Category: Alerts

The Department of Homeland Security announced additional “countries of concern” under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the “Act”).  Individuals who have traveled to Libya, Somalia, or Yemen since March 1, 2011 are now ineligible to enter the U.S. under the Visa Waiver Program. At this time, the restriction on Visa Waiver Program travel will not apply to dual nationals of these three countries. Individuals impacted will not be banned from traveling to the U.S., but will be required to apply for a visa at a U.S. embassy or consulate.

For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the U.S., embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The Department of Homeland Security has announced that it will release an updated Electronic System for Travel Authorization (ESTA) application in the spring of 2016 with additional questions on travel to Libya, Somalia, and Yemen to address exceptions for diplomatic and military related travel provided for in the Act.

The three additional countries join Iran, Iraq, Sudan and Syria as countries subject to restrictions for Visa Waiver Program travel.

A federal district court has granted the U.S. Department of Homeland Security (DHS) an additional 90 days to issue a new rule on Optional Practical Training extensions for F-1 students with science, technology, engineering and math degrees (STEM OPT extension).

The court had previously vacated DHS’s 17-month STEM OPT extension rule and given DHS until February 12, 2016 to promulgate a new rule.  This deadline has now been extended to May 10, 2016. DHS published its proposed new rule on October 19, 2015 and received an unprecedented 50,500 public comments.  The district court accepted DHS’s argument that it required additional time to address the comments and prepare for the new rule in order to avoid the hardships that a regulatory gap would cause to F-1 OPT workers and their employers.

Gibney will continue to monitor the status of this matter, and provide updates as they become available. If you have any questions concerning this alert, please contact your designated Gibney representative or email info@gibney.com.

The 2016 Omnibus Appropriations bill passed by Congress and signed by President Obama on December 18, 2015 contains measures to increase the security of the Visa Waiver Program (VWP). The VWP allows tourists and business visitors from 38 countries to enter the U.S. for up to 90 days without applying for a visa at a U.S. consulate. Under the program, travelers are required to register with the Electronic System for Travel Authorization (ESTA) but are not required to appear for a visa interview, nor are they subject to a biometrics background check.

The new law makes the following changes to the VWP:

• Requires all VWP travelers to present an electronic passport and biometrics-enabled chip by April 1, 2016
• Bars VWP participation for travelers who have visited Iraq or Syria, or countries that have been designated by the US government as state sponsors of terrorism, such as Iran or Sudan, or “any other country or area of concern” since March 2011; dual nationals of these countries will also be barred from participation in the VWP
• Suspends VWP membership for any country that fails to comply with its security obligations, including requirements to exchange traveler data, screening passengers through INTERPOL and reporting lost or stolen passports within 24 hours
• Mandates reporting requirements by the Secretary of Homeland Security, including annual review of VWP countries
• Modifies the ESTA application to collect additional data
• Changes the Department of Homeland Security (DHS) Customs and Border Protection Preclearance Program

To prepare for these changes, VWP travelers must ensure they have the required electronic passport with the biometric-enabled chip, as well as register with ESTA. VWP travelers should also expect additional screening and security measures. Individuals who hold dual citizenship with a country on the VWP approved list and Iran, Iraq, Sudan or Syria, and VWP travelers who are now barred from using the program due to travel to one of the designated countries listed above, should plan to submit a visitor visa application at a U.S. consulate for their next trip to the U.S.

Gibney will continue to monitor the status of 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.

Effective January 1, 2016, the U.S. Department of State will no longer issue additional pages in U.S. passports to accommodate additional visas or entry/exit stamps. If a passport has no remaining blank pages for visas or entry/exit stamps, the holder of the passport will need to apply for a new passport, even if the passport is still valid.  This measure is being implemented to improve passport security and for consistency with international passport standards.  When applying for a new U.S. passport, applicants will have the option to request either a 24- or a 52-page passport.

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.

In December 2015 the United States Department of Homeland Security/Customs and Border Protection (CBP) will expand the Global Entry program for citizens of the United Kingdom.  The Global Entry program allows for expedited clearance through immigration and customs of qualifying pre-approved travelers when entering the U.S.  While the program is currently available to U.K. citizens who are U.S. Lawful Permanent Residents, the program’s expansion will extend eligibility to U.K. citizens traveling to the U.S. as visitors or with certain nonimmigrant visas.  With this program and the recently announced U.K. Border Force Registered Traveler program (U.K. reciprocal system for U.S. citizens), there will be enhanced security and ease of travel between the U.S. and U.K.

How to Apply for Global Entry Membership

U.K. Citizens can register for membership in the Global Entry Program commencing December 3, 2015.  They must apply through the U.K. Home Office and pay a processing fee of £42 to cover background checks by the Border Force staff.  Upon approval of these checks, the Home Office will issue applicants a unique access code for completion of their application through the U.S. CBP’s Global Online Enrollment System (GOES) where they will need to pay a $100 non-refundable fee for a five-year Global Entry membership.  Further background checks will then be conducted by CBP and, if approved, the applicant will be asked to attend an interview with a CBP officer at one of the Global Entry Enrollment Centers in the U.S.

How to Use Global Entry 

Global Entry members will be able to use airport automated kiosks upon arrival in the U.S. to go through customs and immigration inspection, rather than standing in long inspection lines.  Members scan their passports, register their fingerprints, are photographed, and complete an onscreen customs declaration. Upon clearance of the automated inspection, a receipt will be issued and will direct the member to baggage claim.  If clearance is not successful, the member will be directed to a CBP officer.  Nonimmigrants receive an I-94 arrival record from the kiosk.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The U.S. Department of Homeland Security (DHS) has published a proposed rule in the Federal Register relating to Optional Practical Training extensions for F-1 students with science, technology, engineering and math degrees (STEM OPT extension). DHS has issued this notice in response to a recent federal district court order vacating the previous STEM OPT extension rule that has been in place since 2008. Though the federal court vacated the existing STEM OPT rule, its provisions remain in effect until February 12, 2016 so that DHS may promulgate a new rule.

The proposed rule would make the following changes to the STEM OPT extension provisions:

• Increase the extension period to 24 months from the current 17 months
• Define STEM fields according to the U.S. Department of Education’s Classification of Instructional Programs (“CIP”) grouping of mathematics, natural sciences (including physical and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, as well as related fields (DHS may revise its Designated Degree Program list based on changes in the CIP and proposes a process for public notice when the list is updated)
• Introduce formal mentoring and training requirements for employers. The employer and student would be required to prepare a customized mentoring and training program and the student would need to submit it to the Designated School Official (DSO) before the DSO could recommend a STEM OPT extension
• Require employers to employ STEM OPT F-1 students on terms and conditions that are commensurate with those of similarly situated U.S. workers and attest that no U.S. workers will be laid off or furloughed as a result of STEM OPT workers; the student’s compensation would need to be reported on the mentoring and training program submitted to the DSO
• Designate that Immigration and Customs Enforcement (ICE) may conduct on-site reviews of employers to ensure compliance with the program
• Increase the number of days an F-1 student can be unemployed during the 24-month STEM OPT period from 30 days to 60 days; if the student’s employment is terminated, the employer would be required to notify the student’s DSO within 48 hours
• Permit students to use a previously issued STEM degree from an accredited school to request the 24-month STEM OPT extension, even if they are currently engaging in OPT that has been authorized based on their study towards a different degree; the students must develop and utilize the STEM skills from their prior STEM degree during the extended OPT period

The proposed rule would retain certain requirements of the 2008 version, such as:

• Employer registration in E-Verify in order to employ F-1 students with STEM OPT extensions
• H-1B “cap gap” relief for F-1 students who are the beneficiaries of a timely filed H-1B petition, by permitting extensions of their F-1 status and current employment authorization up to October 1 of the fiscal year in which the H-1B visa is requested

The proposed rule is open to public comments for 30 days, until November 18, 2015. It should be noted that none of the proposed changes outlined above will take effect unless and until a final rule with these provisions is adopted. Gibney will continue to monitor the status of this matter, and provide updates as they become available. If you have any questions concerning 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.

On October 4, 2015, the UK Home Office invited certain frequent travelers to the UK to apply for the Registered Traveler service. This program offers member travelers faster entry at UK passport control. The program is open to citizens of Australia, Canada, Japan, New Zealand, and the United States. Applicants must be at least 18 years of age, and must hold a valid UK visa or must have visited the UK four times in the preceding 52 weeks.

One can apply for the Registered Traveler service online at the following website: https://www.gov.uk/registered-traveller. The application takes a few minutes to complete and the associated required background check takes five to ten working days to process. The fee is £70 for a one year membership. The Registered Traveler service is available at Gatwick, Heathrow, Birmingham, Manchester, Edinburgh, Glasgow, London City, Luton, and Stansted airports, and the Rail Terminals in Paris, Brussels and Lille.

The implementation of the Registered Traveler service has greatly facilitated entry into the UK for member travelers, while still meeting strict security requirements. Gibney will continue to monitor this program 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.

 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 2017 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 2017 diversity lottery between 12 noon Eastern Daylight Time (EDT) on Thursday, October 1, 2015, and 12 noon EDT on Tuesday, November 3, 2015. 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 2017 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

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 order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years training or experience.

How Do I Apply?

Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s 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.

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. As of May 3, 2016, 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. Selected individuals (and their dependents) are deemed eligible to apply for lawful permanent resident status. In order to become a permanent resident of the U.S., a lottery winner’s application for permanent residence must be filed and approved by September 30, 2017. 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 for filing an application for the 2017 Diversity Visa Lottery, and information regarding photograph specifications, may be obtained from the U.S. Department of State’s website.
For specific legal advice, please contact your Gibney representative.

U.S. Citizenship and Immigration Services (“USCIS”) has released final guidance on a recent precedent decision clarifying whether amended or new petitions need be filed for H-1B employees who move job locations. The memo, which is effective immediately, includes information and deadlines for being compliant with Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

The memo clarifies that an employer does not need to submit a new labor condition application (“LCA”) nor file an amended H-1B petition if the employee’s new job location is within the “area of intended employment.” However, notice of filing postings are required at the new worksite location before the employee begins working, as per current regulations.

For changes of worksite location outside of the area of intended employment:

Except as provided below, petitioners must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified with USCIS, even if a new LCA is already certified by the Department of Labor and posted at the new work location.

USCIS indicated that it would generally not punish employers that do not file new H-1B petitions based on location changes that occurred on or before April 9, 2015. USCIS will, however, preserve adverse actions (i.e., revocations, denials, requests for evidence, etc.) already commenced or completed prior to July 21, 2015, and petitioners must comply accordingly.

The memo includes a “Safe Harbor” provision, whereby if a petitioner’s H-1B employee has moved or will move to a new place of employment not covered by an existing, approved H-1B petition after April 9, 2015 and prior to August 19, 2015, the petitioner must file an amended or new petition by January 15, 2016. Failure to file by the January 15, 2016 deadline will make the petitioner noncompliant with applicable regulations and subject to adverse action by USCIS. Similarly, the H-1B employee will not be maintaining status and may also be subject to adverse action.

If a petitioner’s H-1B employee moves to a new place of employment not covered by an existing, approved H-1B petition after August 19, 2015, the petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment.

In addition, certain short-term placements of up to 30 or 60 days as well as non-worksite location changes are exempt from the requirement of filing a new or amended H-1B petition.

USCIS further noted that once an amended or new H-1B petition is properly filed, the H-1B employee can immediately begin to work at the new place of employment. A final decision on the petition is not required for the H-1B employee to start work at the new place of employment.

The full memo can be found here: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.