Important Changes in U.S. Immigration

U.S. IMMIGRATION UPDATE AND HELPFUL TIPS

  • Increased Border Scrutiny
  • Longer Visa Processing Times
  • Frequent Site Visits
  • Increased Visa Scrutiny and Denial

On April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order, which seeks to create higher wages and employment rates for U.S. workers and protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS (Department of Homeland Security), in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most skilled or highest-paid beneficiaries. Since then, USCIS (United States Citizenship and Immigration Services) is working on a combination of rulemaking, policy memoranda, and operational changes to implement the Buy American and Hire American Executive Order. These initiatives are intended to protect the economic interests of U.S. workers and prevent fraud and abuse within the immigration system. The impact of this Executive Order can already be felt throughout U.S. immigration proceedings and border processing, including:

INCREASED BORDER CONTROL AND SCRUTINY

Over the last several months, U.S. entry control and scrutiny has clearly increased at U.S. borders. In particular, frequent Business Travelers are reporting increased questioning and control through CBP (Customs and Border Protection) Officers at airports and land border crossings. For your knowledge, foreign travelers coming to the United States to conduct temporary business, for example business meetings and consultations, attending conventions and conferences, or negotiating contracts, need B-1 visitor visas unless they qualify for entry under the Visa Waiver Program.

In particular, business travelers are extensively questioned on their U.S. activities, engagements and possible violations deemed by CBP to be conducting “productive work”. For instance, a foreign officer of a U.S. company who admits to “supervising and controlling” U.S. employees is considered engaging in productive work and may be denied entry into the U.S. as a Business Visitor.

Frequent U.S. business travelers should ensure that they are able to fully document their U.S. activities, including their continued foreign employment and maintenance of a foreign residency, and it is recommended that frequent travelers carry a letter from the foreign employer, confirming the bona fide business travel purposes of the employee, a foreign employment agreement, recent pay stubs and a copy of the traveler’s foreign lease in demonstration of his foreign abode.

It is also important to note that, if an ESTA Business Visitor is denied entry into the U.S., he has the right to withdraw his/her request for U.S. entry and offer his/her voluntary departure to avoid a possible deportation from the U.S., which can have dire consequences for future U.S. travel. A Business Traveler entering under a valid B-1 visa, has the same right and can also request a hearing before an Immigration Judge which, however, may take some time, and the traveler may be put into detention pending the hearing. It is also always good practice to ask to be seen by a CBP supervisor in secondary inspection should the initial entry officer intend to deny the traveler entry into the U.S.

As a general rule, all visitors and visa holders should also verify their permissible U.S. stay by downloading their I-94 Arrival/Departure records in the electronic system at https://i94.cbp.dhs.gov/ upon EACH individual U.S. entry.

INCREASED ADMINISTRATIVE SITE VISITS

Since 2009, FDNS (Fraud Detection and National Security) conducts site visits to employers of H-1B, L-1A/B and R-1 (Religious Workers) visa holders to verify whether the employers and employees are complying with U.S. immigrations laws and regulations. FDNS conducts site visits on randomly selected visa petitioners after USCIS has adjudicated their petitions, and on all religious worker petitioners before adjudication. Employers should be prepared to present any information originally submitted with the visa petition and should immediately provide any available documents and information at or after the site visit. If FDNS detects fraudulent activity, it will refer the case to ICE (Immigration and Customs Enforcement) for further investigation. Please note that the frequency of site visits has increased over the last year, and employers are advised to maintain requisite documentation at the visa holders work location site.

INCREASED VISA AND CONSULAR PROCESSING TIMES AND SCRUTINY

Effective April 2, 2017, USCIS suspended the premium processing option for H-1B visas which resulted in lengthy processing times of 4-5 months. Moreover, USCIS issuance of Requests for Evidence have increased in connection with visa petition filings, in particular L-1 visas, resulting in much longer processing times.

Scrutiny on E Treaty Trader/Investor Registration applications has increased at some U.S. Consular Posts. Many U.S. Consular Posts are now requesting additional evidence after the initial filing, which has resulted in longer processing times than before. Further, during interviews at U.S. Consular Posts, the visa applicant is now extensively questioned and scrutinized on his education, experience and specialized knowledge and often has to explain why the U.S. position cannot be filled by a U.S. worker. Under the new “Putting American Workers First” doctrine, it is crucial that convincing argumentation and supporting documentation is provided to explain why the individual visa applicant is unique for the offered U.S. position and why a U.S. worker is not readily available for the position.

Additionally, visa applicants with a criminal background (previous arrests, convictions, and/or citations short of pure traffic violations) should bring a Police Certificate to the interview and should expect that their application will be put into Administrative Processing (i.e. the Consulate requests approval of the visa issuance from the U.S. State Department), which will delay the visa issuance by several weeks.

This increased scrutiny requires the prudent employer/visa applicant to plan visa applications far in advance in order to not be greatly affected by long delays and ensure visa issuance prior to the desired U.S. work start date or travel plans.

ENSURING PROPER VISA ISSUANCE DATES AND DOCUMENTATION

 Since U.S. Consulates are issuing visa stamps with validity dates under the reciprocity rules, it is often confusing what the visa holder’s actual visa expiration date is.  All L-1 visa stamps should have a PED (Petition End Date) entry on the lower right corner which provides the actual visa expiration date. If no such PED is issued, the visa validity is based on statutory provisions. For instance, an L-1 visa is issued initially for a three-year duration and can then be extended in two-year increments until the statutory visa limitation is reached.

Please also note that E visa stamps can be issued for a 4-5 year duration based on the country of nationality’s reciprocity rules, but the permissible stay upon EACH entry in this status is two years, and the E visa holder must download their I-94 Arrival/Departure record upon EACH entry into the U.S. in order to track their required exit date accordingly.

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This summary is intended to provide only general information on the legal matters addressed herein.  It is not a comprehensive analysis of these matters and should not be relied upon as legal advice.  If you have any questions about the matters covered in this summary, please contact:

Hilde Holland:     hilde.holland@wg-law.com     Tel:  (212) 509 4715