtaining a visa and will be advised to apply for their visa at U.S. Embassy/Consulate in their home country. Applications of certain nationals will be more highly scrutinized. The U.S. Consular offices in Canada: Calgary, Halifax, Montreal, Ottawa (Embassy), Quebec City, Toronto, Vancouver [HOME] [top of page]