Travel under the Visa Waiver Program

The Department of Homeland Security (DHS) announced that, beginning January 12^th, 2009, all nonimmigrant aliens traveling to the United States under the Visa Waiver Program (VWP) must obtain an approved travel authorization from the Department’s Electronic System for Travel Authorization (ESTA). To comply with ESTA, VWP travelers must provide electronically to U.S. Customs and Border Protection (CBP) the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA website and receive authorization to travel before embarking on travel to the United States.

An audit of H-1B applications entitled the “H-1B BFCA Benefit Fraud & Compliance Assessment” and results of which were released earlier in October, 2008 suggests that one in five H-1B visas are either fraudulent or contain technical violations. The audit was released by the Office of Fraud Detection and National Security, which is part of the USCIS. The report was produced at the request of Sen. Chuck Grassley, R-Iowa.

A random sample of 246 applications found 13 percent of the applicants used forged documentation, false businesses or addresses, false job offers, or misrepresented their immigration status. Another 7 percent had technical violations such as requiring the applicant to pay the application fee or list a salary substantively above what the applicant would actually be paid.

The USCIS plans to tighten up its procedures for vetting and approving the H1B applications in the wake of this audit to try eliminate the types of problems identified in the audit.

Some of the changes that maybe under consideration are:

• Increases in the number of visits investigators make to the sites of potential H-1B employers, to confirm that the companies exist, the nature of their business and the job descriptions of the H-1B applicants involved.
• Modifying the evidence required to extend an H-1B visa, such as a W-2 form to confirm the salary being paid.
• Changes to the I-129 forms used in the applications to make them less cumbersome to fill out and less prone to error.
• A plan to use “open-source” data to verify the identity of petitioners. Open-source is any form of data that is open to the public.

The USCIS is also working with the Department of Labor on changes to the Immigration and Naturalization Act that would allow a broader use of the $500 that is paid by each applicant into an anti-fraud fund that is supposed to pay for the policing of the system.

Trupti N Patel & Associates can help companies comply with the requirements of the H-1B Program. If you employ H1B workers, please contact us to see how we can help your organization comply with the rules & regulations governing the H1B Program.

Diversity Immigration (DV) Category

The Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 states that beginning with DV-99, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2009 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers below the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2009 program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 cannot be taken for granted. Numbers could be exhausted prior to September 30.

Advance Notification of DV Immigrant Category Rank Cut-offs which will apply in December

For December, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers below the specified allocation cut-off number:

This article summarizes the availability of immigrant numbers during November. Allocations were made, to the extent possible under the numerical limitations, for the demand received by 8^th October in the chronological order of the reported priority dates. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

Employment-based Preferences

The worldwide level for annual employment-based preference immigrants is at least 140,000.

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec.

In the chart below, the listing of a date for any class indicates that the class is oversubscribed, current means that numbers are available for all qualified applicants; and unavailable means that no numbers are available.  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.

The Department of State has available a recorded message with visa availability information which can be heard at:  +1 202-663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: The NACARA Act  states that once the Employment Third Preference Other Worker (EW) cutoff date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

This article summarizes the availability of immigrant numbers during November. Allocations were made, to the extent possible under the numerical limitations, for the demand received by 8^th October in the chronological order of the reported priority dates. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

Family-Sponsored Preferences

The Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.The Act also states that the per-country limit for preference immigrants is approximately 25, 620 – 7% of the total annual family-sponsored and employment-based preference limits. The dependent area limit is set at 7, 320 or about 2%.

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

1. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
2. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

In the chart below, the listing of a date for any class indicates that the class is oversubscribed. The numbers are available only for applicants whose priority date is earlier than the cut-off date listed below:

The U.S. Citizenship and Immigration Services (USCIS) has increased the maximum

period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. The initial period of admission for TN workers has been updated from one to three years.

Who Qualifies

The eligible TN non-immigrants may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year. The TN non-immigrant classification is visa category available to eligible citizens of Mexico and Canada with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA) which include amongst others, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

Benefits

This change should result in lower administrative overheads and reduce the costs on TN workers. The U.S. employers will also benefit as the amount of time TN non-immigrants will be able to work for them before having to seek an extension of status is increased. Spouses and unmarried minor children of TN non-immigrants in their corresponding non-immigrant classifications will also benefit from the new regulation.