Vol. XXXXVI
AN UPDATE ON IMMIGRATION
LAW AND RELATED NEWS FROM
MEYNER AND LANDIS LLP
In this Issue:
Corporate and Business Immigration Law News & Policy Updates
Department of State Increases Fees For Consular Processing of Visa Applications, Effective June 4
The U.S. Department of State ("DOS") published an interim final rule that raises the fees that U.S. consular posts charge for processing nonimmigrant visas. Prior to June 4, the fee was $131 for all nonimmigrant visa categories. Under its new fee schedule, the DOS now charges varying fees depending on the visa classification sought.
The new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that tend to be more complicated and require a more in-depth consideration than other categories of nonimmigrant visas.
Therefore, effective June 4, the fee for business (B-1), tourist (B-2), student (F-1), and exchange visitor (J-1) visas was increased to $140. The visa application fee for temporary workers and trainees (H-1), intra-company transferees (L-1), extraordinary ability applicants (O-1), performers (P), cultural exchange participants (Q), and religious workers (R) increased to $150. The visa application fee for treaty traders (E-1) and treaty investors (E-2) increased to $390. The visa application fee for fiancs of American citizens (K-1) increased to $350. All other visa categories will have bear the standard application fee of $140.
The new fee schedule is applicable to everyone applying for a visa on or after June 4, 2010. Applicants who have already paid the current visa application fee of $131 for appointments on or after June 4, 2010, will be required to pay the difference.
This interim final rule became effective on June 4, 2010. To read the entire post in the Federal Register, please click here. http://edocket.access.gpo.gov/2010/pdf/2010-12125.pdf
USCIS Updates H-1B Cap Count
The annual cap or quota for new H-1B visas is set by Congress at 65,000 new visas per year, not including the 20,000 H-1B visas available under the U.S. advanced degree cap exemption. As of April 1st, the "filing season" for new H-1B visas was officially underway.
United States Citizenship and Immigration Services ("USCIS") recently announced that, as of May 28, 2010, 20,800 H-1B petitions filed under the regular cap and 8,700 H-1B petitions filed under the Master's exemption cap have been received.
USCIS Revises Employment Authorization Document and Redesigns Permanent Resident Card
USCIS recently announced that it has revised the Employment Authorization Document ("EAD"), or Form I-766, to incorporate the addition of a machine-readable zone on the back of the card.
This update to the EAD is part of USCIS's ongoing efforts to deter alleged immigration fraud. Starting May 11, USCIS began issuing the revised EAD cards. The machine-readable zone is compliant with International Civil Aviation Organization standards. USCIS also removed the two-dimensional bar code on the backside of the card and moved the informational box of text to just beneath the magnetic stripe on the card. The revised card retains all of its preexisting security features.
These revisions are the result of extensive collaboration among Department of Homeland Security components, particularly U.S. Immigration and Custom Enforcement, Customs and Border Protection and USCIS.
USCIS also recently announced that it has redesigned the Permanent Resident Card - commonly known as the "Green Card" - to incorporate several major new security features, also in effort to deter immigration fraud. State-of-the-art technology incorporated into the new card (which is actually now green!) prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication. Beginning May 11, USCIS began issuing all Green Cards with in the new, more secure format.
DHS Announces Elimination of I-94W Form to Streamline Secure Visa Waiver Program Travel
Department of Homeland Security Secretary Janet Napolitano recently announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from nations participating in the Visa Waiver Program ("VWP") in an effort to streamline secure travel for millions of visitors to the United States every year by consolidating the collection of traveler information and enhancing security by automatically providing DHS with important passenger information prior to departure.
"The Visa Waiver Program facilitates secure and hassle-free travel for citizens of participating countries-making international travel safer and easier," said Secretary Napolitano. "This step to eliminate the paper I-94W leverages the latest technology to further bolster security, increase convenience for visitors and better protect privacy."
Following a successful seven-month pilot program conducted with the support of the Government of New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for all VWP travelers with an approved Electronic System for Travel Authorization ("ESTA") arriving in the United States at all airports by the end of this summer. CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.
As we have previously advised, under the Implementing Recommendations of the 9/11 Commission Act of 2007, applying for an ESTA became mandatory on January 12, 2009 for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa. Secretary Napolitano claims that ESTA does allow DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.
The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States -reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.
We recommend that VWP travelers submit ESTA applications as soon as practicable (i.e. immediately after making travel plans to visit the United States). ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for a period of two years, or until the applicant's passport expires. To date, CBP has received more than 19 million ESTA applications from citizens of VWP countries-applications that will now automatically cover I-94W submission.
For more information about ESTA, please visit www.cbp.gov/esta.
CBP updates guidance on How to Record an After-The-Fact Departure from the United States
By way of background, a visitor to the United States is typically required to relinquish his/her Form I-94 or Form I-94W Departure Record ("I-94 card") upon departing the United States. One exception to the general rule is for short trips to Canada or Mexico (for 30 days or less) within the duration of the foreign national's U.S. visit. In those cases, the foreign national is generally not required to relinquish his/her I-94 card. Instead, he/she should maintain the I-94 card until leaving the U.S. to return home abroad. In the unlikely event you are not required to relinquish your Form I-94 upon departure, no affirmative action is necessary if you leave the United States by way of commercial airline, although maintaining your outbound boarding pass is always recommended to expedite any future reentry into the United States.
If, however, you depart by land, private plane, or private ship, then you must validate timely departure (even if the visitor was present in the United States under the Visa Waiver Program). Otherwise, the next time you seek admission to the United States, CBP will likely conclude that you remained in the U.S. beyond your authorized stay and, on that basis, may deny your reentry or order your immediate return abroad.
So what are you to do in such a situation? On May 6, CBP updated its guidelines on how to validate a foreign national's timely departure from the United States in the event the I-94 form was not relinquished at the time of departure. CBP has advised that a visitor to the United States can validate his/her timely departure by mailing the I-94 Departure Record, an explanation letter in English, and documentation proving departure to the following address: DHS - CBP SBU, 1084 South Laurel Road, London, KY 40744.
The appropriate documentation to evidence your departure, to the extent applicable, includes as follows:
- Your original boarding pass you used to depart from another country, such as Canada, if you flew home from there;
- Photocopies of entry or departure stamps in your passport evidencing entry to another country after your departure from the U.S. (the visitor should copy all passport pages that are not completely blank, and include the biographical page containing his/her photograph);
- Photocopies of dated pay slips or vouchers from your employer to indicate that ypi worked in another country after departing the United States;
- Photocopies of dated bank records showing transactions to indicate you were present in another country after leaving the United States;
- Photocopies of school records showing attendance at a school outside the United States to indicate that you were in another country after leaving the United States;
- Photocopies of dated credit card receipts showing your name, with the credit card number deleted, for purchases made after you left the United States to indicate that you were in another country after leaving the United States.
Please retain a copy of all materials you send to CBP and carry a copy of these materials with you during your next travel to the United States.
Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright © 2010, American Immigration Lawyers Association
The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq. or Scott R. Malyk, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 602-3440
asiliato@meyner.com
smalyk@meyner.com
www.meyner.com
www.corporateimmigrationlaw.com
http://blogs.ilw.com/h1bvisablog/
