Category: Alerts

U.S. Customs & Border Protection (CBP) recently released a new format for the Form I-94 retrieval website and I-94 document records. On the CBP website, users can retrieve electronic Form I-94s and view their travel history including U.S. arrivals and departures. While the formats of the website and the electronic Form I-94 record have changed, the basic content has remained the same and the Form I-94 still serves its original purpose – the government’s official record of an individual’s date of entry, class of admission (e.g. visa type), and authorized period of stay. The I-94 may also be required as proof of work authorization by employers or government agencies.

Beginning in April 2013, CBP began implementing a Form I-94 automation process, in which foreign nationals no longer receive a paper Form I-94 as part of the immigration inspection process. Instead, an electronic I-94 record is created by a CBP officer at the port of entry utilizing information from the Department of Homeland Security and Department of State systems that collects advance traveler information. CBP still stamps the foreign national’s passport at the time of inspection and annotates the stamp with the class and duration of admission. At the time of inspection, foreign nationals should check the accuracy of the CBP admission stamp in their passports to help minimize the risk of error in the government database.

For more information, please contact your designated Gibney representative or email info@gibney.com.

What is the Diversity Visa Lottery?
The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2018 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

When can I apply?
The U.S. Department of State will accept applications for the 2018 diversity lottery between 12 noon Eastern Daylight Time (EDT) (GMT-4) on Tuesday, October 4, 2016, and 12 noon Eastern Standard Time (EST) (GMT-5) on Monday, November 7, 2016. Applicants are encouraged to apply in the early part of the application period.

Who is eligible?
In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality:
No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2018 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. As of this year, Ecuador is eligible for the diversity visa.
Nationality is defined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on their country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a country whose natives are eligible to apply may apply provided the spouse is eligible. Second, a foreign national who was born in a country whose natives are ineligible to apply is eligible to apply if neither of his/her parents were born in or legally resided in that country at the time of the foreign national’s birth.

Education/Work:
In addition to meeting the nationality requirement, in order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience to perform.

How do I Apply?
Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s Diversity Visa Lottery website. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.
A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the U.S. Department of State’s website. Note: each spouse may submit his/her own application if he/she otherwise qualifies. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

How does the Selection Process Work?
Winners of the lottery will be selected in a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application. Starting May 2, 2017 (through at least September 30, 2018), applicants can check the status of their application using their confirmation number through the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail to confirm the selection of their application; the status of the application can only be checked through the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. In order to become a permanent resident of the U.S., a selected lottery winner’s (and their dependents) application(s) for permanent residence must be filed and approved by September 30, 2018. The permanent residence application may be filed either via adjustment of status (if the foreign national is in the U.S. in a valid nonimmigrant status) or via consular processing.

Finally, please note that more lottery “winners” are selected than there are immigrant visas available because some winners will not be eligible to become U.S. permanent residents of the U.S. Accordingly, some individuals who are selected to apply for diversity visas may ultimately be unable to become U.S. permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

Where Can I Get More Information?
Instructions regarding how to apply for the 2018 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions and U.S. Department of State’s website.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

H-1B Cap-subject petitions filed and approved for Fiscal Year 2017 will take effect on or after October 1, 2016.

Change of Status Filings:

For H-1B Cap petitions that were filed as “change of status” effective October 1, 2016, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2016, if the beneficiary:

• Was physically present in the U.S. for the entire period from the date the petition was receipted by the U.S. Citizenship & Immigration Services (USCIS) through the date the application was approved; and
• Is physically present in the U.S. on October 1, 2016 for the change of status to take effect.

After October 1, 2016, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most U.S. Consulates require a personal interview to apply for a visa, and most require a number of weeks to schedule an interview. Actual visa processing times vary by Consulate and can be found at the U.S. Department of State website. The beneficiary is advised to check the website of the specific Consulate s/he intends to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification Filings:

For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2016, the beneficiary’s status will not automatically change from the current nonimmigrant status to H-1B without further action. In order to activate H-1B status, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. Consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Please see comment above regarding the scheduling of an H-1B visa interview and visa processing information. (Note: Canadians are visa exempt.)

Form I-9 Reverification:

Employers are reminded of the obligation to reverify the employment eligibility of all H-1B Cap beneficiaries for whom a change of status filing was requested and approved, through completion of Section 3 of Form I-9. This reverification must be completed on or before commencement of the H-1B period of authorized stay (typically October 1, 2016).

Taxes for F-1 and J-1 Non-Immigrants:

F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, please note that once an F-1 or J-1 foreign national changes status to H-1B, s/he will no longer be exempt from FICA tax.

Pending Petitions:

For H-1B Cap-subject petitions that were filed with regular processing and remain pending with the USCIS, petitioners or beneficiaries may wish to request an upgrade utilizing the Premium Processing method for an additional government filing fee, which ensures adjudication of the petition (or a request for further evidence) within fifteen (15) days of the request.

For more information, please contact your designated Gibney representative or email info@gibney.com.

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.