Author Archive

Visa Fees Changing – Some are Reduced!

April 12, 2012

As of April 13, visa processing fees levied by the Department of State will change. While many temporary (“non-immigrant”) visa fees will increase, all permanent (“immigrant”) fees will decrease. The new schedule is also available here.

Type of Visa

Previous Fee New Fee
Tourist, Business, Transit, Crew Member, Student, Exchange Visitor, and Journalist visas $140 $160
Petition-Based visas (H, L, O, P, Q, and R) $150 $190
Treaty Investor and Trader visas (E) $390 $270
Fiancé(e) visas (K) $350 $240
Border Crossing Cards (age 15 and older) $140 $160
Border Crossing Cards (under age 15) $14 $1

Immigrant Visa Processing Fees

Type of Visa Previous Fee New Fee
Immediate Relative and Family Preference Applications $330 $230
Employment-Based Applications $720 $405
Other Immigrant Visa Applications $305 $220
Diversity Visa Program Fee $440 $330
Determining Returning Resident Status $380 $275

H-1B Cap Update

April 5, 2012

According to a USCIS teleconference today, as of April 4 they have received 22,320 H-1B visa petitions, about a third of which are master’s degree cases.

As a reminder, 65,000 “regular” H-1Bs and 20,000 U.S.-earned master’s degree H-1B are released for each fiscal year. Filing begins April 1 for October 1 start dates.

We urge you to file H-1Bs subject to the cap promptly.

Visa Pilot Program Announced

February 2, 2012

The Department of State recently announced a Visa Pilot Program intended to ease the visa issuance process for certain low-risk applicants.

Details of the program have not yet been determined but generally applicants that have successfully applied for a visa in the past and who meet certain parameters will not be required to appear in person for visa renewals.

Also under consideration for exemption from interview requirements are certain very young or older applicants.

This exemption from interview will free appointments for first-time applicants, reducing appointment wait times.

L-1 Visa Validity Change Announced

February 2, 2012

The Department of State announced that it will be publishing a rule to de-link visa validity with petition validity for L-1 visa applicants. What does this mean?

Usually the visa end date is the same as the petition end date.  The petition is what is filed with the Immigration Service to provide initial approval for visa issuance at a U.S. Consulate. This is most often a petition specifically for the beneficiary applying for the visa, but “blanket L” petitions are also available in some situations. A Blanket L petition can be used by an unlimited number of visa applicants.

An example to show this point is: Mary is approved for a change of status to L when she is in the U.S. In 2010. She does not travel outside the U.S. Until 2012.  The petition end date is in 2013. The L visa can be issued only to 2013 as the rule now stands.

Once the rule is changed, the end date of the visa would not be limited in this example to 2013.  Instead the consular officer would look at the visa reciprocity schedule for Mary’s home country.

If she is from China, which allows L visas for two years, the visa could be issued to 2014 in this example. If she is from India, which allows L-1 visas for 5 years, the visa could be issued to 2017 (if it is an L-1A or 2015 if it is an L-1B – because of the limit on total L status duration).

Whether this change is helpful thus depends on the reciprocity schedule of the home country.

It will likely be most helpful with Blanket Ls close to the petition expiration date (the first Blanket L is granted for only three years, but the extension is indefinite) and for visa applications closely preceding an extension filing.

The effective date of the rule has not been announced.

Visa Processing Tips

February 1, 2012

All “non-immigrant” (meaning temporary) status approvals (H-1B, L, O, etc.) by the Immigration Service in the U.S. are sent by the Service Center to the Kentucky Consular Center.  The KCC scans the petition and supporting documents so they can be accessed electronically by the U.S. consulates abroad for visa issuance.

If the beneficiary is in the U.S. and changing or extending status, no visa is needed.  But if the beneficiary is outside the U.S. and waiting to enter or is planning foreign travel, the timing of the notification is very important.

The Service Center will overnight the approval if the petition shows that the beneficiary will enter the U.S. in less than 30 days.  Otherwise it will send the approval by regular mail to the KCC.

The KCC categorizes approvals for scanning as follows:

  • Expedited cases (as designated by the Service Center) are sent in one day
  • O, P, T, U are sent within 3 days
  • H, L, R and all other cases that are not for extension or change of status  are sent within 5 days
  • Extension and change of status cases are sent within 10 days

When the beneficiary schedules the visa appointment, he or she should inquire whether the approval has been scanned by the KCC. If not, the consulate can contact the KCC in advance of the appointment and have the case scanned.

If the case is not scanned, the consular officer is prevented from issuing the visa until the approval is available electronically. This is true even if the beneficiary has the original approval notice in hand.

Strangely, a few consulates still require the original approval notice from the beneficiary despite the fact that the electronic approval is required for visa issuance and they have been instructed not to require it.

We always send the beneficiary a full copy of the petition and the original approval notice when we know that a visa is required.

Encouraging Entrepreneurship?

August 4, 2011

On August 2, 2011, Department of Homeland Security Secretary Janet Napolitano announced that her agency was paving the way for entrepreneurs to come to the United States to “spur job creation”.  See http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm.

The initiative primarily consists of clarifications of agency policy, including guidance that an entrepreneur: (1) can be sponsored for H-1B temporary work status by her own company if a board of directors has the ability to “hire, fire, pay, supervise or otherwise control” her work; (2) can qualify for the EB2 immigrant category if she has an advanced degree or has shown exceptional ability  and has an approved labor certification; and (3) can qualify for a “national interest waiver” of the labor certification requirement in certain situations.

Additionally, the agency has committed to faster processing (for a fee) for EB5 investor petitions in regional centers and EB1 multinational executives and managers.

Other enhancements to the EB5 program were announced in May and are being implemented.

We laud this initiative, but cautiously.  Its success will depend on U.S. Citizenship & Immigration Service implementation.  If USCIS examiners take a real-world view of concepts like employer/employee “control” and “exceptional ability” it will be a welcome relief from recent tightening of such interpretations to the point of strangulation.

Applications for categories that require similar discretionary determinations have been greeted with skepticism that verges on paranoia.  Written testimony by experts with nothing to gain from the application is routinely ignored.  The applicable legal standard of proof, “preponderance of the evidence” (i.e., more likely than not), in practicality has become “beyond a shadow of a doubt”.  The plain language of regulations is rejected in favor of tortured interpretations aimed at preventing alleged abuse by a few applicants.

Unless entrepreneurs are treated very differently than academic researchers, international executives and other highly-skilled professionals, these administrative clarifications will not create any new jobs.

Another complication is that DHS does not control the Department of Labor.  Obtaining a labor certification from DOL is impossible if the job is not open to U.S. workers.  An entrepreneur is typically essential to the functioning of her company.  Applicants must disclose their ownership interests when filing the labor certification. If DOL believes that the entrepreneur would not be replaced with a U.S. worker found to be qualified in the required labor market test, the labor certification will be denied.

Although the new guidance suggests that waiving the labor certification requirement will be easier if jobs will be created, to take advantage of this route, the entrepreneur must have either an advanced degree or prove “exceptional ability”, which to date has been problematic because of strict agency interpretation mentioned above.

We hope this initiative signals a new era of real-world evaluation of reasonable evidence, and that the Department of Labor follows Homeland Security’s lead to further encourage entrepreneurship.  If so, this initiative could open up exciting possibilities for U.S. start-up companies.

Connecticut Court Protects H-1B Employee from Wrongful Arrest: States that Regulation Extending Work Authorization based on Timely Filed Extension Implicitly Extends Authorization to Remain in U.S.

April 19, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.” Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

Victory for Equal Justice and the Rule of Law: Court of Appeals Enjoins Enforcement of Ari zona’s Anti-Immigrant Law (SB 1070)

April 18, 2011

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly one year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.

Advance in EB-2 India Category Expected on May 2011 Visa Bulletin

March 29, 2011

According to the U.S. Department of State (DOS), since October 2010 there has been a substantial decrease in the number of EB-1 filings. Therefore, DOS has indicated that those otherwise unused EB-1 numbers will drop down to the EB-2 category, which will allow them to advance the EB-2 India category on the May 2011 Visa Bulletin. Currently, the Department of State is expecting that at least 12,000 additional numbers will be available in the EB-2 category. The May Visa Bulletin will be issued in mid-April, and we will post more information at that time.

Japan earthquake ramifications

March 11, 2011

The Immigration Service has quickly responded to the earthquake disaster in Japan. Please see the information below released today:

“This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation in the Pacific. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

“Visitors traveling under the Visa Waiver Program (VWP):

“ Visitors traveling under a nonimmigrant visa:

“For additional immigration relief options, please visit the Special Situation page.”


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