Visa Lawyer Blog

Articles Posted in Temporary Visas

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In this post, we discuss the latest developments in U.S. immigration news.

As you may recall, back in September USCIS issued a proposed rule requiring petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition submitted to USCIS for the H-1B cap selection process, beginning with the H-1B fiscal year 2021 cap season.

Today, November 7, 2019 the United States Citizenship and Immigration Services (USCIS) published the final version of this rule which will become effective beginning December 9, 2019, although the $10 fee will not be required until registrations are submitted beginning with the fiscal year 2021 H-1B cap selection process.

The final rule is scheduled to be published in the Federal Register tomorrow November 8th. An unpublished version of the rule is available here.

Extension of Temporary Protected Status

On November 4, 2019, USCIS published a notice in the federal register announcing the automatic extension of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

TPS-related documentation for individuals from these countries will remain valid through January 4, 2021.

This automatic extension will apply to all TPS-related documentation (including Employment Authorization Cards) set to expire on the following dates:

  • Beneficiaries under TPS designations for El Salvador, Haiti, and Sudan—January 2, 2020
  • Beneficiaries under TPS designations for Honduras—January 5, 2020
  • Beneficiaries under TPS designation for Nepal—March 20, 2020

A beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received his or her new EAD is covered by this automatic extension, provided that the EAD he or she possesses contains one of the expiration dates indicated above.

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Are you at the top of your field in the arts, sciences, education, business, or sports? Do you need to travel to the United States for your work?

The O-1 visa allows people with extraordinary abilities to work in the U.S. for a temporary time. But to get the O-1 visa, you must prove your extraordinary ability in some way.

So what do you do when you don’t have an award like an Oscar or Grammy?

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Now is the time to begin preparing for the upcoming H-1B visa lottery. USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2020 beginning Monday, April 1, 2019. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

By law, a congressionally mandated cap exists which limits the issuance of H-1B visas to 65,000 per year. That is why the H-1B visa is commonly referred to as a ‘lottery’ visa.

Individuals (such as F-1 students) who hold advanced degrees (U.S. master’s or higher) are exempted from the 65,000 visa cap. Such applicant’s must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from this cap exemption.

In order to qualify for an H-1B visa:

  • a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
  • an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
  • the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa;
  • the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
  • the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;

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If you are a citizen of Canada or Mexico and you are interested in working in the United States temporarily, the TN visa may be right for you.

Under 8 CFR 214.16, Citizens of Canada or Mexico may seek temporary entry under the North American Free Trade Agreement (NAFTA) to engage in business activities at a professional level.

This section of the law defines business activities at a professional level as “undertakings which require….at least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of NAFTA.”

What are business activities at a professional level?

A citizen of Canada or Mexico may perform prearranged business activities for a United States entity, meaning that the Canadian or Mexican citizen must have a pre-arranged employment agreement to perform professional services in the United States. TN applicants may not enter with the intent to establish permanent residence in the United States. TN visa applicants may only remain in the United States to fulfill their pre-arranged employment agreement and depart after that period has ended. The TN visa is issued for an initial period of 3 years, with one-year extensions granted thereafter if necessary.

The following table outlines professions authorized for TN Visa purposes:

Appendix 1603.D.1 (Annotated)

– Accountant – Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A.

– Architect – Baccalaureate or Licenciatura Degree; or state/provincial license. 2

2 The terms “state/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.

– Computer Systems Analyst – Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma 3 or Post Secondary Certificate 4 and three years’ experience.

3 “Post Secondary Diploma” means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States.

4 “Post Secondary Certificate” means a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.

– Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) – Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that may soon change the way the accrual of unlawful presence is calculated for individuals currently in the United States on an F, J, or M non-immigrant visa type, as well as their dependents accompanying them in the United States.

The new policy proposes that F, J, and M nonimmigrants who fail to maintain their nonimmigrant status before August 9, 2018, will begin accruing unlawful presence on that day.

Generally, F, J, and M nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, will begin to accrue unlawful presence the day after they abandon their course of study or authorized activity, or engage in an unauthorized activity.

Current Policy

Since 1997, it has been USCIS policy to begin calculating the accrual of unlawful presence, for a F or J nonimmigrant admitted to the United States in duration of status (D/S), one day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

F, J, and M nonimmigrants admitted for a specified date (not D/S) began to accrue unlawful presence on the day their Form I-94 expired, on the day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

DHS recently conducted a study to determine the number of nonimmigrants in F, J, or M status who have overstayed. For FY 2016, DHS calculated that out of a total of 1,456,556 aliens in F, J, and M nonimmigrant status expected to change status or depart the United States, 6.19% of F nonimmigrants, 3.80% of J nonimmigrants, and 11.60% of M nonimmigrants actually overstayed their status.

This minuscule percentage has caused USCIS to revise its policy and change how the accrual of unlawful presence is calculated for this demographic.

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It is with great sadness that we report that today, Monday January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, has formally decided to terminate the Temporary Protected Status (TPS) designation for the country of El Salvador. This decision is extremely upsetting given that Salvadorans were among the largest group of foreign nationals receiving temporary provisional residency permits under the TPS program in the United States. The consequences of this decision are even more troubling considering the plight that Salvadorans face in their home country. For more than a decade, the country of El Salvador has been plagued by soaring gang violence, drug trafficking, human smuggling, and an endemic rate of violence against women.

Per today’s statement issued by the Department of Homeland Security, the TPS designation for El Salvador will officially terminate on September 9, 2019. This means that the Department of Homeland Security will give Salvadorans a period of 18 months, before terminating their provisional residency permits on September 9th, to allow Salvadorans to make an orderly departure from the United States or to seek alternative legal means to remain in the United States.

According to the Washington Post, the United States has issued approximately 200,000 provisional residency permits to Salvadorans, many of whom have been living in the country since 2001. Salvadorans were first given Temporary Protected Status in 2001 when a series of large earthquakes devastated the impoverished country. Since 2001, the United States government has renewed their temporary permits on an 18-month basis.

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On September 24, 2017, the President issued a Presidential Proclamation expanding the list of countries subject to the travel ban outlined in Executive Order 13780 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” As you may recall, as part of that executive order, in March 2017, the President had asked the Secretary of Homeland Security and Attorney General to conduct a worldwide review to assess the dangers that foreign nationals from designated countries of concern pose to the national security of the United States. Under Executive Order 13780, DHS was directed to implement additional security mechanisms and vetting procedures for countries identified as potential threats to national security.

The Secretary of Homeland Security, Secretary of State, and Attorney General identified 16 additional countries which “remain deficient . . . with respect to their identity-management and information-sharing capabilities, protocols, and practices,” and as a result pose a potential threat to our country’s national security.  By proclamation, the entry of foreign nationals from eight of these countries will remain suspended and limited for the time being.

The President has determined that the immigrant and non-immigrant entry of foreign nationals from the following countries would be detrimental to the national interests of the United States, at least until increased security mechanisms can be implemented, and identity and information-sharing capabilities can be improved.

Per Section 2 of the Proclamation

Suspension of Entry for Nationals of Countries of Identified Concern

“The following countries continue to have “inadequate” identity-management protocols, information-sharing practices, and risk factors . . . such that entry restrictions and limitations are recommended:”

The entry of foreign nationals from the designated countries listed below will be suspended and limited to a few exceptions and case-by-case waivers beginning October 18, 2017.

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In this post, we bring you the top three mistakes to avoid when applying for a B-1/B-2 non-immigrant visa at a United States consulate or embassy abroad. All too often clients contact our office feeling distraught after receiving a B-1/B-2 visa denial from a consular official. The good news is that a B visa denial can be easily avoided by understanding the common mistakes that people make when pursuing the B nonimmigrant visa.

First, it is important to understand who is eligible to apply for a B non-immigrant visa.

B-1 versus B-2

The B-1 temporary business visitor visa is reserved for individuals who seek to travel to the United States for a temporary period to participate in a business activity of a commercial or professional nature. Examples of individuals who qualify for this type of visa include: individuals consulting with business associates, individuals negotiating contracts, settling an estate, participating in short term training, entrepreneurs who wish to travel to the United States to research the market for a potential business venture, individuals traveling for a scientific, educational, professional, or business convention, or conference, etc.

Individuals who typically apply for this type of visa are entrepreneurs and investors who wish to apply for an E-2 visa in the future and who need to visit the United States to research the market or other business activities relating to researching the viability of the business venture.

B-1 temporary business visitors may be eligible to remain in the United States anywhere from 1-6 months—with 6 months being the maximum. Ultimately, it will be up to the consular/embassy official to determine the length of your period of stay. Typically, applicants are granted an initial period of stay of 6 months. B-1 visa holders may extend their stay for an additional 6 months if it is necessary for them to remain in the United States for an extended period to complete their temporary business activity.

Similarly, the B-2 temporary visitor visa is reserved for individuals who wish to enter the United States temporarily for tourism, pleasure, or visitation. Examples of individuals who qualify for this type of visa include tourists, individuals who wish to visit friends, or relatives, individuals seeking medical treatment, amateur artists, musicians, or athletes who wish to participate in events or contests that do not provide compensation, and individuals who wish to enroll in a short recreational course of study that does not count for credit toward a degree. The length of stay granted to a B-2 temporary visitor is the same as that of a B-1 temporary business visitor.

Who may not apply for a B visa?

Individuals who wish to immigrate to the United States and remain in the United States permanently, or individuals who wish to study, seek employment, etc. may not apply for a B non-immigrant visa.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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The newly appointed U.S. Secretary of State Rex Tillerson is quickly mobilizing government resources to increase scrutiny and implement tougher screening procedures for applicants who are applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad. Reuters has reported that Secretary Tillerson has sent a series of internal cables (four in total) to consulates and embassies abroad instructing them of new measures to increase vetting of visa applicants (both immigrant and non-immigrant). These cables are as follows: (1) Cable 23338 entitled “Guidance to Visa-Issuing Posts” issued on March 10, 2017; (2) Cable 24324 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 15, 2017; (3) Cable 24800 entitled “Halt Implementation” of President Trump’s new travel ban due to a temporary restraining order by a federal court, issued on March 16, 2017; and finally (4) Cable 25814 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 17, 2017.

In these cables, Tillerson has directed U.S. consulates and embassies to specifically identify population risks that warrant “increased scrutiny” and to implement tougher screening procedures for this particular group of people. Applicants who fall into one of the identifiable population groups will be subjected to a higher-level security screening. The cable does not identify whether embassies will be coordinating to provide a uniform standard for identifying populations who pose a security risk. This is a serious cause for concern, since U.S. embassies will likely vary in how they assess which groups pose a security risk. In addition, as part of these measures, the Secretary has ordered a mandatory social media check for all applicants who have ever visited or been present in any territory that is controlled by the Islamic State. Previously, social media screening was not a part of the regular screening process for U.S. visa applicants, however this screening process has always been a discretionary measure.

In addition, the cables provided instructions for the implementation of President Trump’s newly revised executive order on immigration which sought to temporarily bar the admission of foreign nationals from Syria, Libya, Sudan, Somalia, Iran, and Yemen, as well as Syrian refugees, including mandatory enhanced visa screening procedures. Several of these cables were quickly retracted by the Secretary of State after a federal judge from the state of Hawaii issued a Temporary Restraining Order blocking Trump’s embattled executive order from proceeding as planned. The Trump administration had envisioned strict new guidelines for vetting U.S. visa applicants, and this vision was reflected in Tillerson’s cables.

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