Visa Lawyer Blog

Our nation has always attracted individuals with great drive and entrepreneurial spirit. To continue being a great global leader, we must continue to attract and retain the next generation of immigrant entrepreneurs who will start new businesses and create new jobs here in America. Taking action on this front, U.S. Citizenship and Immigration Services (USCIS) kicked off its Entrepreneurs in Residence (EIR) initiative last week with a stakeholder summit in Silicon Valley. The host location was fitting, as NASA Ames Research Center Director Simon Worden pointed out, since NASA programs have historically benefited from breakthroughs by foreign-born scientists and engineers.

The stakeholder summit began with a special naturalization ceremony for over 20 people hailing from 13 countries who took the oath of citizenship. In addition, five extraordinarily successful entrepreneurs and investors received the Outstanding American by Choice recognition, and shared their own personal stories of coming to America: Christopher Che, President and CEO of the Che International Group; Ping Fu, President and CEO of Geomagic; Michael Moritz, Partner at Sequoia Capital; Shervin Pishevar, Managing Director of Menlo Ventures; and Vivek Wadhwa, the academic, researcher, writer, and entrepreneur.

In his Washington Post column, Mr. Wadhwa shared what this special recognition meant to him:

“When I received the call from U.S. Citizenship and Immigration Services Director, Alejandro Mayorkas, I had tears in my eyes. He told me that the government appreciated all of my efforts to make the country more competitive and that my criticisms of his department had motived his team to work harder to improve the system. This is the greatness of America and why this country leads the world: Disagreement and debate are cherished. Challenging the norms, thinking outside the box, and questioning those in power is encouraged and celebrated.”

Thinking outside the box is exactly what the new EIR initiative is all about. Over a period of 90 days, a tactical team made up of both USCIS staff and start up experts will identify ways to enhance existing policies, practices, and training across a range of existing visa categories used by entrepreneurs. The goal is to ensure that immigration pathways are clear and consistent, and reflect the business realities of entrepreneurs interested in coming to the U.S. to create jobs.

Last week’s stakeholder summit was an excellent start, bringing together a diverse group of 150 entrepreneurs, attorneys, and other thought leaders from across the country, all providing their expertise on the best ways to optimize existing visa categories used by entrepreneurs seeking to launch their companies in the U.S. The support shown here is evident of how important it is to do what it takes to create more jobs and turn the economy around.

President Obama has continually supported legislation to create a visa designed specifically for startup founders, as part of his vision for a 21st century immigration system. As part of the White House Startup America initiative, the Administration has taken action to keep more talented science and math graduates in the country longer, make it easier to start a company in the U.S., and attract highly skilled immigrants, all under existing authority.

As they take up their 90-day mission, we look forward to the EIR team delivering concrete results for immigrant entrepreneurs and the U.S. economy.

Recently, Customs and Border Protection (CBP) provided guidance on the period of time for which a nonimmigrant alien domestic partner may be admitted to the United States in visitor status when presenting a valid B-2 visa. This guidance does not apply to a visitor applying for admission under the Visa Waiver Program, which limits admission to a period of 90 days.

The Department of State (DOS) Visitor Visa Policy is to authorize issuance of a B-2 visitor visa to the unmarried, cohabitating partner of a nonimmigrant alien coming temporarily to the U.S. for work or studies. The DOS amended the Foreign Affairs Manual (FAM) in 2001 to formalize this long-standing policy. This policy extends to virtually any alien who is a member of the household of another alien in long-term nonimmigrant status but is not eligible for a derivative visa as a spouse or a child. In addition, even if a spouse or a child qualifies for a derivative visa, such as an L-2, H-4, etc., they may instead apply for a B2 visa. The spouse or child does not need to demonstrate that it is impossible to apply for a derivative visa, as it is simply inconvenient to do so.

Within the CBP Inspector's Field Manual, there is a list of situations that support the use of a B-2 visitor category visa. One such item on the list is dependent domestic partners for whom the B-2 visitor category is appropriate. A nonimmigrant alien presenting a valid B-2 visa when applying for admission should be admitted for no less than six months, provided e or she is otherwise admissible and has a passport valid for the required period of time. A visitor accompanying another alien in long-term nonimmigrant status, however, may desire a longer period of admission. An alien presenting a valid B-2 visa may be admitted for up to one year.

The eligibility for visitor status requires an alien to be seeking admission to the U.S. for a temporary period of time. The length of the intended stay does not, per se, disqualify an individual for visitor status. The FAM explains that:

"The period of time projected for the B visa visit must be consistent with the stated purpose of the trip...The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided...that the intended stay actually has a time limitation an is not indefinite in nature...the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the 'principal' alien on [for example], a two-year work assignment or a four-year degree program."

The DOS instructs its consular officers to advise nonimmigrant aliens issued a B-2 visa who are planning to stay in the United States for more than six months to ask for a one year stay upon applying for admission. Upon arriving at a port of entry, a B-2 visitor should specifically ask for a one year period of stay. Domestic partners and others who are not eligible for nonimmigrant dependent visas should be prepared to demonstrate their relationship to the principal alien. There is no definitive list of prescribed documents to conclusively prove eligibility for admission in B-2 status as a domestic partner or other regular member of a household, but examples of evidence of cohabitation which may be sufficient can include a joint bank account statement shared lease or mortgage obligations, common driver's license addresses insurance documents, and, if applicable a letter from the principal alien's employer verifying the temporary nature of the assignment.

Based on these guidelines, same sex partners from other countries can seek to stay in the U.S. under B-2 status for up to one year. This bodes well for couples who do not wish to have to be parted for any significant period of time. Until the Defense of Marriage Act is repealed, immigration reform regarding same sex couples cannot allow same sex couples to petition for their spouses. In the meantime, the B-2 visa can give same sex couples the opportunity to stay together for a year while in the U.S. These guidelines are good to keep in mind for when a domestic partner should come to the U.S. and seek the maximum length of stay under that status.

President Obama predicted re-election in an interview this week with Univision Radio, telling a largely Hispanic audience he will use a second term to push comprehensive immigration overhaul. "My presidency is not over," Obama said when asked about the failure to come up with an immigration bill. "I've got another five years coming up. We're going to get this done." Obama rejected suggestions that the lack of an immigration bill is a broken campaign promise, saying "we're going to need help from Congress" and Republicans have blocked legislation.

The re-election candidate said his Republican candidates oppose comprehensive immigration overhaul, which involves tighter border enforcement as well as a pathway to citizenship for illegal immigrants who are already here. Obama also made what appeared to be a reference to Republican candidate Mitt Romney, who opposes legislation that would offer potential citizenship to illegal immigrants who attend college or join the military.

"So far, have we haven't seen any of the Republican candidates even support immigration reform," Obama said. "In fact, their leading candidate said he would veto even the Dream Act, much less comprehensive immigration reform." Obama's reference was to Mitt Romney's own statements regarding how he would not support the DREAM Act as it stood. At a debate in Florida, Mitt Romney reiterated the harder stance he took Iowa and South Carolina by saying that "I'd just noted that's the same position that I have, and that's that I wouldn't sign the Dream Act as it currently exists, but I would sign the Dream Act if it were focused on military service." Even changing his stance slightly, Mitt Romney shows that it is not enough having good moral character and wanting to go forward with a college education should help put a child out of status on the path to legal status. It is amazing how Mitt Romney and others who tout a hardline stance for immigration cannot imagine being in that situation, since they would likely change their tune if it was one of their own relatives who suffered in the same situation.

Obama taped the Univision interview a day before traveling to Florida, where the growing Hispanic vote is considered essential. Some observers see the national Hispanic vote as the key to the entire election. When it comes to immigration, Hispanics should also examine who they support for House and Senate seats, Obama said.

The president also said, "I would have only broken my promise if I hadn't tried" to get an immigration reform bill. "But, ultimately, I'm one man," he said. "You know, we live in a democracy. We don't live in a monarchy. I'm not the king. I'm the president. And so, I can only implement those laws that are passed through Congress." This statement holds true when considering how the president can only enforce laws that Congress passes. His track record regarding immigration is further bolstered when looking at the directives enforced through the Department of Homeland Security regarding the use of prosecutorial discretion. It is the Executive branch that oversees DHS, which means Obama's role in immigration has been more than his endorsement of the DREAM Act and other bills that would help deal with the various immigration problems that exist.

Bottom line, the track record of President Obama shows that his efforts have been towards making changes in the current immigration system that would alleviate many problems that exist, while the current leading Republican nominee, Mitt Romney, would take a hardline stance that will make it harder for any real immigration reform to happen. If immigration reform is an important issue, Obama and any Senate and House of Representatives who support reform are the ones to vote for in the coming election.

This is a great update from the CPB Liaison Practice group. A nonimmigrant alien who has previously presented a visa for admission to the United States may sometimes be readmitted (a) in the same nonimmigrant classification as shown on an expired visa or (b) in a different nonimmigrant classification than shown on an expired or valid visa if a change of status occurred while the individual was in the United States. The nonimmigrant alien’s absence from the United States must be limited to 30 days or less, and the individual’s travel must be limited to certain geographic locations.

Admission under this procedure is called “automatic visa revalidation.” Automatic visa
revalidation is applied differently depending on the individual’s nonimmigrant visa
classification. Most nonimmigrants may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” (Canada or Mexico).

Nonimmigrants in the F or J classification may rely on automatic visa revalidation to apply for readmission after travel to a “contiguous territory” or “adjacent islands other than Cuba.” At a minimum, in order to be eligible for this benefit, the nonimmigrant alien must present a valid passport, a valid Form I-94 (Departure Record or Arrival-Departure Record), and either (a) an expired nonimmigrant visa in any classification or (b) a current, valid nonimmigrant visa in any classification.

Documentary and Other Requirements

To rely on automatic visa revalidation, a nonimmigrant alien must meet the following conditions when applying for readmission to the United States:

- Present a Form I-94 showing an unexpired period of initial or extended authorized stay. If the individual has applied for and received an extension or change of nonimmigrant status while in the United States, the Form I-94 may be attached to, or separated from, a Form I-797, Notice of Action. ¾ Nonimmigrant aliens (including an accompanying spouse or child) applying to be admitted in F, M, or J classification must also present one of the following documents as applicable:

F or M classification: A valid Form I-20, Certificate of Eligibility for Nonimmigrant,
issued by the school at which the Department of Homeland Security has authorized
the principal nonimmigrant’s attendance.

J classification: A valid Form DS-2019, Certificate of Eligibility for Exchange
Visitor Status, issued by the authorized program sponsor showing the unexpired
period of stay.

- Present a valid passport with a nonimmigrant visa, whether valid or expired, used for a prior admission to the United States. If the individual’s current passport does not contain the nonimmigrant visa, the individual must present a prior passport with a visa.

An expired nonimmigrant visa includes (1) a visa that is no longer valid because of
the passage of time and (2) a visa that is no longer valid because the maximum
number of entries has been used.

Canadian Citizens and Presentation of a Passport Containing a Visa

Canadian citizens must have been admitted at least once after presentation of a visa to
qualify for automatic visa revalidation. Canadian citizens are exempt from the requirement to present a visa for admission to the United States in nonimmigrant
classifications other than E or K. If a Canadian citizen is admitted in a nonimmigrant
classification that does not require a visa and then changes status to E-1 or E-2 while
in the United States, the Canadian citizen may not rely on automatic visa revalidation.
Instead, this individual must apply for an E visa before readmission. The Canadian
citizen must hold either a valid or an expired visa in the passport at the time of the
application for admission in E-1 or E-2 status.

Example #1: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This person travels to Canada for a week, does
not apply for an E-2 visa, and then asks to return to the United
States in E-2 status. The Canadian citizen presents a valid passport
and a valid I-94 card, but no visa.
The Canadian citizen is not currently admissible under automatic
visa revalidation and must apply for an E-2 visa prior to
readmission to the United States.

Example #2: A Canadian citizen is admitted to the United States in
TN status (a visa exempt classification). The Canadian citizen
changes status to E-2 during the period of temporary stay within
the United States. This individual travels to Canada, applies for
and is issued an E-2 visa, and presents the visa for admission to the
United States in E-2 status. Through the passage of time, the E-2
visa expires even though E-2 status has been extended as reflected
on a Form I-94. The Canadian citizen then travels to Canada, does
not apply for a new E-2 visa, and applies for readmission to the
United States in E-2 status. The Canadian citizen presents a valid
passport, a valid, unexpired Form I-94, and the expired E-2 visa.

The Canadian citizen is admissible under automatic visa
revalidation.

In summary, The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) has the authority and the responsibility over the admission of travelers to the U.S. Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:

* Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;
* Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

Continue reading "San Diego Immigration Lawyer - Automatic Visa Revalidation Tips" »

According to the National Foundation for American Policy, USCIS dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States. Data indicate much of the increase in denials involves Indian-born professionals and researchers. U.S. Citizenship and Immigration Services adjudicators have demonstrated a capacity to keep skilled foreign nationals out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence (RFE), despite no change in the law or relevant regulations between 2008 and 2011.

Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers.

Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or
gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.

Here are some of the findings:

- Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011. In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.

- Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.

- Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.

- Along with increased denials have come skyrocketing rates of “Requests for Evidence” or RFEs, which are used by USCIS adjudicators to obtain more information in lieu of making an immediate decision on a petition. Employers note that simply the act of an RFE can result in months of delays, affecting costs and potentially delaying projects and contract performance.

- The Request for Evidence rate for L-1B petitions (to transfer employees with specialized knowledge) rose from 17 percent in FY 2007 to 49 percent in FY 2008, and, as noted, reached an astonishing level of 63 percent rate in FY 2011. As recently as FY 2004, USCIS adjudicators requested additional evidence for L-1B petitions in only 2 percent of the cases. There appears to be no reasonable explanation for the rate of Request for Evidence for L-1B petitions to rise from 2 percent to 63 percent in just 7 years.

- The Request for Evidence rate for L-1A petitions (to transfer managers and executives) increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.

- For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for H-1Bs was 26 percent.

Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability. The data in the report include only petitions at USCIS, not decisions made at consular posts.

We are very concerned about the date released in this report, and as lawyers processing numerous L1 and H1B cases, can attest that the findings are correct and are even worse. Some of the denials we have seen were reported back to AILA for further follow up. We hope that 2012 will be a better year, but this is still hard to believe.

The Labor Department released statistics from DOL’s Office of Foreign Labor Certification for year-to-date FY2012, including total number of applications received, total number of applications processed, PERM processing priority dates, and breakdown of active PERM cases at the DOL. Interesting to see almost 1000 cases were denied that year, but more files were actually certified. See the Chart below for the statistics.

div style="width:477px" id="__ss_11642105">Perm statistics 2012