Tag: Immigration

The U.S. Department of Homeland Security published a Federal Register notice announcing an expansion of Global Entry program eligibility to all citizens of the U.K., effective as of 7/12/2016. Previously, only a limited pilot program allowed certain U.K. citizens to apply for Global Entry. Once a U.K. citizen is enrolled in Global Entry, he/she will also be eligible to participate in the TSA Precheck program.

The Federal Register notice also announces that certain U.S. citizens may apply for membership in Registered Traveler, the United Kingdom’s registered traveler program.

For more information on the Global Entry program, see the U.S. Customs and Border Protection website. Please see here for more information on the Registered Traveler program. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

On June 24, 2016, the United Kingdom voted to leave the European Union (EU). Pursuant to Article 50 of the EU Treaty, the British government must notify the EU of its withdrawal. Notification is not expected before a new Prime Minister is selected, and once commenced, separation procedures are expected to take at least two years. Until separation is fully negotiated and the United Kingdom exits the EU, EU citizens will retain their right to reside and work in the UK and British citizens will retain their right to reside and work in other EU member states.

The future of UK immigration law is expected to change significantly with separation from the EU. The UK has not decided whether free movement of EU nationals will be limited or cease altogether. In addition, the UK is not a signatory to the Schengen Agreement, which impacts short-term business travel.  After separation, EU nationals may need to apply for an entry visa and vice versa for purposes of business or tourism. Visa waiver programs will also need to be negotiated and this will take additional time to implement fully.

Although there is no immediate impact or action needed for British nationals currently working or residing in an EU member state or for EU nationals working or residing in the UK, employers should commence tracking their EU workforce in the event work authorization and visas should later be required. In advance of the United Kingdom’s separation from the EU, EU nationals may apply for a registration certificate in the UK to document their immigration status.  Also, if otherwise eligible, EU nationals may file for UK permanent resident status or citizenship.

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.

The U.S. Department of State (DOS) Visa Office has recently issued new guidance to Consular Officers, instructing them to prudentially revoke visas for individuals in the U.S. who have been charged with a driving under the influence (DUI) related offense, unless the issue was already addressed in the initial visa application. Previously, visa holders who had already been issued visas and were present in the U.S. were not subject to visa revocation after the fact, and there were no consequences for DUI-related offenses until the time of the individual’s next visa application.

DOS receives information on arrests and convictions through U.S. government agencies’ electronic databases. If visa revocation is to occur, DOS is required to notify visa holders in writing where practical, prior to revocation. Visa revocation does not require an individual to immediately depart the U.S., assuming the individual has been admitted to the U.S. in lawful status with a corresponding valid unexpired I-94 arrival/departure record. However, visa revocation would invalidate all of the individual’s currently valid visas for any future travel to the U.S. Further, an individual who departs the U.S. would then need to re-apply for a new visa at a U.S. Embassy or Consulate abroad before being able to return to the U.S. If the individual is currently present in the U.S. when revocation occurs, s/he would need to present the visa at a Consulate abroad so that the visa can be physically cancelled.

It is well established that DOS has the authority to revoke a visa based on an individual’s arrest or conviction related to a DUI offense, as this may be indicative of visa ineligibility for a possible physical or mental disorder with associated harmful behavior (see Immigration and Nationality Act, Section 212(a)(1)(A)(iii)).

As always, it is imperative that clients continue to immediately disclose all criminal-related issues to their legal counsel so that potential immigration consequences and ineligibilities can be analyzed and addressed.

For more information, or if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

United States Citizenship and Immigration Services (USCIS) has announced that as of today, April 7, 2016, it has received sufficient petitions to reach the statutory cap for new H-1B petitions filed for Fiscal Year (FY) 2017 (October 1, 2016 to September 30, 2017). In addition, USCIS has confirmed that the U.S. advanced-degree exemption to the statutory cap – which exempts from the cap 20,000 petitions for those beneficiaries possessing U.S. advanced-degrees – has also been met and exceeded.

Because USCIS has received more H-1B visa petitions than available under the FY2017 quota, any cap-subject petitions received between April 1 and April 7, 2016 will become part of a random lottery selection process. USCIS has not confirmed when this selection process will take place.  Please note that petitioners may not receive notice of selection for several weeks after the selection is conducted.  Last year for FY2016, USCIS began the selection process on April 13, 2015; and USCIS sent notices several weeks thereafter.

USCIS has previously noted that in order to prioritize data entry for cap-subject H-1B petitions, it will begin processing for H-1B cap-subject petitions requesting premium processing no later than May 16, 2016.

H-1B petitions that are not subject to the annual cap, such as petitions seeking an extension of H-1B status or a change of H-1B employer, will continue to be accepted.

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

Effective April 1st, 2016, all visitors coming to the United States pursuant to the Visa Waiver Program (VWP) must have an electronic passport, or e-Passport, which is an enhanced secure passport with an embedded electronic chip that holds a passenger’s biographical information. E-Passports must be in compliance with standards set by the International Civil Aviation Organization (ICAO) and can be readily identified by a unique international symbol on the cover as seen below.

VWP visitors who do not have an e-Passport must obtain a visa before traveling to the United States.

For more information on e-Passports, visit the Homeland Security site. For more information regarding the 38 participating countries and ESTA application requirements for travel under the VWP, please visit the Department of State VWP page.

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

United States Citizenship and Immigration Services (USCIS) has opened the filing period on Friday, April 1st, 2016, for new H-1B petitions for Fiscal Year (FY) 2017 (October 1st, 2016 to September 30th, 2017).

It is anticipated that USCIS will receive more H-1B visa petitions than available under the FY2017 quota, which allows for 65,000 Bachelor’s degree holders with an additional 20,000 reserved for U.S. Master’s degree holders. If the statutory quota is reached in the first few days of filing, any cap-subject petitions received between April 1st and April 7th will become a part of a computer-generated random lottery selection process. Any petitions received at USCIS on or after April 8th will be rejected. When the selection process occurs, USCIS will begin with the H-1B visa petitions submitted seeking an advanced-degree (U.S. Master’s degree) exemption. Petitions not chosen for this category will automatically become part of the random selection process for petitions filed under the general Bachelor’s degree statutory cap. Any petitions that are not selected under the statutory cap will be rejected and returned with the filing fees. USCIS has not yet commented on when this selection process would take place, and it is not clear when USCIS will notify petitioners and their attorneys of the results of the random selection process. However, it will likely take a few weeks for the random selection process to be completed and for petitioners to be notified by USCIS. Last year for FY2016, USCIS conducted the lottery selection process on April 13th, 2015.

Gibney will work with any impacted clients to explore alternatives and options for employees who have not been able to obtain an H-1B visa number under the FY2017 cap.

Petitions filed on behalf of existing H-1B nonimmigrant workers, such as petitions seeking an extension of status or a change of employer, are not subject to the cap and therefore will continue to be accepted.

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

Overview

On Friday, March 11, 2016, the U.S. Department of Homeland Security (DHS) issued its final rule on Optional Practical Training (OPT) extensions for F-1 students with science, technology, engineering and math (STEM) degrees from U.S. institutions of higher education.  Previously, F-1 STEM students who had been granted 12 months of OPT work authorization could, in certain circumstances, extend their OPT period by an additional 17 months (the “STEM OPT extension”). This new rule extends the STEM OPT extension from 17 months to 24 months.  As with the prior 17-month STEM OPT extension, the new rule requires that STEM OPT extension applicants are employed with employers who participate in E-Verify.  As described below, the new rule also adds additional requirements for STEM OPT extension eligibility, including a formal training plan agreed to by both the employer and F-1 student and employer reporting obligations.

The new rule will go into effect May 10, 2016.  To be eligible for the STEM OPT extension under the new rule, the STEM degree must be awarded by an accredited U.S. college or university and be in a field recognized as a STEM field by DHS.  A student can base the STEM OPT extension on their most recently earned STEM degree, or on a previously earned U.S. STEM degree, subject to additional requirements.  A student may file for a STEM OPT extension only if they are in a valid period of OPT at the time of filing.

Transition to New Rule

The 17-month STEM OPT regulations remain in force through May 9, 2016.  Any 17-month STEM OPT Employment Authorization Document (EAD) that is issued prior to May 10, 2016 will remain valid until the EAD expires (or is terminated or revoked).  Starting on May 10, 2016, students with a 17-month STEM OPT EAD will be able to apply for an additional 7 months of OPT, so that they can obtain the benefit of this new rule.  The student must properly file for a new EAD with USCIS, along with applicable fees and new required supporting documentation, on or before August 8, 2016 and within 60 days of the date that the Designated School Official updates the SEVIS record.  The student must have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT EAD at the time the EAD application is filed with USCIS. For any STEM OPT application that is currently pending with USCIS on May 10, 2016, USCIS will issue a Request for Evidence to the student to provide an opportunity for the student to amend their application to demonstrate their eligibility for the 24-month extension under the new rule.

Additional Requirements and New Employer Obligations

The new rule also includes new employee and employer requirements and oversight provisions. Specifically, the new rule requires that students and employers prepare and submit a formal training plan that describes learning objectives for the student and identifies how the student will achieve these objectives.  This plan must document a performance evaluation process, and describe methods for oversight and supervision of the student.  This plan will be submitted on USCIS’s new Form I-983.  On the Form I-983, the employer is required to attest to certain terms and conditions of employment, including that the employment helps the student attain his or her training objectives, the student on the STEM OPT extension will not replace a full-time or part-time temporary or permanent U.S. worker, and the terms and conditions of employment are applicable to similarly situated U.S. workers.

The new rule also adds new reporting requirements for students and their employers, including periodic validations by the university based on data provided by the F-1 student and an annual evaluation of the training plan, to be prepared by the student and signed off by the employer.  The student and employer are required to report any changes in employment status, including termination or departure; and any material changes to, or material deviation from, the student’s formal training program.

To ensure compliance with program requirements, the new rule also provides for DHS site visits to employer locations in which STEM OPT students are employed. The DHS will generally give advance notice of such visits but may also conduct an unannounced visit if triggered by a complaint or other evidence of violation of the regulations.

Lastly, the new rule also expands the amount of time from 120 days to 150 days that a student may be unemployed while in OPT status.  Students may not be unemployed for an aggregate of more than 150 days during the total OPT period (for the 12 months of initial OPT plus the 24-month STEM extension period).

General information is available from the Department of Homeland Security at https://studyinthestates.dhs.gov/stem-opt-hub.

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

The Department of Homeland Security announced additional “countries of concern” under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the “Act”).  Individuals who have traveled to Libya, Somalia, or Yemen since March 1, 2011 are now ineligible to enter the U.S. under the Visa Waiver Program. At this time, the restriction on Visa Waiver Program travel will not apply to dual nationals of these three countries. Individuals impacted will not be banned from traveling to the U.S., but will be required to apply for a visa at a U.S. embassy or consulate.

For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the U.S., embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The Department of Homeland Security has announced that it will release an updated Electronic System for Travel Authorization (ESTA) application in the spring of 2016 with additional questions on travel to Libya, Somalia, and Yemen to address exceptions for diplomatic and military related travel provided for in the Act.

The three additional countries join Iran, Iraq, Sudan and Syria as countries subject to restrictions for Visa Waiver Program travel.

A federal district court has granted the U.S. Department of Homeland Security (DHS) an additional 90 days to issue a new rule on Optional Practical Training extensions for F-1 students with science, technology, engineering and math degrees (STEM OPT extension).

The court had previously vacated DHS’s 17-month STEM OPT extension rule and given DHS until February 12, 2016 to promulgate a new rule.  This deadline has now been extended to May 10, 2016. DHS published its proposed new rule on October 19, 2015 and received an unprecedented 50,500 public comments.  The district court accepted DHS’s argument that it required additional time to address the comments and prepare for the new rule in order to avoid the hardships that a regulatory gap would cause to F-1 OPT workers and their employers.

Gibney will continue to monitor the status of this matter, and provide updates as they become available. If you have any questions concerning this alert, please contact your designated Gibney representative or email info@gibney.com.