Winter Break 2013

Georgia Tech will be closed from December 23-27, 2013 for Winter Break and on January 1, 2014.

Monday, December 23, 2013 (All day)Tuesday, December 24, 2013 (All day)Wednesday, December 25, 2013 (All day)Thursday, December 26, 2013 (All day)Friday, December 27, 2013 (All day)Wednesday, January 1, 2014 (All day)

Happy Holidays from Global Human Resources!

January 2014 Visa Bulletin

From Fragomen.com, 12/12/2013

EB-3 Cut-Off Dates Advance Significantly for Most Countries; No Forward Movement for EB-2 and EB-3 India

According to the State Department’s January Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by six months, to April 1, 2012, for China and most countries. EB-3 India will remain at September 1, 2003. 

The EB-3 other worker subcategory will also advance by six months, to April 1, 2012, for most countries, with the exception of a one-month advance for the Philippines to February 15, 2007, but EB-3 India will remain at September 1, 2003. 

As previously reported, EB-2 India will remain at November 15, 2004, due to available numbers being exhausted. EB-2 China will advance by one month, to December 8, 2008. 

In the family-based F-2A category for the spouses and minor children of lawful permanent residents, the cutoff date will remain at September 8, 2013 for all countries except for Mexico, which will remain at September 1, 2013. The category was current for two months earlier this year but had a cut-off date imposed as of October 1. 

January 2014 Priority Date Cut-Offs 

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

EB-1 
Current for all countries. 

EB-2 
China: December 8, 2008 
India: November 15, 2004 
All other countries: Current 

EB-3 Professionals and Skilled Workers 
China: April 1, 2012 
India: September 1, 2003 
Philippines: February 15, 2007 
All other countries: April 1, 2012 

EB-3 Other Workers 
China: April 1, 2012 
India: September 1, 2003 
Philippines: February 15, 2007 
All other countries: April 1, 2012 

EB-5 
Current for all countries and subcategories. 

November EB-2 India Numbers Exhausted Faster Than Anticipated

From Fragomen.com, 12/03/2013

Due to the unprecedented demand for EB-2 India immigrant visa (IV) numbers, foreign nationals with priority dates between November 2004 and June 2008 may not have had their cases processed to completion last month. November's available numbers were exhausted earlier than expected, according to the State Department official responsible for visa control. 

On November 20, 2013, DOS ceased allocating visa numbers to EB-2 India adjustment of status applications with priority dates after November 2004, the cut-off date in the December Visa Bulletin. November’s cut-off date was June 2008, but those IVs were exhausted quickly, with the State Department receiving up to 150 visa number requests per day. The majority of the available numbers were allocated to cases in which the beneficiary had established a priority date in the EB-3 category and now qualified for an upgrade to EB-2. 

Future Movement in EB-2 India 

As we reported previously, the cut-off date for EB-2 India is expected to remain at November 2004 for the next several months. It is possible that in August or September 2014, the cut-off date for EB-2 India will advance again to around December 2008. 

However, these are only projections, highly subject to change based on usage or new developments. The following factors may affect forward movement for EB-2 India:

§  Volume of allocated EB-2 India IVs for those with priority dates before November 2004;

§  Volume of worldwide upgrades from EB-3 to EB-2;

§  Available of unused IVs from other employment-based categories; and

§  The decreased worldwide quota, which is approximately 8,000 less than last year.

Employers and beneficiaries are reminded that predictions from DOS are based on current information but are subject to change according to fluctuations in demand. 

What the November Exhaustion Means for Foreign Nationals 

If you are a foreign national with an EB-2 India priority date between November 2004 and June 2008, your adjustment application may not have been approved in November, even though your priority date appeared to be current. Your application should remain pending until the priority cut-off date advances. The State Department projects that this could occur in August or September 2014, although forward movement is not guaranteed and depends on visa number usage. Until the EB-2 India cut-off date advances, you and your family members should continue to be eligible for employment authorization and advance permission to travel as adjustment applicants. 

The number of adjustment applications affected by the early exhaustion in November is unknown. EB-2 immigrant visa numbers remain available for cases with priority dates of November 2004 and earlier. 

Holiday Travel Planning for Foreign Nationals

As the holidays approach, many foreign nationals are planning international travel. Now is the right time to make sure you are prepared, from an immigration perspective, to depart and reenter the United States. Understanding your immigration obligations can help minimize the possibility of delays. 


WHAT INTERNATIONAL TRAVELERS SHOULD DO NOW 

If you are planning international travel this holiday season, make sure to do the following: 

Check your passport to make sure it is valid. In general, your passport must be valid for at least six months beyond the expiration of your period of admission to the United States, to ensure that you will be able to leave the United States at the end of your stay and proceed to your home country or another country. There are some exceptions to this rule. Under international treaties, many countries have an agreement with the United States under which a passport is deemed valid for an additional six months past its expiration date so that the passport holder can return to his or her country of citizenship. If you have questions about whether your passport is valid for reentry, contact your designated Faculty & Researcher Immigration Specialist.  

Check your visa to make sure it is valid for reentry to the United States. When you come back to the United States after international travel, the visa stamp in your passport must reflect your current nonimmigrant visa status, it must be unexpired, and, if the visa has a limited number of entries, it must have a remaining valid entry available on the intended date of reentry to the United States. 

Under certain circumstances, if you are making a short trip of 30 days or less to Canada or Mexico and have a valid I-94, you can reenter on a previously issued visa, even if it has expired. The visa is deemed automatically revalidated upon reentry. However, if you have applied for a new visa while in Canada or Mexico or if you are a citizen or national of Cuba, Iran, Sudan or Syria, you must wait to obtain the new visa in order to reenter the United States. Canadian citizens are not generally required to have a valid visa to enter the United States. ,

If you are an adjustment applicant, find out whether you need advance permission to travel before you leave the United States. If you are an applicant for adjustment of status to permanent residence, you must, in some cases, obtain advance permission to travel – known as advance parole – in order to leave the United States while your adjustment application is pending. 

If you already have a valid H-1B, H-4, L-1A, L-1B or L-2 visa, you may reenter the United States on that visa, without the need for advance parole. Note, however, that U.S. Citizenship and Immigration Services (USCIS) policies are unresolved when it comes to H and L nonimmigrant family members who have been granted employment authorization as adjustment applicants and have used the authorization to work. H and L family members who have worked in the United States should be cautious when traveling, and obtain and use an advance parole for reentry to the United States. 

Is a change or extension of your status pending with U.S. Citizenship and Immigration Services? Traveling abroad while your extension application is pending should not jeopardize your application. But if you have a change of status application pending, you should avoid international travel until it is adjudicated. USCIS will consider the change of status request to be abandoned if you depart the United States while it is pending. Though the underlying nonimmigrant petition could still be approved, you would need to depart the United States, apply for and obtain a new visa, and reenter to take up the new status. Find out additional information here. 

If you’re planning business or tourist travel to the United States under the Visa Waiver Program, make sure you comply with program requirements. The Visa Waiver Program (VWP) allows citizens and nationals of designated countries to enter the United States for up to 90 days of business or tourist travel without a visa, provided that they meet specific registration and passport requirements. If you’re planning to travel under the VWP, you will need to have a valid registration in the Electronic System for Travel Authorization (ESTA) at least 72 hours before your departure for the United States. Find out more about VWP passport and ESTA requirements here. 


WHAT TO EXPECT AT U.S. CONSULATES AND U.S. PORTS OF ENTRY 

Plan for the possibility of visa delays at U.S. consulates. During the holiday travel season, U.S. consulates overseas are busier than ever processing visa applications and may have reduced hours around the holidays. If you will be applying for a new visa while abroad, check the relevant consulate or embassy for specific information about application procedures and processing times. Detailed information about visa application procedures is available here. 

Plan for possible security clearance delays during the visa application process. The U.S. consulate may require your visa application to undergo additional security checks based on your country of nationality, whether your name is similar to an individual listed in a U.S. government security database, if your job or degree is in a high-technology field, or for other reasons. If a security clearance is required, your visa cannot be issued until the clearance has been completed. Because this process is confidential, the consulate will not confirm that a security clearance is underway but may indicate that “administrative processing” is required. Security clearances can take anywhere from a few days to several weeks or more. In general, the government will not expedite a security clearance. 

At the U.S. port of entry, be prepared for security screening procedures. When you return to the United States, you will need to go through the Biometric Data Collection System (formerly known as US-VISIT), a check-in process where your fingerprints, photograph and travel documents are scanned against U.S. national security and police databases. You may also be subject to intensive questioning about your immigration status, travel history, the purpose of your visit, background, employment and other issues. 

It is important to remain patient during these procedures and answer all questions clearly. If you don’t understand a question, ask for clarification.

Arrival-departure record. Once you have been cleared by U.S. Customs and Border Protection (CBP) at an air or sea port of entry, you will be issued an electronic I-94 (arrival record) and a passport admission stamp that shows the date and class of admission, and an admitted-until date. The expiration date on the I-94 marks the expiration of your eligibility to remain in valid legal status in the U.S. 

It is important that you obtain a printout of your electronic I-94 here; you should send a copy to your immigration@ohr.gatech.edu and retain one for your records. Notify your Global Human Resources if you note any errors on your I-94 record. 

Source Fragomen.com, 11/18/2013

December 2013 Visa Bulletin

From Fragomen.com, 11/11/2013

December 2013 Visa Bulletin: EB-3 Cut-Off Dates Advance Significantly for Most Countries; Significant Retrogression for EB-2 India

December 2013 Visa Bulletin, Employment Based Categories

According to the State Department’s December Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by one year, to October 1, 2011, for China and most countries, though EB-3 India will retrogress by three weeks, to September 1, 2003. 

The EB-3 other worker subcategory will also advance by twelve months, to October 1, 2011, for most countries, with the exception of the Philippines to January 8, 2007, but EB-3 India will retrogress to September 1, 2003. 

As expected, EB-2 India will retrogress by more than three and a half years, to November 15, 2004, due to greater demand prompted by priority date advancements since August. EB-2 China will advance by one month, to November 8, 2008. 

In the family-based F-2A category for the spouses and minor children of lawful permanent residents, the cutoff date will remain at September 8, 2013 for all countries except for Mexico, which will remain at September 1, 2013. The category was current for two months earlier this year but had a cut-off date imposed as of October 1. 

December 2013 Priority Date Cut-Offs 

In December 2013, EB immigrant visa priority date cut-offs will be: 

EB-1 

Current for all countries. 

EB-2 

China: November 8, 2008 

India: November 15, 2004 

All other countries: Current 

EB-3 Professionals and Skilled Workers 

China: October 1, 2011 

India: September 1, 2003 

Philippines: January 8, 2007 

All other countries: October 1, 2011 

EB-3 Other Workers 

China: October 1, 2011 

India: September 1, 2003 

Philippines: January 8, 2007 

All other countries: October 1, 2011 

EB-5 

Current for all countries and subcategories. 

Employment-Based Immigrant Visa Availability in the Coming Months 

The State Department projects that the priority date cut-off for EB-2 China will advance by three to five weeks per month over the next several months, but EB-2 India is not expected to advance in the near term. 

For EB-3, the State Department suggests that priority dates for China and most other countries could continue to advance for the next few months, through February 2014. However, retrogression could occur if demand increases significantly. No advancement in cut-off dates is expected for EB-3 India. 

The family-based F2A category is likely to remain at September 8, 2013 for most countries in the near future, though there could be some retrogression for Mexico.

Visa Bulletin Preview for December and Beyond

From Council for Global Immigration, 10/24/2013

The Council for Global Immigration has learned details regarding what to expect in the coming months in the visa bulletin, including probable retrogression of numbers from India EB-2, modest advancement for China EB-2s and more significant advancement for China and “Rest of World” EB-3s.

India EB-2 numbers are expected to retrogress over three years to late 2004 or early 2005.   We have also been told not to expect any forward movement for India EB-3 priority dates and, while retrogression is not as likely for EB-3, it is not out of the realm of possibility.

China EB-2 numbers are expected to continue to move forward approximately 5 weeks per month.  EB-2 is expected to remain current for the rest of the world.

China and Mexico EB-3 numbers are expected to follow worldwide numbers, advancing about a year in the December Visa Bulletin and continuing to advance in January and February.  Philippines EB-3s are expected to advance about 2 weeks per month.

In addition, China EB-5s might have a cut-off date for the first time sometime in 2014.  Currently, there is an excess of approximately 3,000 EB-5 numbers which are used in the EB-1, EB-2 and EB-3 categories.  Thus, a cut-off date for China EB-5s could affect other EB categories for China.

USCIS Clarifies Rules for 17 Month STEM OPT Extension

From Council for Global Immigration, 10/22/2013

USCIS has issued a memo clarifying the rules regarding 17 month OPT extensions for F-1 students with STEM degrees. The memo states that F-1 students may apply for the 17 month extension even if they are yet to complete their thesis or equivalent requirement for the relevant STEM degree.

To read the USCIS memo, click here.

Government Shutdown Ends

Federal agencies shutdown for the last 16 days will re-open today. The Department of Labor closure has had the most significant impact on foreign national employees in the process of obtaining or extending H-1B status and those with pending ETA9089 applications for immigrant petitions. 

Although open, it is expected that we will continue to experience delays as the workers return to work and face a presumably large backlog of pending requests. 

Updates will be posted here as they become available.

Update

From Fragomen.com, 10/17/2013

Immigration Operations After the Federal Shutdown

The Department of Labor’s Office of Foreign Labor Certification (OFLC) is expected to reopen soon, as government agencies return to work in the wake of last night’s passage of a federal budget and debt ceiling bill. It may be several days, however, before OFLC’s PERM, labor condition application (LCA) and prevailing wage functions are operating fully. 

As of this morning, the PERM and iCERT online application systems remain offline. When they resume operation, employers and foreign nationals should expect processing delays and other slowdowns for several weeks at least, as DOL works through a large backlog of filings and deals with an expected surge of new cases. The slowdown may affect employers' ability to file H-1B petitions with USCIS, which require a DOL-certified LCA. 

USCIS’s E-Verify system, which was offline during the shutdown, is now operating.

Update
From the Council for Global Immigration, 10/18/2013

Social Security Administration and CIS Ombudsman’s Office Resume Normal Operations 
We have received reports that the Social Security Administration and the CIS Ombudsman’s Office have resumed all normal operations. This means that employees can once again file for Social Security numbers and that the CIS Ombudsman’s office has resumed case assistance. 

November 2013 Visa Bulletin

From Fragomen.com, 10/10/2013

Modest Advancement for EB-2 China

November 2013 Visa Bulletin, Employment Based Categories

According to the State Department’s November Visa Bulletin, the EB-3 subcategory for professionals and skilled workers will advance by three months for most countries, to October 1, 2010, but EB-3 India will remain at September 22, 2003. 

The EB-3 other worker subcategory for China will advance by six years, to October 1, 2010. This sudden advancement is due to the application of unused visa numbers to the subcategory. If there is an increase in EB-3 demand, the cut-off date for the China other worker subcategory could retrogress. 

The priority date cut-off for EB-2 China will advance by three weeks to October 8, 2008 next month, but EB-2 India will remain unchanged at June 15, 2008. 



November 2013 Priority Date Cut-Offs 
In November 2013, EB immigrant visa priority date cut-offs will be: 

EB-1 Current for all countries. 

EB-2 China: October 8, 2008 
India: June 15, 2008 
All other countries: Current 

EB-3 Professionals and Skilled Workers China: October 1, 2010 
India: September 22, 2003 
Philippines: December 15, 2006 
All other countries: October 1, 2010 

EB-3 Other Workers 
China: October 1, 2010 
India: September 22, 2003 
Philippines: December 15, 2006 
All other countries: October 1, 2010 

EB-5 
Current for all countries and subcategories.

What to Expect During the Federal Shutdown: Information for Foreign Nationals

The U.S. Congress was not able to come to consensus on the federal budget by the October 1 deadline. As a result, many U.S. government operations – including some key immigration functions – will be suspended until an agreement is reached.

The duration of the shutdown cannot be predicted. It could last for several days or weeks, though Congress could pass a temporary measure to fund the government while debate over the budget continues.

The following are some frequently asked questions about the impact of the shutdown on foreign nationals. If your immigration case is delayed by the shutdown, keep in close contact with your employing department and your designated Faculty & Researcher Immigration Specialist in Global Human Resources. We will be closely monitoring the government’s immigration operations and will provide updates on this blog. 

1. I need to apply for a nonimmigrant visa. Will the U.S. consulate be able to process my application and issue my visa during the shutdown? 

Yes, but you should file quickly and be prepared for possible delays.

U.S. consulates plan to remain open and process visa applications for as long as the funding the State Department receives from application fees remains available. (Visa operations are partly funded by application fees paid by foreign nationals and partly by U.S. government appropriations. Only the government appropriations funding is affected by the shutdown.)

But it is important to file as soon as possible in the event the shutdown lasts for more than a few days. If funds from application fees are depleted, the State Department could suspend visa processing or limit it to urgent medical or humanitarian cases only. 

2. My nonimmigrant visa application is pending and I have a visa appointment in the very near future. Will the U.S. consulate be able to process my visa? What if my case is undergoing a security clearance?

As noted above, U.S. consulates will be open during the shutdown and will continue to process visas and conduct visa interviews as long as State Department funds remain available. However, if the shutdown lasts for more than a few days and funding is depleted, your case could be delayed.

If your application is subject to a security clearance, you could experience a delay during the shutdown. Many government agencies take part in security clearances in addition to the State Department, and some may be affected in the event of a shutdown. 

3. Will Canadian nationals be able to submit applications for TN or L-1 status at the U.S. border or port of entry? 

U.S. Customs and Border Protection, which adjudicates border applications for TN and L-1 status, has not yet announced whether they will continue to process these applications, but this function may not be affected by the shutdown. If you are a Canadian national planning to apply at the border while the shutdown is ongoing, please contact your designated Faculty & Researcher Immigration Specialist in Global Human Resources to coordinate your application.

4. My department is planning to file a PERM application on my behalf. Will the Labor Department process my application during the shutdown? 

No. All of DOL’s immigration-related functions, including labor certification operations, will be suspended during the shutdown. The online system used to file PERM applications will not be able to accept new cases. PERM applications already on file with DOL will not be processed. Processing will resume only after the shutdown is over. 

5. My department is filing an immigration petition with USCIS on my behalf. Will the USCIS be able to process it during the shutdown?

Yes, USCIS will continue to process applications and petitions for immigration benefits during the shutdown. This includes petitions for immigrant and nonimmigrant workers and applications for adjustment of status. However, processing delays are possible if adjudication of your case is dependent on support from government functions that are suspended during the shutdown – for example, if your case requires a certification from the Department of Labor or a security clearance from an agency that is affected by the shutdown. 

6. I am an H-1B employee and my status is expiring soon. My department is planning to file for an extension for me. Will my extension be affected by the shutdown? 

Possibly. Though USCIS will continue to process extensions during the shutdown, your case could be delayed by the suspension of labor condition application (LCA) processing at the Department of Labor. A valid LCA certified by DOL is an essential part of any extension of H-1B nonimmigrant status, but DOL’s LCA operations will be suspended during the shutdown.

If we do not have a valid, certified LCA in place for your position and work location, your extension could be delayed. 

7. I am a new nonimmigrant employee and I need to apply for a U.S. Social Security number. Will I be able to apply during the shutdown?

No. Though the Social Security Administration will remain open during the shutdown, it will not be accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards.

You do not need an SSN to start work, but lack of an SSN could affect your ability to obtain a U.S. driver’s license, open a bank account and obtain other benefits. 

8. Will a nonimmigrant be able to apply for a driver’s license or non-driver ID during the shutdown? What about renewing a license or state ID?

Even though driver’s licenses and non-driver IDs are the responsibility of state governments, your application for a new or renewed license could be delayed during the shutdown. Your state Department of Motor Vehicles must use a federal database to verify your immigration status before it will issue you a license or ID card. This database, known as SAVE, could be suspended.  

9. How quickly will immigration operations return to normal after the shutdown is over?

Once the budget impasse is resolved, you should expect some processing delays while affected agencies get back up to speed. Backlogs are likely to build up during the shutdown and it could take several days or weeks for agencies to work through them.

Source: Fragomen.com

Impact of Government Shutdown on Immigration Agencies

From the Council for Global Immigration, 10/01/2013

After months of negotiation between the administration and the two branches of Congress, no deal has been reached to keep the federal government open.  As such, federal immigration agencies are scrambling to implement a government shutdown.  While the situation is fluid and we have seen conflicting information from various sources, we have verified the following information through conversations and correspondence with government officials in order to ensure you have the most recent information.   Please let us know if your experience with the agencies differs from the information below and we will provide updates as the implementation of the shutdown continues to develop.

Department of Homeland Security

The DHS contingency plan for the shutdown can be found here.

USCIS Adjudications

USCIS is mostly fee funded, and therefore the impact on adjudications will be minimal compared to most immigration processes.  In fact, out of the 12,558 USCIS employees, all but about 300 will be reporting to work during a shutdown.

This means that processing at USCIS will be relatively normal, other than processes affected by other agencies (for instance, no new LCAs will be issued by Department of Labor for H-1Bs).

E- Verify

Unlike the rest of USCIS, E-Verify is not fee funded and will be inaccessible during a shutdown, including employment verification, resolution of Tentative Nonconfirmations (TNCs) and Self Check.   USCIS has provided the following guidance:

• The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

• The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.

• For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.

• Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses). 

Customs and Border Protection

Most CBP functions will continue, as most CBP staff are considered essential, but adjudication of TN and blanket L applications by Canadian citizens would stop during a government shutdown. 

Immigration and Customs Enforcement

ICE will retain most of its staff because they are considered essential.   We do not expect any major issues with enforcement.

CIS Ombudsman

The CIS Ombudsman’s office will be closed during a government shutdown.

Department of Labor

The Office of Foreign Labor Certification (OFLC) notice regarding the shutdown can be found here. 

OFLC will essentially shut its doors during a shutdown.  This means no processing of labor certifications, LCAs or prevailing wage determinations during a shutdown.  We also now know that employers and attorneys will not even be able to log into the PERM and iCERT websites during a shutdown.  We are pushing for grace periods in situations such as recruitment expiration while the agency is closed.

Department of State

In previous situations where a shutdown was looming, we were told that a shutdown would basically mean cessation of consular affairs, visa processing and passport issuance altogether, except for certain narrow exceptions such as humanitarian exceptions.

With this shutdown, however, the Department of State appears to have a temporary solution but the details are unclear.  The official statement from the Department of State is:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

We were able to confirm yesterday with the Department of State's Bureau of Consular Affairs that visa issuance will continue at least temporarily.  We do not have confirmation at this time as to the alternative source of funding or how long it will last.

SEVIS is fee funded and we have not heard any indication that it will be affected by a shutdown.  We will keep you up to date if this news changes.

Department of State guidance on the shutdown can be found here.

Department of Justice

Office of the Special Counsel

The hotline for the Office of the Special Counsel will not be available to the public during a shutdown. Some attorneys working on litigation will work limited hours. 

Federal Shutdown Has Immediate Impact at DOL, E-Verify

From Fragomen.com, 10/01/2013

Department of Labor 

DOL's foreign labor certification operations have ceased and will remain suspended until further notice. DOL issued PERM and LCA certifications on Monday evening, but will not process any further cases to completion until after the shutdown concludes. When normal operations resume, employers should expect delays as the agency works through its case backlog. 

The PERM and iCERT systems are now offline and will remain so for the duration of the shutdown, but were briefly operational this morning and appeared to be accepting filings. It is not clear how applications submitted during this brief window of opportunity will be treated after the shutdown is over. Employers and their immigration counsel will need to monitor these cases closely after DOL operations resume, and should be prepared for the possibility that cases submitted today may need to be refiled later on.

Employers who filed PERM applications on Monday received DOL’s standard sponsorship questionnaire emails this morning, but will not be able to complete them until after the shutdown. 

Impact of DOL Shutdown on H-1B Filings 

Though USCIS will continue to process petitions during the shutdown, employers may not be able to file H-1B petitions because of the suspension of labor condition application (LCA) processing at the Department of Labor. A valid, certified LCA is a requirement for every H-1B petition. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, but it has not yet announced whether it will do so during the present shutdown. Suspension of LCA operations will also affect the processing of E-3 and H-1B1 filings at USCIS Service Centers and U.S. consulates. E-3 and H-1B1 filings also require a valid, certified LCA.

U.S. Consulates 

Currently, visa services at U.S. consulates appear to be operating normally, but foreign nationals should submit visa applications and make visa appointments as soon as possible in case consular operations are affected by the shutdown later on. The State Department will use funding from application fees to support consular functions for the time being, but it is not clear how long these funds will remain available. Employers and visa applicants should be prepared for the possibility of future delays in the event that the shutdown persists for more than a few days and State Department needs to suspend or limit visa services. 

E-Verify Operations 

The E-Verify system is down for the duration of the federal shutdown. Employers will not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and will not be expected to meet the usual E-Verify deadlines. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. 

All employers remain subject to the same I-9 obligations. E-Verify outage would not affect the deadlines that are applicable to Form I-9 completion. 

Other Government Benefits

The Social Security Administration has confirmed that it is not accepting or processing applications for Social Security numbers or replacement cards during the shutdown. Foreign nationals who are unable to obtain an SSN may not be able to apply for a U.S. driver's license, open a bank account or obtain other benefits. 

The SAVE system is operating during the shutdown. SAVE is the federal database used by government agencies -- including State Departments of Motor Vehicles -- to verify the immigration status of foreign nationals applying for benefits. Though foreign nationals could experience delays in driver's license applications and renewals for other reasons related to the shutdown, SAVE verifications should not be affected. 

How to Locate Your Electronic I-94 Record

From www.shrm.org, 08/28/2013

Since the rollout of the automated I-94 card process, some foreign national travelers have been reporting problems retrieving their electronic I-94 record on the United States Customs and Border Protection (CBP) website.

As of April 30, 2013, CBP rolled out its program to automate the Form I-94 card process for foreign national travelers arriving into the U.S. via air or sea and to eliminate the paper I-94 admission cards. CBP is no longer issuing the paper Form I-94, but rather creating an electronic record of admission and stamping the foreign national’s passport. The passport stamp includes an annotation with the class of admission and duration of admission. The electronic record of admission may be accessed by a nonimmigrant foreign national at www.cbp.gov/I94.

Foreign nationals arriving at a land border continue to receive a paper Form I-94 from CBP.

Printing a record of the Form I-94 allows a foreign national to verify admission in the class and for the period of time indicated on the passport stamp. Additionally, having a paper printout facilitates applications for ancillary benefits, such as a driver’s license or a Social Security number.

Although CBP has announced that it has fully implemented this new system, some travelers have been experiencing problems in being able to locate their electronic I-94 Form in the new automated system. CBP provides useful information on its FAQ page. However, not all situations have been addressed by CBP in its instructions.

Electronic I-94 Retrieval Issues

If an individual cannot locate a record at www.cbp.gov/I94 or if the information at that site does not correlate with the passport admission stamp and written notation of class and term of admission made by CBP at the port of entry (POE), the foreign national should verify that the correct name as it appears in the passport has been entered on the website. The FAQ page instructs individuals to enter the first and last names as they appear on the “travel document” used to gain admission to the U.S. CBP explained that the name on the passport, rather than the visa (if these are different), is required to access a record of admission.

If a nonimmigrant foreign national, refugee or parolee tries unsuccessfully to access a record of admission online, or finds a discrepancy between the electronic record and the notation in the individual’s passport, CBP has recommended that the individual contact them through a deferred inspection office. CBP has advised that deferred inspection officers will continue to be the point of contact for resolving admissions errors.

Before contacting the deferred inspection office, CBP has provided additional instructions to assist foreign nationals in obtaining the Form I-94 out of the CBP automation system. If a foreign national cannot locate the Form I-94 on the CBP website, and instead, receives a “Not Found” message, it is possible that the Form I-94 does not exist because of a system error. However, it is more likely that the Form I-94 is in the CBP system, but the data is formatted differently than the foreign national entered it, so the I-94 is “hiding.”

Ensure data is entered correctly in all applicable fields:

Enter the name as stated in the passport, visa or submitted Form DS-160. Although CBP has stated it would draw the name for the Form I-94 from the travel document (e.g., passport biographic page), that is not always the case. The instructions on CBP’s website state that the name is drawn from the visa, if any. Therefore, check the passport, visa and a copy of the submitted Form DS-160 (if available) for name variations. The foreign national should attempt to enter the name as stated on each document.

Enter the first and middle name in the first name field. In the first name field, type the first and the middle name (if any) with a space in between. Do this even if the middle name is not stated on the passport or visa.

Switch the order of the names. Switch the last and first name when entering the information on the website. Some countries state the name in the passport as first name, last name, rather than the more standard order of last name, first name. This may cause the name to be recorded incorrectly in the CBP system.

Enter multiple first names or multiple last names without spaces. If a person has two first names or two last names, type the first names without a space between them or the last names without a space between them. Example: type the first names “Mary Jane” as “Maryjane.”

Check for multiple passport numbers. Check the Form DS-160 (if available) for the passport number on which the person was admitted, and type the passport number as stated on the submitted Form DS-160. Also, check the passport number stated on the visa. If the passport number is different than the current passport, enter the passport number stated on the visa.

Do not enter the year if it is included in the passport number. Some passport numbers may begin with the year in which the passport was issued, causing the number to be too long for the relevant field in CBP’s automated system. If relevant, try entering the passport number without the year. For example, a Mexican passport that was issued in 2008 may have a passport number that starts with “08” followed by nine digits. Try entering the passport number without the “08.” This problem should not arise for newer Mexican passports, as those passports do not begin with the year.

Check the classification. Check the classification designated on the visa and compare it to the classification stated on the admission stamp in the passport, as there may be a slight variation. Be sure to try both designations. For example, the visa may state E-3D for an E-3 dependent, but the admission stamp may state only E-3. The automated I-94 could state the classification either way.

Call or Visit the Deferred Inspection Office

If none of the above efforts resolve the issue, telephone or visit the CBP Deferred Inspection Office and explain the problem. Some of the deferred inspection offices have been able to resolve the problem over the phone without an in-person visit; however, other offices may require an in-person visit with the nonimmigrant. Contact information for the deferred inspection offices can be found on CBP’s website.

Valerie A. Darling and Katheryn M.T. Wasylik are associate attorneys in the Minneapolis office of Faegre Baker Daniels.

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