Wolfsdorf Immigration Newsletter Mid-December 2009

Travel issues

As many of our clients will be traveling abroad over the holiday season, we provide this travel memo to summarize requirements for international travel. We encourage all to check with your Wolfsdorf Immigration Law Group Attorney prior to travel.

Basic Documents Required for Travel (and re-entry to the U.S.):

• Passport valid for at least six months beyond the date of intended departure from the U.S.;
• Valid U.S. Visa ;
• Original Form I-797, Notice of Approval (for most Nonimmigrant Petition based cases);
• Valid Advance Parole for pending adjustment of status applicants (and/or a valid H-1B/H-4 or L-1/L-2 visa);
• Valid Lawful Permanent Resident Card (“Greencard”).


Applying For a Nonimmigrant Visa at A U.S. Consular Post:

• Nonimmigrant (NIV) appointments at many consular posts worldwide are often backlogged during the holiday season.
• Most applicants between ages 14 years and 79 years require an in-person consular interview.
• Consider Third Country National (TCN) processing at a U.S. consular post in Canada or Mexico.
• Appointment scheduling and visa issuance times can be checked online at http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.
• U.S. Consular Posts links can be found at
http://www.travel.state.gov/visa/questions_embassy.html.
• For more information on TCN visa processing please see our article
• NONIMMIGRANT VISA PROCESSING IN CANADA OR MEXICO REMAINS THE BEST OPTION FOR THIRD COUNTRY NATIONALS at: http://www.wolfsdorf.com/articles/TCN%20Article%20NAFSA%2010.19.09.pdf

Please contact attorney Avi Friedman to discuss visa processing in Canada or Mexico as he travels frequently to assist the firm’s clients with visa applications at American consulates in Canada and Mexico.

Potential Nonimmigrant Visa Delays:

• PIMS - Department of State requires that Consular Officers verify the details of approved nonimmigrant visa petitions via "PIMS" (Petition Information Management Service). This applies to all nonimmigrant petition-based visa categories (H, L, O, P, and Q). This has resulted in possible four-day delay at many posts from interview to visa issuance.
• Security Advisory Opinions (“SAO’s”) - Security checks or so-called SAO’s are initiated by consular officers at NIV interviews and often are the result of "hits" based on information in the government databases. The main security checks affecting NIV processing are:
 The Visas Condor – classified criteria, but appear to be based on several factors including Country of Birth, Citizenship, or Residence, travel to predominantly Muslim countries, prior employment, military service for certain nationals, specialized skills or training.
 The Visas Donkey – a name “hit” based on non-criminal issues and is not nationality specific. For instance, a U.K. citizen with the name “Mohammad Khan” will very likely be subject to a donkey clearance.
 The Visas Mantis Clearance - the “sensitive technology" clearance with potential "dual-use" applications of seemingly benign technologies that may have potential military applications.
Should you have concerns that you may be subject to one of these potential security clearances, feel free to contact your WILG attorney to discuss options.

Automatic Revalidation:

• Automatic revalidation applies for trips to Canada or Mexico of 30 days or less provided that the alien has not submitted a visa application at a U.S. consular post and is not from the DOS designated State Sponsors of Terrorism (Iran, Cuba, Sudan, and Syria).
• If an applicant applies for a NIV at a border post or is a national of a State Sponsors of Terrorism, it is necessary to have a valid U.S. visa to re-enter the United States. Rejected visa applicants must now travel back to their home country directly from Mexico or Canada.
• Please contact your WILG professional to determine whether you qualify for automatic revalidation.

NSEERS and Departure Registration:

• Those subject to the National Security Entry/Exit Registration System (“NSEERS” – usually with a Form I-94 annotated with a “FIN” number) must be sure to comply with the departure registration requirements when leaving the United States.
• Allow adequate time if traveling by air or land to register your departure with the appropriate immigration office.
• If flying out of the U.S., you must register at the last airport before leaving U.S. airspace.
• Contact the CBP port of departure well in advance to confirm their location and hours – see http://www.ice.gov/doclib/pi/specialregistration/srindividuals.pdf.
• Failure to comply with departure registration requirements results in serious immigration consequences and may result in you being found inadmissible.

We hope the above summary is useful in planning your international travel and we wish you a happy holiday season.

Immigration News

1. H-1B Cap Count Near Limit; File Now or Wait Until April

U.S. Citizenship and Immigration Services reported that as of December 15, 2009, approximately 64,200 H-1B cap-subject petitions had been filed. USCIS has already approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will count toward the general H-1B cap of 65,000.
USCIS has advised they will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. However, we do expect the cap to be reached within days.

Since labor condition applications are taking 5-7 days to be adjudicated, cap-subject H-1B applications need to be filed immediately to have any chance of being selected. USCIS recently issued an advisory noting that it will accept uncertified LCAs seven days after they were filed, even if they got denied due to lack of FEIN verification.

Companies that wish to sponsor an H-1B cap-subject employee for this fiscal year should contact their Wolfsdorf Immigration Law Group attorney immediately. Once the H-1B cap has been met, the earliest an employer can file an H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

For more details on the H-1B count, see http://www.uscis.gov/h-1b_count.

For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/h-ib-petitions-temporary-acceptance.pdf.

For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.

2. Self-Check Verification In the Works, USCIS Head Says; 'Verification Initiative for Business Enterprise' Discussed

U.S. Citizenship and Immigration Services Director Alejandro Mayorkas announced at a press conference on December 10, 2009, that the agency plans to incorporate a self-check option in the E-Verify system some time in 2010. The capability is intended to allow workers to verify their employment authorization before applying for a job. Eight days are allowed currently to address a "tentative nonconfirmation"; Mr. Mayorkas said the new capability will give workers time to correct any errors before they apply for a job, without having to meet an eight-day deadline.

Mr. Mayorkas also noted that the Verification Initiative for Business Enterprise (VIBE) Web-based program is expected to be launched in spring 2010. In a letter sent to Sen. Charles Grassley on November 10, 2009, outlining the VIBE program and discussing other issues, Mr. Mayorkas said that VIBE will use "commercially available data from [Dunn and Bradstreet] to validate and verify information submitted by organizations that petition to employ alien worker." Mr. Mayorkas said his agency believes VIBE "will provide adjudicators with a tool to accurately verify the financial viability and current level of business operations for employment-based petitions.

Mr. Mayorkas' letter to Sen. Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf.

 3. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates

The Department of State's Visa Bulletin for January 2010 includes the following projections for cut-off dates that will be reached by the end of fiscal year 2010. The Department cautioned that the date ranges are only estimates and are subject to fluctuations in demand during the coming months. It is possible that some annual limits could be reached before the end of the fiscal year, the Department said:

Employment First:
It is unlikely that there will be any cut-off dates in the employment first preference categories, which are now Current.

Employment Second:
China: July through October 2005
India: February through early March 2005
(If Section 202(a)(5) were to apply:
China and India: October through December 2005)

Employment Third:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005
Additional details, including an explanation of INA section 202(a)(5) and other aspects of how cut-off decisions are made, are available in the Visa Bulletin for January 2010 at http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.

4. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide

The Department of State's Bureau of Consular Affairs recently announced that it plans to deploy a fully Web-based Form DS-160 (Nonimmigrant Visa Application) worldwide. The Visa Office said that the DS-160, the first component or module of the Consular Electronic Application Center (CEAC), "has been used with great success at 24 posts so far" and will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010. TheDS-160 will replace the Electronic Visa Application Form (EVAF).

The Visa Office noted that although the target completion date is still five months away, it faces a technical challenge in meeting this deployment goal, involving development and testing of new foreign language translations. Sixty-four hours of development time are required to deploy a new translation of the DS-160 at a cost of $8,000 per language, which the Visa Office noted limits how quickly the DS-160 can be deployed to posts where English is not widely spoken. On October 29, Consular Affairs approved translation of 22 languages. The Visa Office said it will monitor this process carefully and will request additional funding and resources if necessary to avoid implementation delays.

The Visa Office strongly encouraged consular posts to consider developing an outreach plan to advise applicants and other stakeholders of the CEAC implementation. Posts listed in the Visa Office's cable have been identified as priority posts to implement the DS-160 by March 1, 2010. The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4601.html.

Additional information on the DS-160, including frequently asked questions, is available at http://www.travel.state.gov/visa/frvi/forms/forms_1342.html.

5. CBP Launches H-2 Temporary Worker Exit Program in Arizona

U.S. Customs and Border Protection (CBP) launched a pilot program on December 8, 2009, for exiting H-2A and B temporary workers. The program will be tested at San Luis and Douglas land ports of entry in Arizona and the pilot phase is expected to last about a year. H-2A (agricultural) and H-2B (nonagricultural) visas are issued to temporary seasonal workers.

CBP's goal is to ensure that temporary workers comply with the requirement to leave the U.S. when their work authorization expires. To verify their final departure, H-2A and B workers will be required to scan their visas and their fingerprints and return their I-94 Arrival-Departure Record at an exit kiosk located at the port of departure. The kiosk will provide instructions in English and Spanish. Under the pilot program, travelers admitted under the H-2A and B classifications at San Luis or Douglas ports of entry must depart through one of the two designated ports.

CBP noted that frequent border crossers or commuters do not need to register every departure, but only their final departure from the U.S. Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.

More than 205,000 H-2 temporary workers entered the U.S. in fiscal year 2009, CBP said. Of those, more than 147,000 were H-2A workers and more than 58,000 were H-2B workers.

CBP's announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12102009.xml.

6. CBP Announces 'FAST' Commercial Frequent Traveler Program Change

U.S. Customs and Border Protection announced on December 4, 2009, that members of its Free and Secure Trade (FAST) program will not be able to use their old FAST cards in passenger lanes, effective January 5, 2010. CBP has been issuing new cards with enhanced security features for current FAST members since March 16. All members are asked to activate their new cards using a global online enrollment system and to destroy their old ones. Anyone who has not received their new card should go immediately to their local enrollment center to pick up a new card or have one issued. CBP says it will take about two weeks to receive a new card. All old FAST cards will be deactivated on January 5, 2010. CBP said that officers "will allow a one-time entry into the U.S. to travelers with old FAST cards, but will seize the card from the traveler and refer the member to the Enrollment Center."

The FAST program has more than 92,000 members, and is available to commercial drivers crossing both the northern and southern borders.

The CBP announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12042009_2.xml.

7. ETA Announces Change in Address for Certain Temporary Labor Certification Filings

The Chicago National Processing Center (NPC) is responsible for adjudicating all employer applications for temporary labor certification under the H-1B, H-1B1, E-3, H-2A, H-2B, H-1C, and D-1 programs. The NPC address has changed as of December 4, 2009. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to its former address. "This is to ensure a smooth transition and allow all interested parties to commence using the new address," the Department of Labor's Employment and Training Administration (ETA) said in a notice announcing the change. On January 6, 2010, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender.
The new address is:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street
Chicago, IL 60605-1509
telephone: (312) 886-8000; facsimile: (312) 353-3352.

The following address is to be used for all invoices/fees submitted in connection with the H-2A and H-1C programs:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-A3804.
The ETA's notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-28954.pdf.

Publications and Items of Interest

PERM appeals best practices. The Department of Labor released a "Frequently Asked Questions" document on December 1, 2009, discussing best practices for filing PERM appeals. See http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Firm News

Bernie Wolfsdorf will be speaking at AILA’s Midyear Conference on the Impact of Global Immigration on Business Immigration Practice on January 23, 2010 in Puerto Vallarta, Mexico

Bernie Wolfsdorf recently posted "Immigration and American Innovation" to the American Immigration Lawyers Association's Leadership Blog. Among other things, his posting notes that the U.S. hasn't changed the numerical limitation on the admission of scientists in 20 years. "America needs to wake up," he warns. The blog is available at http://ailaleadership.blogspot.com/2009/12/immigration-and-american-innovation.html.

Avi Friedman, Rita Sostrin and Naveen Rahman Bhora will host a WOLFSDORF IMMIGRATION LAW GROUP specialized Immigration Seminar for Physicians in New York City on January 23, 2010. The seminar is scheduled from 11:00 a.m. to 1:00 p.m. and will be held at the Roosevelt Hospital, Conference Room C, 1000 10th Avenue. Topics covered will include J-1 Waivers, Visa Options for Physicians and Scientist, Attorney Representation/U.S. Visa Assistance at the U.S. Embassy in Canada for J-1, H-1B, and O-1 visas (including monthly visa trips to Canada). Participants will be able to sign up for a free case strategy consultation during the seminar. If you would like to attend, please RSVP to Art Rivadeneyra at art@wolfsdorf.com by January 15, 2010.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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