Category Archives: Uncategorized

U.S. Consulates May Now Waive H-1, H-3, H-4, L, O, P, and Q Visa Interviews

The State Department has announced that through December 2022, U.S. Consulates may now waive the in-person interview requirement for the above-named temporary employment nonimmigrant visa applicants.

The conditions for a waiver to be granted include the following:

  1. The Applicant must have been previously issued a visa of any type, and never refused a visa, unless the refusal was overcome or waived.
  2. The Applicant must apply in his/her country of nationality or residence.
  3. The Applicant must have no apparent ineligibility or potential ineligibility.

The interview may also be waived for a first-time visa applicant who is a citizen or national of a Visa Waiver Program (VWP) country who has previously obtained an ESTA Authorization (Electronic System for Travel Authorization) to travel to the U.S. as a visitor for business or pleasure AND has previously traveled to the U.S. under the VWP using ESTA.

The State Department has also extended, through the end of 2022, the authority previously granted to U.S. Consulates to waive the interview requirement for F, M and J visa applicants who are citizens or nationals of a Visa Waiver Program (VWP) country who have previously obtained an ESTA Authorization (Electronic System for Travel Authorization) to travel to the U.S. as a visitor for business or pleasure. One change to the previous policy is that applicants eligible for the waiver authority because they are citizens or nationals of a VWP participating country must have previously traveled to the United States using an authorization obtained via ESTA to qualify.

The availability of interview waivers pursuant to this guidance will vary from consular post to consular post depending on workload and other considerations. Please note that U.S. Consulates are not required to implement this policy but can do so at their discretion. Applicants are strongly advised to check with the consular post in their home country for current practices.

 

USCIS Updates Employment Eligibility Rules for H-4, E, and L Spouses

On November 12, 2021 USCIS issued a comprehensive Policy Memorandum which provides immediate relief for the H-4, E, and L Dependent Spouses who seek to engage in employment in the U.S.

Certain H-4 spouses* who have been granted employment authorization and are seeking to extend their permission to work, are now eligible for an automatic extension of their work permission.  Provided they have filed a timely application for extension of their Employment Authorization Documents (EAD), their permission to work is now automatically extended for up to 180 days, until their extension application is adjudicated (granted or denied), or until the expiration of their Form I-94 Arrival-Departure Record-whichever comes first.

The documents required to demonstrate to employers that they are work authorized are: their unexpired Form I-94 Arrival-Departure Record, the Form I-797 receipt confirming a timely filed I-765 extension application, and the expired EAD.

E and L Dependent spouses are now considered authorized to work “incident to status” and are no longer required to apply for or present an Employment Authorization Document.  Since this benefit does not extend to dependent children of the E or L principal, USCIS will work with CBP in the coming months to modify the Form I-94 to distinguish between dependent spouses and dependent children.  This will then serve as a “List C” document for I-9 purposes. Until then, an EAD will be required.  E and L Dependent spouses may now apply for an EAD but will incur the filing fee of $410-and expect to wait months before it is issued.

*not all H-4 spouses are eligible for employment authorization

 

 

Department of State Announces DV 2023 Visa Lottery

 

The Department of State has announced the procedures for the upcoming Visa Lottery. Detailed information is available on the Department of State website at:

www.travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2023-Instructions-Translations/DV-2023-Instructions-English.pdf

The registration period opens Wednesday, October 6, 2021 at 12:00 noon, EDT.  Entries must be submitted online by 12:00 noon, EST on Tuesday, November 9, 2021.

The Visa Lottery enables 55,000 individuals from countries with historically low rates of immigration an opportunity to obtain a green card provided they meet certain minimal qualifications.  In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2023, 55,000 DVs will be available.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2023, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Macau SAR and Taiwan are eligible.

This year, Guatemala has been added to the list of countries that are eligible to participate in the lottery.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.”  Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

  • the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or
  • the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

 

A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net Online database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S.  For example, an applicant with a criminal record may be barred.

Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV Entry or DS-5501).  Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EST, on November 9, 2021.

We believe that anyone with access to the Internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process. PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.

However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.

Please feel free to contact our office if you have any questions.

 

Ban on Nonimmigrant Visa Issuance Has Not Been Extended

Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021 and has not been extended.

Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance.  Visa applicants who were previously refused visas due to the restrictions of Presidential Proclamation 10052 may reapply by submitting a new application including a new fee.

The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis.  U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March 2020 and will continue to do so as they are able.  Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering.

 

 

Temporary Protected Status (TPS) for Venezuela

The Secretary of Homeland Security, Alejandro N. Mayorkas, has designated Venezuela for Temporary Protected Status (TPS) for a period of 18 months, until September 2022. The designation was based on Venezuela’s unsafe conditions including, a complex humanitarian crisis marked by widespread hunger and malnutrition, increasing influence and involvement of non-state armed groups, repression, and collapsing infrastructure. The TPS will allow Venezuelan nationals (and non-nationals who last resided in Venezuela) to apply for TPS in the United States.

Under Venezuela’s designation, only those who can show continuous residency in the United States as of March 8, 2021 are eligible for TPS. Individuals who wish to apply for TPS must do so during the 180-day registration period with US Citizenship and Immigration Services. They may also apply for EADs (Employment Authorization Documents) and travel permits. As part of deciding eligibility for TPS, all applicants are subjected to security and background checks.

Please contact our office if you have any questions.

 

President Biden Rescinds Immigrant Visa Ban

Yesterday, President Biden rescinded Proclamation 10014. Proclamation 10014 suspended the entry of certain immigrants until March 31, 2021. This immigrant visa ban affected employment-based, family-based and Diversity Lottery immigrant visa (green card) applications, with limited exceptions. Effective immediately, consulates are permitted to resume processing affected immigrant visa applications.

 The nonimmigrant ban affecting certain H-1B, H-2B, L-1 and J-1 visa categories remains in effect. It is currently set to expire on March 31, 2021.

 Additionally, COVID-19 related travel bans remain in effect for certain individuals who were physically present in any Schengen country, UK, Ireland, China, Brazil or South Africa within the 14 days prior to their attempt at entering the U.S. As such, even if foreign nationals are no longer subject to the immigrant visa ban, they may need to apply for national interest exceptions to be able to enter the U.S.

H-1B Registration For FY 2022 Begins March 9, 2021

USCIS has just announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at 12pm EST on March 9 and run through 12pm EST on March 25.
During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations online. As before, there will be a $10 registration fee.
USCIS intends to complete selections and notify registrants of selections by March 31, 2021.

H-1B Random Selection Process Will Apply Again This Year

The Department of Homeland Security (DHS) has announced that it will delay the H-1B Selection final rule, which amends the regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions, until December 31, 2021.
The final rule, which was to take effect on March 9, 2021, would replace the random, computerized H-1B cap lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system.
The rule’s delay means that for the upcoming H-1B cap season, USCIS will apply the current regulations (i.e. random selection). The H-1B cap lottery will follow a cap registration period this March.
USCIS has not yet released the exact start and end dates for the FY 22 H-1B cap registration period yet but we will let you know as soon as more information is available.

Trump Visa Issuance Ban Extended

President Trump has extended Proclamation 10052 and Proclamation 10014 which were set to expire on December 31, 2020. Both Proclamations have been extended until March 31, 2021 and may be extended further.

Proclamation 10052 restricts the issuance of certain nonimmigrant visas such as H-1B, H-2B, L-1, and certain J-1 statuses, including those for dependents. The full text of the original Proclamation can be found here: https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/.

Proclamation 10014 bans issuance of certain immigrant visas (green cards for applicants processing from outside of the U.S.). The full text of the original Proclamation can be found here: https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/

Limited exceptions to both Proclamations remain available and are granted at the discretion of the U.S. Consulate/Embassy abroad and/or U.S. Customs and Border Protection.

 

Trump Seeks Review of Foreign Hiring By Federal Contractors

On August 3, 2020, President Trump signed a new Executive Order (“Aligning Federal Contracting and Hiring Practices With the Interests of American Workers”) directing federal agencies to conduct a review of federal contractors’ and subcontractors’ use of nonimmigrant workers and overseas labor on federal contracts. The agencies are directed to review the nature of the work performed by temporary foreign labor on such contracts; whether opportunities for United States workers were affected by such hiring; and any potential effects on the national security caused by such hiring. After the review, the agencies are required to recommend improvements to their procurement processes within 120 days. The Order also directs the Department of Labor and the Department of Homeland Security to take action within 45 days to ensure that the wages and working conditions of U.S. workers are not adversely affected by the hiring of H-1B workers.

It is important to note that the Order does not have an immediate impact on H-1B workers. At this point, other than imposing a reporting requirement on the contracting agencies, it is unclear what the Order will accomplish. We must wait and see if any changes will result from this latest Executive Order.