Category: Alerts

On October 4, 2015, the UK Home Office invited certain frequent travelers to the UK to apply for the Registered Traveler service. This program offers member travelers faster entry at UK passport control. The program is open to citizens of Australia, Canada, Japan, New Zealand, and the United States. Applicants must be at least 18 years of age, and must hold a valid UK visa or must have visited the UK four times in the preceding 52 weeks.

One can apply for the Registered Traveler service online at the following website: https://www.gov.uk/registered-traveller. The application takes a few minutes to complete and the associated required background check takes five to ten working days to process. The fee is £70 for a one year membership. The Registered Traveler service is available at Gatwick, Heathrow, Birmingham, Manchester, Edinburgh, Glasgow, London City, Luton, and Stansted airports, and the Rail Terminals in Paris, Brussels and Lille.

The implementation of the Registered Traveler service has greatly facilitated entry into the UK for member travelers, while still meeting strict security requirements. Gibney will continue to monitor this program and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

 What is the Diversity Visa Lottery?

The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2017 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

When can I apply?

The U.S. Department of State will accept applications for the 2017 diversity lottery between 12 noon Eastern Daylight Time (EDT) on Thursday, October 1, 2015, and 12 noon EDT on Tuesday, November 3, 2015. Applicants are encouraged to apply in the early part of the application period.

Who is eligible?

In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality:

No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2017 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Nationality is defined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on their country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a country whose natives are eligible to apply, may apply provided the spouse is eligible. Second, a foreign national who was born in a country whose natives are ineligible to apply is eligible to apply if neither of his/her parents were born in or legally resided in that country at the time of the foreign national’s birth.

Education/Work:

In order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or 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?

Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s website.
Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.

A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the U.S. Department of State’s website. Note: each spouse may submit his/her own application if he/she otherwise qualifies. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

Winners of the lottery will be selected in 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. As of May 3, 2016, applicants can check the status of their application using their confirmation number through the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail to confirm the selection of their application; the status of the application can only be checked through the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. Selected individuals (and their dependents) are deemed eligible to apply for lawful permanent resident status. In order to become a permanent resident of the U.S., a lottery winner’s application for permanent residence must be filed and approved by September 30, 2017. The permanent residence application may be filed either via adjustment of status (if the foreign national is in the U.S. in a valid nonimmigrant status) or via consular processing.

Finally, please note that more lottery “winners” are selected than there are immigrant visas available because some winners will not be eligible to become U.S. permanent residents of the U.S. Accordingly, some individuals who are selected to apply for diversity visas may ultimately be unable to become U.S. permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

Where can I get more information?

Instructions for filing an application for the 2017 Diversity Visa Lottery, and information regarding photograph specifications, may be obtained from the U.S. Department of State’s website.
For specific legal advice, please contact your Gibney representative.

U.S. Citizenship and Immigration Services (“USCIS”) has released final guidance on a recent precedent decision clarifying whether amended or new petitions need be filed for H-1B employees who move job locations. The memo, which is effective immediately, includes information and deadlines for being compliant with Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

The memo clarifies that an employer does not need to submit a new labor condition application (“LCA”) nor file an amended H-1B petition if the employee’s new job location is within the “area of intended employment.” However, notice of filing postings are required at the new worksite location before the employee begins working, as per current regulations.

For changes of worksite location outside of the area of intended employment:

Except as provided below, petitioners must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified with USCIS, even if a new LCA is already certified by the Department of Labor and posted at the new work location.

USCIS indicated that it would generally not punish employers that do not file new H-1B petitions based on location changes that occurred on or before April 9, 2015. USCIS will, however, preserve adverse actions (i.e., revocations, denials, requests for evidence, etc.) already commenced or completed prior to July 21, 2015, and petitioners must comply accordingly.

The memo includes a “Safe Harbor” provision, whereby if a petitioner’s H-1B employee has moved or will move to a new place of employment not covered by an existing, approved H-1B petition after April 9, 2015 and prior to August 19, 2015, the petitioner must file an amended or new petition by January 15, 2016. Failure to file by the January 15, 2016 deadline will make the petitioner noncompliant with applicable regulations and subject to adverse action by USCIS. Similarly, the H-1B employee will not be maintaining status and may also be subject to adverse action.

If a petitioner’s H-1B employee moves to a new place of employment not covered by an existing, approved H-1B petition after August 19, 2015, the petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment.

In addition, certain short-term placements of up to 30 or 60 days as well as non-worksite location changes are exempt from the requirement of filing a new or amended H-1B petition.

USCIS further noted that once an amended or new H-1B petition is properly filed, the H-1B employee can immediately begin to work at the new place of employment. A final decision on the petition is not required for the H-1B employee to start work at the new place of employment.

The full memo can be found here: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

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

On August 1, 2015, Citizenship and Immigration Canada (CIC) will introduce an Electronic Travel Authorization (eTA) Program. The eTA program objective is to establish a uniform process to screen visa-exempt foreign nationals prior to travel to Canada, in order to identify security threats prior to arrival in North America. The eTA program is modeled after the Electronic System for Travel Authorization (ESTA), which applies to foreign nationals who enter the U.S. under the Visa Waiver Program.  The program will not be mandatory until March 15, 2016.

CIC will begin accepting online eTA applications on August 1, 2015 for visa-exempt nationals who fly to Canada. Entry requirements will not change for entries made by land and sea. The following foreign nationals will need an eTA prior to entering Canada:

• Visa-exempt foreign nationals
• Foreign nationals who are U.S. Lawful Permanent Residents.
• Foreign nationals who are currently in Canada under a work or study permit must apply for an eTA.
• Foreign nationals applying for a work or study permit after August 1, 2015 will automatically be granted an eTA.

Importantly, U.S. citizens are exempt from the eTA requirement and do not need a visa to enter Canada.

Before traveling to Canada, foreign nationals must apply for an eTA through an online application process. An eTA will be issued within minutes and will be valid for five years or for the validity of the underlying passport, whichever comes first.

We encourage foreign nationals who will need an eTA to apply during the transition period from August 1, 2015 through March 15, 2016 to avoid any delays in travel to Canada. Gibney will continue to monitor this matter and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

On April 9, 2015, the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) issued a decision directly impacting many employers who currently employ H-1B nonimmigrant workers. The decision provides that a change to an H-1B worker’s authorized place of employment to a geographical area not covered by the original labor condition application (LCA) is a material change requiring the employer to file an amended or new H-1B petition, including a corresponding LCA certified by the Department of Labor (DOL). This decision clarifies and supersedes prior USCIS guidance on this issue, which left ambiguous the materiality of a worksite change to a different geographic area. Under the new decision, an employer anticipating imminent changes in a worksite location to a different geographic area for an H-1B worker must notify USCIS prior to the change through the filing of an H-1B petition.

Please note, changes of worksite within the same geographic Metropolitan Statistical Area (MSA) will likely continue to be governed by DOL guidance that an LCA is valid within an entire MSA, so long as prior notice is provided at the new worksite within the same MSA. In other words, a change of worksite within the same geographic MSA may not require a new H-1B petition, so long as notice is given to workers at the new worksite.

It is uncertain how soon USCIS may begin to adhere to the newly-issued decision in its daily operations. Gibney will continue to monitor this new development, and will work with our clients to understand the implications of this new decision and to develop effective strategies to comply with the policy set forth.

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

On March 24, 2015, USCIS released a long-anticipated Policy Memorandum on the L-1B visa category, which allows for an intra-company transfer of current foreign employees with “Specialized Knowledge” of the company.  USCIS has faced criticism for its high denial rates of L-1B visa petitions, with a recent National Foundation for American Policy report finding denial rates of 35% in 2014, up from 6% in 2006.  The Obama Administration has promised to reform the L-1B category, and this new USCIS Policy Memorandum appears to be the first step in fulfilling that promise.  USCIS will take comments on the Memo until May 8, 2015, with the final version going into effect on August 31, 2015.

The Memorandum proposes to rescind all prior USCIS internal guidance on the L-1B category, replacing it with clearer guidelines on specific aspects of L-1B adjudication, including:

• Clarifying that the evidentiary standard for Specialized Knowledge is a “preponderance of the evidence,” a relatively lower standard
• Providing that, according to the regulatory definition, a sponsored worker may qualify by possessing “special knowledge” of a company’s products or services OR “advanced knowledge” of a company’s processes and procedures
• Noting that Specialized Knowledge is not limited to knowledge that is proprietary or absolutely unique to the transferring company, nor does such knowledge need to be narrowly held within the transferring company
• Moreover, the petitioner is not required to demonstrate an absence of U.S. workers available to perform the duties of the L-1B worker
• The Memo also provides a list of possible evidence that petitioners may submit to demonstrate Specialized Knowledge

Gibney will work with its clients to understand the implications of this new Policy Memo before the effective date of August 31, 2015, and to develop effective strategies to comply with the guidelines set forth.

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

U.S. Citizenship and Immigration Services (USCIS) published its final rule, effective May 26, 2015, confirming that the Department of Homeland Security (DHS) will extend employment authorization eligibility to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

In order to be eligible, the H-4 visa holder must be the dependent spouse of an H-1B nonimmigrant visa holder who:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act, known as AC21; AC21 permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status

Under the new rule, eligible H-4 dependent spouses will be able to file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive an Employment Authorization Document (EAD).

USCIS will begin accepting applications on May 26, 2015. The H-4 dependent spouse will not be able to begin working in the United States until USCIS has approved the Form I-765 and the H-4 dependent spouse has received the EAD.

Gibney will work with clients and provide any updates as the rule is implemented.

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