Visa Lawyer Blog

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Administrative site visits of U.S. employers in connection with H-1B petitions are becoming increasingly common as USCIS is trying to preserve the integrity of H-1B program in response to the USCIS H-1B Benefit Fraud Analysis report of September 2008. This article is presented by Attorney Ekaterina Powell from our office.

Administrative site visits are conducted as part of USCIS anti-fraud initiative. The main goal of a site visit is to verify the beneficiary’s H-1B employment with the petitioning entity. Employers are not provided any notice in advance of the site visit, which may be a problem for unprepared employers who do not know what to expect and how to prepare for the site visit.

In the recently released California Service Center Stakeholder Engagement Meeting on November 8, 2011, CSC points out that, in connection with an administrative site visit, petitioners should be prepared to answer any questions related to the terms and conditions of H-1B employment.

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The Department of Labor has announced a New H-2A Ombudsman Program to help with several issues faced by employers looking to hire agricultural workers or agricultural workers facing issues with their respective employers. As part of the Department’s continuing commitment to strengthening the H-2A Temporary Agricultural Program, the Office of Foreign Labor Certification (OFLC) has established an Ombudsman Program whose primary purpose is to facilitate the fair and equitable resolution of concerns that arise within the H-2A Program community, by conducting independent and impartial inquiries into issues related to the administration of the program. The H-2A Ombudsman Program will also identify areas where agricultural employers and worker advocate organizations have concerns in dealing with the OFLC and propose internal recommendations designed to continuously improve the quality of services provided by the OFLC. There is no fee for using the H-2A Ombudsman Program.

By establishing the H-2A Ombudsman Program, OFLC is addressing several issues. Some of these issues include the following:

– You are facing an emergency or hardship caused by a mistake, error, or delay by the Chicago National Processing Center in processing your H-2A application.

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We have received so many emails of support since the ESPN story about Ayded Reyes came out last week. Obtaining a fast and timely termination of her deportation was our main goal here at the office, and we did it.

We need the Dream Act, and cases like Ayded’s should bring us closer to that goal. By not approving the DREAM Act, politicians are turning their backs on the future of the nation and denying the opportunity of thousands of talented young people to transform their communities.

The bi-partisan bill was originally introduced in Congress in 2001. A subsequent version was passed by the House of Representatives in December 2010, but in the Senate the legislation failed passage short of five votes.

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Two months before the Supreme Court hears arguments over Arizona’s controversial new immigration law, another courtroom battle will take center stage, this time over Alabama’s immigration crackdown.

On Thursday, the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, will hear arguments over whether a state can pass tough new measures to crack down on illegal immigrants, a power typically reserved for the federal government.

The Alabama law, which took effect in September, requires police to check the immigration status of anyone they detain and suspect of being in the country illegally. Other parts of the law make it a felony for illegal immigrants to apply for or renew drivers’ licenses, identification cards or license plates.

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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:

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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.

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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.

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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.

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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

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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

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