Visa Lawyer Blog

Articles Posted in Nonimmigrant Visas

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Welcome back to Visalawyerblog! New developments in the world of immigration are happening on a daily basis. In today’s post we cover the status of consular services at the U.S. Embassy in Kyiv, Ukraine.

As you may know, the region has been embroiled in political turmoil with U.S. sanctions on Russia escalating. To protect Americans in the region, the Department of State has announced the departure of all diplomatic employees from the U.S. Embassy in Kyiv.

Beginning February 13th, the Embassy in Kyiv has suspended Consular visa services including interview waiver services. The Department of State has indicated that applicants who had visa appointments in Kyiv can apply for their visas in any other country in which they are physically present, so long as appointments are available. Applicants are advised to contact the U.S. Embassy or Consulate where they wish to apply to inquire about case transfers.

Those with immigrant visas that were pending in Kyiv can request a transfer of their case to another U.S. Embassy by contacting the receiving U.S. Embassy’s country to authorize and initiate the transfer. Each Embassy will have a list of requirements that must be satisfied to initiate the transfer process.

Non-immigrants and immigrant visa holders must continue to abide by the vaccination mandate in order to gain admission to the United States.

Vaccination Mandate

 Effective November 8, all non-citizen, nonimmigrant (not a U.S. citizen, U.S. national, lawful permanent resident, or traveling to the United States on an immigrant visa) airline passengers traveling to the United States, must demonstrate proof of vaccination as defined by the U.S. Centers for Disease Control and Prevention (CDC) Director Order prior to boarding a U.S. bound aircraft. More details regarding what constitutes full vaccination are available on this page of the CDC website.

All travelers to the United States, regardless of vaccination status, must show a pre-departure negative COVID-19 viral test taken within one (1) day of travel to the United States prior to boarding. This applies to all travelers – U.S. citizens, lawful permanent residents (LPRs), and foreign nationals. Additional information may be found on CDC’s website.

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In this blog post, we share great news for E and L dependent spouses!

As we previously reported on our blog, pursuant to a new USCIS policy, E and L nonimmigrant dependent spouses are now considered employment authorized “incident to their status.”

This means that upon admission and issuance of a valid I-94 arrival/departure document showing E or L-2 spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an Employment Authorization Document (EAD). Previously, E or L dependent spouses were required to apply for an EAD by filing Form I-765 Application for Employment Authorization with USCIS.

How does this system work?

Effective January 31, 2022, CBP Office of Field Operations (OFO), in coordination with both USCIS and Department of State, began issuing new classes of admission on the I-94 arrival/departure record for E and L dependent spouses entering the U.S. at a Port of Entry. The new I-94 admission records indicate an “S” designation after the E or L class of admission to indicate that the spouse is authorized to work in the United States. The “S” designation is meant to indicate that the E or L nonimmigrant is a dependent “spouse” of a principal E or L visa holder. Please note that the new designation will not explicitly state that the spouse is “work authorized,” however the “S” designation signals to U.S. employers that the spouse is authorized to work for I-9 employment verification purposes.

Spouses who applied for an extension of their E or L visa status with USCIS, will receive I-94s that carry the new “S” designation at the bottom of their approval notices.

How can I prove that I am authorized to work as an E or L dependent spouse?

If you are an L or E dependent spouse who wishes to work in the United States without having to obtain an Employment Authorization Document (EAD), you must present an I-94 admission document with the “S” spousal annotation.

CBP has confirmed that the agency has been issuing new I-94’s with the “S” spousal annotation to E and L spouses who gained admission to the United States on or after January 31, 2022.

How does the annotation look?

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E/L Spousal Annotation

The I-94 will be annotated with an “S” next to the E or L-2 status designation, signaling to prospective employers that the individual is authorized to work during the validity period of the I-94. Spouses admitted in E or L-2 status should review their I-94 document immediately upon admission to ensure that it contains the appropriate annotation.

What if I gained admission to the United States prior to January 31, 2022 and I do not have the spousal designation on my I-94?

If you are an E or L dependent spouse who gained admission to the U.S. prior to January 31, 2022, and you do not have the “S” spousal annotation on your I-94, you must contact your closest CBP Deferred Inspection Office to determine whether they may, in their discretion, amend your I-94 arrival/departure record to include the “S” spousal annotation without requiring international travel. CBP may or may not agree to amend your I-94.

In cases where CBP will not amend your I-94 to include the spousal annotation, you may consider discussing with your immigration attorney whether you should depart the United States and re-enter at a U.S. port of entry to secure the new spousal annotated I-94. You must exercise caution before making any international travel plans. An immigration attorney will need to evaluate whether you have the proper documentation to gain re-admission after temporary foreign travel and determine whether your planned travel would result in the issuance of a new annotated I-94. Certain brief international trips may not result in a new I-94 issued by CBP.

Please note that if you are an E or L spouse admitted prior to January 31, 2022, and you have filed an application to extend your L or E status while in the U.S., USCIS is expected to issue the “S” spousal annotation on I-94’s printed at the bottom of USCIS-issued approval notices.

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With a new year comes new travel restrictions. In this blog post, we share with you a recent announcement published in the Federal Register by the U.S. Customs and Border Protection.

CBP has just released a notice of action informing the public of a brand-new temporary travel restriction that will apply to certain unvaccinated travelers seeking to enter into the United States along U.S. land ports of entry, including ferry terminals (‘‘land POEs’’) with Mexico and Canada.

What is this new travel restriction all about?

According to the new directive announced on January 24th, land ports of entry along the United States-Mexico border and United States-Canada border will continue to suspend normal operations and will allow processing for entry into the United States of only those noncitizen non-LPRs who are ‘‘fully vaccinated against COVID–19’’ and can provide ‘‘proof of being fully vaccinated against COVID–19’’ upon request, as those terms are defined under Presidential Proclamation and the CDC’s Order.

Who will the restriction apply to?

These restrictions will apply to non-citizens who are neither U.S. nationals nor lawful permanent residents (‘‘noncitizen non-LPRs’’) with limited exceptions.

Under the temporary restrictions, DHS will allow processing for entry into the United States of only those noncitizen non-LPRs who are fully vaccinated against COVID–19 and can provide proof of being fully vaccinated against COVID–19 upon request.

When do these travel restrictions go into effect?

These restrictions went into effect at 12 a.m. Eastern Standard Time (EST) on January 22, 2022 and will remain in effect until 11:59 p.m. Eastern Daylight Time (EDT) on April 21, 2022, unless amended or rescinded prior to that time.

Are there any exceptions for unvaccinated travelers?

This travel restriction does not apply to U.S. citizens, U.S. nationals, lawful permanent residents of the United States, or American Indians who have a right by statute to pass the borders of, or enter into, the United States.

In addition, the following exceptions to these restrictions have been authorized for the following categories of noncitizen non-LPRs:

  • Certain categories of persons on diplomatic or official foreign government travel as specified in the CDC Order;
  • persons under 18 years of age;
  • certain participants in certain COVID–19 vaccine trials as specified in the CDC Order;
  • persons with medical contraindications to receiving a COVID– 19 vaccine as specified in the CDC Order;
  • persons issued a humanitarian or emergency exception by the Secretary of Homeland Security;
  • persons with valid nonimmigrant visas (excluding B–1 [business] or B–2 [tourism] visas) who are citizens of a country with limited COVID–19 vaccine availability, as specified in the CDC Order;
  • members of the U.S. Armed Forces or their spouses or children (under 18 years of age) as specified in the CDC Order; and,
  • persons whose entry would be in the U.S. national interest, as determined by the Secretary of Homeland Security.

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The H-1B cap season for FY 2023 is almost here!

USCIS has just announced that the H-1B initial registration period for the FY 2023 cap is scheduled to open at noon ET on March 1, 2022 and will remain open until noon ET on March 18, 2022.

As our readers are aware, in 2020 USCIS implemented a mandatory H-1B electronic registration system for the H-1B cap.

Under this new electronic registration process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, must complete an electronic registration process on the USCIS website to receive a chance at selection. The registration process is simple and easy asking basic information about the prospective petitioner and each requested worker.

The H-1B selection process will be based off properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

That means that in order to have a chance of being selected, all prospective petitioners and their authorized representatives seeking to file H-1B cap-subject petitions for FY 2023, including for beneficiaries eligible for the advanced degree exemption, must first register during the registration period (March 1, 2022, to March 18, 2022) and pay the associated $10 registration fee for each beneficiary.

Registrants will be able to create new accounts beginning at noon ET on February 21, 2022.

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In today’s blog post, we share some interesting Question and Answer responses recently provided by the Department of State’s Office of the Assistant Legal Adviser for Consular Affairs (L/CA), in a meeting with the American Immigration Lawyers Association (AILA).

The responses below provide some important insight into current immigration policies and procedures taking place amid the ongoing COVID-19 pandemic.

Here, we summarize the most interesting questions covered during the January 20 meeting:

Department of State/AILA Liaison Committee Meeting

January 20, 2022 Q & A Highlights

Q: What role do Consular sections assume when determining whether an individual is exempt from the CDC COVID-19 vaccine requirement to gain entry to the U.S.?

A: Consular sections’ role in the process is to ensure that an individual’s request for a [vaccine] exception is filled out in full, and to transmit those requests to the CDC.

Q: If consular posts are involved in transmitting information in support of a humanitarian exception to CDC, what is the process, if any, for making such a request of a consular post outside the context of a visa interview?

A: Travelers should contact the consular section of the nearest embassy or consulate using the information provided on that embassies or consulate’s website

Q: What is the Department of State doing to alleviate the substantial backlogs created by the slowdown of operations at Consular posts and Embassies worldwide?

A: The Department is planning to hire foreign service officers above attrition in FY 2022. The majority will be assigned to a consular position after initial training. Additionally, the Department continues to recruit Limited Non-career Appointment (LNA) Consular Professionals. With very limited LNA hiring in FY 2020 and a pause on LNA hiring in FY 2021 due to CA’s budgetary constraints, Consular Affairs plans to hire more than 60 LNAs in FY 2022

Consular Affairs is working with State’s office of Global Talent Management to ramp up hiring in FY 2022, but many posts will not see these new officers until the second half of FY 2022 or FY 2023, particularly for officers assigned to positions requiring language training. Increased hiring will not have an immediate effect on reducing current visa wait times. Because local pandemic restrictions continue to impact a significant number of our overseas posts, extra staff alone is not sufficient to combat wait times for interviews.

Q: Can Consular Affairs please advise regarding efforts to resume routine consular services?

A: Consular sections abroad must exercise prudence given COVID’s continuing unpredictability. The emergence of the Omicron variant has prompted countries to reevaluate plans to relax travel bans, thereby leading consular sections abroad to recalibrate plans to resume services. Some posts have already fully resumed routine services. Others, in an abundance of caution and out of concern for the health of both consular staff and clientele, are slowly reintroducing some routine services.

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Happy Monday! Welcome back to Visalawyerblog!

In this blog post we share some great news for Russian nationals seeking F, M, and J nonimmigrant visa interviews. On January 21, 2022, the Department of State announced that the agency has now designated several posts overseas to process these nonimmigrant visa applications for persons who are residents of Russia. This change was made to provide relief to such applicants that have not been able to obtain visa interviews due to the severely limited operations currently available at the U.S. Embassy in Moscow.

Under this designation, Russia-based student visa applicants (F and M categories) as well as academic exchange visitors (student, professor, research scholar, short-term scholar, and specialist J visa categories) and participants in U.S. government-funded exchange visitor programs may now apply for their visas and be interviewed at the following posts:

Where do I find more information about the application process?

The Department of State has said that applicants should review the Embassy’s webpage for the latest information on services and appointment availability at that specific post.

What if I am physically present in another country? Can I apply for my F, M, J visa at the Embassy where I reside?

The Department of State has made clear that this designation does not prevent Russia-based F, M, and J applicants from applying at another post where they are physically present.  It also  does not exempt travelers from the Centers for Disease Control’s (CDC) requirement that all air travelers to the United States be vaccinated against COVID-19 with a WHO emergency use listed vaccine.

Information about accepted COVID-19 vaccines and the CDC’s requirements, is available here.

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More immigration news is coming your way. This week important updates have been released for F-1 students seeking post-completion Optional Practical Training in certain STEM-related fields of study.

DHS Issues Advance Copy of STEM Designated Degree Program List for post-completion Optional Practical Training

If you are an international student studying in F-1 visa status in the United States, this update may be of interest to you. Today, January 20, 2022, the Department of Homeland Security released an advance copy of the Federal Notice, “Update to the Department of Homeland Security STEM Designated Degree Program List,” which is scheduled to be published in the Federal Register tomorrow, Friday, January 21, 2022.

With this notice, DHS has indicated that the agency will be adding 22 qualifying fields of study to the STEM Designated Degree Program List. This change is significant because DHS relies on the STEM Degree Program List to determine whether an F-1 international student has obtained a degree in a program of study that qualifies as a science, technology, engineering, or mathematics (STEM) degree, to seek employment in the United States following graduation.

What is post-completion OPT?

F-1 students that have earned a degree in a qualifying STEM field, are eligible to apply for a 24-month extension of their post-completion Optional Practical Training (OPT) after completing their studies. Those authorized for post-completion OPT can work part time (20 hours or less per week) or full time.

For those who participated in pre-completion OPT, USCIS reduces the amount of time that an individual is eligible to participate in post-completion OPT by deducting from the authorization period. For example, students you participated in 10 months of pre-completion OPT, would only be eligible for up to 2 months of post-completion OPT.

Who is impacted by this notice?

This notice impacts qualifying F-1 nonimmigrant students who seek a 24-month extension of post-completion OPT who have earned a degree in a STEM field of study as designated by the STEM list.

What are the 22 qualifying fields of study being added to the STEM list?

  • Bioenergy (03.0210). A program of study that focuses on the environmental and economic impact of using plants and microbes for the production of bio-based fuels such as ethanol and biodiesel. Includes instruction in biochemical engineering, bioprocessing, bioseparations, conversion, feedstock, economics, environmental sustainability, hydrology, and natural resource management.
  • Forestry, General (03.0501). A program that generally prepares individuals to manage and develop forest areas for economic, recreational, and ecological purposes. Includes instruction in forest related sciences, mapping, statistics, harvesting and production technology, natural resources management and economics, wildlife sciences, administration, and public relations
  • Forest Resources Production and Management (03.0510). A program that focuses on the application of forestry principles to the production, harvesting, and processing of forest resources and that prepares individuals to perform associated technical and managerial functions. Includes instruction in forest production and utilization, industrial forestry, agroforestry, transplantation, timber harvesting, selection and identification of trees, processing technologies and systems, equipment operations and maintenance, and related management skills.
  • Human-Centered Technology Design (11.0105). A program that focuses on incorporating a human perspective into designing, researching, and creating technological interfaces. Includes instruction in design, human-computer interaction, learning, neuroscience, perception, product design, user centered design, and usability.
  • Cloud Computing (11.0902). A program that prepares individuals to design and implement enterprise software systems that rely on distributed computing and service-oriented architecture, including databases, web services, cloud computing, and mobile apps. Includes instruction in data management, distributed and cloud computing, enterprise software architecture, enterprise and cloud security, mobile systems and applications, server administration, and web development.

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It’s the start of a brand-new year! On behalf of the Law Offices of Jacob J. Sapochnick we would like to wish you and your loved ones a very Happy New Year. It has been a challenging time in the world of immigration law but we at the Law Office are proud to help you navigate the new normal.

In this blog post we share with you a new proposed rule that has been published in the Federal Register. The new rule seeks to raise certain nonimmigrant visa application processing fees, fees for the Border Crossing Card for Mexican Citizens age 15 and over, and fees to waive the two-year residency requirement (J waiver).

What is this all about?

On December 29, 2021, the Department of State released a new rule proposing the adjustment of various fees for Consular Services.

Non-Petition Based NIVs to Increase to $245 USD for B1/B2, F, M, J, C, D, I, and BCC applicants

Among the proposed fee changes is an increase of “non-petition” based NIV fees from $160 USD to $245 USD per application.

This change would impact a variety of nonimmigrant visas, such as:

  • those for business and tourist travel (B1/B2);
  • students and exchange visitors (F, M, and J);
  • crew and transit visas (C and D);
  • representatives of foreign media (I), and
  • other country-specific visa classes, as well as BCCs for applicants age 15 or older who are citizens of and resident in Mexico.

According to the Department of State, “non-petition” means visas that do not require separate requests known as “petitions” to be adjudicated prior to the visa application to establish that the individual meets certain qualifying criteria for the relevant status ( e.g. , that the beneficiary of the petition has the relevant familial relationship to the petitioner). Non-petition based NIVs make up nearly 90 percent of all NIV workload.

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Welcome back to Visalawyerblog! In this post, we share with you an exciting new update from the United States Citizenship and Immigration Services (USCIS) that will provide relief to those who have received a Request for Evidence, Notice of Intent to Deny (NOID), or such similar request.

USCIS RFE/NOID Flexibility Continued for Responses to Agency Requests

USCIS has announced that it will continue its flexibility policy giving applicants and petitioners more time to respond to Requests for Evidence during the COVID-19 pandemic and such related requests.

Today, Thursday December 30, 2021, USCIS made the announcement stating it will continue to give applicants who have received a request for evidence, notice of intent to deny, or such a related document, an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through March 26, 2022. 

This is great news because it will allow applicants and petitioners more time to gather documents that are hard to obtain during the COVID-10 pandemic.

What documents qualify for this flexibility in responding?

Applicants who receive any of the below mentioned documents dated between March 1, 2020 and March 26, 2022 can take advantage of the additional 60 calendar days to respond to the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional investment centers; and
  • Motions to Reopen an N-400 pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if:

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We have very exciting news for nonimmigrant visa applicants. Today, December 23rd, the Department of State announced that the agency has granted Consular officers the discretionary power to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants, provided such applicants have a petition approved by USCIS.  This new discretionary power will apply to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who are applying for a visa in their country of nationality or residence.

Interview Waiver Policy for Certain Nonimmigrant Workers

Pursuant to this new policy, Consular officers now have the discretion to waive the visa interview requirement for:

  • individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, and that have not had any visa refusal or ineligibility issues in the past OR
  • first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided that they have no ineligibility issues and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA)

Interview Waiver Policy for Certain F, M, and academic J visa applicants

At the same time, the Secretary of State has extended a previously approved policy designed to waive the in-person interview requirement for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through the end of 2022.

To be eligible for the interview waiver as citizens or nationals of a country participating in the Visa Waiver Program, applicants must (1) have previously traveled to the United States using an authorization obtained via ESTA and (2) must apply for a visa in their country of nationality or residence.

Additionally, just like the policy applied to certain non-immigrant workers, Consular officers will also have the discretion to waive the visa interview requirement for:

  • F, M, and academic J visa applicants who were previously issued any type of visa, and that have not had any visa refusal or ineligibility issues in the past OR
  • first-time F, M, and academic J visa applicants that are (1) citizens or nationals of a country that participates in VWP and (2) that have previously traveled to the United States via an ESTA authorization, and that have not had any visa ineligibility issues in the past

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