Changes to the Visa Waiver Program

In the aftermath of the Paris and San Bernardino attacks, the Visa Waiver Program (VWP) was amended significantly on December 18, 2015, when the enactment of the 2016 Consolidated Appropriations Act (H.R. 2029) was signed into law and included the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. The VWP allows citizens of participating countries (currently 38 countries) who meet certain eligibility requirements to travel to the United States without obtaining a visa for stays of 90 days or less.  Under the new law, participating countries are now subject to additional restrictions and risk revocation from the program for non-compliance. Additional country requirements include increased passport security requirements, screening protocols and more comprehensive information sharing. Some of these requirements are effective immediately, with others to be implemented in phases throughout the upcoming year. Continue reading

Changes Ahead for Highly Skilled Workers

On December 31, 2015, United States Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register in furtherance of President Obama’s executive action to modernize, improve and clarify certain immigrant and nonimmigrant visa programs. This modernization effort was included with the multiple executive actions first announced on November 20, 2014, and has been eagerly awaited by many skilled workers, particularly immigrant visa applicants from India and China who are stuck in the extraordinarily lengthy backlogs trying to complete their visa processes. The proposed amendments are aimed to better enable U.S. employers to hire and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions. Continue reading

I-9 Guidance on H-1B Petition/I-94 Mismatch and Short Term Workers

In a recent meeting between the Verification and Document Liaison Committee within American Immigration Lawyers Association (AILA) and USCIS’s Verification Division and ICE Homeland Security Investigations, further guidance was provided on documenting the mismatch of dates for H-1B nonimmigrant workers between the status expiration date noted on the I-94 Arrival/Departure Record and the underlying USCIS petition expiration date. Pursuant to H-1B regulations, the H-1B beneficiary may be admitted for a period that includes the validity of the underlying H-1B petition, plus a period of up to 10 days before the period begins and 10 days after the validity period ends, but work authorization is limited to the period of the approved H-1B petition. This can often result in confusion for employers who are completing Sections 1 and 2 of Form I-9 and do not know how to address the conflicting dates. Continue reading

Where is the Foreign Affairs Manual?

As of November 19, 2015, the Foreign Affairs Manual (FAM) Chapter 9 “9 FAM” has been revised, rewritten, renumbered and relocated to 9 FAM-e on the Department of State website. This 9 FAM-e is now the authoritative source for visa guidance.  The FAM and its associated Handbooks are the single, comprehensive and authoritative source for the Department of State’s organizational structures and contain the policies and procedures that govern the operations of the State Department, the Foreign Service and, as applicable, other federal agencies. While the new 9 FAM-e overhauls language and organization, it does not alter substance. The new 9 FAM-e presents information in a more improved way and adopts an organizational structure that is both more logical and better suited to modern search technologies. Continue reading

Government: “Recall Message” on October Visa Bulletin Gifts

The Department of State posted on July 25 a revised Visa Bulletin for October with “Dates for Filing Application” that cut out many thousands of people in 5 different employment based categories from India and the Philippines.  For Baker Donelson’s article on the initial announcement, click here.

Please note that the following “Dates for Filing” have changed:

Category (9/9/15)
Filing Date
NEW (9/25/15)
Filing Date
EB-2 China 5/1/2014 1/1/2013 1 year, 5 months
EB-2 India 7/1/2011 7/1/2009 2 years
EB-3 Philippines 1/1/2015 1/1/2010 5 years
FB-1 Mexico 7/1/1995 4/1/1995 3 months
FB-3 Mexico 10/1/1996 5/1/1995 1 year, 5 months

Therefore, individuals who fall under the above-referenced categories will only be permitted to file for adjustment of status in the month of October if they have a priority date that is earlier than the NEW Filing Date listed in the revised September 25, 2015 Visa Bulletin. Continue reading

Visa Bulletin 2.0 and its Implications for Early Filing for Adjustment of Status

On September 9, 2015, the U.S. Government pleasantly surprised the immigration world by publishing a new type of monthly Visa Bulletin for October 2015 with USCIS announcement about a new approach to the timing of the ability to take the last steps toward permanent residence.  Bottom line: People otherwise eligible and present in the U.S. can file for “adjustment of status” and get interim work and travel documents significantly earlier than when their place in the queue for limited visa numbers is set for green card approval. Maybe USCIS will shed more light at the September 16 stakeholder meeting USCIS has established (click the link to register). Continue reading

USCIS Seeks Feedback on Proposed Parole Program for Entrepreneurs

USCIS is requesting feedback on a potential “significant public benefit” parole program for entrepreneurs, which would allow DHS to extend parole, on a case-by-case basis, to eligible founders of startup enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing, or who may otherwise innovate or create jobs through the development of new technologies or the pursuit of cutting-edge research. Comments are due by July 10, 2015.

U.S. Visa Systems Down Globally – DOS Continues to Work on a Fix – Expect Delays!

The following bulletin was published by the Department of State (which oversees all consulates/embassies), advising of a global glitch that has stopped all U.S. visa issuance worldwide. The issue has not resolved since the alert was first released one week ago. The latest report from Department of State (DOS) officials is that while they are working hard to resolve this, they have no timeframe for a solution, and the solution may not happen for at least another week. Continue reading