Tag: Immigration Updates & FAQs

Today USCIS implements its new public charge rule nationwide.  The rule was previously enjoined in Illinois, but the U.S. Supreme Court lifted the injunction last week, allowing USCIS to implement the rule in all 50 states.

In addition, the Department of State (DOS) will also implement the new public charge standards beginning February 24, 2020 pursuant to the Office of Management and Budget (OMB) approving DOS’s  Form DS-5540, Public Charge Questionnaire. While the DS-5540 is now required for immigrant visa applicants (i.e., “green card” applicants) at U.S. consulates abroad, according to the updated Foreign Affairs Manual,  DOS  may also require nonimmigrant (i.e., temporary) visa applicants to provide specific financial evidence or to complete a Form DS-5540, in whole or in part, or to respond orally to questions from the form at visa interviews.

As previously reported, in general, individuals seeking admission to the U.S. must show they are not likely to become a public charge. The new public charge rule dramatically expands the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.

Nonimmigrants seeking a change or extension of status in the U.S. will be required to show that they have not received certain public benefits exceeding a designated threshold as of the rule’s implementation date.  Information about DHS’s public charge rule, including the implicated benefits, may be found here.

Individuals applying for adjustment of status to lawful permanent resident will be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. These individuals will be subject to a discretionary “totality of circumstances” test that will weigh such factors as the applicant’s age, health, household size, level of education and skills, financial assets  and liabilities, among others.  Applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.

Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required. For additional information, please contact your designated Gibney representative or email info@gibney.com

On February 5, 2020, the U.S. Department of Homeland Security (DHS) announced that New York residents will no longer be eligible to apply or re-apply for several Trusted Traveler Programs (TTPs), which serve to expedite travel screening and entry to the U.S. at major airports nationwide.

WHAT THIS MEANS FOR NEW YORK RESIDENTS

• All New York residents (including U.S. citizens and Lawful Permanent Residents) will no longer be eligible to apply (or re-apply) for U.S. Customs and Border Protection (CBP) TTPs including Global Entry, FAST, SENTRI and NEXUS.
• For now, enrollees with current TTP memberships may continue to participate in designated programs until their current membership expires, but will be unable to re-apply once their current membership expires.
• New York residents with pending TTP membership applications will be denied.
• TSA Pre-Check, the TTP that offers faster airport security lines for domestic travel, was not specifically named in the DHS letter. It is unclear how the Administration’s action will impact participation in TSA Pre-Check.

BACKGROUND

The TTP restriction is DHS’s response to New York State’s Driver’s License Access and Privacy Act (known as the “Green Light Law”), which took effect in December 2019. The law allows all New York residents aged 16 and older to apply for a standard (not for federal purpose) non-commercial driver license or learner permit regardless of their immigration status in the U.S. Proponents of the Green Light Law view it as a public safety measure, as it allows all New York residents regardless of immigration status to be registered drivers with the state. DHS’s complaint is that the law limits the ability of the federal government to access state driver’s license information. TTPs entail extensive national security vetting independent of any state program, including state driver’s license programs. Moreover, a New York State driver’s license conveys no right to participate in a TTP. In this respect, the Administration’s punitive action against New York residents appears to be politically motivated.

It is anticipated that approximately 175,000 New York residents will be removed from the TTPs by the end of 2020, and that between 150,000 and 200,000 New Yorkers will be unable to renew their memberships in each of the next five years. In addition, more than 80,000 New Yorkers who have already applied for new TTP membership will not be permitted to participate.

New York State has not yet indicated whether it will pursue legal action against the Trump Administration. A senior advisor to New York Governor Andrew Cuomo stated “This is obviously political retaliation by the federal government and we’re going to review our legal options.”

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

On January 31, 2020, the President signed a Proclamation imposing visa and admission restrictions on Eritrea, Kyrgyzstan, Nigeria, Sudan, Tanzania and Myanmar (Burma). Restrictions for these countries are limited to immigrant visa (“green card”) programs and include individuals seeking permanent resident status through family or employment-based sponsorship, or pursuant to the Diversity Lottery program.  The restrictions will take effect February 21, 2020.

What This Means for Employers and Foreign Nationals

• For nationals of Kyrgyzstan, Nigeria, Eritrea and Myanmar (Burma): Eligibility for immigrant visas is suspended, with limited exceptions where eligibility is based on having provided assistance to the U.S. government.
• For nationals of Sudan and Tanzania: Nationals from these countries will no longer be eligible to participate in the annual Diversity Lottery program.
• Foreign nationals who have already been issued immigrant visas are not affected by the new restrictions.
• Foreign nationals from these countries may still be issued nonimmigrant (temporary) visas, such as business visitor visas, student visas and temporary work visas. However, these individuals should expect increased scrutiny in visa issuance and at ports of entry to the U.S.
• Foreign nationals who believe they may be subject to the restrictions should consult with immigration counsel before departing from or planning travel to the U.S.

Exemptions under Expanded Travel Ban

The following individuals from the covered countries are exempt from the expanded travel ban:

• U.S. citizens and lawful permanent residents (green card holders).
• Foreign nationals admitted or paroled into the U.S. on or after the effective date.
• Foreign nationals with valid travel documents that are not visas issued on the effective date or thereafter.
• Dual nationals traveling on a passport from a non-designated country.
• Foreign nationals traveling on diplomatic visas.
• Individuals already granted asylum and refugees granted admission to the U.S.
• Individuals granted withholding of removal, advance parole, or protection under Convention Against Torture.

Prior Travel Bans Remain in Effect

The existing admission restrictions for foreign nationals from Iran, Libya, Somalia, Syria, Yemen, North Korea and Venezuela remain in place. These restrictions have been in place since December 4, 2017. Country specific information is available from the U.S. Department of State and the Department of Homeland Security.

Obtaining a Waiver

An application for a waiver may be made to the Department of State through a consular post abroad. To obtain a waiver, an applicant must demonstrate undue hardship if entry were denied, entry would not pose a threat to national security and entry is in the national interest.  In practice, waivers are discretionary and rarely granted.

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

Today USCIS announced that, except for in the state of Illinois, it will implement its public charge rule as of Monday, February 24, 2020.  USCIS is expected to publish updated forms, instructions and guidance on its website during the week of February 3, 2020.

As previously reported, in general, individuals seeking admission to the U.S. must show they are not likely to become a public charge. The new public charge rule dramatically expands the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.

Nonimmigrants seeking a change or extension of status in the U.S. will be required to show that they have not received certain public benefits exceeding a designated threshold as of the rule’s implementation date.

Individuals applying for adjustment of status to lawful permanent resident will be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. These individuals will be subject to a discretionary “totality of circumstances” test that will weigh such factors as the applicant’s age, health, household size, level of education and skills, financial assets  and liabilities, among others.  Applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.

Gibney will be working with clients to prepare for these substantial changes.  Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required.

In December 2019 the United States Department of State (DOS) made significant changes to the visa reciprocity fees and validity periods for nonimmigrant visa applicants from certain countries. Nonimmigrant visa applicants from certain countries may be required to pay a visa issuance fee after their application is approved. When a foreign government imposes fees on U.S. citizens for certain types of visas, the U.S. will impose a reciprocal fee for similar types of visas.

Change Highlights

In December 2019 DOS implemented significant changes to validity periods and fees:

• Australia: Impacted visa types include E-1 and E-2 Treaty Traders/Investors, F-1 Students, H-1B Specialty Occupation Workers, L Intracompany Transferees, R Religious Workers and B-1/B-2 Visitors.
  The visa issuance fee for the E-1/E-2 increased from $105 to $3,574 and the validity period was reduced to 48 months. The H-1B fee increased from $105 to $1,295. The L-1/L-2 fee increased from $105 to $1,790 and the validity period was reduced to 48 months.

• France: The maximum L-1/L-2 validity period was reduced from 5 years to 17 months and the E-1/E-2 validity period was reduced from 5 years to 25 months. The H-1B fee was increased to $480.00.

• Israel: The L-1/L-2 visa validity period was reduced to 48 months and the E-2 visa may only be issued for 24 months.

Other countries with recent reciprocity fee and/or visa validity periods updates include: Andorra, Argentina, Austria, Bahrain, Belgium, Bulgaria, Chile, Guinea Bissau, Norway, Malta, Mauritania, Madagascar, Saint Kitts and Nevis and Spain.

Determining Reciprocity Fees
The full DOS reciprocity tables can be viewed here.

What This Means for Employers and Foreign Nationals

• Visa issuance fees and validity periods should be taken into consideration as part of the planning process
• Changes may impact the ability for foreign nationals to extend their visa validity period
• Changes to fees and validity periods are ongoing – review the reciprocity schedule in advance

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

USCIS has announced that Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status based on the treaty. This is a result of the U.S. termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran.

The E-1 and E-2 nonimmigrant visa classifications allow aliens of a treaty country to be admitted to the U.S. for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business.

E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.

What to Expect

USCIS will send Notices of Intent to Deny to affected applicants who filed applications after the Department of State’s announcement of termination on Oct. 3, 2018. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires.

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) announced it will implement the new electronic registration process for the fiscal year (FY) 2021 H-1B cap lottery. Employers intending to file H-1B cap-subject petitions under next year’s cap will be required to first electronically register each intended beneficiary and pay the associated $10 H-1B registration fee. The H-1B cap lottery will be conducted after the registration period concludes, and employers will then be notified when to submit H-1B petitions for selected beneficiaries.

WHAT EMPLOYERS CAN EXPECT

The initial registration period will take place from March 1 through March 20, 2020. The H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. The agency may determine it is necessary to open an additional registration period if it does not receive enough registrations and subsequent petitions projected to reach the annual quota. USCIS is expected to publish additional information about the registration process in the coming weeks, including information about key dates and timelines.  USCIS will also conduct public engagements and other outreach activities to ensure interested parties are familiar with the new registration system.

As the holiday season approaches, international travelers should expect busy airports, Consulates and U.S. Ports of Entry. We encourage ALL travelers to plan ahead to minimize delays when traveling abroad and entering the U.S.

U.S. Entry: Status and Documentation Checklist

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their Consulates or Embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document, Employment Authorization Document (EAD) and/or endorsed Form I-20.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record and issue a passport stamp, annotated with the class and duration of admission. Before leaving the CBP inspection area, verify that the admission classification and expiration date entered in the passport are correct, and immediately alert the CBP officer to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa stamp. Send Immigration Counsel a copy of your I-94.

Checklist for Foreign National Employees and Employers

• Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. Consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a Consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Note: Consular procedures vary widely and are subject to change with little or no notice.
• Complete Form DS-160. This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many Consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, Consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update corporate information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most Consulates require current employment verification letters from employers. Request these letters well in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check Consulate wait times. Review the Consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm Consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

Travel Documents if You Don’t Need a Visa from the Consulate:

• Visa Waiver Program travelers must have a valid ESTA approval. 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 who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without Advance Parole may result in denial of the I-485 application.

Helpful Links

• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. Consulate wait times at U.S. Consulate Visa Wait Times
• Find links to U.S. consular posts around the world at U.S. Consular Posts
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s