News & Resources
Posted November 20, 2019 Articles
In late October, the U.S. State Department updated its standard of review guidelines to consular officers within the Foreign Affairs Manual (FAM), instructing officers to require Blanket L visa applicants to show their eligibility for the visa through “clear and convincing evidence”. Officers were further instructed to deny applications where questions about the applicant’s eligibility could not be resolved quickly or easily during the interview.
As of November 14, 2019, the State Department has withdrawn these updated instructions on stricter guidance in the FAM, reverting the guidelines back to the previous review standard that officers only grant Blanket L petitions that are “clearly approvable.”
Blanket L petitions are commonly used by multinational organizations for the purpose of transferring large numbers of employees from international offices to U.S. offices, granted the organization meets the eligibility criteria for Blanket L certification. Eligible employees of these organizations may apply for either an L-1A intracompany managerial/executive transferee or L-1B specialized knowledge visa pursuant to the approved Blanket L petition, eliminating the need for an individual petition filing with the U.S. Citizenship & Immigration Service (USCIS).
Blanket L petitions at U.S. Consulates have historically been subject to stricter standards of review by consular officers, resulting in increased denials over the past several years. The now rescinded guidance was expected to encourage officers to scrutinize these types of petitions even more closely, likely resulting in further increased denial rates. It is unclear if the State Department will try to adjust the review guidelines again in the future.
Employers and their foreign national employees who are applying for the L-1 visa pursuant to a Blanket L petition at a U.S. Consulate should continue to ensure that they are well prepared for the interview prior to their visa appointment. It is strongly recommended for applicants to review and be prepared to describe their work experience, skills, and job duties in clear and concise detail to minimize risk of denial.
Meltzer Hellrung LLC will continue to monitor the above guidance in order to advise clients on best practices for these types of applications.
For more information on the Blanket L petition, U.S. Consular interviews, or visa interview preparation for foreign national employees, please contact your designated Meltzer Hellrung attorney.
Posted November 15, 2019 Articles
On November 8th, 2019 The Department of Homeland Security released notice that it intended to publish a proposed rule which would comprehensively adjust the fee schedule of the United States Citizenship and Immigration Service (USCIS). As an agency funded primarily by revenue generated by fees, this proposed effort would aim to close USCIS’ budget gaps which officials claim are caused by increased adjudication loads, increased operating costs and an overtaxed agency infrastructure.
The proposed adjustments reflect a weighted average increase of 21% on all USCIS fees, however, the filing fees for certain processes such as those associated with Applications to Replace Permanent Resident Cards (Form I-90) and Immigrant Petitions for Alien Workers (Form I-140) will be adjusted downwards to account for what the agency believes to be inequities in the current fee structure in regards to the complexity of certain case types and the manpower required to adjudicate them in comparison to others.
The proposed rule, if enacted, would also see restructuring of the fees and filing procedures associated with certain common visa types that are currently filed on Form I-129, such as those for H-1B, H-2A, H-2B, O, R and L visas. The proposed rule sets forth plans to roll out new versions of Form I-129 which integrate the visa-type-specific supplements which are currently filed separately, and to charge different, separate, filing fees for each visa type instead of the current, uniform $460 fee for all filings on Form I-129.
USCIS claims that the adjustment of fees would allow the agency to begin to clear the oftentimes lengthy adjudication backlogs for certain visa types by allowing them to “…assign more resources to …particular adjudication as needs and priorities dictate.”
If the proposed fees are enacted, employers may see the following fees change:
- Petition for a Nonimmigrant Worker (H-1B): $560- 22% increase from current $460 fee
- Petition for a Nonimmigrant Worker (L-1A or L-1B): $815- 77% increase from current $460 fee
- Petition for a Nonimmigrant Worker (O-1): $715- 55% increase from current $460 fee
- I-140- Immigrant Petition for Alien Worker: $545 -22% decrease from current $700 fee
Please contact your Meltzer Hellrung attorney if you have any concerns or questions about the proposed, prospective changes to USCIS filing fees.
Posted November 15, 2019 Articles
On November 12, 2019 a federal judge in Boston ruled that border officers violate the Fourth Amendment when they search electronic devices at a port of entry without reasonable suspicion. U.S. Customs and Border Protection and Immigration and Customs Enforcement officers must have a reasonable suspicion that the devices contain contraband before the search and/or seizure.
In January 2018, CBP updated its directive governing border searches allowing officers to conduct basic or advanced searches. Under the directive basic searches allow an officer, to examine, review, and analyze a device, with or without suspicion. Advanced searches are similar to basic searches but allow an officer to copy the contents of the electronic device as well. U.S. District Judge Denise Casper found no meaningful difference between a basic and advanced search when looking at privacy concerns. Under current ICE policy, a reasonable suspicion is required to perform an advanced search.
Device searches are uncommon, but are on the rise. In fiscal year 2017, CBP conducted 30,200 border searches of electronic devices, out of more than 397 million international travelers. This translates to about 0.007 percent of people being subjected to a device search. CBP has not published more recent data, but told the Associated Press that during fiscal year 2019 it conducted 40,913 border device searches and processed more than 414 million travelers. This equates to just under .01 percent of travelers.
For additional information about CBP's directive and for travel suggestions, please see our blog post on the topic. If you have any questions about border searches please reach out to your designated Meltzer Hellrung LLC attorney.
Posted November 15, 2019 Articles
The holidays are quickly approaching, and for foreign nationals planning to travel abroad now is a great time to ensure that all immigration documents are in order.
Pending Cases with USCIS
Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.
Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.
Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.
In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.
Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S.
It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.
Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays. Each U.S. Consulate lists its holiday closures on its website, and estimated visa appointment and processing wait times can be found on the U.S. Department of State’s website.
Citizens of Canada generally do not need a visa stamp.
Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.
Re-entering the United States
When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:
- Current passport
- Current I-797 approval notice
- Two most recent paychecks
- Signed employment verification letter confirming current position, wage, etc.
Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:
- What is the name of your employer?
- What is your job title?
- Where do you work?
- How long do you expect to stay in the United States?
Students on M-1 or F-1 status should hand carry the following document:
- Current passport
- Student visa
- Form I-20
Any student that is admitted but receives a Form I-515A, “Notice to Student or Exchange Visitor” from the CBP officer should immediately contact their school’s Designated School Official (“DSO”) for assistance.
Upon returning to the U.S., all foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency please contact us immediately for advice on correcting the mistake.
As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.
We wish a happy holiday season to you and your family.
Posted November 13, 2019 Articles, Immigration Reform
The Supreme Court heard arguments on November 12, 2019 on whether the Trump administration can lawfully terminate Deferred Action for Childhood Arrivals (DACA) and whether the decision to terminate DACA is judicially reviewable. DACA was an Obama-era program that benefited over 700,000 reciepents, also known as Dreamers. DACA has provided certain individuals who were brought to the U.S. as children with no lawful status, deferred action from deportation. Many federal courts have kept DACA ongoing, requiring the government to continue to accept renewal applications.
The outcome of this case depends on the Administrative Procedure Act (APA). In 1946, the APA required all federal agencies to follow certain protocols when promulgating new rules and regulations. In particular, the notice-and-comment rulemaking, federal agencies must publish proposed rules in the Federal Register and allow the public to comment on these proposed rules before the agencies makes the rules final. Courts can invalidate these rules if they are perceived to be “arbitrary and capricious.” The lower courts have blocked the termination of DACA because the agency’s stated reasons are insufficient. The lower courts remind the agencies that the process has to result from reasoned decision-making.
Because DACA was enacted through executive authority, it did not have a notice-and-comment period. Trump’s administration argued that if President Obama had the authority to create this program, President Trump has the authority to terminate it without a notice-and-comment. DACA advocates argued that the government must follow the APA’s requirements. The Supreme Court is expected to announce its decision in June 2020.
If you are a DACA recipient and have questions about your eligibility for a nonimmigrant or immigrant status, please contact any Meltzer Hellrung attorney.