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H-4 Work Authorization Proposed

June 2, 2014

On May 12, 2014, the U.S. Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would make certain H-4 dependent spouses eligible to apply for employment authorization, if the H1B principal is the beneficiary of an approved I-140 petition, or if the H1B principal has had their status extended beyond the 6-year limit pursuant to AC21, the American Competitiveness in the Twenty First Century Act.

The proposed H-4 work authorization rule has no effective date as of this time, and the proposal is still subject to a 60-day public comment period, ending July 11, 2014. Once the comment period ends, DHS will take however much time they need to review and consider any comments submitted before issuing a final rule. Only the final rule will contain the date of implementation, and publication of a final rule is still some months away.

For now, all H-4 spouses continue to be ineligible for employment authorization, so look for more news on this front.

Once there is a final rule and after it has been implemented, if the rule does not change substantially, then to obtain the Employment Authorization Document under the terms of the proposed rule, H-4 spouses will need to submit Form I-765 with evidence of the H-1B principal worker's currently valid status, and qualifying approved I-140 petition and/or approval of post sixth-year H-1B extension. If the I-765 application is approved, the H-4 holder would receive an EAD valid for up to two years. Processing of the I-765 application can take up to 120 days, so even after the new rule is approved and implemented, it will be a few more months before an H-4 spouse gets authorization to work in the United States. With an EAD card, the H-4 will be able to obtain a Social Security Number, and it is a List A document valid as proof of identity and work authorization for purposes of Form I-9, Employment Eligibility Verification.

The Administration hopes that making H-4 spouses of longtime H-1B workers eligible for EAD cards will help US employers retain highly skilled H-1B workers, in the face of very long waits for lawful permanent residence. It may also encourage entry into the United States of those H-4 eligible spouses who have chosen to remain abroad and separated from their H-1B spouses in order to pursue their own careers outside of the United States, because they would not be eligible to work if they came here. We can only hope for swift issuance of a final rule with an implementation date in the near future.

Contact us if you would like more information about the H-4 Work Authorization proposal.



How Long Can I Stay, or, Why Doesn't My I-94 Match My Visa?

April 10, 2014

A wide variety of visitors and business travelers to the United States are often stunned to learn that the end date of the period of lawful admission granted upon arrival at a Port of Entry is not the same as the end date of the validity period shown on the face of the visa that was presented for admission. In short a visa is a machine-readable secure stamp issued into the passport at a US embassy or Consulate outside the United States, only valid for entry into the US from abroad. An I-94 is a paper or electronic record of lawful admission created for the traveler by an Inspections Officer of US Customs & Border Protection, which determines what temporary visa status the traveler holds once inside the US, and how long the traveler is allowed to remain in the US. Learn more about what the differences are between a visa and an I-94.

This blog post offers some examples of the many different situations in which the visa (entry document) and the I-94 (status document) do not have the same end date, and explaining why.

Admission as a Visitor with a B1-B2 Visa

A visitor visa may be issued to a national of any country not authorized to participate in the Visa Waiver Program. Although the visa is valid typically for either ten years or five years, the visitor will be admitted for a period of authorized stay that is no more than 6 months, and may be less. The I-94 reflects the purpose for which the visitor was admitted- Even if a traveler has a valid B1-B2 visa, he or she still has the burden of proving upon each admission that there is a specific lawful, temporary, and finite purpose for that visit, and a permanent residence abroad to which the traveler will return. Even past compliance with the terms of visitor visa status during previous stays is no guarantee that you will be readmitted as a visitor on the next trip.

Reciprocity Schedules

Certain countries have limits on the validity of some visa types for Americans, so in return the US correspondingly limits the validity of similar visas for nationals of those countries, even where the validity of the underlying approved work visa petition by a US employer may be longer. For instance, nationals of most countries are eligible to receive H-1B work visas valid for the full three-year validity of the underlying petition, but nationals of China and certain other countries are not: the reciprocity schedule limits nationals of China to an H-1B visa stamp valid for a maximum of one year and multiple entries, or an O-1 visa valid for only three months and one entry. Even O-1 "aliens of extraordinary ability" can be unpleasantly surprised by reciprocity issues- the history of this visa as originally conceived for performing artists often impacts business O-1 travelers from China, Brazil and others.

Passport Expiration

In most cases, a person traveling on a work visa will be admitted for the validity period of the underlying approved petition, or for the standard two-year period on an E visa, but CBP Inspections Officers have some discretion, and may choose to admit the traveler only until the date of passport expiration. Once a new passport has been obtained, the traveler must present both the expired passport containing the valid visa stamp, and the new passport: this leads to admission with the entry "VIOPP" stamped in the valid passport (meaning "visa in other passport").

Certain Visa Types:

For some types of work visas that are not or need not be based on an underlying petition approved by USCIS, standard admission periods are set by regulation. Holders of E-1 Treaty Trader visas, E-2 Treaty Investor visas, and E-3 Australian treaty professionals are admitted for two years from date of admission. H-1B1 treaty nationals of Chile and Singapore are admitted for a maximum of 18 months. Valid maintenance of status issues may arise for E-3 and H-1B1 workers have a still-valid I -94 admission record, but the approved Labor Condition Application has expired. Another common problem arises with dependents of an E worker who enter the US and do not travel frequently with the principal visa holder, where the dependents have I-94s valid for two years from the date of their original entry, but forget to travel or apply to extend status, and fall out of status because they mistakenly believe their stay is automatically extended whenever the principal worker travels.

F &J Admission for D/S: Students, scholars, and other classes of exchange visitors are not admitted until a specific date, but for duration of status, annotated as "D/S". For these travelers, their status documents once admitted to the United States include both the I-94 admission record, and the most current Form I-20 issued by the school or a Form DS-2019 issued by the exchange program sponsor.

These are some of the many instances in which the end date of an authorized period of admission will be different from the ending validity date on the face of the visa stamp, but this is not an exhaustive list. If you want to know more about your specific situation, consult with an attorney, and show the documents about which you have questions


TAGS : I-94


Things to Know Before You Visit the United States

March 20, 2014

All visitors to the United States, whether traveling with a B1-B2 visitor visa, or under the Visa Waiver Program, must be seeking admission for a trip whose purpose is lawful, temporary and finite. Visitors always have the burden of proving that they will return home, as evidenced by sufficient family, property, business or financial ties to the home country to indicate a strong likelihood of prompt return.

Reasons for denial of an application for a B1-B2 visitor visa at a US Embassy abroad, or refusal of admission as a visitor at a US Port of Entry (airport or land border) may include any indicators that the traveler plans to seek employment while in the US, or plans to enroll in school, or plans to pursue permanent residence – an engagement ring on the hand or an original birth certificate in the luggage are red flags for intent to immigrate. A round-trip airline ticket by itself is often not sufficient to prove intent to return to the home country, and could be undermined by a visitor taking inconsistent actions before a planned trip, such as quitting a steady job, or selling a home or a vehicle, as these indicate a lack of intent to return soon.

1.) Do I need to apply for a visa?

If you are a citizen of one of the 37 countries currently participating in the Visa Waiver Program, which are listed by the US Department of State, and you plan to visit the United States for 90 days or less, then in most cases you do not need to apply for a machine-readable B1-B2 visitor visa stamp at a US Embassy.
 
If you are from a Visa Waiver country but you need to stay longer than 90 days, or if you are not a citizen of a Visa Waiver country, or if you have ever previously overstayed a period of lawful admission to the US, even by one day, then you will need to apply for a visa to come to the United States.
 
When traveling to the United States without a visa under the Visa Waiver Program, you will need to register for ESTA, the Electronic System for Travel Authorization before you can board a US-bound international flight.
 

2.) What if I have been denied a visa before, or denied admission under the VWP?

Then you should consult with counsel for case-specific advice before you spend time, money and effort on a new visa application.
 

3.) Why didn’t the interviewing officer look at my documents?

Some countries have more prevalent fraud than others, and in places where the US Embassy receives a large volume of visa applications, they may often see fabricated or altered documents, which can make the consular officers more skeptical of all documents, even those that, are legitimate. Also, they may look for demeanor and behavioral cues in addition to documents.

4.) Can I appeal from a denial of a visa?

No, due to a policy of consular non-reviewability, a visa denial cannot be appealed. You may be able to re-apply, but you cannot appeal the consular officer’s decision to deny your application for a visa.

If you have any questions about B1-B2 visitor visas, or the Visa Waiver Program, contact Karin Wolman.





What Can I do Once the H-1B Cap Runs Out?

March 6, 2014

First, plan ahead and make sure that any cap-subject petitions, such as petitions for new hires that are currently in F-1 student visa status, are ready to be filed in the first week of April.

If the annual numerical limit or “H-1B cap” runs out in the first week, as they are expected to do, then you may not be able to hire some of those workers this year.

One strategy to consider is actively recruiting in countries with which the US has a treaty that offers a special work visa status to nationals or citizens of that country, which are likely to remain available even when the allotment of new H-1Bs is used up. Nationality-based visa categories that cover the same broad range of professional specialty occupations as the H-1B category include the E-3 for nationals of Australia, and the H-1B1 for nationals of Chile and Singapore. Both of these visa classifications require a posting at the work site and a Labor Condition Application filed electronically with the Department of Labor, but once that LCA is approved, the foreign worker may make a visa appointment and take their educational credentials, the signed and certified LCA, valid passport and a letter from the US employer to a visa interview at the US Embassy – there is no petition to USCIS for these categories. However, unlike the H-1B, these visas require continued non-immigrant intent, and are only granted for two years at a time.

Even simpler, but far more restrictive in scope, is the TN-1 visa category for citizens of Canada and Mexico: the applicant is only required to appear for inspection and admission at a US Port of Entry or Pre-Flight Inspection with a valid passport, original educational credentials related to the job – required education varies by job title - and a job offer letter from the US employer, but for admission as a TN-1 the offered position must fit exactly into one of the 64 enumerated job titles listed in the NAFTA Appendix.

Once those options are exhausted, the company and foreign worker may want to review eligibility case-by-case for more restrictive visa types, such as the E and L visas, and the H-3 and J-1 for trainees, but nothing else has the scope and flexibility to cover a vast array of professional jobs as the H-1B.

Contact Karin Wolman for more information about the H1-B Cap.


TAGS : H-1B Cap


While You Were Busy, the I-94 Evaporated

March 27, 2013

While you were busy trying to get those H-1B cap cases ready for filing, U.S. Customs & Border Protection ("CBP") released a new Interim Final Rule, and scheduled a Stakeholder Engagement teleconference about the automation of Form I-94, Entry-Departure Card, and shift to an electronic records system, with less than 3 hours advance notice. I got the e-mail announcing the stakeholder call at 12:15 on March 27th, for a 3:00pm call on the same day.

On that Stakeholder Engagement call, I asked if CBP was planning to devote any of the much-touted savings from this initiative to expand the hours or staffing for Deferred Inspections, where travelers must go after admission to get an erroneous record corrected. The answer was "none." They expect this shift to an all-electronic I-94 to work perfectly, and do not anticipate any spike in errors by Inspections Officers. How optimistic. Another caller, perhaps recalling what was once a 6 to 9 week time frame for sharing of non-immigrants' entry data with the Social Security Administration, asked how fast the CBP database would be updated with travelers electronic I-94 data. CBP claimed that the electronic records would be uploaded and available online "immediately." Again, this seems optimistic.

CBP certainly realizes that this week just prior to April 1st is a time period when most US employers of foreign nationals - and most immigration lawyers - are too busy to participate in a Stakeholder Engagement call or to comment on an Interim Final Rule before it becomes final. Press releases and other public pronouncements have been made anticipating that all the H-1B visa numbers for the coming fiscal year will be exhausted in the first week of April, so anyone involved in the hiring or employment of foreign nationals under temporary visas is preoccupied with the H-1B cap right now. For those of you who have the time, please file comments now! The comment period ends on April 26, 2013.

The initiative to get rid of paper I-94s is intended to streamline and modernize the admission of all non-immigrants. Travelers will not complete the form on paper on the airplane or at the port of entry, and will not be provided with any paper entry document defining their nonimmigrant visa status and authorized period of stay. CBP is expanding the definition of an I-94 to include an electronic record, and expanding the contents of an entry stamp in the passport, but that entry stamp will not meet the requirements of USCIS, Social Security, state motor vehicle departments, and many other agencies which require a copy of an I-94 entry document bearing certain data and an identifying eleven-digit number, so all of those types of applications will require the traveler to go to a CBP website and print out a hard copy of the electronic I-94 record. So, there will still be paper, just not a piece of paper that has to be produced or retained by CBP.

CBP Inspections Officers will issue an annotated admission stamp in the passport, showing the date of entry, port of entry, class of admission, and expiration date of the authorized stay, and they will create an electronic I-94 record in the database containing the full data, which includes:

  • Family Name
  • First (given) Name
  • Birth Date
  • Country of Citizenship
  • Sex
  • Passport Issuance Date
  • Passport Expiration Date
  • Passport Number
  • Airline & Flight Number
  • Country of Residence
  • Country Where Boarded
  • City Where Visa Was Issued
  • Date Visa Was Issued
  • Address While in US
  • Telephone Number in US
  • Email Address

After admission, but not while still in the secure Inspections area, travelers can go to the website, www.cbp.gov/I94, to view and print out a copy of their electronic I-94 record, which will still be needed to obtain a US Social Security Number, to show to an employer to begin or change authorized employment under a nonimmigrant work visa, to obtain or renew a driver's license, or to apply to USCIS for any extension or change of status. When using the CBP website, travelers will have to enter some of the above data, including their Family Name, First Given Name, Passport Number, Date of Entry & Class of Admission to gain access to their I-94 records, so people with complex name issues or who were admitted in a category other than the one they thought they were entering in may have difficulty accessing the electronic record. Time will tell. Records of previous entries for up to two years prior to the most recent admission will be visible on the website.

CBP has already implemented this electronic-only process for the I-94W, the form used for admission of visitors eligible to come to the United States without a visa under the Visa Waiver Program. They are basing their projections for success of a broader rollout on the successful implementation of electronic entry records for this narrow group of travelers, visitors who can only be admitted for a period of 90 days. The electronic record has not posed serious problems for that uniform class of entrants, all of whom are granted the same class of admission and are admitted to the United States for the same length of time.

My experience to date is that even when travelers are issued a paper I-94, they may not notice an error immediately, or an officer may take issue with the client's knowledge and insist on admitting them for an incorrect length of time or in the wrong status. All travelers seeking admission in any nonimmigrant visa status will have to be extremely vigilant.



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Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

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This website is for general information purposes only. This information is not legal advice, and is not intended to serve in place of legal advice. You should consult with an attorney about your specific question or situation. Hiring an attorney is an important personal and professional decision, and should not be undertaken lightly.

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