The Law Offices of Robert Nadalin

Happy Holidays! . . . and Related Travel Issues


We would like to extend our best wishes to you for a Happy Holiday Season and a prosperous New Year.

Regarding holiday travel issues, many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Workers who plan to obtain a new visa stamp while outside of the U.S. should plan in advance. U.S. consulates abroad observe both U.S. holidays and local holidays and many of their staff also take vacations at this time. These circumstances can extend processing times by a factor of 2-3 weeks or even longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinate with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: www.usembassy.state.gov

H-1B Cap Season – 2009 DOL Changes to the LCA Process May Affect Employer’s Ability to Quickly File New H-1B Petitions In the New Year

The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a Master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants.

The CIS will begin accepting petitions for Fiscal Year (FY) 2010 H-1B visas from Wednesday, April 1, 2009. The soonest these visas can be used for work authorization will be October 1, 2009, which is the start of FY 2010. Last year, both quotas were exhausted within the first week of the filing season.

Any employer contemplating sponsoring an employee for an H-1B visa within the next 18 months should open an H-1B case for the employee in January or February of the new year. Concurrent with the 2009 H-1B filing season, the U.S. Department of Labor (DOL) has announced its intention to make procedural changes to the labor condition application (LCA) process. An approved LCA document must be received from the DOL before an H-1B petition can be filed with USCIS. Currently, the LCA documents are issued electronically within seconds of submitting an on-line filing. Under the new procedures, LCA issuance is expected to take up to 7 days, or possibly longer, to allow the DOL to provide closer scrutiny to applications submitted.

Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by USCIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.

New ESTA System Will Apply to All Visa Waiver Travelers from January 12, 2009 – Registration at Least 72 Hours in Advance Required

ESTA (Electronic System for Travel Authorization) is a new Department of Homeland Security (DHS) program that will apply to visa waiver program participants.

The visa waiver program applies to persons from those countries whose citizens are normally allowed to enter the U.S. to visit for business or tourism purposes without first having to obtain a visa stamp from a consulate abroad. Canadian citizens will not be subject to ESTA as they are visa exempt on a treaty basis falling outside of the scope of the visa waiver program. The program is voluntary at this time but will become mandatory from January 12, 2009. ESTA will not apply to persons who have gone through the formal process of obtaining a visitor visa stamp in their passport from a U.S. consulate abroad. DHS takes the position that ESTA is an enhanced security requirement but not a visa. The European Union is currently studying whether ESTA is tantamount to a visa and may consider placing similar restrictions on Americans visiting Europe.

ESTA participants are advised to submit an on-line application to the Customs and Border Protection (CBP) branch of DHS at least 72 hours prior to traveling to the U.S. CBP adjudication times range from a few seconds to up to 72 hours. If the ESTA application is denied, the traveler must apply for visa at a U.S. consulate abroad. Even at a low fraud post, such as London, it can take 33 days or longer to obtain an appointment to apply for a visitor visa stamp. See: www.travel.state.gov.

Fortunately, many posts are not as inefficient as London. The wait time to obtain an appointment in Paris is currently 15 days. In Tokyo, the wait is only 2 days. The problem with ESTA, as with all government security checks, is that a certain percentage of persons will receive a “hit” based on erroneous or incorrect information in the database, or based on a minor criminal violation, possibly including DUI or youthful indiscretions from the applicant’s college days that may have been recorded in a government database. As such, a number of persons who have previously traveled to the U.S. many times under the visa waiver program will be surprised to receive a rejection that may delay or prevent urgent business travel. The enhanced security benefit provided by the ESTA program is marginal, but the burden to the tourism industry, business traveler, or visiting academic is likely to add to the growing perception abroad that America is becoming a significantly less friendly place for foreigners to visit and to do business.

To mitigate an unanticipated delay, persons likely to travel to the U.S. in the future may wish to submit an ESTA application at this time. The ESTA travel authorization will be valid for a 2 year period of time unless the applicant changes his or her citizenship, passport, name, gender, or answers to any of the yes/ no questions listed on the application form. Additional information can be found at: www.cbp.gov

Changes to Form I-9

On Friday, December 12, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it would soon publish a rule in the Federal Register to revise the list of documents that may be presented in connection with the completion of Form I-9 to verify identity and employment authorization. The rule will become effective 45 days after publication and will be accompanied by a new version of Form I-9. Through that time, employers should continue to use the current version of the Form I-9, dated June 5, 2007.

The new changes include the requirement that all original documents presented during the verification process be unexpired, the elimination of outdated references to documents that USCIS no longer produces, and the addition of foreign passports containing certain machine-readable immigrant visas to List A. Also, the I-9 Handbook for Employers (M-274) is being updated. A new version of that publication should be released in the near future.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.