Tuesday, May 20, 2014

DHS streamlines access to travel records for international students, visitors

From ice.gov, 05/20/2014

WASHINGTON — When international students and visitors travel to the United States, they receive a Form I-94, "Arrival/Departure Record," at their port of entry. The Form I-94 serves as evidence that they have been lawfully admitted to the United States. International students and visitors need this record to verify alien registration and immigration status and obtain employment authorization. New this month, these individuals can access their five year travel history on the Form I-94 website.
Previously, international students and visitors could only access their most recent I-94 arrival/departure record number online, and they had to file a Freedom of Information Act (FOIA) request for previous years' information.
International students and visitors can obtain their Form I-94 record by visiting U.S. Custom and Border Protection's (CBP) Form I-94 Web page. They must agree to the terms listed on the page. From there, they will be directed to the Form I-94 information page. They must enter their name, date of birth and passport information to retrieve their Form I-94 information. The Web page gives you the option to "Get Most Recent I-94" or "Get Travel History."
If you select "Get Most Recent I-94," the Web page will display your I-94 number, most recent date of entry, class of admission and admit until date. If you select "Get Travel History," you can access your last five years of travel history on the Form I-94. Both pages are printer-friendly.
"International students and visitors have been able to access their most recent I-94 arrival/departure record number on the Form I-94 Web page since April 2013," said Lou Farrell, director of the Student and Exchange Visitor Program (SEVP). "This new option streamlines the process for obtaining previous years' travel records and eliminates the need for these individuals to file a FOIA request."
"CBP has seen a steady growth in trade and travel in recent years – including a nearly nine percent increase in non-immigrant arrivals since 2011," said CBP Commissioner R. Gil Kerlikowske. "We continue to work to manage these growing volumes by automating processes, going paperless, and employing mobile technology to maximize our resources and ease processing times for the traveling public."
SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.
Both agencies use SEVIS to protect national security by ensuring that students, visitors and schools comply with U.S. laws. SEVP also collects and shares SEVIS information with government partners, including CBP and U.S. Citizenship and Immigration Services, so only legitimate international students and exchange visitors gain entry into the United States.
HSI reviews potential SEVIS records for potential violations and refers cases with potential national security or public safety concerns to its field offices for further investigation. Additionally, SEVP's Analysis and Operations Center reviews student and school records for administrative compliance with federal regulations related to studying in the United States.
Learn more about SEVP at www.ICE.gov/SEVP.

Thursday, May 8, 2014

June 2014 Visa Bulletin


Significant and Unexpected Retrogression for EB-3 China

According to the State Department’s June Visa Bulletin, the EB-3 category will retrogress significantly for China next month. The cut-off date for China EB-3 professionals and skilled workers will retrogress by six years, to October 1, 2006, while the EB-3 other worker category will retrogress nine years, to January 1, 2003. 

For most other countries, EB-3 will retrogress by 18 months, to April 1, 2011, but will advance by two weeks for India, to October 15, 2003, and by two months for the Philippines, to January 1, 2008. 

The EB-2 category will advance by five weeks for China, to May 22, 2009, but will remain unchanged for India, at November 15, 2004. 

What the China EB-3 Retrogression Means for Employers and Foreign Nationals 

For the last several months, the State Department has advanced the EB-3 China priority date cut-off so that it has been far ahead of the cut-off date for EB-2 China. Many foreign nationals in the China EB-2 subcategory have sought new I-140 immigrant worker petitions in order to be reclassified to EB-3 and benefit from greater immigrant visa availability. The result has been a significant surge in demand for EB-3 China immigrant visa numbers, bringing the category close to exhausting its annual quota. Agency officials do not expect EB-3 China to move forward again until the next fiscal year, which begins on October 1. 

The severity of next month’s retrogression is unexpected. Though the State Department suggested that retrogression was possible, agency officials had until now indicated that the China EB-3 cut-off date was likely to remain ahead of EB-2 for the foreseeable future. That prediction has not been borne out. 


June 2014 Priority Date Cut-Offs 

In June 2014, EB immigrant visa priority date cut-offs will be: 

EB-1 
Current for all countries. 

EB-2 
China: May 22, 2009 
India: November 15, 2004 
All other countries: Current 

EB-3 Professionals and Skilled Workers 
China: October 1, 2006 
India: October 15, 2003 
Philippines: January 1, 2008 
All other countries: April 1, 2011 

EB-3 Other Workers 
China: January 1, 2003 
India: October 15, 2003 
Philippines: January 1, 2008 
All other countries: April 1, 2011 

EB-5 
Current for all countries and subcategories. 

DHS Announces Proposals to Attract and Retain Highly Skilled Immigrants

From the Department of Homeland Security, 05/06/2014

WASHINGTON — As part of the Administration’s continuing commitment to attract and retain highly skilled immigrants, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. 
Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.
“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”
“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”
Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.
Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers
This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.
Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.
Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:
  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.
Proposal to Enhance Opportunities for Highly-Skilled Workers 
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would:
  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.
It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).
Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.
Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 
For more information, please visit www.dhs.gov.

Thursday, May 1, 2014

Reminder: Travel Tips for Foreign Students Awaiting a Change of Status to H-1B

From Fragomen.com, 05/01/2014

Please note Fragomen's intended audience is future H-1B employees that will be employed by a cap-subject employer. As an institution of higher education Georgia Tech is cap exempt, therefrom the references to October 1, 2014 may not be applicable.

Are you an F-1 student who is the beneficiary of an H-1B petition and a request to change status to H-1B for employment starting on October 1, 2014? If you are planning to travel abroad between now and October 1, you should carefully consider whether your travel is necessary. 
Traveling internationally during this time can pose significant risks and result in delays, depending on whether you are in an ongoing course of study or period of optional practical training (OPT) or whether you are in the “cap gap” – the period between the end of your course of study or OPT and October 1, the date that a timely-filed H-1B petition and change of status will take effect. 
If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the months before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and be prepared for possible delays at U.S. consulates and ports of entry.
The following are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1. 
1. My H-1B petition and application to change status to H-1B have been filed and are pending with USCIS. May I travel internationally while they are pending? 
If you leave the United States before your change of status is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1.
According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See below for more information about the visa application process. 
2. I am an F-1 student who is still in school and I am not applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1? 
After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. (If you will be finished with school by the time you travel, see Question 3.) 
When you travel, make sure you are carrying a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 6 for more information about these issues. 
3. I am finished with my F-1 course of study and I am not applying for optional practical training. After my H-1B petition and change of status are approved, will I be able to travel abroad? 
You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 
4. I am a J-1 exchange visitor who is the beneficiary of an approved H-1B petition for employment starting October 1, 2014. May I remain in the United States until then? 
It depends. As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2014, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits. 
However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status to H-1B, you may remain in the United States in J-1 status before your change of status takes effect. 
5. I am an F-1 student awaiting a change of status to H-1B and my OPT has expired. If I travel before October 1, what are the risks? 
If you travel abroad after your OPT has expired, you cannot return to the United States in F-1 status. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the cap gap period between the end of OPT and October 1. But if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status. 
If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 
6. I am currently in a valid period of OPT and I have a valid employment authorization document. Is international travel possible if my change of status petition has been approved? 
Yes, if you are in valid OPT, have a valid EAD and your change of status to H-1B has been approved before you leave, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and are able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. If your H-1B change of status is approved before you depart the United States, the change of status will take effect on October 1 as long as you have returned to the United States before that day. 
You will need the following documents to reenter in F-1 status:
§  A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 7 for more details);
§  A Form I-20 that is endorsed for travel by a designated school official;
§  A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated science, technology, engineering or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period; and
§  A letter from your OPT employer that verifies your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.
If you travel abroad while on OPT, caution is advised. In particular, pay attention to the number of days you spend outside the United States, because that time could be counted against the regulatory limit on unemployment during the OPT period. USCIS rules require an F-1 student to have no more than 90 days of unemployment during OPT (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of your OPT employment. 
7. Before October 1, I plan to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry? 
You should be prepared for possible delays and difficulties when you apply for a new F-1 visa and when you are inspected at the border. 
First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match or are similar to information in government security databases or travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed. 
Second, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Having a foreign residence is not a requirement for an H-1B visa. 
8. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status? 
You can generally apply for your visa up to 90 days before your H-1B petition start date, according to State Department rules. If your start date is October 1, 2014, you would be able to apply for your H-1B visa no earlier than July 3, 2014. But procedures differ among U.S. consulates, so you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/.  
Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 7, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will work in high technology, engineering or the sciences, or with products or services that have both commercial and military applications (known as "dual use" technologies). Security clearances typically get resolved in a matter of weeks, but can take several months or longer depending on the circumstances. 

Once you have received your H-1B visa, you may enter the United States up to ten days before your H-1B petition start date. If your start date is October 1, 2014, you can enter as early as September 21, 2014. The extra ten days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your actual petition start date.