important recent changes
In U.S. Immigration Law and Visa Processing
Significant IV and NIV Developments at the London, Paris and Tokyo Embassies
Immigrant Visa Developments
Nonimmigrant Visa Developments
USCIS Chicago Lockbox addresses for regular mail deliveries:
Nonimmigrant Visa Developments
USCIS Chicago Lockbox addresses for regular mail deliveries:
Nonimmigrant Visa Developments
Applicants must pay the appropriate fee at a “Pay-Easy ATM”. Please see: http://japan.usembassy.gov/e/visa/tvisa-niv-walkin2.html for full details.
New MRV Application Fees for Nonimmigrant Visa Applicants
As of June 4, 2010, the Department of State has implemented new MRV application fees for nonimmigrant visa applicants. The new fee schedule is tiered to reflect the higher unit costs involved in the adjudication of certain nonimmigrant visa categories which require a review of extensive documentation and a more in-depth interview than other categories, such as tourists (B-2) and business visitors (B-1).
The fee schedule is tiered as follows:
Elimination of Form I-94W for VWP Travelers with Approved ESTA
As of May 20, 2010, the Department of Homeland Security announced the elimination of the Form I-94W paper arrival/departure form for authorized travelers from nations participating in the Visa Waiver Program (VWP) with an approved ESTA (Electronic System for Travel Authorization). The elimination of the I-94W Forms will be completed at all U.S. airports by the end of the summer of 2010. CBP (Customs and Border Protection) will activate automated processing for U.S. airports on a rolling basis over the next several months.
Applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.
The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States — reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.
CBP recommends that travelers submit ESTA applications as soon as an applicant begins making travel plans. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for two years or until the applicant’s passport expires.
NEW GREEN CARD
U.S. Citizenship and Immigration Services (USCIS) announced that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. State-of-the-art technology prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication of the card.
As of May 11, 2010, USCIS will issue all Green Cards in the new, more secure format.
The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as definitive proof of authorization to live and work in the United States. Among the benefits of the redesign: Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS. In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.
DS-160 replaces DS-156, DS-157, DS-158 and DS-3032
About the New Online Form
The new DS-160, Nonimmigrant Visa Electronic Application, replaces current non-immigrant application form DS-156, and certain other related forms. The DS-160, Non-immigrant Visa Electronic Application is a fully integrated online application form that will be used to collect the necessary application information from persons seeking a non-immigrant visa. The DS-160 will be submitted electronically to the Department of State via the Internet. Consular Officers will use the information entered on the DS-160 to process the visa application and, combined with a personal interview, will determine an applicant’s eligibility for a nonimmigrant visa. View Frequently Asked Questions about the form DS-160.
Note: exceptions are:
Fiancé visas (K1/K2) which still require use of forms DS-156 and DS-156K and Treaty-trader (E1) and Executive/Manager/Essential Employee of an E visa business which require DS-160 and DS-156E. A new form, DS-161 E Visa Business Information Form will be released next year for online completion and submission. Until then, the DS-156 remains in effect. It is important to check the Embassy or consular website where you will apply for your nonimmigrant visa for information on the application process in place.
It is important to check the Embassy or consular website where you will apply for your nonimmigrant visa for information on the application process in place.
The new DS-160 online, Nonimmigrant Visa Electronic Application, is currently being used only at selected U.S. Embassy and Consulate locations. NOTICE: Non-immigrant visa applicants will need to review U.S. Embassy website how-to-apply information for detailed instructions. Nonimmigrant visa applicants at the following U.S. Embassy and Consulate locations are required to apply using the online DS-160;
U.S. Embassies and Consulates Requiring the Form DS-160 (as of May 2010) – See U.S. Dept. of State site for updates/further countries to be added.
The U.S. Embassy and Consulates listed below require nonimmigrant visa applicants (excluding K-1/2 fiancee and E-1/2 Treaty Trader visa classes) to use the new Online DS-160.
Applicants applying for petition based visas--H, L, O, P, Q or R--are required to complete the new form DS-160.
H-1B cap reached on December 21, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. USCIS is hereby notifying the public that Dec. 21, 2009 was the "final receipt date" for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.
The "final receipt date" is the date on which USCIS determines that it received enough cap-subject petitions to reach the limit of 65,000. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases are considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.
April 1, 2010 is now the first date of filing for an H-1B visa for fiscal year 2011 with an employment start date of October 1, 2010.
The new naturalization test is fully implemented as of October 1, 2009
U.S. Citizenship and Immigration Services (USCIS) is reminding the public that beginning October 1, 2009, all citizenship applicants must take the new naturalization test, regardless of when they filed their Application for Naturalization (Form N-400).
"Becoming a United States citizen carries with it extraordinary rights and responsibilities," said USCIS Director Alejandro Mayorkas. "Our new test captures the meaning of citizenship and is consistent with our values and history as a nation."
The revised naturalization test will help strengthen integration efforts by emphasizing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. USCIS began administering the new naturalization test October 1, 2008, with two basic objectives – to ensure a uniform test administration nationwide and to develop a civics test that can effectively assess an applicant’s knowledge of U.S. history and government. Up until October 1, 2009, applicants who had filed for naturalization before October 1, 2008, had a choice of taking the old test or the new test. Currently, the overall pass rate for the new test is 91 percent.
New office addresses for filing Form N-400
WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced revised addresses for applicants filing an Application for Naturalization (Form N-400) at USCIS Lockbox facilities in Phoenix and Dallas. This filing address change takes effect immediately.
Applicants who previously filed their applications at the Lewisville Post Office (P.O.) box will now file their applications at a P.O. Box in Dallas. See address below. In addition, the table below includes a change to the USCIS Phoenix Lockbox address. Starting immediately, applicants filing Form N-400 at the USCIS Dallas or Phoenix Lockbox must submit the application and all supporting documents and fees to the following addresses, based on where they live:
USCIS Phoenix Lockbox
U.S. Postal Service deliveries:
Express Mail and Courier deliveries:
USCIS Dallas Lockbox
U.S. Postal Service deliveries:
Express Mail and Courier deliveries:
HIV is removed from the CDC List of Communicable Diseases
Change in law made by the Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC) that removed HIV infection from the list of communicable diseases of public health significance.
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), barred the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on November 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule took effect on January 4, 2010. As of January 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.
Proposed visa application fee increase
On December 14, 2009, the Department of State published a proposed rule in the Federal Register to increase the nonimmigrant visa application processing fees, also called the Machine-Readable Visa (MRV) fee, and Border Crossing Card (BCC) fees. The proposed rule also establishes a tiered structure with separate fees for different visa categories. The Department is proposing the increase to ensure sufficient resources to cover the increasing cost of processing nonimmigrant visas (NIVs). This increase applies both to nonimmigrant visas placed in passports and to border crossing cards issued to certain adult applicants in Mexico. The new tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas. U.S. law requires the Department to attempt to recover the cost of processing nonimmigrant visas through the collection of the application fees. Because of ongoing process and security enhancements, the $131 fee set on January 1, 2008 is lower than the current, actual cost of processing nonimmigrant visas. Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor visas, would pay a fee of $140. Applicants for petition-based visas would pay an application fee of $150. These categories include:
· H visa for
temporary workers and trainees
The application fee for K visas for fiancé(e)s of U.S. citizens would be $350. The fee for E visas for treaty-traders and treaty-investors would be $390.
VISA WAIVER PROGRAM (VWP)
The Visa Waiver Program (VWP) enables citizens of certain countries to travel to the United States for tourism or business for 90 days or less without obtaining a visa, provided they carry a passport meeting specific requirements and they have obtained a valid ESTA approval.
The following 35 countries participate in the program and only their citizens can travel to the United States on the VWP:
These countries meet various security requirements with regard to counterterrorism measures, border control, law enforcement, document security standards, timely reporting of lost or stolen passports, and generally share their security-related data with the United States. The list is likely to evolve over time and the decision to add or remove a country from it is discretionary.
Their citizens may travel to the United States under the VWP if they meet certain requirements pertaining to their trip and their passport, and if they have received an authorization to travel under the VWP through the Electronic System for Travel Authorization (ESTA) in advance of travel.
An authorization to travel through ESTA.
Individuals who do not meet the above requirements must apply for a visa.
In addition, travelers who are ineligible for a visa (because of a criminal record or a health-related issue for instance) cannot benefit from the VWP, and neither can individuals who did not comply with the conditions of previous VWP’s or who have been refused admission to the United States before.
Important: Turning in Form I-94W upon leaving the US will record your timely departure and compliance with the maximum duration stay of 90 days. It is essential for the outcome of your future applications for ESTA and VWP that your departure is recorded properly. If you return home with your I-94W, mail it without delay exclusively to:
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.
Electronic System for Travel Authorization--ESTA
The Electronic System for Travel Authorization (ESTA) is an automated system to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP). It is currently required for entries by air or cruise ships through participating carriers.
The Department of Homeland Security began rolling out this program on a voluntary basis on August 1, 2008. The requirement became mandatory as of January 1, 2009. Effective January 20, 2010, DHS transitioned to an enforced compliance of ESTA, meaning that VWP travelers without ESTA approval should expect to be denied boarding US-bound air carriers or cruise ships.
Citizens of the countries on the VWP list who wish to transit through the United States or visit for business or pleasure for ninety days or less may do so without a visa, under a number of conditions listed under VWP, and provided they have an approved ESTA application.
The filing of the application is submitted online, at http://esta.cbp.dhs.gov at anytime and preferably no later than 72 hours prior to traveling. The application is free.
There are a number of fraudulent websites who charge a fee for applying on behalf of the applicant. Since these are unauthorized third-parties, there is no way of knowing if the application has effectively gone through the official US government website and travelers who have applied on one of the websites are strongly urged to re-apply on the official website.
The applicant provides information identical to that filled in on the I-94W form that continues to be required for entry in the United States: name, date of birth and passport information, eligibility in the VWP with regard to communicable disease, criminal record, past history of visa revocation or deportation. Additional information, such as flight information and intended date of travel is not mandatory and does not affect the outcome of the application.
Once submitted, the application is reviewed against national security and law enforcement data bases. Decisions can be made in a very short period of time (most of the time immediately) but delays are always possible.
Three types of outcomes are possible after an ESTA application is filed: Authorization Approved, Authorization Pending, and Travel Not Authorized.
⇒ An Authorization Approved means the applicant can travel to the United States under the VWP. An ESTA approval merely authorizes the VWP traveler to board the aircraft or cruise ship. It does not replace a visa where a visa is needed, and it does not preclude the final decision of admission to the United States.
U.S. regulations do not require submitting a printed copy of the ESTA authorization page to travel. However, it is highly recommended to print out the last page or to copy the application number. No further notification will be given as to the approval of ESTA, and the number will be needed should the information pertaining to the traveler be updated. In addition, some airlines may require proof of an approved ESTA.
Once delivered, the authorization is valid for two years (or until the passport’s expiration date, whichever occurs first) and can be used for multiple entries under the VWP. Note: each stay cannot exceed 90 days and there should be a reasonable amount of time between each stay.
If within the two years, a new passport is issued, or the name, gender or country of citizenship change, or one of the answers to the VWP eligibility changes (e. g. criminal record or health-related issue), a new travel authorization is required.
⇒ In case of an Authorization Pending answer, applicant should check the website for up to 72 hours to receive a final response.
⇒ In case of a Travel Not Authorized answer, applicant should apply for a visa in order to travel to the United States.
Travelers should apply for ESTA as soon as they begin making travel plans to allow time for a visa application should ESTA be denied, and if possible no later than 72 hours prior to departure.
U.S. PORT-OF-ENTRY ENTRY/EXIT SYSTEM (US-VISIT PROGRAM)
US-VISIT supports the Department of Homeland Security's mission to protect our nation by providing biometric identification services to federal, state and local government decision makers to help them accurately identify the people they encounter and determine whether those people pose a risk to the United States.
US-VISIT's most visible service is the collection of biometrics—digital fingerprints and a photograph—from international travelers at U.S. visa-issuing posts and ports of entry. Collecting this information helps immigration officers determine whether a person is eligible to receive a visa or enter the United States. The biometric collection process is simple, convenient and secure.
US-VISIT's innovative use of biometrics prevents identity fraud and deprives criminals and immigration violators of the ability to cross our borders. US-VISIT also supports the Department's ability to identify international travelers who have remained in the United States beyond their period of admission by analyzing biographical information.
By providing decision makers with the information they need where and when they need it, US-VISIT is helping to make U.S. immigration and border management efforts more collaborative, more streamlined and more effective.
DRUNK DRIVING (APPLIES ONLY TO THE US EMBASSY IN LONDON PROCESSING AT PRESENT)
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.
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 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 H-1B with the same employer are exempt from the $500 Fraud and Detection Fee. The above fees are in addition to the base processing I-129 Filing Fee, 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
ELECTRONIC FINGER SCANNING FOR VISA APPLICANTS
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.
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. All applicants aged 14 to 79 must submit finger scans at the time of the visa interview. Applicants under the age of 14 and 80 and over may be eligible to complete the NIV process by mail.
Diplomats and government officials traveling on official business will be exempt from this requirement.
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.