NIV Processing Update - Federal Bar Association · • Heightened scrutiny of visa applicants at...
Transcript of NIV Processing Update - Federal Bar Association · • Heightened scrutiny of visa applicants at...
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NIV Processing Update
May 18, 2019Federal Bar Association Immigration Law Conference
Austin, Texas
Moderator: Prakash Khatri, Esq. Panelists: Robert Loughran, Esq. & Ramin Asgard, Esq.
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SESSION HIGHLIGHTS
Review of NIV Basics: The Players, Documents, & Visas
The Impacts of the New Terrain: DOMESTIC
The Impacts of the New Terrain: OVERSEAS
Questions & Answers
The Changed Terrain: Regulatory & Information
BONUS: Insider Tips from a Former Consular Officer
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GOVERNMENT AGENCIES INVOLVED
• Department of Homeland Security
• US Citizenship & Immigration Services (USCIS) – Services and benefits (family and employment); naturalization; special status programs.
• US Immigration & Customs Enforcement (ICE) – Interior investigations and enforcement, including SEVIS enforcement; smuggling; document fraud; raids.
• US Customs & Border Protection (CBP) – Inspections at ports of entry; Customs functions; border patrol.
• Department of State – NVC, KCC which process domestic petitions, and US embassies/consulates abroad which issues visas to enter the US.
• Department of Labor – PERM Labor Certification and H-1B Labor Condition Application (LCA) .
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KEY DOCUMENT: I/94 ARRIVAL/DEPARTURE RECORD
• The I-94 controls status and permissible period of stay in the U.S.
• CBP will only issue electronic I-94s for air and sea travel, although paper I-94s are still being issued at land border Port of Entry.
• Passport or travel documents will be stamped with admission date, visa class and expiration date.
• I-94 records are available on CBP’s website: https://i94.cbp.dhs.gov/I94/#/recent-search
• Check I-94 record upon each entry into U.S.
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KEY DOCUMENT: NONIMMIGRANT VISA STAMP
• The nonimmigrant visa reflects:
➢The nonimmigrant category
➢The validity dates for travel on the visa
➢Any additional notes or restrictions
• Indicates to the inspecting officer at the port of entry that the applicant, and his or her purpose for entry, have been prescreened
• Does not guarantee admission upon inspection by U.S. Customs & Border Protection
• A “ticket” to apply for admission to the U.S.
• Canadians are exempt and do not require a Visa
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KEY DOCUMENT: FORM I-797 – CHANGE OF STATUS
• “Change of status” within the U.S.:
• Form I-797 approval notice is issued with a new I-94 card attached
• New status starts automatically on validity date
• Whenever the employee leaves the U.S., a visa stamp in passport must be obtained at a U.S. consulate abroad to return, except:
➢ Canadian citizens (visa exempt)
➢ Special rules for travel to Mexico or Canada for less than 30 days
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THE CHANGED REGULATORY TERRAIN
Extreme Vetting Executive Order
Buy American, Hire American EO
Travel Ban
Non-Deference Policy, FAM Change on Public Charge
NATIONAL SECURITY: “rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of otherimmigration benefits”
AMERICAN WORKER PROTECTION: “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”
NATIONAL SECURITY: Applying Title 8 of USC §1182(f) suspends most visa issuance & USRAP to nationals of 6 countries.
ADJUDICATION TREND & ECONOMIC SECURITY : No deferenceto previous decisions, strict scrutiny of public assistance record
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THE CHANGED INFORMATION TERRAIN
Cloud Migration
Big Data
Stuart McGuigen, CIO Department of State
Former J&J CIO, Led Cloud MigrationPublic Private
Partnerships
Form DS-5535
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THE IMPACTS: DOMESTIC NIV PROCESSING
• Strict scrutiny in adjudications with spike in issuance of Requests for Evidence (RFE) andNotices of Intent to Deny (NOID)
➢ Challenges to “specialty occupations” and wage levels for H-1B petitions, particularly computer and web-based positions and Level 1 wages
➢ Approximately 1/3 of L-1 petitions filed with USCIS in 2nd quarter of 2017 were denied
• No longer deference to prior determinations when seeking extensions of status
• Pledge to make unannounced and random visits to all H-1B employers, both before and afterany petition is adjudicated
• Substantial and growing USCIS delays/backlogs at in all visa categories, +46% overall*
• Far more rigorous CBP scrutiny at POEs, seizing and data mining of cellphones, laptops
* AILA Policy Brief, USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration, Jan. 2019
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THE IMPACTS: CONSULAR NIV PROCESSING
• ALDAC Guidance Cables implementing Extreme Vetting/BAHA, Visas Viper/LEWG vetting
• Heightened scrutiny of visa applicants at U.S. Department of State (DOS) consular posts, including more delays (Administrative Processing) in visa issuance and more denials
• Readjudication of approved visa petitions at U.S. consular posts
• 316% increase in public charge-based denials 212(a)(4), 118% increase for alien-smuggling 212(a)(6)(e), 34% increase in 221(g), and 38% increase in misrepresentation 212(a)(6)(C)(i)*. For IVs -39% issuances, NIVs -13% issuances.
• On the spot “googled” research by Consular Officers, 221(g) result, Black Box
* National Association for American Policy, State Department Visa Refusals in FY 2018, March 2019
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INSIDER TIPS FROM A FORMER CONSULAR OFFICER
• Number 1 Reason for Visa Denials/221(g): Applicant does not know content of their own petition/application. Make sure your client capable of explaining key points.
• Consular Officers interview 150+ applicants a day
• Concise, bulleted cover letter essential to guiding Consular Officers towards approval
• Consular Officers highly variable in their backgrounds, approach, prepare for the worst
• Consular Officers NOT lawyers, do not fill your cover letter with legal jargon
• Lawyers are often viewed as adversary, and this is increased in extreme vetting era
• FAM is the key reference point in dealing with Consular interview
• Be careful about language/translation issues
• Consular Officers, including Consular Chief, status within Embassy, Foreign Service
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QUESTIONS & ANSWERS
Prakash Khatri, Esq.
Khatri Law Firm, LLC6701 Democracy Blvd., Suite 300
Bethesda, MD 20817
www.khatrilaw.com
Robert Loughran, Esq.
Foster Global912 S Capital of Texas Hwy,
Suite 450Austin, TX 78746
www.fosterglobal.com
Ramin Asgard, Esq.
Asgard Law Office401 Park Ave S, 10th Floor
New York, NY 10016
www.asgard-law.com
CONTACT INFORMATION
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ADDITIONAL SLIDES FOLLOW
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IMPORTANT UPDATE: NEW REGULATIONS
• Admission for 10 Days Before and After Petition Validity
• H-1B, L-1, TN, E
• Does not provide work authorization, but does provide lawful status
• Sixty-Day Grace Period
• H-1B, H-1B1, E-1, L1, O-1, TN
• Grace period for up to 60 consecutive days of unemployment or until petition expires
• Cannot engage in unauthorized employment
• Automatic Extension of EAD Card up to 180 days
• Extension must be timely filed
• Only for those applying under same category as previously authorized and which do not require an adjudication of nonimmigrant status
• Does NOT apply for L-2, H-4 or E spouse EAD renewals
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COMMON NONIMMIGRANT VISA STATUS
• Business Visitor (Visa Waiver or B-1)
• F-1 OPT
• H-1B Temporary Worker
• L-1 Intracompany Transferee
• TN Trade NAFTA Worker
• H-1B1 Chile, Singapore
• E-3 Temporary Worker (Australians)
• Employment Authorization Document (EAD)
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F-1 STUDENTS CHANGING TO H1-B STATUS
• F-1 Cap-Gap OPT automatic extension
• H-1B change of status petition
• Timely filed while F-1 OPT EAD is valid
• OPT will be automatically extended until September 30th
• No travel abroad during cap-gap extension
• 90 limit on unemployment
• STEM OPT extension (additional 24 months)
• Latest degree must be in Science, Technology, Engineering or Mathematics
• Sponsored by Employer enrolled in E-verifyprogram
• Position directly related to degree
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H-1B TEMPORARY WORK VISA REQUIREMENTS
• “H-1B Cap subject”: Annual quota limits H-1B numbers per fiscal year
➢65,000 H-1Bs are available each year
➢Additional 20,000 H-1Bs are reserved for individuals with U.S. advanced degrees
➢Earliest date to apply is April 1st
➢If H-1Bs are exhausted the first week, a lottery occurs
➢H-1B status becomes effective October 1st
• Cap Exempt – Can obtain H-1B at any time
➢H-1B extensions/amendments
➢Change of Employer H1B - currently in H-1B status with another employer (unless employed with a cap exempt employer)
➢Held H-1B status in the past 6 years (unless with a cap exempt employer)
➢Employed by or at an institution of higher ED (e.g. University) or certain non-profit. entity.
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H1-B “CAP SUBJECT” AND ”CAP EXEMPT” INA §214(g)
• “H-1B Cap subject”: Annual quota limits H-1B numbers per fiscal year
➢65,000 H-1Bs are available each year
➢Additional 20,000 H-1Bs are reserved for individuals with U.S. advanced degrees
➢Earliest date to apply is April 1st
➢If H-1Bs are exhausted the first week, a lottery occurs.
➢H-1B status becomes effective October 1st
• Cap Exempt – Can obtain H-1B at any time
➢H-1B extensions/amendments.
➢Change of Employer H1B - currently in H-1B status with another employer (unless employed with a cap exempt employer).
➢Held H-1B status in the past 6 years (unless with a cap exempt employer).
➢Employed by or at an institution of higher ed (e.g. University) or certain non-profit entity
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H1-B ISSUES COMMONLY FACED BY EMPLOYERS
• Changing Employers / Portability.
➢Must be maintaining status.
➢ Can commence new employment upon filing.
➢May need to consider expediting (premium processing).
• 6 yr. limit with exceptions depending on place in green card process and/or availability of immigrant visas.
• Required to notify USCIS if employment terminates. Should also withdraw LCA to ensure salary obligations terminate.
• Must pay reasonable costs of return transportation if dismissed early.
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L-1 VISA: INTERCOMPANY TRANSFERS TO THE U.S.
• Allows the transfer of fulltime executives, managers, or specialized knowledge employees within the related group of companies
• The employee must have been employed with the company outside of the U.S. for one full year within the three years before filing
• Blanket L-1 visa – can save time/$$ filing directly with U.S. Consulate
• Duration: up to 7 years for executives and managers; up to 5 years for specialized knowledge workers
• The L-1 visa for executives/ managers works well with permanent residence EB-1C
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TN TRADE NAFTA
• Only Available for Canadian or Mexican citizens
• Occupations are specifically listed in NAFTA treaty – most require a Bachelor’s degree.
• Employer Specific
• Canadian citizen – apply at border POE or file petition with USCIS even if Canadian is abroad – 3 year period.
• Mexican citizens – apply at U.S. consulate – only 1 year visa but 3 year I-94 possible.
• Time period in the U.S. – 3 year increments
• Non-immigrant intent required.
• TD Spouses – no work permit.
• No regulatory visa limit.
• Amendment may not be required unless petitions filed with USCIS.
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TN DESIGNATED OCCUPATIONS
• Engineer
• Registered Nurse*
• Scientific Technician*
• Management Consultant*
• Economist
• Accountant
• Architect
• Computer System Analyst
• Graphic Designer
• * Does not require a bachelor’s degree or licenciatura.
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H-1B1 VISA FOR CHILE & SINGAPORE FREE TRADE AGREEMENTS
• Available only to Singaporean & Chilean citizens
• 6,800 annual visa limit (Chile: 1,400; Singapore: 5,400) – usually remains available throughout year.
• Professional position – Bachelor’s degree required.
• LCA required, but no petition required.
• May only work for sponsoring company.
• Apply directly with U.S. consulate.
• Non-immigrant intent required.
• Spouse not eligible for work permit.
• Time period in U.S.: 18 months increments.
• New LCA/Amendment required if worksite changes
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E-3 VISA FOR AUSTRALIANS FREE TRADE AGREEMENT
• E-3 is an alternative to the H-1B visa.• 10,500 annual visa limit.• Professional position – Bachelor’s degree required.• Labor Condition Application required. • May only work for sponsoring company.• Apply directly with U.S. consulate or through USCIS.• Non-immigrant intent required.• E Spouse (regardless of nationality) eligible for work permit.• Time period in U.S.: 2 year increments.• New LCA/Amendment required if worksite changes
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EAD OR WORK PERMIT
• F-1 Students
• Applicant for Adjustment of Status
• Dependent Spouses of L-1, E-1, E-2, J-1, H-1B
• K-1 Fiance, Refugees, Asylees, Temporary Protected Status, DACA, etc.
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SITE VISITS
• DHS has recently made a highly publicized commitment to increase enforcement of the H-1B and L-1 programs.➢ Main goal is to check for technical violations and fraud➢ They may visit in person, but we are seeing an increasing
number of site visits conducted via email
• Homeland Security Investigations (HSI) is also increasingly auditing Forms I-9 for Employment Eligibility Verification. Penalties include fines, debarment, criminal charges.