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Stephanie Paver, Senior A)orney
Immigra6on Basics
1. Department of Homeland Security (DHS)
– U.S. Ci'zenship & Immigra'on Services (USCIS)-‐ former INS
– Customs & Border Protec'on (CBP)
– Immigra'on & Customs Enforcement (ICE)
2. Department of State (DOS)
– U.S. Consulates & Embassies
3. Department of Labor (DOL)
U.S. Immigra6on Agencies
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• Step 1: Employer files pe66on with USCIS
• Step 2: Employee obtains visa at U.S. Consulate
• Step 3: Admission into the U.S. at Airport or Land Border
Three Steps to a Visa
• Do not need visa stamp
• Apply for visa status and admission at Port of Entry
• Mul6ple Entry I-‐94 card serve as “visa”
Canadians Are Different
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• Temporary Visit
• B-‐1 Visitor for Business: – Visit for short period – AZend mee6ngs, conferences
– Must not engage in produc6ve employment in the U.S.
– No payment from U.S. source
• Time in U.S.: Determined by CBP
• Must apply for B visa at U.S. Consulate
Excep6on: Canadians
B-‐1/B-‐2 Visitor Visa
• Form I-‐20 issued by University
• F-‐1 Curricular Prac6cal Training (CPT)
• F-‐1 Op6onal Prac6cal Training (OPT): – A_er comple6on of studies
– 1 year
– EAD required
– 17 month STEM extension
– Repor6ng requirement
F-‐1 Student Visa & F-‐1 OPT
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• Bachelor’s degree or equivalent • “Specialty Occupa6on” • Labor Condi6on Applica6on (LCA) • Maximum stay: 6 years • 65,000 + 20,000 H-‐1B visas per Federal Fiscal Year – no more H-‐1Bs
for FY2014 • Spouses:
– H-‐4 – Some may obtain work authoriza6on
H-‐1B Professional Visa
• “H-‐1B Cap:” 65,000 H-‐1B numbers available each year. Ø An addi6onal 20,000 H-‐1B numbers are available for individuals with U.S.
advanced degrees. Ø Earliest date to apply is April 1st. Ø If H-‐1B’s are exhausted the 1st day or week, a loZery occurs. Ø H-‐1B status becomes effec6ve October 1st.
• Cap Exempt – Can obtain H-‐1B at any 6me. Ø Employed by or at an ins6tu6on of higher educa6on (e.g. University) or
affiliated non-‐profit en6ty. Ø Employed by or at a non-‐profit research or government research organiza6on. Ø H-‐1B extensions/amendments. Ø Change of Employer H1-‐B -‐ currently in H-‐1B status with another employer
(unless employed with a cap exempt employer). Ø Held H-‐1B status in the past 6 years (unless with a cap exempt employer).
H-‐1B “Cap Subject” and “Cap Exempt”
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• Must pay the “required wage” – higher of prevailing or actual wage.
• No “benching” allowed – wage must be paid at all 6mes except for voluntary leave for employee’s convenience or when circumstances render the employee unable to work (e.g. maternity leave, accident).
• Keep a “Public Access File” for each H-‐1B employee.
• Liable for return transporta6on costs to home country if terminated before H-‐1B expires (not liable for H-‐4 family).
• When employee leaves before H-‐1B expires, no6fy USCIS & DOL to revoke the H-‐1B pe66on and LCA.
H-‐1B Employer Obliga6ons
• Fraud Detec6on and Na6onal Security (FDNS) Site Inspec6on Program. Increasing Site Visit Frequency for H-‐1Bs and Star6ng for L-‐1s in 2014
• USCIS Requests for Evidence (“RFE”)
Ø 3rd Party Worksite Employment
Ø H-‐1B: Specialty Occupa6on
Trends on Enforcement Ini6a6ves
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• 6,800 visas each fiscal year out of the 65,000 H-‐1B visa cap.
• Posi6on must be a specialty occupa6on i.e. must require a Bachelor’s degree or its equivalent.
• Foreign na6onal must have required degree.
• Offer of employment from bona fide U.S. employer.
• Nonimmigrant intent required (in contrast to H-‐1B which has dual intent).
H-‐1B1 Specialty Occupa6on for Chileans and Singaporeans
• Labor Condi6on Applica6on required. • File H-‐1B1 pe66on directly at U.S. Consulate abroad. • H-‐1B1 visa is issued for 18 months – can be renewed.
H-‐1B1 Specialty Occupa6on for Chileans and Singaporeans (cont’d)
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• Only for Australian na6onals.
• Must have a legi6mate offer of employment in the United States.
• Possess a Bachelor’s degree or its equivalent.
• Will fill a posi6on that qualifies as a specialty occupa6on, i.e. requires at least Bachelor’s level educa6on.
E-‐3 Specialty Occupa6on Professionals from Australia
• Apply directly at the U.S. Consulate abroad. • Applica6on package must include cer6fied Labor Condi6on Applica6on. • E-‐3 Visa and I-‐94 card are issued for two year period. • Stay can be extended in two-‐year increments, no maximum. • Work authoriza6on for dependent spouse.
E-‐3 Specialty Occupa6on Professionals from Australia (cont’d)
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• Canadians
• Mexicans
• Enumerated Professional Occupa6ons
• Up to 3 years, but visa validity limita6ons for Mexican ci6zens
• Spouses:
– TD, not eligible for work authoriza6on
– no work authoriza6on
TN -‐ Trade NAFTA
• Librarian • Voca6onal Counselor • Computer System Analyst • Social Worker • Mathema6cian
• H-‐1B (approx. 2 weeks for case prepara6on, approval takes 2 weeks to 4 months)
– LCA up to 7 business days
– Portability upon filing
• E-‐3/H-‐1B1 (approx. 2 – 4 weeks if no administra6ve processing)
– LCA up to 7 business days
– Visa Appointment at US Consulate
• TN (approx. 1 to 2 weeks if no administra6ve processing)
– Canadian: apply at port of entry
– Mexican: Visa Appointment at US Consulate
Processing Times
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• Premium Processing is available for I-‐129 pe66ons filed with USCIS (e.g. H-‐1B change of employer, H-‐1B extension, TN extension, etc.)
– Op6onal; may be recommended if interna6onal travel plans, driver’s license expira6on, etc.
– USCIS will adjudicate the pe66on in 15 days
Processing Times (cont’d)
• Who’s most likely to be affected by administra6ve processing delays? Ø Informa6on disclosed on the DS-‐160 about travel to Muslim countries in the
last 10 years, prior employment, military service or specialized skills or training.
Ø Country of birth, ci6zenship or residence -‐ persons born in the T-‐4 (Iran, Sudan, Syria & Cuba)
Ø Males between the ages of 16 and 64 are more likely to be subject to clearance requests than females.
• Applicants with STEM degrees (Science, Technology, Engineering and Math) are likely to be scru6nized via the security advisory opinion to ensure individual does not pose a security risk for poten6al dual use of technology.
• Likelihood of false hits on databases maintained by government on commonality of a name, e.g. Smith, Gonzalez, Mohammad, etc.
Possible Delays: Administra6ve Processing, a.k.a. Security Clearances
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• Once in the queue for a security advisory opinion, NO visa can be issued un6l the Department of State Visa Office informs the consular post of the outcome.
• Most security clearances are resolved within 60 days.
• For anything beyond 60 days, it’s advisable to contact the Department of State Visa Office for follow up and also contact the NIV Chief at consular post and U.S. Department of State post liaison for resolu6on.
Important Considera6ons: U.S. Visa Processing
• Consular officers are required to refer non-‐immigrant visa applicants to panel physicians for medical examina6ons if the applicant has: 1. A single alcohol-‐related arrest or
convic6on within the last five years; 2. Two or more drunk driving arrests or
convic6ons in the last ten years; or 3. If there is any other evidence to suggest
an alcohol problem.
Previous DWI’s – Impact on Visa Applica6on Process
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• Any criminal charge/convic6on or prior immigra6on viola6on will delay visa issuance process and/or may result in denial of admission by the Immigra6on Officer upon arrival to the U.S.
• Employees should be candid with counsel about such issues, so they may be veZed ahead of 6me. This includes employee as well as his family members that will be seeking a visa/admission with the main beneficiary.
• If there are any criminal issues, the applicant must obtain cer6fied copies of judgment and sentence to document charge and disposi6on of the case.
• Non-‐immigrant visa waivers available for most viola6ons, although such waivers are issued on a case by case basis and in the exercise of discre6on.
Criminal Record of Past Immigra6on Viola6ons
• As of 04/26/2013 CBP will only issue electronic I-‐94s for air and sea travel, although paper I-‐94s are s6ll being issued at land border Port of Entry.
• Passport or travel documents will be stamped with admission date, visa class and expira6on date.
• Paper I-‐94 will be available to print from CBP website www.CBP.gov/I94 (which is now fully opera6onal).
Changes in Issuance of I-‐94: Electronic I-‐94
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• As of 04/26/2013, CBP only issues electronic I-‐94s for air and sea travel. Paper I-‐94s s6ll being issued at land border Ports of Entry.
• Only Passport or travel documents will be stamped with admission date, visa class, and expira6on date.
• I-‐94 will be available to print from CBP website www.CBP.gov/I94 which is now fully opera6onal.
• Individuals should be able to print the I-‐94 within 24 hours. However, glitches s6ll exist and some6mes system takes several days to update the most current data.
• Errors in the system are very common, e.g. wrong status or incorrect expira6on date. Employees are encouraged to print out I-‐94s for review, so if there are errors, they can be caught on 6me and corrected, in order to avoid nega6ve consequences.
Automated I-‐94 Records: Beware of Glitches!
• Driver’s License, Social Security Number and other benefits can be delayed if immigra6on status is not found in SAVE Database.
• The SAVE Program is a web-‐based service administered by USCIS that helps federal, state and local benefit-‐issuing agencies, ins6tu6ons and licensing agencies, such as the Social Security Administra6on or Texas Department of Public Safety, determine the immigra6on status of applicants.
• Queries mul6ple DHS databases. • Includes 6ered process for status verifica6on when immediate
confirma6ons are unavailable.
SAVE Program Problems
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• Receipt No6ces for I-‐129 extensions, including H-‐1B
• Receipt no6ces for I-‐485 applica6on to adjust to permanent resident.
• SAVE not updated, including for approvals and I-‐94.
• USCIS not helpful.
Common issues with data not in SAVE
Ø Take Away: Apply Early! Expect delays in applying for and renewing benefits, including driver’s licenses in most states. Contact your Foster aZorney for assistance with SAVE. Bring copies of passport, latest I-‐94, Receipt No6ces when applying for benefits.
SAVE Verifica6on Process
Descrip)on System Response
General Response Time
Ini)al Verifica)on (Electronic)
• Agency submits case based upon informa6on provided by the applicant.
• System response provides applicant’s immigra6on status or prompts agency to “Ins)tute Addi)onal Verifica)on.”**
Electronic 3-‐5 seconds
Addi)onal Verifica)on 2nd Step (Electronic -‐ but verifica9on process is manual)
• Agency submits addi6onal informa6on on the applicant
• System response provides applicant’s immigra6on status or prompts agency to “Resubmit with Docs.”
Electronic 3-‐5 federal working days
Addi)onal Verifica)on 3rd Step (Electronic)
• Agency submits a subsequent request and submits it electronically with copies of the applicant’s immigra6on documents .
Electronic/Mail Used to take 10-‐20 federal working days; Government
is now indica6ng a processing 6me of 3-‐5
working days
**If the SAVE Program does not verify an applicant’s status on the Ini6al Verifica6on, it does not necessarily imply that the applicant is not authorized to be in the United States. It may be the result of processing error or indicate the need for addi6onal or corrected documenta6on.**
From www.uscis.gov, last updated 10/1/2012.
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• SAVE CaseCheck -‐ Allows applicants to check the status of a pending verifica6on check via the SAVE online program – hZp://www.uscis.gov/save/save-‐case-‐check
• To check the status of a pending verifica6on: – Enter in iden6fying informa6on/number such as such as the I-‐94
or passport number in combina6on with the date of birth;
– System will show the case status, date, and name of the agency reques6ng a status verifica6on/check.
– Individual can click “view case” to see whether the verifica6on has been processed.
– Individual can click “what do I do next” and “more informa6on” link.
SAVE Updates: SAVE CaseCheck
Ques6ons
Stephanie Paver Senior A)orney 512-‐852-‐4111
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