Immigration Spotlight

Transcription

1 Jackson & Hertogs, LLP Immigration Spotlight Issue 14 June 16, 2003 Inside Spotlight BCIS/INS Update on electronic filings at BCIS Department of State (DOS) More delays on visa applications abroad Other News Special Focus: Alternatives to Labor Cert (part 4) J&H News Immigration Trivia BCIS/INS News Update on electronic filings at BCIS As of May 29, 2003, the BCIS started accepting electronic filings ( E-Filings ) of Form I-90 (Application to Replace Permanent Resident Card) and Form I-765 (Application for Employment Authorization Document) along with Form G-28 (Notice of Entry of Appearance as Attorney or Representative). BCIS estimates that I-90s and I-765s represent approximately 30% of its workload annually. The balance of the most commonly filed forms, including I-129 (Petition for Nonimmigrant Worker); Form I-131 (Application for Travel Document); Form I-140 (Immigrant Petition for Alien Worker); Form I-539 (Application to Extend/Change Nonimmigrant Status); Form I-821 (Application for Temporary Protected Status); and Form I-907 (Application for Premium Processing), will be ready for E-Filing in the near future, according to the BCIS. Click on for details. Jackson & Hertogs is setting up an internal mechanism to offer E-Filing as an alternative to the traditional method of submission by mail. As soon as this system is set up, we will begin offering this service to our clients. DOS News Applying for U.S. visas abroad expect more delays Based on a recent Department of State (DOS) cable, consular officers will no longer have the ability to waive interviews for most nonimmigrant visa applicants. In an effort to increase homeland security the regulations regarding nonimmigrant visa issuance have been drastically changed. Prior to this cable, consular officers, especially at lower risk posts, could waive the interview requirement for nonimmigrant visa applicants. Based on the new changes, such waivers will no longer be allowed. Consulates must implement the full interview program by August 1, This will impact individuals applying for all visas, including H-1Bs, L-1s, B-1s, B-2s and F-1s, which represent the most common visa classifications for international employees. Consulates that have offered business express or drop box application services for the past number of years will no longer routinely offer these streamlined procedures. The consequence of this change is that millions of individuals will now need to be interviewed prior to receiving nonimmigrant visas. The application processing times will dramatically increase, given the security checks and the sheer volume of visa applicants. The DOS regulations and Foreign Affairs Manual have been revised so that the requirement for personal ap- 170 Columbus Avenue, Fourth Floor San Francisco, CA Voice: Fax: TTY office@jackson-hertogs.com (R01)

2 To catch the reader's attention, place an interesting sentence or quote from the story here. Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JUNE 2003 PAGE 14.2 pearance for nonimmigrant visa applicants can generally be waived by a consular officer only for a person who the consular officer concludes presents no national security concerns requiring an interview and who: 1. Is a child 16 years of age or under; 2. Is a person 60 years of age or older; 3. Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such classification; 4. Is an applicant for a diplomatic or official visa; 5. Is an applicant who within twelve months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations; or 6. Is an alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances. The regulation also permits the DOS to direct an interview notwithstanding these waiver provisions. Furthermore, personal appearance is required in all cases where applicants meet one of the following criteria: 1. Do not reside in the consular district where they are making application; 2. Were previously refused visas (unless the refusal was overcome); 3. Are the subject of a CLASS hit, or require a security advisory opinion or other Department clearance; (exceptions can be made for A and G visas); 4. Are identified by post as belonging to a group or sector of its visa clientele representing a high fraud risk, high refusal rate, or a security threat. The bottom line is that based on these changes and the number of individuals who apply for visas to enter the U.S., you should expect delays for any nonimmigrant visa application at all Consular posts. Please note that the DOS specifically states in its cable that the Department realizes that the new regulation will necessitate substantial changes in how posts handle NIV ap- plications. Some posts may find that personnel and/or facility resources are not adequate to handle the additional number of interviews. Workload management will become more important than ever and posts that do not already have appointment systems should immediately explore implementing them. The Department appreciates that many posts will face interview backlogs. Any individual with foreign travel which will require applying for a new visa application at a Consulate needs to be aware of the potential delays and be prepared to remain outside the U.S. for a protracted period of time, potentially, months. In the past when there have been visa-processing delays, one could request support from Congressional representatives. Since 9/11, such assistance has been unavailable. National security concerns have preempted any discussion of what the delays are doing to U.S. businesses, especially those that depend upon international tourists and short-term employees. Applicants for entry who do not require a visa for admission as a tourist for business or pleasure are not subject to the interview requirement. The interview requirement only applies to those who must have a visa in their passports to travel to the U.S. A number of countries, including most of Western Europe, and Canada, enjoy a bilateral waiver of the visa requirement. Citizens of such countries must have a passport from their country, but are not required to obtain a visa from a U.S. Consulate for tourist stays of less than 90 days duration. The traditional waiver of the visa from these countries with which the U.S. has treaties is different than a waiver of the interview if someone is from a country where a U.S. visa is required. Individuals admitted under the Visa Waiver Program are not eligible to change or extend their nonimmigrant stay in the United States. See our website FAQ on the Visa Waiver Program for further details ( Finally, please note that citizens of Canada generally do not require nonimmigrant visas to enter the United States. The exceptions are the E and K visa categories; visas are required for these categories, for all nonimmigrants including Canadian citizens.

3 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JUNE 2003 Extraordinary! Outstanding! Multinational! Exceptional! : Alternatives to the Labor Certification (Part 4 of 4) Special Focus This is part four of our article covering alternatives to alien employment certification (AEC), the first step in obtaining U.S. permanent residence for most employment-based foreign nationals. As the down economy continues, employers also continue to have difficulty satisfying the requirements of the U.S. Department of Labor regarding unavailability of U.S. workers. As a result, more employers and foreign national employees have been turning to any available alternatives to the AEC. Unfortunately, these alternatives are typically quite demanding, and have their own restrictive requirements. This series covers the four employment-based immigrant visa categories which do not require an alien employment certification: EB1a (extraordinary ability), EB1b (outstanding professors and researchers), EB2/NIW (exceptional ability/advanced degree professionals applying for a national interest waiver) and EB1c (multinational Legislation managers and executives). News In the last three issues of Spotlight we covered the EB1a, EB1b categories and EB2/NIW category for exceptional ability and advanced degree professionals applying for a waiver of the AEC requirement under the national interest exception. We will now cover the last category EB1c Multinational Managers and Executives. Establish organizational goals and policies; Exercise wide latitude in discretionary decisionmaking (For example: responsible for $25 million budget, responsible for department which generates x% of annual revenues for entire company, etc); Receive only general supervision or direction from higher-level executives, the board of directors, or shareholders of the company; Receive a high salary/remuneration package that is commensurate with the level of pay for executives or managers. Managers can either be people managers or function managers. For that one year period and in the permanent offered position in the US, managers must present evidence that they meet as many of the following criteria (again, the more, the better): Supervise and control the work of other supervisory, professional, or managerial employees (firstline managers are excluded); Have the authority to hire and fire or make other personnel decisions such as grant leaves and make promotions; Have discretionary authority over day-to-day operations of department or subdivision; Function at a senior level within a complex organizational hierarchy; Manage an important function; PAGE 14.3 Receive a high salary/remuneration package that is commensurate with the level of pay for executives or managers. EB1c (Employment-based first preference (c)) : Multinational! This category can be more straightforward as it involves being in the right place at the right time, and in the right position. Multinational aliens must have worked abroad as executives or managers for a subsidiary, affiliate or parent of your company, for at least one out of the three years preceding their transfer to the U.S., and must continue to render these types of services for your company in the U.S. Executives must present evidence that they meet as many of the following criteria (again, the more, the better): Direct the management of an organization or a major component or function of that organization; Functional managers will generally have more difficulty in qualifying under this category as it is more difficult to provide evidence of management of an important function. For these managers, it is particularly important to provide a detailed description of their role and position within the company organization. Please keep in mind that unlike the nonimmigrant counterpart of the L-1A classification, experience abroad in a specialized knowledge position will not satisfy the requirements for the multinational transfer for green card purposes. For example, if an individual held a specialized knowledge position abroad (not a manager/executive) for one year prior to the transfer to the U.S. to hold a managerial/executive position in the U.S., while s/he would qualify for an L-1A transfer, s/he would not qualify for an EB1c transfer in that the experience abroad would not satisfy the eligibility criteria.

4 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JUNE 2003 PAGE 14.4 J&H News AILA Conference June Most of the attorneys in our office will be at the National American Immigration Lawyer s Association Conference from June 17, 2003 until June 22, This conference is attended by the leading experts in the field of immigration and numerous government agency representatives. Accordingly, our attendance is crucial to ensuring that our clients are informed of the latest news and trends in immigration law. During the conference, our office will remain open and your cases will continue to be processed as usual. However, note that you may not be able to contact your attorney during these days. We ask that during this time you continue to contact our office as usual, and someone will respond to you (whether by telephone or e- mail) as soon as possible. We thank you in advance for your understanding. Our First Wednesday Seminar Series in July will cover hot topics from this AILA annual conference. If you are interested in attending, please visit our website s home page under Seminars, or us at seminar@jacksonhertogs.com. J&H Attorneys and AILA It is important to J&H that our clients receive up-todate accurate information regarding immigration law. As a result, all of our attorneys are active members of AILA (American Immigration Lawyers Association). This year a number of our attorneys have been invited to participate at the local and national level of AILA. Ilana Drummond currently serves on the Editorial Advisory Board of AILA s Immigration Law Today and on AILA s Board of Publications Committee. Norman Plotkin is co-chair of AILA s Northern California Chapter Liaison to the DOL, and Clark Trevor serves on the committee for Business/Nonimmigrant Issues for AI- LA s national conference in Philadelphia to be held in Finally, Atessa Chehrazi is currently the Group Coordinator for AILA s Middle East Interest Group, Liaison for AILA Northern California Chapter with the Bureau of Customs and Border Protection (BCBP), and a member of the AILA s national Due Process & Civil Liberties Committee. New FAQs added to our website To better serve your foreign national employees, we have added two FAQs to our website. The first discusses automatic visa revalidations ( and the second discusses common issues during a pending adjustment of status process ( htm). We encourage you and your employees to refer to our FAQs for general information regarding a topic. If you see a question or issue that is not covered, please feel free to contact us. We also invite you to contact us if you have suggestions regarding other FAQs you would like to see us add to our library. For a complete list of our FAQs, please click on FAQs located on the menu bar near the top of our home page. First Wednesday Seminars at J&H July 2: "Hot Topics" from the AILA conference, more details to come. August 6: Extraordinary Aliens and Outstanding Researchers Criteria for the O-1 Extraordinary Ability Nonimmigrant Visa Criteria for the Extraordinary Ability Immigrant Visa What's the difference? Criteria for the Outstanding Researcher/Professor Immigrant Visa Why are National Interest Waiver Immigrant Visa Cases so difficult? Schedule A Immigrant Visa If you are interested in attending one of these seminars, please us at seminar@jacksonhertogs.com. Be sure to include the name and date of the seminar you would like to attend. We look forward to seeing you there!

5 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JUNE 2003 PAGE 14.5 J&H closed on July 3 rd and 4 th Our offices will be closed on Thursday, July 3 rd and Friday, July 4 th in observance of Independence Day. Team J&H at AIDS Walk SF 2003 On Sunday, July 20th, Team J&H will be joining thousands of walkers in the fight against AIDS in the seventeenth annual AIDS Walk San Francisco. Last year, our team of 25 participants raised more than $6000 in Northern California s largest AIDS fundraising event. An estimated 900,000 Americans are currently living with HIV and AIDS, and funds raised by the AIDS Walk help to provide housing, counseling, medical and emergency services for those individuals most in need, as well as informational and prevention services. So far this year, Team J&H has raised over $1300, and it is not too late to join our team or donate. All are welcome to participate. If you wish to walk or donate, please click on or visit our team page at ievent=21521&lis=1&team= Answer: f. All of the above. Answers a-e are some of the most common reasons why visa applicants are currently experiencing delays; however, it is not an exclusive list. Unfortunately, now is not a good time to apply for a visa abroad. To avoid unexpected delays as much as possible, we strongly encourage your employees to check the website for the embassy where they will be applying for a visa as well as our travel page before making travel plans. Also, whenever possible, we encourage foreign nationals to revalidate their U.S. visas in the U.S. For additional information regarding visa revalidations in the U.S., please check our website or contact your attorney Jackson & Hertogs LLP is one of the oldest and most respected immigration and nationality law firms in the United States. Established in 1950, we were one of the first legal firms in the country dedicated solely to the practice of immigration law. Today, Jackson & Hertogs has seven attorneys and a staff of more than 45 legal assistants and office management personnel to assist you with immigration matters Immigration Trivia Foreign nationals are experiencing delays applying for U.S. Visas abroad because: a. The foreign national is a citizen or native of a suspect country, i.e. a country with a large muslim population b. The foreign national has a name that is the same or similar to one which appears on a lookout list c. The foreign national is employed in a profession which appears in the Technical Alert List d. Pursuant to a new State Department cable, most foreign nationals must be interviewed in person at the U.S. consulate e. The SARS epidemic has caused certain consulates to close f. All of the above