Visa Lawyer Blog

Australian Immigration Minister Chris Evans announced recently a new agreement between Australia and New Zealand to improve identity checks and border security. Australia and New Zealand recently signed a memorandum of understanding [MoU] to share biometric data, an agreement that will further strengthen our nations' border security. Biometrics is widely used in the international community as an effective tool to manage visa and immigration processes, improve identity management and combat fraud.

At the Five Countries Conference (FCC) in London a memorandum of understanding was signed between Australia and New Zealand. The Conference enables Five data sharing Countries to exchange information and agree a way forward to improve border security. FCC data-sharing helps to establish the true identity of people whose identities or nationalities were previously unknown or uncertain, and has been used in Australia to check the identities of irregular maritime arrivals, other people in immigration detention and illegal foreign fishers. Since 2006, more than 100 000 fingerprint records have been exchanged, helping Australia and FCC partner countries to establish the true identities and immigration histories of people whose identities were unknown or uncertain. Collection and sharing of biometric data is a proven tool in the fight against identity fraud and can prevent unlawful entrants' efforts to thwart Australia's border and visa processes.

Canadian Immigration Minister Kenney said that Canadian citizenship is more than a legal status, more than a passport. We expect citizens to have an ongoing commitment, connection and loyalty to Canada while introducing a new changes in Canadian Immigrant norms. The main motive behind these changes to prevent citizenship fraud. As promised in the Speech from the Throne, these amendments will streamline the process to take citizenship away from those who have acquired it by fraud, including by concealment of their war crimes. And it would take decision-making away from politicians and give it to the courts.
The proposals in the Strengthening the Value of Canadian Citizenship Act are as follows:

- There are likely to be tough new regulations covering citizenship consultants and tougher measures taken against those who gain Canadian Citizenship fraudulently. This follows on from proposed amendments to the Immigration and Refugee Protection Act relating to immigration consultants – The Cracking Down on Crooked Consultants Act.

- The penalties for citizenship fraud are likely to be increased to a maximum of $100,000 or up to five years in prison or both.

- The intention is to increase the residence requirements so that to gain Canadian citizenship you will have to be physically present in Canada for three of the previous four years.

- In future criminals including violent foreign criminals will be prevented from becoming Canadian citizens.

- The process for revoking citizenship and the removal process will be speeded up. In future decisions on revocations will be made by the Federal Court instead of the Governor in Council.

- Making sure that Canadian law fully implements the first generation limit to passing on citizenship. Generally, Canadians living abroad will only be able to pass on citizenship to one generation. If living abroad the second generation will not normally be able to pass on citizenship to their children. The exception to this will be children of parents who are working for the Canadian Government or a Canadian Province or in the Canadian armed forces.

Today is the first day that employers may file H1B petitions for FY 2011. We certainly released our cases on time yesterday, and are still open to new cases as long as the H1B cap will remain open.

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period.

The current law limits the cap of H1Bs to 65,000 as the number of aliens who may be issued an H1B visa or otherwise provided H-1B status. In addition, all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap. This means that contractors working at, but not directly employed by the institution may be exempt from the cap.

H1B Visa renewals and Extensions of stay however do not count towards the annual limits. Transfers of H1B visas among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt. Therefore, despite the numerical limitations we can prepare and file your case for an extension of stay provided the maximum 6 year has not yet been fulfilled.

What other situations will allow a petition to avoid the H1B Cap? How to ensure ensure that an H-1B petition will be accepted for filing and not be counted against the cap in the following situations. What boxes on Form I-129, Part 2 and Supplement I-129 Part C should be marked?

(1) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary's current petitioner has indicated that they will not be bringing alien on until late 2010. A second employer seeks to file a petition requesting concurrent employment for this Beneficiary which will enable Beneficiary to come into the country on Oct 1, 2010.

(2) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary's current petitioner has not ever brought this beneficiary into the U.S. A new employer now wishes to file a petition requesting a change of employer for this Beneficiary which will enable Beneficiary to begin working immediately.

(3) H-1B Beneficiary is abroad holding a USCIS Approval notice & H-1B Visa with start date of Oct 1, 2009. Beneficiary's current employer does not seem willing to commit to a definite start date. A new employer wishes to file a petition requesting a change of employer for the beneficiary.

INA 214(g)(7) states that any alien who has already been counted within the 6 years prior to the approval of an H petition toward the numerical limitations shall not again be counted towards those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.

8 CFR 214(h)(13)(iii)(A) also states that an H1B alien who has spent 6 years in the US as an H1B visa holder may not seek extension, change status or be readmitted unless the alien has resided and been physically present outside the US for the immediate prior year. If these are read in conjunction, the alien has already been counted against the cap when he was first petitioned and approved for H1B status.

Alien would not be eligible for another full 6 years since alien has not been admitted to the US and then left and resided abroad for 1 year. Alien has never been admitted so the allowance of 8 CFR 214(h)(13)(iii)(A) for a renewed 6 years would not apply to alien.

USCIS will take into consideration whether an H-1B visa number has already been counted against the cap based on a previous H-1B approval if the forms are clearly marked with this request. USCIS advises that the open space in Part 2 of Form I-129 can be used to make a note such as “Not Subject to H-1B cap; previous H-1B approved SRC # ________” or something similar. The same should be clearly marked on the Form H-1B Data Collection Supplement at Part C. Furthermore, a copy of the previous H-1B visa I-797 approval notice should be enclosed and an explanation of why the H-1B should not be counted against the cap can also be stated on the Employer cover letter.

The H1B Petition process is complicated, make sure to consult an experienced Attorney when attempting to file for your workers.

When faced with trying to have a U.S. citizen, legal permanent resident, or nonimmigrant visa holder perform services in Mexico, it is critical to analyze the following issues first:

· Does the company have any operating entities in Mexico?

If so, some Mexican consulates will indicate that FM-3 visa applications should be made through Instituto Nacional de Migracion (INM).

· What services/duties will the person perform in Mexico?

Certain managerial, executive, and technical duties will force the use of the application process through INM versus Secretaria de Relaciones Exteriores (SRE). INM documentation requirements are always more demanding.

· How often will the person need to be in Mexico and where in Mexico over what period of time?

Business visitors must typically consider 30-day or one-year visas allowing certain business activities.

· Is the person from a restricted nationality country under Mexican law?

If so, plan ahead for two- to six-week delays for review of the visa application by INM in Mexico City. This comment includes someone who is from a restricted nationality, but who possesses a valid U.S. nonimmigrant visa.

· How will the person be compensated for services/duties performed in Mexico?

If the applicant will be paid by a Mexican source, the application must be reviewed by INM first before approval by SRE.

· Will the person reside in Mexico or the U.S. side of the border as to border zone assignments?

If the applicant will reside in Mexico, INM must review the application before the issuance of any visa by SRE.

· Will the person have signatory authority to bind the U.S. or Mexican company?

In this situation, it is important to have the FM-3 visa annotated to reflect this authority, which is often called "poder" authority.

· If the person possesses technical expertise, do they have a degree (for that matter a copy of the degree and curriculum vitae)?

The INM documentation requirements normally include providing an apostilled letter from the employer as well as an apostilled copy of a degree or an apostilled letter from the company confirming expertise for those not possessing a degree. Some INM offices will accept just an apostilled letter confirming experience as well as any degree versus reviewing the original degree.

· Has the person ever had a Mexican visa before, if so, what type? Did the person cancel prior Mexican visas?

Most INM and SRE offices will require proof of timely cancellation of the prior visa and payment of any required penalties before issuance of a new visa. This can become costly for those who have forgotten to do so for months and then need to be re-admitted. Although the penalty is set by a formula, it is possible to request a reduction in the amount based on circumstances of merit (e.g., first FM-3, illness, or other emergency).

The Mexican immigration alternatives are constantly changing, as are those for the United States. It is important to consult with legal counsel before choosing any particular options. It is also important to make sure that support letters as to activities in the United States do not contradict representations made concerning a U.S. nonimmigrant visa holder’s status in the United States. In addition, pre-planning regarding the documentation necessary for INM versus SRE applications for FM-3 status is critical.

The Government of India has stated that educational cooperation is an "important facet" of Indo-UK ties. They will be in contact with the British High Commission to "better understand the reasons" for the temporary freeze on UK student visa applications by those based in Northern India.

The Indian Government is trying to help genuine students planning to study in the UK who have been affected by the temporary ban on student visa applications made at UK Visa application centers in New Delhi, Chandigarh and Jalandhar from 1 February 2010. An Indian official said, "Student exchanges form a vital component of this cooperation. We would remain in touch with the BHC (British High Commission) on this matter."

The Ministry of External Affairs has been in touch with the British High Commission on this matter to better understand the reasons behind this decision and also to ensure that genuine Indian students planning to go to the UK for studies are not adversely impacted. It is also interesting to note that the UK Border Agency is investigating a number of UK education providers. This week approximately 60 education providers in the UK were suspended from the sponsors' register.

The UK Border Agency on 31 January 2010 announced the temporary ban on UK Tier 4 student visa applications at the three Visa Application Centres in India and at Visa Application Centres in Bangladesh and Nepal. There was a huge increase in the number of UK student Tier 4 visa applications made in Northern India in the last three months of 2009. The temporary ban was introduced as UKBA was concerned that many of these student visa applications were not genuine.

Australian immigration will soon start implementation of biometric checks for Australian visa applications in ten Countries. $69 million Australian dollars will be invested over four years. The Australian Government had the following to say about the new Australian visa biometric requirements.

* If you apply for an Australian visa in any of the ten Countries you will need to also submit your fingerprints and facial images This biometric data is unique to a particular individual and will enable the Australian Government to confirm the true identity of visa applicants.
* Checks will be made in databases for known terrorists and criminals and other people of concern.
* Australia shares biometric data with the United Kingdom and Canada. The United States and New Zealand will join the data-sharing arrangement this year.
* The Australian Government is working closely with the UK Government, which already has experience in this area.

The 10 locations for the scheme have been selected on the basis of National security and fraud risks, locations where the Australian Government can use British biometric collection centers, and Broad geographic coverage of the scheme. The authorities here says that the use of biometrics will help in keeping Australia's borders secure and maintaining the integrity of our migration program.

Mexico’s National Migration Institute published its Manual of Criteria and Migration Procedures. The Manual will be enforced as of 5/1/10 throughout the 32 delegations of the National Migration Institute in Mexico. Courtesy of AILA member Enrique Arellano.

The intention of the National Migration Institute is to clarify, streamline and simplify
processing requirements for each immigration category. Applications currently being
processed and those filed before May 1, 2010 will be analyzed and processed based on
current policies, practices and procedures.

Some of the most relevant aspects of the Manual are the following:

• All migratory forms for tourists, business visitors and technical visitors with
lucrative activities, who intend to stay in Mexico for up to 180 days, will be
replaced by a single “FMM” form (“Forma Migratoria Múltiple”).
The FMM willserve as evidence of the foreign national’s immigration status while in Mexico;

• The business visitor criteria are clearly defined; This new FMM form has an option
for choosing the purpose of the visit as business (negocios), which once the foreign
national enters Mexico, the immigration officer will grant a 180 days stay.

• There are 3 different options that the immigration officer might mark and that will
grant the foreign national 180 days: a) Business (Visitante Persona de Negocios), b)
Visitor with Lucrative Activities (Visitante con Actividades Lucrativas) and c)
Visitor with Non Lucrative Activities (Visitante con Actividades No Lucrativas).
Any of the previous allow the foreign national to visit Mexico for business, either
for working purposes or only for meetings

• In case the purpose of the business visit extends more than 180 days, the foreign
national will have to file for a change of Immigration status to obtain the
correspondent FM3.

• The ABTC (Asia-Pacific Economic Cooperation business travel card) criteria are
clearly defined;

• In the following weeks, the National Migration Institute will publish the formats of
the new migration cards that will replace the FM2 and FM3 booklets. Changes of
activity, domicile, marital status, etc. will no longer have to be annotated on the
migratory document, thereby allowing the foreign national the ability to travel in
and out of the country while a change of status/conditions application is in process
without having to request an exit and re-entry permit;

• Consular Posts will no longer issue FM2 or FM3 booklets. Instead, the Consular
Post will place a visa sticker on the foreign national’s passport, upon receipt of the
petition’s approval from the National Migration institute. The sticker will allow
entry into Mexico within 365 days of issuance. Upon entry, the foreign national
must obtain the new FM2 or FM3 migration card within 30 days.

As security at International airports tightens, we remind our readers about ESTA. On the one-year anniversary of implementing the Electronic System for Travel Authorization, the Department of Homeland Security’s U.S. Customs and Border Protection reminds U.S.-bound travelers from Visa Waiver Program countries of the ESTA requirement. Beginning January 20, CBP will initiate a 60-day transition to enforced ESTA compliance for air carriers; VWP travelers without an
approved ESTA may not be allowed to board a U.S.-bound plane.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP.

More from the CBP here

DOS published a notice of the determination that the Abu Nidal Organization Movement (ANO) and Palestinian Liberation Front--Abu Abbas Faction (PLF) and all designated aliases will maintain designations as foreign terrorist organizations.

Abu Nidal is a terrorist organization widely known for deadly attacks in the 1980s on Western, Palestinian, and Israeli targets. They were attempting to derail diplomatic relations between the Palestinian Liberation Organization (PLO) and the West, while advocating for the destruction of Israel. The organization was named for a former member of the PLO who split off in a dispute over establishing diplomatic ties with Israel. Abu Nidal has been on the U.S. list of terrorist organizations for more than twenty years.

Continue reading "Governmet Notice of Continuing Foreign Terrorist Organization Designation for Palestinian Groups" »

The H-2B visa program is vital to America’s small businesses and thus to America’s economic recovery. The H-2B program is capped at 66,000 visas per year. This is the same arbitrary number set by Congress in 1990. The visa allotment is split equally between the winter and summer seasons. Small business owners rely on the H-2B program because it is the only way they can legally hire workers for temporary and seasonal positions when they cannot find Americans to hire.

Small and seasonal businesses hire American workers and they do hire every qualified
American who applies for a seasonal or temporary short-term position. Nevertheless, even in this economy, positions remain unfilled, leaving these businesses desperately in need of workers. This is not surprising since these jobs typically involve low-skilled and semi-skilled labor, involve work at remote locations, and are only short-term in duration.

Unlike the hiring of American workers, small business owners must go through a tough application process to hire foreign workers through the H-2B program. Employers must prove to the U.S. Department of Labor that there are no available U.S. workers to fill vacant short-term positions. H-2B workers go home at the end of the season. They cannot, and do not, stay in the U.S. permanently through this program.

Without access to more temporary H-2B workers, many small businesses will be extremely short-staffed this year and could be forced to close. For small businesses, relief must come now so that America’s employers can get the seasonal temporary workers they need to help in America’s economic recovery.

RELIEF NEEDED:

• An H-2B visa returning worker extension will go a long way in helping small and
seasonal businesses survive in the short term. The extension would provide
emergency relief by exempting from the cap H-2B returning workers who already
have successfully participated in the program in one of the previous 3 years.
• Without Congressional relief soon, many U.S. businesses will be forced to limit their
services or close their doors permanently rather than be a part of the economic
recovery.

CURRENT LEGISLATION:

• H-2B relief has been introduced in the House by Rep. Stupak (D-MI), and in the
Senate by Sen. Mikulski (D-MD), as the Save Our Small and Seasonal Businesses
Act of 2009 (H.R. 1136/S. 388).

U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, they continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

At this rate, there will be H-1Bs available until sometime in August. Today there are 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 40%. The same thing could happen next year leaving many students with no visas.

I think that the H-1B petition submissions will rise significantly in June-July 2009. Therefore, F-1 students who wish to work in the U.S. need to plan ahead and fast.

Recently, the Department of State released revisions to Section 40.11 N14.3 of the Foreign Affairs Manual regarding procedures for Nonimmigrant Visa (NIV) HIV Waiver Authorization. DOS released a checklist for individuals applying for a Non Immigrant HIV Waiver. The checklist is used in DOS' new streamlined NIV waiver process, which allows individuals to certify to the list of conditions for obtaining the waiver as opposed to having to bring independent evidence to the consulate. Click here for checklist Download file

We welcome the changes and hope that this will improve America's Image in the world, encouraging more visitors to come.

It's almost 11pm here in Chambery, France and as I am posting this comment. I have taken a two weeks trip to visit Europe for vacation and a brief visit with some clients. As the immigration debate heats up in the US, it is very interesting to see how the Europeans see the changes in our immigration systems. I have included a few comments collected from various sources here in Europe. I have also included some information about immigration law in Europe and other countries and what concerns the Europeans have with their immigration systems.

Continue reading "US Immigration Law - A Global point of view" »