Category: Alerts

The U.S. Court of Appeals for the 9^th Circuit has ruled that the Administration cannot immediately end Deferred Action for Childhood Arrivals, or DACA, the program that shields from deportation young undocumented immigrants who were brought to the country as children.

The decision keeps in place an injunction from the lower court that allows DACA recipients to renew their applications. It also makes it more likely that the U.S. Supreme Court will settle the question. The Trump administration has asked the Supreme Court to add it to the docket for this term, but the Justices have not acted upon the request to date.

DACA is a program that was created in 2012 under the Obama administration and has served to protect nearly 700,000 young immigrants from deportation. In 2017, the Trump administration moved to end the program after several states threatened to sue. A number of courts have since ruled to keep the program in place.

As the holiday season approaches, international travelers should expect airports, Consulates and U.S. Ports of Entry to be exceptionally busy due to the large number of travelers and visa applicants, and enhanced security measures and vetting procedures. We encourage corporate human resource personnel, business travelers, and foreign national employees to take proactive steps and plan ahead to minimize the likelihood of delays when traveling abroad and entering the U.S.

Important Reminders:

Passports: All travelers, including U.S. and Canadian citizens, should confirm the validity of passports for themselves and accompanying family members. Passports should be extended or renewed in advance to ensure at least six months’ validity at the time of visa application or entry to the U.S. Many countries allow renewal of passports by mail Consulates or Embassies in the U.S. Please visit Contact Info for Foreign Embassies and Consulates and select the applicable country to find the Consulate nearest you.

Visa Waiver Travelers to the U.S.: The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries and who wish to enter the U.S. for B-1 business or B-2 tourism purposes. In order to enter under VWP, travelers must obtain a valid ESTA approval prior to travel. Once approved, the approval may be valid for up to two years. However, if any changes occur after approval (such as obtaining a new passport, name or country of citizenship change, or answers to any of the VWP eligibility questions change, such as an arrest), a new ESTA application must be submitted. If a traveler is not eligible for ESTA, they must apply for the appropriate visa to enter the U.S. A list of current VWP countries and more information on VWP is available here.

Plan Ahead for Visa Issuance at Consulates:

• Foreign nationals are strongly advised to consult with immigration counsel before applying for a visa in order to prepare for enhanced vetting and for the consular interview.
• Schedule consultations 60-90 days prior to travel, whenever possible.  Appointment wait times at U.S. consulates can range from a few days to a few months.
• Foreign nationals requiring visa issuance at a Consulate abroad should check the Consulate’s website prior to travel for specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little or no notice. Links to U.S. consular posts around the world are available on the DOS website.
• All visa applicants (including dependent spouses and children of principal visa holders) require completion of the Form DS-160 as part of the visa application process, and many Consulates require this step be completed prior to scheduling a visa appointment. Given increased data sharing by federal agencies, we recommend foreign nationals retain a copy of the final Form DS-160 for their records, prior to online submission.
• Prior to traveling, foreign nationals should review the underlying visa application/petition prepared by Immigration Counsel to ensure the accuracy of the information reported and consistency in visa applications.
• Online profiles for employers and employees: Government officials at U.S. Citizenship & Immigration Services (“USCIS”), Consulates, and U.S. Ports of Entry are increasingly searching the internet and reviewing the social media profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S. Be sure to review information online and update social media profiles on websites such as LinkedIn or Facebook. Employers are also advised to update corporate information on company pages and sites such as Dun & Bradstreet that may be referenced by officers to verify bona fide employment or business information through the USCIS’ Validation Instrument for Business Enterprises (VIBE) program.
• Current wait times for visa appointments and visa processing times vary by Consulate, and can be found here. Timeframes are estimates only and may not be updated regularly. Actual processing times may be longer, and do not contemplate any unforeseen delays due to security or background clearance issues, which may delay visa issuance for several weeks or months. In addition, enhanced security screening measures have been implemented for certain visa applicants. Foreign nationals should alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• U.S. Consulates abroad observe both U.S. and local country holidays. In addition, many consular offices may be short-staffed due to vacations. It is important during the holiday season to check with the Consulate in advance to confirm office hours and closures, which may result in delayed visa processing.

Status and Entry Documentation: Upon entry to the U.S., certain entrants may be required to show additional evidence of work authorization or government approval in addition to a currently valid visa stamp. Depending on the visa classification, such documents may include an original I-797 Approval Notice, an endorsed Form I-129S, an employment authorization document (EAD) card, or a Form I-20, among others. Upon entry to the U.S., the U.S. Customs and Border Protection (CBP) inspecting officer should create an electronic I-94 record and stamp the passport, annotating it with the class and duration of admission. Before leaving the CBP inspection area, foreign nationals should verify that the admission classification and expiration date stamped in the passport are correct, and immediately alert the CBP officer to any errors. After each entry to the U.S., foreign nationals should access and review their electronic I-94 record at the CBP website.  Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date for the visa stamp permitting entry from outside the U.S.

Employment Verification: For foreign national employees who are applying for a temporary work visa, most Consulates require current employment verification letters from employers. Foreign nationals are encouraged to request these letters well in advance of travel to allow adequate time for human resources or Immigration Counsel to prepare letters. Employees are also encouraged to maintain copies of recent paystubs as evidence of current employment.

Advance Parole: Certain individuals with pending I-485  Adjustment of Status applications must have a valid original Advance Parole travel document issued and in-hand prior to departing the U.S. Departing the U.S. without this document may result in the abandonment and denial of the I-485 application. There may be limited exceptions for employees with valid H or L visas.

Law Enforcement: Failure to maintain valid immigration status and violations of local and/or federal law may have significant immigration consequences.  Foreign nationals who have been arrested or detained by law enforcement (even if not charged/convicted) for any reason should consult with immigration counsel before departing the U.S. or applying for a visa or any other immigration benefit.  Citations, arrests or detentions by law enforcement, even if not charged or convicted of a crime, may need to be disclosed on applications and may impact immigration status and/or eligibility for immigration benefits. In some cases, DOS may “prudentially” revoke otherwise valid visas if it learns of an arrest by law enforcement, even if the individual has not had a hearing or has not been convicted, requiring the individual to apply for a new visa once he/she departs the U.S.   Pursuant to enhanced security vetting measures, there has been increased scrutiny of violations of law by immigrants, and immigration officials have wide discretion in denying immigration benefits and refusing entry to the U.S.  Foreign nationals should seek advice of legal counsel to review the potential impact of security checks and criminal issues well in advance of travel, and in particular, to be aware of the DOS policy on visa revocations for non-immigrants with DUI-related charges.

If you have any questions regarding this alert, please contact your designated Gibney representative or email info@gibney.com.

This alert contains general information only, and is not intended to provide legal advice.  Please contact immigration counsel for specific legal advice regarding your case.

What is the Diversity Visa Lottery?

The Diversity Immigrant Visa Program provides up to 50,000 immigrant visas (green cards) for issuance in Fiscal Year 2020 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery.

When can I apply?

The U.S. Department of State is currently accepting applications online for the FY2020 Diversity Lottery until Tuesday, November 6, 2018 at 12 PM Eastern Daylight Time (EDT) (GMT-5). DV-2020 applicants are encouraged to apply as soon as possible and should keep their confirmation number until at least September 30, 2020. There is no cost to submit an application to enter the Diversity Visa (DV) Lottery.

Who is eligible?

In order to enter the DV Lottery, an individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.

In addition to meeting the nationality requirement, in order to enter the DV Lottery, a foreign national must have either a high school education or its equivalent, or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

How do I Apply?

DV Lottery entries may only be submitted electronically at the U.S. Department of State’s Diversity Visa Lottery website. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements set forth on the U.S. Department of State’s website. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

How does the Selection Process Work?

DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application. Starting May 7, 2019 (and through at least September 30, 2020), applicants may check application status using their confirmation number on the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail regarding applications; the status of the application can only be checked through the E-DV website.

Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR) status – only the opportunity to apply for permanent resident status. Applications for permanent resident status can be lodged in one of two ways: by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2020; if an application is not approved by that date, the application is invalidated.  Note that more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. LPRs if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

Where Can I Get More Information?

Instructions regarding how to apply for the FY2020 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions and the U.S. Department of State’s website

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

The United States, Mexico and Canada reached an agreement on September 30, 2018 as part the renegotiation of the North American Free Trade Agreement (NAFTA). The new agreement – the United States-Mexico-Canada Agreement (USMCA) – retains key immigration benefits of NAFTA, including provisions allowing for the temporary entry without quotas of Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. With respect to Professional workers, USMCA retains all of the occupations previously designated as eligible for the NAFTA “TN” visa though the new agreement does not add any additional occupations.

From an immigration perspective, the USMCA represents a repackaging of NAFTA. Congress is expected to approve the USMCA after the mid-term elections in November 2018.

Gibney will monitor implementation of the new agreement and provide ongoing guidance with respect to any procedural changes related to the admission of business persons under the USMCA.

Starting October 1, 2018, the United States Citizenship and Immigration Service (USCIS) will begin implementing its June 28, 2018 policy memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (NTA Policy Memo).

According to its announcement on September 26, 2018, USCIS will implement the NTA Policy Memo on an incremental basis. Pursuant to the policy, USCIS may issue a Notice to Appear (NTA) to a foreign national whose Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-539, Application to Extend/Change Nonimmigrant Status, is denied, where the foreign national applicant does not have valid underlying immigration status. The policy will apply to I-485 and I-539 applications filed prior to the October 1, 2018 implementation date, as well as applications filed on or after that date. By way of background, an NTA is a charging document issued to a foreign national that initiates removal proceedings, requiring the individual to appear before an immigration judge to determine whether he/she should be removed from the United States.

USCIS stated that, at this time, it will not apply the NTA Policy Memo to employment-based petitions (e.g., Form I-129, Petition for Nonimmigrant Worker) and humanitarian applications, but it is expected to do so at a future date. USCIS did not provide a timeline for expanding the policy to other petitions and applications.

Gibney is working with clients to evaluate the impact of this new policy and how it is being implemented. We will provide updates as they become available.

If you have questions about this alert, please contact your designated Gibney or email info@gibney.com.

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2019 take effect October 1, 2018.

Change of Status Filings

Approved H-1B cap-subject petitions filed as “change of status” automatically take effect on October 1, 2018, if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
• is physically present in the U.S. on October 1, 2018 for the change of status to take effect.
• With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. U.S. consulates require a personal interview to apply for a visa, and many consulates have a wait period of several weeks to schedule an interview. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Consular Notification Filings

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: There are numerous H-1B cap petitions still pending and USCIS has stated that approval in October is not guaranteed. As such, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2018. See the recent USCIS statement here.

Effective October 1, 2018, the Department of Homeland Security (DHS) is increasing the Form I-907 premium processing fee from $1,225 to $1,410. All applications postmarked on or after that date must include the new fee. As a reminder, premium processing is available for certain immigration petitions filed on Forms I-129 and I-140. With the payment of the premium processing fee and the filing of the I-907, the U.S. Citizenship and Immigration Services (USCIS) will process a petition within 15 calendar days or refund the amount. Note: Adjudication may result in an approval, a denial or a request for more evidence.

On August 28, 2018, USCIS announced that it would extend and expand the suspension of Premium Processing for certain H-1B petitions for a period estimated through at least February 19, 2019.

For more information, please contact your designated Gibney representative or email info@gibney.com.

A federal court judge in Texas has ruled in favor of keeping DACA in place for the time being, denying a request for a preliminary injunction that would have immediately halted DACA protections, but indicating the likelihood that DACA will be held illegal in final rulings.

DACA, or the Deferred Action for Childhood Arrivals program, was established by Executive Order in 2012 and grants protection from deportability and valid work authorization to approximately 800,000 undocumented immigrants who were brought to the U.S. as children.  In September 2017, the Trump Administration announced that it would terminate DACA, spurring multiple lawsuits in federal courts across the country that resulted in rulings requiring DACA protections to continue.  On May 1, 2018, Texas and six other states responded with a lawsuit in the U.S. District Court for the Southern District of Texas challenging the legality of the DACA program itself and asking for a preliminary injunction that would halt DACA while the lawsuit is pending.

In denying the states’ request for a preliminary injunction, the court found that their delay in seeking relief indicated that DACA’s continuation did not cause immediate, irreparable harm to the states, and that implementing a preliminary injunction was against the public interest at this time.

The ruling provides temporary reprieve for the DACA program, however the court’s decision clearly indicates that DACA likely will be found unlawful by the court because the program was established without Congressional legislation, despite being “a popular program and one that Congress should consider saving.”

What Employers and Foreign Nationals Should Expect

Employers should be aware that employees with DACA status may lose work eligibility and/or the ability to remain in the U.S. Employers may also wish to consider working with legislative advocacy partners to support legislation. Foreign nationals with DACA status should consult with immigration counsel to discuss possible alternative immigration options and plan for program termination.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.