On September 29, 2016, US Customs and Border Protection (“CBP”) announced a new program which will allow individuals who will enter the United States at a land border to apply for their electronic I-94 (arrival/departure) record on-line, up to seven (7) days prior to their arrival at a land port of entry. Travelers will provide their biographic and travel information and pay a $6 fee for their application for an I-94 record. The fee can be paid with credit card, debit card, direct debit or through PayPal. Travelers will receive a provisional I-94 record after submitting their application and payment on-line. In order to complete the I-94 issuance process, the traveler must present themselves for admission to the United States at a land port of entry within seven (7) days of completing the on-line application. If they do not enter within seven days, their provisional I-94 record will expire and they will need to reapply and pay the fee again.
This new program is expected to speed up the processing of individuals entering the United States at a land border, since the on-line application for I-94 record will collection information that would otherwise be collected at the time the individual presents themselves for admission at the border.
USCIS Proposes New Rule to Attract International Start-up Entrepreneurs
On August 31, 2016, the U.S. Citizenship and Immigration Services (USCIS) released a new proposed rule to allow certain foreign national entrepreneurs to be eligible for temporary stay in the United States. The proposed rule would provide for parole (not a specific visa status) to be granted on a case-by-case basis to entrepreneurs of new business entities in the United States whose entry into the United States would provide a significant public benefit. Entrepreneur applicants would need to demonstrate that their start-up entity has significant potential for rapid growth and job creation, and that their start-up has received significant financing or funding. Parole granted under the proposed rule would provide for an initial stay of up to two years, with potential extension of an additional three years.
CIS Ombudsman’s August Telephone Conference Processing Delays at USCIS Announces Administrative Reforms and a Regulatory Reform Proposal
Visa processing delays continue to plague USCIS, CIS Ombudsman reported in an August telephone conference to the public. In particular, the Ombudsman noted continuing delays for Form I--765 Applications for Employment Authorization (EAD), applications for change of status (COS), and petitions for extension of H-1B visas.
In response to these delays, USCIS has proposed eliminating the regulation requiring a 90-day processing period for EAD filings. In its place, USCIS is proposing an automatic 180-day work authorization for most EAD filings that are timely filed (though applicants are advised not to assume they qualify for the automatic extension). USCIS has reorganized COS application processing and designated the Nebraska Service Center (NSC) as a national processing center for applications. USCIS further recommends that H-1B extension filings be sent to NSC, except for cap-exempt employers who should continue to file with the California Service Center. USCIS is asking that applicants provide feedback on its centralization of COS filings, and recommends that employers whose H-1B extension petition reviews exceed 210 days make inquiries with the National Customer Service Center at 1-800-375-5283.
Diversity Visa Lottery for 2018 open until November 7, 2016
For fiscal year 2018, 50,000 diversity visas are available under the congressionally mandated Diversity Immigrant Visa Program. Entries must be made by noon (EST), Monday, November 7, 2016 at dvlottery.state.gov. Applicants will be selected in a randomized lottery and must meet simple, but strict, eligibility requirements to qualify for a diversity visa. There is no cost to register for this program.
Diversity Visas (“DV”) are reserved for countries with historically low rates of immigration to the United States. Countries from which more than 50,000 natives have immigrated to the United States in the previous five years are not eligible to apply. A list of eligible countries and details on the application process are available at the Department for State website at: dvlottery.state.gov. An applicant not born in an eligible country can qualify if the applicant’s spouse was born in a country whose natives are eligible. The applicant can claim the spouse’s country of birth provided that both the applicant and spouse are named on the selected entry, are found eligible and issued diversity visas, and enter the United States simultaneously. An applicant not born in an eligible country can also qualify if the applicant was born in a country whose natives are ineligible, but in which neither of his/her parents were born or legally resident at the time of the applicant’s birth. In such a case, the applicant can claim the country of birth of one of his/her parents if it is a country whose natives are eligible for the DV–2018 program. All applicants must also meet the education/work experience requirement of the DV program by having either: (1) At least a high school education or its equivalent, OR (2) two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform. The Department of State will use the U.S. Department of Labor’s O*Net Online database to determine qualifying work experience.
Starting May 2, 2017, applicants will be able to check the status of their entries at dvlottery.state.gov. Photographs submitted as part of a diversity visa lottery entry package should be taken no more than six months before the date of the petition submission, and applicants are prohibited from wearing eyeglasses in the photos.
DHS Keeps Status Quo for Northern Mariana Islands Transitional Worker Program in FY17
On September 2, 2016, the Department of Homeland Security (DHS) published a notice in the Federal Register announcing that the fiscal year (FY) 2017 cap for the Commonwealth of Northern Mariana Islands (CNMNI)-only Transitional Worker (CW-1) program will be set at 12,998. By reducing the cap by just one from the previous year, DHS aims to comply with the statutory requirement of yearly cap reductions while still meeting labor market needs and promoting economic growth. The cap does not affect anyone currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. Today’s announcement also does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay.
Scheduled to end on December 31, 2019, the transitional CW-1 program allows employers in the CNMI to apply for temporary permission to employ foreign nationals who are ineligible for any other employment-based nonimmigrant category under the Immigration and Nationality Act. Because the cap was hit by May of last year, the USCIS encourages employers to file a petition for CW-1 nonimmigrant workers as early as possible within six months of the proposed start of employment. However, USCIS will reject applications filed more than six months in advance of the start of employment. DHS also urges CNMI employers to reevaluate whether a worker fits into any other employment-based nonimmigrant category, such as the H-1B or H-2B classification. To facilitate the move to other visa categories, there will be no cap on H-1B or H-2B visas for workers employed in the CNMI during the transition period ending on December 31, 2019.
EB-5 Program Extended Through December 9, 2016
As part of its continuing resolution to keep the federal government running through the end of the fiscal year, Congress extended the EB-5 Regional Center Program through December 9, 2016. On September 29, 2016, President Obama signed into law H.R. 5325, the “Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act”. H.R. 5325 extends the EB-5 Regional Center Program and EB-4 non-minister special immigrant program for certain religious workers until December 9, 2016. The EB-5 program, which grants foreign investors meeting certain requirements with permanent residence status (green cards), was set to expire on September 30, 2016.
The EB-5 Program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under the EB-5 Program, which is administered by USCIS, entrepreneurs and their spouses and unmarried children under 21 are eligible to apply for a green card if they: (i) make the necessary investment in a commercial enterprise in the United States; and (ii) plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. The Regional Center Program sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth. The short-term reauthorization bill did not make any changes to the EB-5 program. USCIS has updated the information related to these two programs on its Adjustment of Status Filing Charts from the Visa Bulletin page.
USCIS To Increase Fees
On Monday, October 24, 2016, Department of Homeland Security (DHS) expects to publish a final rule in the Federal Register, adjusting the fee schedule for applications filed with US Citizenship & Immigration Services (USCIS). This will increase the current fees charged by USCIS by a weighted average of 21%. This action is the result of a fee review where USCIS determined that the current fees do not cover the costs of processing immigration benefits. USCIS fees had not increased since 2010. This is the rule will become effective 60 days after publication.
For the first time, DHS will establish a fee of $3,035 for processing Employment-Based, Fifth Preference (EB-5) Annual Certification of a Regional Service Center. DHS will also establish a reduced fee for individuals applying for US citizenship whose family income falls between 150% and 200% of the poverty guidelines. In addition, DHS will remove a provision requiring the rejection of applications for not including a biometrics fee or for a dishonored check, until the applicant has been provided an opportunity to correct the deficient payment.
New Enrollment Requirement for Chinese Travelers on B1 and B2 Visas
Beginning November 29, 2016, Chinese nationals traveling on a ten-year B-1 temporary business visitor visa, B-2 temporary tourist visa, or a combination B1/B2 visa will need to enroll in the Electronic Visa Update System (EVUS) before being able to seek entry to the United States. EVUS is an online system that CBP will use to keep track of travelers in the United States and identify subjects of interest before they enter the country. It collects basic biographical information such as name, employment, origin, and destination. Coverage is currently limited only to those traveling with a passport issued by the People’s Republic of China, but CBP intends to expand EVUS enrollment requirements to other countries in the future.
This change affects both current visa holders and future applicants. Those who already have visas must enroll in EVUS by December 14, 2016, or earlier if they intend to enter the United States between that date and November 29. After November 29, 2016, covered travelers who fail to enroll will be unable to obtain a boarding pass or enter the United States. CBP is updating information about EVUS on its website, https://www.cbp.gov/evus, and the registration will be available at www.EVUS.gov within the next couple of weeks. For more details, please see our client alert at: New Enrollment Requirement for Chinese Travelers on B-1 and B-2 Visas
Special thanks to Cathy Velke and Aliya Inam for their contribution to this newsletter.