Special Registration Program (NSEERS) Ends Effective Today (April 28, 2011)

The Department of Homeland Security (DHS) has announced that the National Security Entry-Exit Registration System (NSEERS) will be eliminated effective April 28, 2011.    See the Federal Register notice and WSJ article.

About NSEERS

The National Security Entry-Exit Registration System, NSEERS, required individuals from more than 20 predominantly Arab countries to register with the government on arrival and departure from the U.S.    Until today, nationals of Afghanistan,  Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq,  Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan,  Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab  Emirates, and Yemen had to register every time they entered or left the U.S. at a border post.

The manual process required about 30 minutes of additional inspection at a port of entry for those arriving on nonimmigrant visas. Visitors had to register again on exiting the country.

DHS Rationale for Ending NSEERS

According to DHS, the main reason for ending NSEERS is that since the NSEERS requirements were established, DHS has created a number of additional procedures and safeguards which, in effect, duplicate NSEERS’ need for manual registration upon entry into the U.S.

According to DHS,

Over the past six years, the Department of  Homeland Security (DHS) has implemented several new automated systems  that capture arrival and exit information on nonimmigrant travelers to  the United States, and DHS has determined that recapturing this data  manually when a nonimmigrant is seeking admission to the United States  is redundant and no longer provides any increase in security. DHS,  therefore, has determined that it is no longer necessary to subject  nationals from these countries to special registration procedures, and  this notice deletes all currently designated countries from NSEERS  compliance.

For example, the US-VISIT program, in effect since 2004, collects entry and exit information and collects biometrics, to be compared with other government records.   CBP also requires passenger manifests to be provided for passengers arriving by air or sea into the U.S.  There are also a number of international data-sharing agreements, which allow DHS to do better analysis of aliens applying for admission in to the U.S.

Conclusion

As a result of the DHS rule, nonimmigrant  nationals and citizens of these countries are no longer required to  comply with the requirements of 8 CFR 264.1(f), including the  requirement that they exit through designated ports of entry.  Accordingly, nationals and citizens from these countries are no longer  subject to the NSEERS registration requirement and DHS will  no longer register aliens under NSEERS effective on April 28, 2011.

Government Shutdown and Immigration: (How) Will It Affect Me?

Important Update: April 9, 2011: Short-term Government Funding Bill Passed.

As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue

The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad.  As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed).   U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.

As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995,  approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.

It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected.   We hope that it would be released before Monday when a possible shutdown would take effect.   Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.

With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.

Department of Labor – LCA, PERM and Audits

It is unclear exactly how the Department of Labor would be affected.   We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected.  This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.

ETA Form 9089 PERM labor certifications are expected to be similarly affected.  It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown.  This holds true for processing of PERM audits and appeals at the BALCA.

Conclusion

While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants.  Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

Immigration Relief Options for Japanese Nationals Impacted by the Recent Disaster

After the recent earthquakes and tsunami in Japan, our office is receiving a number of inquiries by Japanese nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Japanese nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Japanese nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Japanese students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Japanese nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Japanese nationals who are impacted by the earthquake and the tsunami.   Our office stands ready to assist affected Japanese nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

Passport Validity and Entry into U.S.: Six-Month Club List Updated

About the Six-Month Club

Under U.S. law, every passenger who wishes to be admitted into the  U.S. must have a valid passport while they are in the U.S.  Furthermore, passengers must not only have a valid passport for the time they wish to be in the U.S., but also for an additional six months on top of the requested period of stay.   For example, a B-2 visitor who wishes to stay for one month in the U.S. must show a passport with a validity of at least seven months.

Certain countries are granted an exception from this rule.  The countries on this “exempt” list are commonly called the “six-month club.”   Passengers holding passports from one of these countries do not need to have an additional six months passport validity period.  They, however, still need to have the amount of time they wish to be in the U.S. — essentially, being able to present a passport which is valid for at least until the desired departure date.

Implications of Passport Validity Dates and Entry into the U.S.

Passengers who attempt to enter the U.S. for a specific period (for example, H-1B worker attempting to be admitted for a period of 30 months) would need to show passport validity for the entire requested period of stay  (for six-month club member countries) or the required requested period of stay plus six months (for non six-month club member countries).  If a passenger does not have a passport with such validity, the authorized period of stay, noted in the passenger’s Form I-94 card would be the passport expiration date with a notation “limited stay per passport validity.”

In a recent article, we wrote more extensively about the importance of having a passport with a validity date beyond the requested period of stay in the U.S.   Travelers to the U.S. who are given shorter period of authorized stay due to their passport expiration date may be eligible to apply for an extension of status from within the U.S.   We are happy to help evaluate such cases.

Current Six-Month Club Member Countries

The current countries members to the “six-month” club are listed in this CBP update.

Please note that while some countries are added to the list periodically, some countries are removed.  For example, recently countries such as Bangladesh, Ecuador, Kuwait and Tanzania were removed from the six-months club.  As a result, passengers to the U.S. should always ensure that they have either sufficient passport validity to cover their entire period of stay in the U.S. (if members of the six-months club) or validity exceeding the requested period of stay plus six months.

Passport Validity Waivers May Be Available

For travelers who are not members of the six-month club and who do not have at least six months validity beyond the requested period of stay, a waiver may be available.

As an example, if a citizen of Indonesia (not a six-month club member) requests admission as a visitor for one week but his or her passport expires in 5 months, he or she would not be admitted at all because the passport does not have the minimum validity of six months.    This kind of passenger may be denied admission from the U.S. pursuant to 8 CFR 212(a)(7)(A)(i)(II).  In such cases, a waiver of the passport requirement may be available (Form I-193, filing fee of $545).

Conclusion

To avoid any complications when entering the U.S. based on passport validity, we recommend that all travelers check whether the country issuing their passport is a member of the six-month club, and if so, ensure that they have a passport valid for the entire period of travel to the U.S.  For non-six-month club member countries, travelers to the U.S. should plan on having at least six additional months of validity.

In the event a shorter duration of stay is given than the one requested, there may be options to extend status from within the U.S.  Please feel free to contact us for a free initial case consultation.

USCIS Starts Issuing a Single Combined EAD/Advance Parole Card

There have been rumors and speculation on this topic (which we did not report until we had final confirmation), but now it is official.  USCIS has announced that they will start issuing a combined Employment Authorization Document (EAD) and Advance Parole (AP) card for some applicants for adjustment of status.

The new combined EAD/AP card (I-766) looks like this sample image and has an annotation at the bottom reading “SERVES AS I-512 ADVANCE PAROLE.”    The new card would replace the paper-based (and often easy to damage) Form I-512 Advance Parole documents which one had to obtain under the previous guidance.

Who Would be Eligible to Obtain the New EAD/AP Card?

Not all I-485 adjustment of status applicants who also wish to obtain an advance parole would receive the new card.  According to USCIS, an applicant may be issued this card when he or she applies a I-765, Application for Employment Authorization and I-131, Application for Travel Travel Document concurrently with or after filing Form I-485, Application to Adjust Status.   Separate EAD and AP documents will still be issued for all other applicants.

Procedures for Using the New EAD/AP Card

The new EAD/AP card will continue to be an accepted employment authorization document as a List A document when completing Form I-9.  Holders of the new card can also use it to return to the U.S. as parolees after a short travel abroad without abandoning the pending I-485 adjustment application.  The holder of the EAD/AP card must present it at the port of entry to request that he or she be admitted as parolee.   As a result, it is important that holders of this card continue to follow closely its expiration and prepare timely renewal applications (at least 90 days in advance).

Our practice includes handling EAD and AP applications for I-485 adjustment of status applicants so please do not hesitate to contact us if our office can be of any help or if you have any questions.

How Does Passport Expiration Date Affect Visa Entry or Extension of Status?

The winter holidays, together with the summer vacation season, create a steady flow of inquiries and consultations from our clients regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of entering the U.S.?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP will normally issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 with expiration date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.  Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Conclusion

The Form I-94 expiration date is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued a Form I-94 with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.

New Appointment Service for All U.S. Visa Applicants in Canada

We have clients and our office handles a number of U.S. visa applications submitted in Canada.  Accordingly, we wish to report on a new appointment service for all U.S. visa applicants in Canada, which becomes effective on September 1, 2010.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

DOS Announces Increased Visa Stamp Application Fees

The Department of State (DOS) issued an advance copy of the interim final rule on the Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.  The notice was published today at the Federal Register.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

USCIS Lockbox Procedure Adds to Expedited Reentry Permit Processing Time

Starting December 2009, USCIS started implementing changes on the way I-131 reentry permit applications are receipted and processed.   Previously, I-131 reentry permit applications were filed directly at the Nebraska Service Center (NSC) which issued receipts and, where appropriate, issued expedited processing biometrics notices.

The NSC processing of expedited processing reentry permit biometrics allowed us to have the required biometrics scheduled often within 7-10 days after filing of the I-131 reentry permit application.  This way we were able to accommodate clients who had a very limited period of stay in the U.S.

The New I-131 Reentry Permit Acceptance Procedure Delays Biometrics

Under the new procedure, all I-131 reentry permit applications are now filed at a USCIS lockbox.  The purpose of the lockbox is to accept the application and do initial processing such as issuing a receipt.  Following the initial processing, the case is transferred to the service center tasked with processing the reentry permits – NSC.

Only after the lockbox center forwards the I-131 reentry application to NSC the expedited processing biometrics appointment can be issed.  This adds an additional week or so of processing and scheduling a biometrics notice.

In light of these changes, we have had to advise our I-131 reentry permit expedited processing clients to adjust their travel accordingly and to plan on being in the U.S. 3-4 weeks (up from 2-3 weeks) to be able to accommodate their required biometrics appointment while in the U.S.

Unfortunately, USCIS has indicated that they intend to use the lockbox for the future and we do not foresee any improvement in the processing times or the efficiency of the expedited reentry permit application procedure.  USCIS has indicated that they are exploring ways to be able to process biometrics abroad; however, as of today, the biometrics can be done only in the U.S.

USCIS to Issue Redesigned U.S. Green Cards

USCIS has announced that effective Tuesday, May 11, 2010, it would issue redesigned U.S. Permanent Resident Cards (also known as “green cards.”)   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce.  There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.   Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.   Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green”  in color and design patterns.   Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card?  All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned.  USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card?  The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card?  A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card.  If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90.  Our office can help you with the green card renewal or replacement application – please contact us.