Don’t be Caught in the Backlog – Renew Your U.S. Passport Early!

January 28th, 2016 by Heather Fathali

Have a U.S. passport expiring in 2016 or 2017? The State Department advises you start the renewal process ASAP to avoid backlogs in processing times. 2016-2017 marks the 10-year anniversary of WHTI, the Western Hemisphere Travel Initiative, which among other things required (for the first time) that U.S. citizens present a U.S. passport when departing or entering the U.S. for air travel within the Western Hemisphere. It also imposed restrictions on the acceptable documents for presentation at U.S. land and sea borders. WHTI resulted in a mad rush of U.S. passport applications, and, because U.S. passports are valid for 10 years, the Department of State now foresees a surge in upcoming renewals.

Depending on your circumstances, U.S. passports may be renewed by mail, in person, and from abroad. The Department of State offers a user-friendly website to assist in the process:

The New York Times offers a great report on the matter here:

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Supreme Court Will Review President’s Executive Action on Immigration

January 21st, 2016 by W. Scott Railton

This April, the U.S. Supreme Court will hear argument in the case of the United States v. Texas.

This is headline news, as the case concerns President Obama’s announcement in 2014 that he will allow certain undocumented persons to obtain legal work authorization and shield them from deportation if (a) they have children who are U.S. citizens or lawful permanent residents and (b) if they can establish physical presence in the United States since January of 2010. It is estimated that this action could impact over 4 million persons living in the United States. The program, described as an exercise of prosecutorial discretion, has been called “Deferred Action for Parents of Americans” (DAPA).

Texas sued the United States government, and was joined by 25 other states, to halt this program. Soon thereafter, 15 other states, and the District of Columbia, filed in favor of the President’s actions. The matter has been making its way through lower courts, with Texas and its cohorts successful so far. The Obama Administration sought Supreme Court review, and now has it.

The Supreme Court will have to determine as a threshold matter whether the complaining states have standing to bring the suit. Basically, to have standing, there has to be an actual conflict to decide, between parties with real interests in the matter. States can’t bring a lawsuit just because they don’t like a federal government policy, particularly when that policy area is typically reserved to the federal government’s discretion, as is the case with immigration. However, so far, the lower courts have found standing, because of various impacts (e.g. driver licensing). The Obama Administration describes these as collateral consequences of State policies, and insufficient to grant standing.

If standing is found, the key question to be decided is whether the Executive Branch has overstepped its authority. Congress makes laws, and the Executive enforces them. The Obama Administration argues that Congress already delegated to it the authority to enforce immigration laws, and the actions are inherently authorized. Further, the Administration points to the lack of funding to complete full enforcement, and describes this as a “tacit acknowledgement” by Congress for the Executive exercise prosecutorial discretion.

Texas et al. acknowledge the concept of prosecutorial discretion, but describe the President’s actions as a sweeping overreach of power. They argue that discretion is to be exercised case by case, and not to whole populations.

There is an administrative law component that the Supreme Court will consider. Specifically, the Court is presented with the question of whether the Department of Homeland Security must go through public notice and comment procedures first, before implementing the action. This District Court judge who originally heard the matter in Texas determined that DHS had violated such procedures, and on this basis enjoined DHS.

Finally, and notably, the Supreme Court asked both parties to address whether the Administration’s announced immigration policy is in violation of the “Take Care Clause” of the Constitution, under which the President must “take care that the laws be faithfully executed.”  One writer for the Washington Post described this as a bombshell.

Supreme Court experts say we can expect oral arguments towards the end of April, and a decision in late June. Both political parties have their national conventions in July.

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New Rules for E-3s, H-1B1s, and Outstanding Professors and Researchers

January 15th, 2016 by W. Scott Railton

The Department of Homeland Security has been busy recently in its attempt to amend immigration regulations related to business. This week, USCIS added to this effort by publishing rules in the Federal Register which intend to improve the administrative process for the E-3, H-1B1, and EB-1 Outstanding Professor/Researcher categories.  The rules go into effect on February 16, 2016.

In a nutshell, the rules are intended to put these nonimmigrant categories on common ground, administratively, with similar temporary work authorization categories for professionals (e.g. H-1B, L, E, and O). Additionally, modifications have been made to the acceptable criteria for Outstanding Professor and Researcher category, allowing applicants to provide “comparable forms of evidence” in order to establish their qualifications.

The E-3 category is a special nonimmigrant category reserved for Australian nationals for specialty occupation categories. E-3 applicants can apply directly at a Consulate, with appropriate documentation, and bypass USCIS altogether initially. However, in some situations, where travel abroad is undesirable, the E-3 can be processed with USCIS. The H-1B1 is similar, in that it is for specialty occupation workers from Chile or Singapore, and was also established by Treaty. The rule also has application for persons in the CW-1 category, which is for persons from the Commonwealth of the North Mariana Islands.

A change that stands out here is applicants for extensions in these categories will now receive the 240 day automatic work authorization period, subsequent to status expiration, if their renewal application is timely filed before the expiration date. This is consistent with many other nonimmigrant work authorization categories. Previously, persons in the E-3, H-1B1 and CW-1 categories had to pay great attention to filing many months in advance for an extension, in order to get an approval through before their expiration date. It’s still best practice to file extensions as early as possible, which is probably earlier than most would think.

The amendment to the Outstanding Professor and Researcher category is welcome. In my experience, applicants sometimes have remarkable evidence to present which doesn’t quite fit into the categories of evidence already called out by the regulation. This category, unlike the ones mentioned above, applies to Professors and Researchers pursuing green cards (permanent residence).

Here is DHS’s announcement, with further details:

The Department of Homeland Security (DHS) amended its regulations today to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

This final rule, posted to the Federal Register today and effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, this final rule amends DHS regulations as described below:

• DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
• DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
• DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
• Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
• Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

This final rule does not impose any additional costs on employers, workers or any governmental entity.

Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications.

Additionally, this rule minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers.

Finally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions.

“We constantly strive to improve our processes and ensure fair and consistent access to immigration benefits,” U.S. Citizenship and Immigration Services Director León Rodríguez said. “This Enhancing Opportunities rule removes unnecessary hurdles that place workers at a disadvantage and will be beneficial to both employers and their workers.”

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DHS Proposes Broad Regulation Affecting Employers of High-Skilled Foreign Workers

December 31st, 2015 by W. Scott Railton

The Department of Homeland Security and U.S. Citizenship and Immigration Services today released a proposed regulation to modify many aspects of the immigrant and nonimmigrant work authorization process. The rule weighs in at a hefty 181 pages, and addresses longstanding issues related to foreign worker mobility.  This is a very significant proposal for employment based immigrants, and the employers that employ them.

A two month comment window will open with the publication of the proposal, once published in the Federal Register.

The proposed rule attempts to better implement two laws: the American Competiveness and Workforce Improvement Act of 1998 (“ACWIA”) and the American Competiveness in the Twenty-First Century Act of 2000 (“AC21”).  Specifically, the rule attempts in large part to address some the natural consequences of the multi-year waits for immigrant visas under the Immigration and Nationality Act’s quota system.  As of this writing, an Indian national with an EB-3 professional approval (e.g. Bachelor’s degree) has to wait over a decade for an immigrant visa to become available.  Here’s what the rule says on this:

This proposed rule is intended, in part, to address some of the challenges that flow from the statutory limits on immigrant visas, consistent with existing DHS authorities. [ p. 47]….[S]imply put, many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. This effectively prevents U.S. employers from treating them like the high-potential individuals the employer hired them to be, thus restricting productivity and the promise they offer to our nation’s economy and undermining the very purpose of the employment-based immigrant visa system that prioritizes such workers for LPR status. The lack of predictability and flexibility for such workers may also prevent them from otherwise investing in and contributing to the local, regional, and national economy or fully assimilating into American society. [p. 50]

The proposal takes many existing USCIS practices, previously implemented through a mish-mash of agency memos, and for better or worse, tidies them up into regulations. Perhaps more significantly, the proposal creates several new rules regarding work authorization and employment authorization documents, in an attempt to improve career advancement opportunities for foreign workers, as well as worker mobility.  The current administration has on multiple occasions said that the government should take steps to address natural career progression, in the context of visa backlogs. Unfortunately, the proposed rule also seems to let the agency off the hook for adjudication delays, such as in the case where it strikes the 90 day rule for adjudication of employment authorization documents.  More on this below.

The results:  some good news, some bad news, and a lot of wait and see. The possibility of litigation before implementation exists.  We’ll just have to see how it shakes out after the two month comment period. You can be sure we will be following this closely.

Here are some highlights on initial review:

• The creation of an automatic work authorization of 180 days for a timely filed Employment Authorization Extension, as well as the end of the 90 day obligation to adjudicate rule for the agency. This year the agency has been taking more than 90 days to issue EADs, as it has fallen behind in so many things, and this has forced HR Departments to stop employing nonimmigrants who reasonably thought they filed an extension in time.

• The creation of a new supplement for I-485 Adjustment of Status applications, for establishing that employment continues to be the same as petitioned for, or a “same or similar occupation”. The agency has really focused on building a body of law (or guidance?) in this regard this past year.

• Clarification and improvements upon the retention of priority dates for subsequent petitions. Also, softer rules benefiting beneficiaries of approved I-140s, against revocation, if 180 days have passed since approval.

• A one-time nonimmigrant grace period for 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants, to find new jobs.

• A “compelling circumstances” EAD for E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrants, to be granted on a discretionary basis.

• Applying for a professional license may be satisfactory for H-1B purposes, if it can be demonstrated that the license can’t be granted without a social security number. The agency’s current fix for this situation is to only grant one year of H-1B time, thus forcing a renewal sooner than the typical three years.

• USCIS unfortunately appears to be tightening the rules about original petitioners, labor certifications, and I-140s. This may affect situations involving mergers, acquisitions, and changes in business structure.

• The rule calls out specific rules for recapturing time outside the country, for H-1B purposes. Basically, an H-1B holder is entitled to six years of H-1B time, and if they spend part of that time outside the country, that period of time can be “recaptured”.  The rule provides more specifics on process, which I anticipate will just mean a more defined, and therefore higher burden of proof.

• The rule addresses interpretations related to determining cap-exemptions for cap-exempt employers. For the health care sector and research organizations, this will need to be reviewed closely, and may well merit comment before the rule becomes final.

• The rule focuses on whistleblower provisions for H-1B workers, relating to rate of pay. Basically, the agency seems to be encouraging more whistleblowing, to make sure employers are conforming with labor condition application requirements. We’re always careful to advise on employer responsibility in this regard.

• I-9 documentation rules will be changed to account for work authorization changes enabled elsewhere in this regulation. Its always a challenge for employers to stay up on the latest changes with I-9 matters.

• Ten day grace period for H-1Bs, as set in regulation, to allow them to enter the country before working, and depart within 10 days afterwards, is extended to several other nonimmigrant work authorization classifications (Es, Ls, TNs).


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Visa Waiver Program Modified in Response to Terrorist Attacks

December 22nd, 2015 by W. Scott Railton

The 2016 Consolidated Appropriations Act (H.R. 2029), enacted into law last week, includes new conditions on the Visa Waiver program. These provisions were included as a response to the recent tragic terrorist attacks in Europe and here in the U.S.

Specifically, the Visa Waiver program is no longer available to persons who have been present in Iraq, Syria, Iran, Sudan or other countries designated by the Department of Homeland Security as supporting terrorism or “of concern”, on or after March 1, 2011. Certain exemptions apply, mostly related to military or government service.

Additionally, the Act excludes persons who are nationals of Iraq, Syria, Iran or Sudan from taking advantage of the Visa Waiver program.

The new law also enhances passport requirements for participants in the Visa Waiver program, specifies screening protocols, and increases information sharing between countries.

The Visa Waiver program allows persons from certain countries to travel to the United States as a Visitor for Business/Visitor for Pleasure (B-1/B-2) without first applying abroad at a U.S. Consulate for a visa. The application for a visa takes time and money, and requires an in-person interview with a consular officer. The Visa Waiver program facilitates international travel from countries which are viewed as allies, and these countries reciprocate the privilege to U.S. travelers.

Changes such as these were to be expected, as the White House and some in Congress called for review of the Visa Waiver program immediately after the attacks in Paris, and before San Bernandino. The Visa Waiver program presents easier access to the U.S. than the Syrian refugee program, which initially received more concern.

DHS Secretary Jeh Johnson’s press release states, …I thank Congress for including in the omnibus measures to further strengthen the security of the Visa Waiver Program. Over the past year, the Administration has taken a series of steps to enhance security measures in the Visa Waiver Program. Congress has added to the security of the program with provisions that have the force of law.”

This is not the first time that security measures have targeted specific countries, or persons from countries of concern.

Most recently, after 9/11, the Government implemented a check in program called NSEERs. The NSEERs program was a failure, on many levels. NSEERs required men of a certain age from certain countries to check in with DHS at regular intervals.

I expect that we will see more measures like this in the coming year, based on the recent events and politics.

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Canada Consular Update: New E-1 and E-2 Visa Applicants Interviewed Only in Toronto

December 15th, 2015 by W. Scott Railton

New applicants for E visas in Canada will soon have to make application at the Toronto Consulate, as the Vancouver Consulate will only be handling applications for previously registered companies.

E-1 visas are for companies which engage in substantial trade with the U.S. E-2 visas are for persons or companies who have made a substantial investment in a viable U.S. enterprise. These applications, which we commonly prepare, are rule-intensive, and involve the submission of relevant financial documents, business plans, investment records, proofs of international trade, and qualifying nationality.

E visas are a terrific means for Canadian companies to send executives, managers and essential personnel to the United States. If the company is starting fresh with this process, they will now have to invest in a trip to Toronto to acquire at least the first visa.

Once a company has been approved for an E visa, they are typically deemed “registered”. Registered companies may apply for their employees at consulates other than Toronto, including Vancouver.

In other Vancouver Consulate news, fiancee visa adjudications were being moved to the Montreal Consulate. However, we are informed that for the time being, this K-1 visa processing change is on hold, and Vancouver will continue to adjudicate fiancee visas. This is good news for Canadians on the west coast, as it makes the K-1 visa process more practical, versus just going through with an immigrant visa in Montreal after marriage.

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Deadline to Register for Nepal Temporary Protected Status is December 21st

December 8th, 2015 by W. Scott Railton

The U.S. Government authorized Temporary Protected Status (“TPS”) for persons in the U.S. from Nepal this year, in relation to the terrible earthquake that decimated parts of Nepal.  The deadline for registration is two weeks, on December 21st, 2015.

Temporary protected status is eligible to persons regardless of whether or not they are in nonimmigrant status, and can be held while in another nonimmigrant status (e.g. F-1, H-1B). Employment authorization is available for persons who have register before the deadline.  Thus, even if a Nepali is here lawfully in another status, it is worth considering whether to also register for TPS.

We will make ourselves available for consultation, if you’d like to make this application in the next two weeks. Please contact our office and ask to book a consultation, and note the deadline.

Here is the USCIS’s most recent announcement concerning TPS for Nepalis:

Deadline to Register for Nepal TPS is Dec. 21, 2015

The deadline for eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) to register for Temporary Protected Status (TPS) is Monday, Dec. 21, 2015. This deadline marks the end of the 180-day initial registration period. The TPS designation for Nepal runs from June 24, 2015, through Dec. 24, 2016.


To be eligible for TPS, you must demonstrate that you meet all eligibility criteria, including that you have been both “continuously physically present” and “continuously residing” in the U.S. since June 24, 2015. You must also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.


To register for TPS, you must submit:

– Form I-821, Application for Temporary Protected Status;
– The Form I-821 application fee (or a fee-waiver request);
– The biometric services fee (or a fee-waiver request) if you are 14 years of age or older;
– Form I-765, Application for Employment Authorization, regardless of whether you want an Employment Authorization Document (EAD); and
– The Form I-765 application fee (or a fee-waiver request), but only if you want an EAD. If you do not want an EAD, no application fee is required. There is no Form I-765 fee for initial applicants under the age of 14 or over 65; these applicants may receive their initial EAD cards for free.

Fees and Fee Waivers

If you cannot pay the fee, you may request that we waive the Form I-821 application fee, Form I-765 application fee, or biometric services fee by filing Form I-912, Request for Fee Waiver, or submitting a written request. You must also submit supporting documentation with your fee-waiver request. We will reject your TPS application if you do not submit the required filing fees or a properly documented fee-waiver request.

Additional Information

For more information about the designation of Nepal for TPS—including guidance on eligibility, the application process and where to file—visit, the Nepal TPS page or the Federal Register notice.

This Web alert is also available in Nepali.

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The Visa Waiver Program Receiving New Scrutiny After Terrorist Attacks

December 3rd, 2015 by W. Scott Railton

Earlier this week, the White House announced measures to attempt to tighten travel to the United States via the Visa Waiver program. These measures include higher fines for airlines which don’t verify passenger identities and an increase in information sharing between countries.

At the same time, legislators in Congress are squaring up to introduce and advocate for legislation which will further tighten the controls on this program.

The Visa Waiver program allows persons from certain countries to apply for visitor for business or visitor for pleasure (B-1/B-2) entry to the United States without having to first go to a Consulate and interview for a visa. This saves applicants for admission both time and money.

The United States has reciprocal arrangements with these countries, so that U.S. travelers are also not required to go through this process with the country or countries of intended travel.

The current list of countries participating in the Visa Waiver program include Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

The new focus on this program is of course directly related to the tragic terrorist attacks in Paris, Beirut, and elsewhere. Security experts have noted that the terrorists in the Paris attacks included French and Belgium nationals, who would be eligible in all likelihood to use the Visa Waiver program to travel to the United States. This is a more significant threat to the U.S. than the refugee program, which involves a two to three year admission process.

The Visa Waiver program is an essential part of business and tourist travel in today’s world. The travel and tourism industry will likely have much to say about proposed restrictions on this program. It is inevitable though that this program will receive additional scrutiny from Congress and the White House in the coming weeks.

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’Tis the Season… for Counterfeit Goods!

December 2nd, 2015 by Heather Fathali

When many think of CBP – Customs and Border Protection – they immediately think of those who enforce our nation’s immigration laws at airports and along our borders.

But with the holidays upon us, it is a perfect time to highlight the fact that a huge amount of the work CBP does is focused on protecting the U.S. economy by facilitating lawful trade, including protecting our borders from dangerous and counterfeit goods.

In this day and age when so many of us complete our holiday shopping from the comfort of our living room couches, it is especially important to be aware of the scams and counterfeit products out there.

Along the U.S.-Canada border, online shopping has even more of a presence: many online retailers will not ship to Canada; so Canadian shoppers will establish U.S. mail boxes where their item can be shipped, typically in border communities where they can easily travel to pick up their item (note: this is not a problem as long as the proper customs declarations are made).

Aside from the obvious frustration that would accompany learning you have wasted your money on a counterfeit product or otherwise fallen victim to an online scam; CBP’s Commissioner Gil Kerlikowske explains the real threat such issues can pose not only to the U.S. economy, but also to the health of end users: “Counterfeit and pirated products threaten our economic security by hurting legitimate businesses who invest significant amounts of resources into protecting their brands. Even worse, these products often pose serious health and safety hazards to the people who buy and use them.  Counterfeit electronics can overheat due to improper manufacturing processes, and fake bicycle helmets can break upon impact. Phony cosmetics can lead to skin ailments, and even seasonal holiday lights can be poorly made, resulting in fires.”

Learn more about how to spot these items, and what to do if you think you have received a counterfeit item, at Commissioner Kerlikowske’s blog here:

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USCIS Issues Draft Guidance on Whether a New Job is “Same or Similar” for Portability Purposes

November 20th, 2015 by W. Scott Railton

USCIS issued a draft policy memorandum today on the subject of “Determining Whether a New Job is in “the Same or Similar Occupational Classification” for purposes of Section 204(j) Job Portability.”

§204(j) of the Immigration and Nationality Act allows foreign workers to change employers or jobs, to a same or similar occupation, after their adjustment of status application has been pending 180 or more days. For years, there have been questions over what “same or similar” actually means.

Understandably, a foreign worker who has been waiting for years to obtain permanent residence will want to be sure in making a change in jobs or employer that the change won’t result in a denied adjustment of status application. The memo is supposed to address this concern. But does it?

Well, I think the bad news is the proposed guidance relies a bit too heavily on the Department of Labor’s (DOL) job classification system. This concerns me, as DOL often makes questionable job classifications for a position when issuing a prevailing wage determination, particularly when it comes to information technology professions.

Each year the information technology professions change, as technology evolves. Sometimes the Department of Labor has a hard time keeping up. We often see similar positions classified differently, as database administrators, software developer applications, computer programmers, web developers, and network or computer systems administrators. I worry for the client who runs into an adjudicator who decides a position is not similar, even though still within the information technology sector.

The good news is the memo explicitly addresses career progression, with perhaps the most specific guidance we’ve seen on this to date. The memo allows that a position may be a same or similar occupation, even if there is a promotion to a managerial position which would fit into the management job codes, if the subsequent position still oversees persons in the original occupation classification.

More good news is the memo includes a totality of circumstances test, and articulates a preponderance of evidence burden of proof. These could be the foundation of successful argument in cases that have been pending five or ten years, as we often see with Indian and Chinese nationals. Ten years ago there were no Iphones, Ipads, or apps. New occupation categories have been born in that time, which broadly speaking may be still be the same or similar to occupations of ten years ago.

The memo is well-intentioned. It is expressly issued to allay foreign worker and employer concerns in switching jobs or positions. With memos like this, though, there is always cause for concern in over complicating things, which I’m afraid may happen here. We shall see.

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