NIV Processing Update - Federal Bar Association · • Heightened scrutiny of visa applicants at...

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NIV Processing Update

May 18, 2019Federal Bar Association Immigration Law Conference

Austin, Texas

Moderator: Prakash Khatri, Esq. Panelists: Robert Loughran, Esq. & Ramin Asgard, Esq.


SESSION HIGHLIGHTS

Review of NIV Basics: The Players, Documents, & Visas

The Impacts of the New Terrain: DOMESTIC

The Impacts of the New Terrain: OVERSEAS

Questions & Answers

The Changed Terrain: Regulatory & Information

BONUS: Insider Tips from a Former Consular Officer


GOVERNMENT AGENCIES INVOLVED

• Department of Homeland Security

• US Citizenship & Immigration Services (USCIS) – Services and benefits (family and employment); naturalization; special status programs.

• US Immigration & Customs Enforcement (ICE) – Interior investigations and enforcement, including SEVIS enforcement; smuggling; document fraud; raids.

• US Customs & Border Protection (CBP) – Inspections at ports of entry; Customs functions; border patrol.

• Department of State – NVC, KCC which process domestic petitions, and US embassies/consulates abroad which issues visas to enter the US.

• Department of Labor – PERM Labor Certification and H-1B Labor Condition Application (LCA) .


KEY DOCUMENT: I/94 ARRIVAL/DEPARTURE RECORD

• The I-94 controls status and permissible period of stay in the U.S.

• CBP will only issue electronic I-94s for air and sea travel, although paper I-94s are still being issued at land border Port of Entry.

• Passport or travel documents will be stamped with admission date, visa class and expiration date.

• I-94 records are available on CBP’s website: https://i94.cbp.dhs.gov/I94/#/recent-search

• Check I-94 record upon each entry into U.S.

https://i94.cbp.dhs.gov/I94/#/recent-search


KEY DOCUMENT: NONIMMIGRANT VISA STAMP

• The nonimmigrant visa reflects:

➢The nonimmigrant category

➢The validity dates for travel on the visa

➢Any additional notes or restrictions

• Indicates to the inspecting officer at the port of entry that the applicant, and his or her purpose for entry, have been prescreened

• Does not guarantee admission upon inspection by U.S. Customs & Border Protection

• A “ticket” to apply for admission to the U.S.

• Canadians are exempt and do not require a Visa


KEY DOCUMENT: FORM I-797 – CHANGE OF STATUS

• “Change of status” within the U.S.:

• Form I-797 approval notice is issued with a new I-94 card attached

• New status starts automatically on validity date

• Whenever the employee leaves the U.S., a visa stamp in passport must be obtained at a U.S. consulate abroad to return, except:

➢ Canadian citizens (visa exempt)

➢ Special rules for travel to Mexico or Canada for less than 30 days


THE CHANGED REGULATORY TERRAIN

Extreme Vetting Executive Order

Buy American, Hire American EO

Travel Ban

Non-Deference Policy, FAM Change on Public Charge

NATIONAL SECURITY: “rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of otherimmigration benefits”

AMERICAN WORKER PROTECTION: “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”

NATIONAL SECURITY: Applying Title 8 of USC §1182(f) suspends most visa issuance & USRAP to nationals of 6 countries.

ADJUDICATION TREND & ECONOMIC SECURITY : No deferenceto previous decisions, strict scrutiny of public assistance record


THE CHANGED INFORMATION TERRAIN

Cloud Migration

Big Data

Stuart McGuigen, CIO Department of State

Former J&J CIO, Led Cloud MigrationPublic Private

Partnerships

Form DS-5535


THE IMPACTS: DOMESTIC NIV PROCESSING

• Strict scrutiny in adjudications with spike in issuance of Requests for Evidence (RFE) andNotices of Intent to Deny (NOID)

➢ Challenges to “specialty occupations” and wage levels for H-1B petitions, particularly computer and web-based positions and Level 1 wages

➢ Approximately 1/3 of L-1 petitions filed with USCIS in 2nd quarter of 2017 were denied

• No longer deference to prior determinations when seeking extensions of status

• Pledge to make unannounced and random visits to all H-1B employers, both before and afterany petition is adjudicated

• Substantial and growing USCIS delays/backlogs at in all visa categories, +46% overall*

• Far more rigorous CBP scrutiny at POEs, seizing and data mining of cellphones, laptops

* AILA Policy Brief, USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration, Jan. 2019


THE IMPACTS: CONSULAR NIV PROCESSING

• ALDAC Guidance Cables implementing Extreme Vetting/BAHA, Visas Viper/LEWG vetting

• Heightened scrutiny of visa applicants at U.S. Department of State (DOS) consular posts, including more delays (Administrative Processing) in visa issuance and more denials

• Readjudication of approved visa petitions at U.S. consular posts

• 316% increase in public charge-based denials 212(a)(4), 118% increase for alien-smuggling 212(a)(6)(e), 34% increase in 221(g), and 38% increase in misrepresentation 212(a)(6)(C)(i)*. For IVs -39% issuances, NIVs -13% issuances.

• On the spot “googled” research by Consular Officers, 221(g) result, Black Box

* National Association for American Policy, State Department Visa Refusals in FY 2018, March 2019


INSIDER TIPS FROM A FORMER CONSULAR OFFICER

• Number 1 Reason for Visa Denials/221(g): Applicant does not know content of their own petition/application. Make sure your client capable of explaining key points.

• Consular Officers interview 150+ applicants a day

• Concise, bulleted cover letter essential to guiding Consular Officers towards approval

• Consular Officers highly variable in their backgrounds, approach, prepare for the worst

• Consular Officers NOT lawyers, do not fill your cover letter with legal jargon

• Lawyers are often viewed as adversary, and this is increased in extreme vetting era

• FAM is the key reference point in dealing with Consular interview

• Be careful about language/translation issues

• Consular Officers, including Consular Chief, status within Embassy, Foreign Service


QUESTIONS & ANSWERS

Prakash Khatri, Esq.

Khatri Law Firm, LLC6701 Democracy Blvd., Suite 300

Bethesda, MD 20817

[email protected]

www.khatrilaw.com

Robert Loughran, Esq.

Foster Global912 S Capital of Texas Hwy,

Suite 450Austin, TX 78746

[email protected]

www.fosterglobal.com

Ramin Asgard, Esq.

Asgard Law Office401 Park Ave S, 10th Floor

New York, NY 10016

[email protected]

www.asgard-law.com

CONTACT INFORMATION


ADDITIONAL SLIDES FOLLOW


IMPORTANT UPDATE: NEW REGULATIONS

• Admission for 10 Days Before and After Petition Validity

• H-1B, L-1, TN, E

• Does not provide work authorization, but does provide lawful status

• Sixty-Day Grace Period

• H-1B, H-1B1, E-1, L1, O-1, TN

• Grace period for up to 60 consecutive days of unemployment or until petition expires

• Cannot engage in unauthorized employment

• Automatic Extension of EAD Card up to 180 days

• Extension must be timely filed

• Only for those applying under same category as previously authorized and which do not require an adjudication of nonimmigrant status

• Does NOT apply for L-2, H-4 or E spouse EAD renewals


COMMON NONIMMIGRANT VISA STATUS

• Business Visitor (Visa Waiver or B-1)

• F-1 OPT

• H-1B Temporary Worker

• L-1 Intracompany Transferee

• TN Trade NAFTA Worker

• H-1B1 Chile, Singapore

• E-3 Temporary Worker (Australians)

• Employment Authorization Document (EAD)


F-1 STUDENTS CHANGING TO H1-B STATUS

• F-1 Cap-Gap OPT automatic extension

• H-1B change of status petition

• Timely filed while F-1 OPT EAD is valid

• OPT will be automatically extended until September 30th

• No travel abroad during cap-gap extension

• 90 limit on unemployment

• STEM OPT extension (additional 24 months)

• Latest degree must be in Science, Technology, Engineering or Mathematics

• Sponsored by Employer enrolled in E-verifyprogram

• Position directly related to degree


H-1B TEMPORARY WORK VISA REQUIREMENTS

• “H-1B Cap subject”: Annual quota limits H-1B numbers per fiscal year

➢65,000 H-1Bs are available each year

➢Additional 20,000 H-1Bs are reserved for individuals with U.S. advanced degrees

➢Earliest date to apply is April 1st

➢If H-1Bs are exhausted the first week, a lottery occurs

➢H-1B status becomes effective October 1st

• Cap Exempt – Can obtain H-1B at any time

➢H-1B extensions/amendments

➢Change of Employer H1B - currently in H-1B status with another employer (unless employed with a cap exempt employer)

➢Held H-1B status in the past 6 years (unless with a cap exempt employer)

➢Employed by or at an institution of higher ED (e.g. University) or certain non-profit. entity.


H1-B “CAP SUBJECT” AND ”CAP EXEMPT” INA §214(g)

• “H-1B Cap subject”: Annual quota limits H-1B numbers per fiscal year

➢65,000 H-1Bs are available each year

➢Additional 20,000 H-1Bs are reserved for individuals with U.S. advanced degrees

➢Earliest date to apply is April 1st

➢If H-1Bs are exhausted the first week, a lottery occurs.

➢H-1B status becomes effective October 1st

• Cap Exempt – Can obtain H-1B at any time

➢H-1B extensions/amendments.

➢Change of Employer H1B - currently in H-1B status with another employer (unless employed with a cap exempt employer).

➢Held H-1B status in the past 6 years (unless with a cap exempt employer).

➢Employed by or at an institution of higher ed (e.g. University) or certain non-profit entity


H1-B ISSUES COMMONLY FACED BY EMPLOYERS

• Changing Employers / Portability.

➢Must be maintaining status.

➢ Can commence new employment upon filing.

➢May need to consider expediting (premium processing).

• 6 yr. limit with exceptions depending on place in green card process and/or availability of immigrant visas.

• Required to notify USCIS if employment terminates. Should also withdraw LCA to ensure salary obligations terminate.

• Must pay reasonable costs of return transportation if dismissed early.


L-1 VISA: INTERCOMPANY TRANSFERS TO THE U.S.

• Allows the transfer of fulltime executives, managers, or specialized knowledge employees within the related group of companies

• The employee must have been employed with the company outside of the U.S. for one full year within the three years before filing

• Blanket L-1 visa – can save time/$$ filing directly with U.S. Consulate

• Duration: up to 7 years for executives and managers; up to 5 years for specialized knowledge workers

• The L-1 visa for executives/ managers works well with permanent residence EB-1C


TN TRADE NAFTA

• Only Available for Canadian or Mexican citizens

• Occupations are specifically listed in NAFTA treaty – most require a Bachelor’s degree.

• Employer Specific

• Canadian citizen – apply at border POE or file petition with USCIS even if Canadian is abroad – 3 year period.

• Mexican citizens – apply at U.S. consulate – only 1 year visa but 3 year I-94 possible.

• Time period in the U.S. – 3 year increments

• Non-immigrant intent required.

• TD Spouses – no work permit.

• No regulatory visa limit.

• Amendment may not be required unless petitions filed with USCIS.


TN DESIGNATED OCCUPATIONS

• Engineer

• Registered Nurse*

• Scientific Technician*

• Management Consultant*

• Economist

• Accountant

• Architect

• Computer System Analyst

• Graphic Designer

• * Does not require a bachelor’s degree or licenciatura.


H-1B1 VISA FOR CHILE & SINGAPORE FREE TRADE AGREEMENTS

• Available only to Singaporean & Chilean citizens

• 6,800 annual visa limit (Chile: 1,400; Singapore: 5,400) – usually remains available throughout year.

• Professional position – Bachelor’s degree required.

• LCA required, but no petition required.

• May only work for sponsoring company.

• Apply directly with U.S. consulate.

• Non-immigrant intent required.

• Spouse not eligible for work permit.

• Time period in U.S.: 18 months increments.

• New LCA/Amendment required if worksite changes


E-3 VISA FOR AUSTRALIANS FREE TRADE AGREEMENT

• E-3 is an alternative to the H-1B visa.• 10,500 annual visa limit.• Professional position – Bachelor’s degree required.• Labor Condition Application required. • May only work for sponsoring company.• Apply directly with U.S. consulate or through USCIS.• Non-immigrant intent required.• E Spouse (regardless of nationality) eligible for work permit.• Time period in U.S.: 2 year increments.• New LCA/Amendment required if worksite changes


EAD OR WORK PERMIT

• F-1 Students

• Applicant for Adjustment of Status

• Dependent Spouses of L-1, E-1, E-2, J-1, H-1B

• K-1 Fiance, Refugees, Asylees, Temporary Protected Status, DACA, etc.


SITE VISITS

• DHS has recently made a highly publicized commitment to increase enforcement of the H-1B and L-1 programs.➢ Main goal is to check for technical violations and fraud➢ They may visit in person, but we are seeing an increasing

number of site visits conducted via email

• Homeland Security Investigations (HSI) is also increasingly auditing Forms I-9 for Employment Eligibility Verification. Penalties include fines, debarment, criminal charges.

NIV Processing Update - Federal Bar Association · • Heightened scrutiny of visa applicants at...

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