Nonimmigrant visas

by SCwpadmin SCwpadmin 84 Comments

Electronic System for Travel Authorization (ESTA)

The Department of Homeland Security has created an internet-based travel authorization system to verify that people who are entering the United States on the Visa Waiver Program are pre-authorized to travel before they arrive in the United States. While the ESTA program will be pre-authorizing travel to the United States, it only authorizes a traveler to board a carrier to travel and is not designed to make a determination on a non-citizen’s admissibility to the United States. The information that is submitted through the ESTA program is the same information that is currently submitted on the I-94W form when a visa waiver applicant arrives in the United States.

The information that is submitted on the electronic application will be checked against all appropriate databases including lost and stolen passport databases and various government watch lists. An ESTA travel authorization will be good for two years, or until the individuals passport expires, whichever comes first. ESTA will have the capability to accommodate last-minute and/or emergency travel needs. ESTA will start on August 1, 2008 as a voluntary program. Using ESTA for travel pre-authorization will become mandatory as of January 12, 2009. The ESTA website is at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/

by SCwpadmin SCwpadmin 75 Comments

H-2B Legislation Update

Currently, seasonal employers are awaiting an extension of the Returning Worker Exemption which was a primary feature of the “Save Our Small and Seasonal Business Act of 2005.” Senator Barbara Mikulski (D-MD) proposed an amendment to an Appropriations Bill which would extend a one-year exemption for returning H-2B workers not to be included in the numerical cap of 66,000 visas. This amendment was written to be made retroactive to the beginning of Fiscal Year 2008 (October 1, 2007). Final approval is pending a joint House-Senate conference on this matter.

The Save Our Small and Seasonal Business Acts of 2007 are in the process of obtaining co-sponsors to Senate version. Proposing a five-year extension of the returning worker exemption has 35 co-sponsors and 40 are needed. The House Bill version proposes a permanent H-2B returning worker exemption and has 98 co-sponsors out of 100 needed.

While Senator Mikulski’s amendment is the most promising, we do not know the fate of this provision until the Appropriations Bill comes out of a combined House and Senate conference. However, regardless of the outcome, we urge all seasonal employers and users of the H-2B visa program to contact their Senators and Representatives in Washington, D.C. to express their support for these Save Our Small and Seasonal Business Acts of 2007.

For more information on contacting Congress, please click on the link below:

http://capwiz.com/aila2/issues/alert/?alertid=10162161

by SCwpadmin SCwpadmin 143 Comments

H AND L ADJUSTMENT APPLICANTS NO LONGER NEED I-485 RECEIPT NOTICES TO TRAVEL

In a new rule effective November 1, 2007, USCIS has removed the requirement that H and L adjustment applicants must travel with their receipt notice.

An adjustment applicant needs certain documentation in order to travel once the I-485 application has been filed. Advance Parole is the most common travel document used by adjustment applicants. Adjustment applicants who are on H or L status, however, can travel without adjustment of status under certain conditions. Before the new rule, H and L adjustment applicants needed to have their I-485 receipt notice at the time they re-entered the United States. This proved to be challenging in that it has been taking USCIS a number of weeks, if not months, to issue receipt notices thereby limiting travel during this period of time. Under the new rule, if a person is maintaining H or L status he or she can travel without first obtaining the I-485 receipt notice.

The new rule will help thousands of H and L adjustment applicants who seek to travel after they have filed for adjustment of status but before they receive the receipt notice.

by SCwpadmin SCwpadmin No Comments

H-4 and L-2 Time De-Coupled From H-1B and L-1 Time

USCIS has recently clarified that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation promotes family unity by affording each qualified spouse the opportunity to spend six-years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six-year maximum period.

For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, this memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.

by SCwpadmin SCwpadmin 28 Comments

USCIS Reaches H-2B Cap For First Half of Fiscal Year 2007

USCIS announced on December 5, 2006 that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first six months of Fiscal Year 2007. November 28, 2006 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2007. The “final receipt date” was the date on which USCIS determined that it had received enough cap-subject petitions to reach the limit of
33,000 H-2B workers for the first half of FY 2007.

USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on November 28, 2006. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2007 that arrive after November 28, 2006. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1, 2007 that arrive after the “final receipt date” only if such petitions are supported by a valid temporary labor certification.

Petitions for workers who are currently in H-2B status and returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap. “Returning workers” are exempt from H-2B cap limitations. In order to qualify, the worker must have counted against the H-2B numerical cap between October 1, 2003 and September 30, 2006. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” which contain a combination of “returning workers” and workers subject to the H-2B cap will be rejected with respect to non-returning workers. Petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.

USCIS will continue to process petitions filed to:

• Extend the stay of a current H-2B worker in the United States;
• Change the terms of employment for current H-2B workers and extend their stay;
• Allow current H-2B workers to change or add employers and extend their stay; or
• Request eligible H-2B “returning workers.”

More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.

by SCwpadmin SCwpadmin 48 Comments

Congress Extends Availability of Visas for Nurses to Work in Underserved Areas

On 12/6/06, the Senate passed the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005 (H.R. 1285). Passed by House on 6/20/06, the bill extends for three years the Nursing Relief for Disadvantaged Areas Act of 1999, which provides for up to 500 foreign nurses to come to the U.S. annually on H-1C visas to work in medically underserved areas.

Information provided by AILA.

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