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Travel Advisory - November 2011 |
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Written by WSM
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November 10, 2011 |
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Each year as the holiday season approaches we provide our travel advisory to assist our employer clients and their foreign national employees in achieving successful re-entries to the United States after temporary travel abroad. Please note that we continue to see increased scrutiny from the State Department and the Department of Homeland Security on all applications. Additionally, many visa applicants continue to experience delays in visa issuance overseas due to heightened security clearances. We encourage your continued careful planning and advance notification to immigration counsel so that any potential causes for delay may be vetted and advised prior to departure and that you may set expectations with managers.
Passport Expiration and I-94 Validity
Customs and Border Protection officers have recently been limiting authorized stay on the I-94 form to the period of passport validity – regardless of the time remaining on the underlying visa stamp. For those whose passports expire less than six months from the date of intended entry, officers may deny their entry into the country. Any foreign national contemplating travel should make sure that his or her passport is valid for at least six months beyond the date of intended entry into the U.S. Additionally, please be aware that the expiration date noted on the Form I-94 card, issued upon arrival, controls the length of authorized stay in the U.S. Therefore, foreign nationals should always carefully check Forms I-94 after every entry and be mindful to travel on passports which do not expire anytime soon. Failing to carefully track I-94 expiration can result in a foreign national falling out of status unwittingly – not realizing that the time allotted by the visa or approval does not trump the issued Form I-94 but rather that the I-94 controls the period of authorized stay. If apprehended, such an employee could be put into removal proceedings for visa overstay – even where he or she has time remaining on a visa. Visa Stamps and Consular Interviews
Most non-immigrant visa holders traveling internationally who do not have currently valid visa stamps in their passports will need to acquire visa stamps at a U.S. Consulate overseas in order to return to the United States. Visa stamp appointments are typically in high demand during the holidays. Although acquiring visa stamps in Canada or Mexico is sometimes a favorable option, please contact counsel to inquire about whether this is a possibility. Please note that some individuals may require visas to enter Canada or Mexico. Be prepared for detailed questions about your immigration history or anything else that that the Consular officer may deem appropriate to your eligibility, regardless of whether you apply in your home or other country. In 2011, we have seen increased scrutiny by Consulates requiring additional information about the bona fides of a company or a job offer despite the nonimmigrant visa petition having been already been approved by the USCIS. In particular, the focus appears to be on smaller size employers. On behalf of our clients and all employers, WSM has been working with high-level groups connected to the Obama administration to advocate for a more supportive environment for entrepreneurs, startups, small businesses, and businesses in general. Our efforts with a working group advising the U.S. Small Business Administration, as well as with the President’s Startup America initiative, are starting to pay off. Clients and employees still report delays at Consulates on an inconsistent basis, though far less frequently in the past month compared to earlier in the year. Visa applicants must be prepared to provide copies of all information submitted with the visa petition and in response to USCIS requests for evidence, if any. Detailed Travel Tips
For additional detailed information to ensure that your foreign national employees maintain proper documentation for international travel and continued seamless employment, please ask us for our firm’s Frequently Asked Questions on Travel. |
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Written by WSM
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November 10, 2011 |
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The State Department’s December Visa Bulletin, released today, held true to predictions and offers some good news for employment-based second preference Chinese and Indian nationals and their employers, whose priority dates jump forward 4.5 months. There is very small movement for these individuals in the employment-based, third category. EB-3 Chinese nationals move forward only three weeks and EB-3 Indian nationals gain only 10 days. EB1 - all still current
EB2
All others - still current
China – advances 4.5 months to March 15, 2008
India – advances 4.5 months to March 15, 2008
Mexico – still current
Philippines – still current EB3
All others –advances 3 weeks to January 15, 2006
China – advances 2 weeks to September 8, 2004
India – advances 10 days to August 1, 2002
Mexico – advances 3 weeks to January 15, 2006
Philippines – advances 3 weeks to January 15, 2006 |
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Federal Bill for Mandatory E-Verify Not Likely to Pass |
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Written by WSM
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November 09, 2011 |
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Although the Legal Workforce Act (H.R. 2885) has been approved by the House Judiciary Committee, it is unlikely that the bill will become federal law. Most House Democrats oppose H.R. 2885, which was introduced by Rep. Lamar Smith in September and would mandate the use of E-Verify across the nation. The bill also concerns some House Republicans, particularly regarding its effects on states’ rights, the federal government’s enforcement of the E-Verify system, and its potentially devastating impact on the agriculture industry. |
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Significant Immigration Legislation in November |
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Written by WSM
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November 09, 2011 |
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While U.S. Representatives Zoe Lofgren and Jason Chaffetz have introduced thoughtful pro-immigrant bills in the House recently, the political climate in light of the rapidly approaching presidential election could derail the chance for relief in 2012. A bill introduced in October by Rep. Zoe Lofgren, the Protecting American Families and Businesses Act of 2011 (H.R. 3119), has been referred to the House Subcommittee on Immigration Policy and Enforcement for consideration. The bill from Lofgren, a Silicon Valley Democrat, would eliminate per-country limits for employment-based visas (with a three-year phase-in), raise the per-country limit on the family-based side, expand “AC-21” protection to include L and F visa holders, and recapture unused employment- and family-based green cards to shorten green card backlogs, among other provisions. “Our nation gains nothing from keeping families separated and blocking companies from hiring the world’s brightest innovators,” Lofgren said when introducing the bill. It remains to be seen whether this immigrant-friendly bill gains traction in the House, but it could face serious roadblocks as the presidential election approaches. In September, Rep. Jason Chaffetz introduced the Fairness for High-Skilled Immigrants Act (H.R. 3012). Like Lofgren’s, this bill would eliminate per-country limits for employment-based visas and increase per-country limits for family-based immigrants. The bill would greatly improve processing times for Indian and Chinese green card applicants if passed. It would need to attract more co-sponsors, be recommended for a vote on the House floor, be passed by the House, be passed by the Senate, and be signed into law by the president. Earlier this year, in June, Lofgren introduced the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011 (H.R. 2161) which, among other provisions, calls for a new path to green card status for highly skilled foreign nationals educated in the United States in the areas of science, technology, engineering and math (STEM). The bill was referred to the House Subcommittee on Workforce Protections in September. |
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ICE Enforcement Drives Up California Employers' Use of E-Verify |
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Written by WSM
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November 09, 2011 |
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The number of California job sites using E-Verify has increased by 37 percent over the past year, according to government records. More than 26,000 California employers now use the federal program to check the immigration status of new hires at more than 90,000 job sites across the state. E-Verify has gained visibility as U.S. Immigration and Customs Enforcement (ICE) has ramped up its worksite enforcement investigations and criminal prosecutions over the past year, in a stated effort to deter unlawful employment and cultivate a culture of compliance with immigration-related employment laws. To that end, ICE issued a record 2,393 Notices of Inspection related to federal Forms I-9 in fiscal year 2011, a more than 375 percent increase from the number issued in fiscal year 2008, ICE Director John Morton said in October. While ICE has been ramping up its worksite enforcement activity across the country, California has gone out of its way to make the use of E-Verify voluntary for private employers in the state. A new California law, which goes into effect January 1, 2012, prohibits the state, cities and counties from mandating that private employers use E-Verify. Assemblyman Paul Fong (D-Sunnyvale), who introduced the bill, said mandatory E-Verify would place an unnecessary burden on employers in California, and particularly on small businesses. The use of E-Verify remains mandatory for federal contractors nationwide.
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