Receipt Notice Requirement Eliminated for H and L Visa Holders
Until recently, H-1B, H-4, L-1 and L-2 visa holders with pending adjustment of status applications were allowed to depart and reenter the U.S. on a valid H and L visa stamp as long as they also brought the original I-485 adjustment of status receipt notice with them. Over the summer, USCIS received more than 320,000 new adjustment of status applications which overwhelmed their ability to timely issue case receipt notices. In order to better facilitate the upcoming holiday travel of adjustment of status applicants, USCIS eliminated the receipt notice requirement effective November 1, 2007. Thus, at this time, adjustment applicants can freely depart and reenter the U.S. on a valid H-1B, H-4, L-1 or L-2 visa stamp.
Adjustment applicants holding other visas, including E-1, E-2, E-3, F-1,O-1, O-3, TN and TD, must first obtain special travel permission called advance parole prior to departing the U.S. in order to avoid the case being deemed abandoned. There is no foreseeable change in that requirement.
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 for this process. U.S. consulates abroad observe both U.S. holidays as well as local holidays. Further, 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. Persons who plan to obtain a new visa stamp abroad over the holidays should allow additional time in their travel plans to accommodate unforeseen delays. It is also recommended that they coordinate with their work supervisor to have a back-up plan in place so that their U.S. work 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
The Western Hemisphere Travel Initiative (WHTI) is a security effort coordinated by the Department of State (DOS) and the Department of Homeland Security (DHS) to tighten security at U.S. border crossings and airports. WHTI already requires that ALL persons arriving in the U.S. by airplane possess a valid passport, including U.S. citizens. A narrow exception to this rule exists for U.S. and Canadian Citizens in possession of a special DHS issued travel pass called a NEXUS Air Card and mariners in possession of a U.S. Coast Guard issued “z-card,” also known as a Merchant Mariner Document.
WHTI will apply to land border crossings and sea ports from January 28, 2008 under the current proposal. Additional information on WHTI can be found here.
When WHTI became effective at airports earlier this year, there was huge increase in the number of U.S. citizens applying for a new passport. This resulted in delays of many months to obtain a passport, even under the expedited process. The State Department dramatically increased its staff to assist with these applications, and took steps including the re-hiring of retired foreign service officers to help with the volume. At this time, processing times have returned to normal, with clients requesting the expedite service reporting a processing time of only two weeks.
Previously, the U.S. Department of Homeland Security (DHS) had expanded its U.S. Visit biometric entry procedure system with the goal of having a complete entry system deployed by December 31, 2005. Unfortunately, this did not happen. Further, many ports of entry still do not have the exit system in place. By closely monitoring the entries and exits (or failures to exit) of foreign nationals, the DHS had hoped to obtain better information about those foreign nationals who remain in the U.S. illegally. Without a functioning exit registration system in place, however, the system has become useless. At this time, DHS is concentrating its efforts on the WHTI program and has back-burnered the U.S. Visit program.
The U.S. Department of Labor (DOL) has recently increased the number of labor certification cases it subjects to audit reviews, prior to certification. To date, this has not dramatically affected the case approval rate. Nonetheless, processing times are beginning to take longer as what was taking 2-3 weeks is now approaching a 2-3 month average.
In recent correspondence, Senator Lieberman has requested that USCIS amend its current regulations regarding F-1 student optional practical training (OPT). Under the current rule, OPT is limited to 12 months. Under the proposed rule, up to 29 months could be authorized. This would be especially helpful given the problems associated with the current H-1B cap which causes great uncertainty regarding the ability of employers to obtain H-1B visas for F-1 students it plans to hire. The press release can be found here.
USCIS had previously posted a proposed rule stating that permanent residence card that had no expiration date would no longer be accepted as proof of lawful permanent residence. The proposed rule has been shelved for the time being as the agency does not have the capacity to absorb any additional large projects at this time. Persons with such cards may obtain replacements if they so choose, but are not required to do so at this time.
USCIS has released a new version of the Form I-9, which is used by employers to confirm the lawful status of employees. Employers should use the new version of the form for newly hired employees, but will not be required to do so until 30 days after notice of the new form has been published in the Federal Register. As of the date of this newsletter, such notice has not yet been published. Among the more significant changes is an update of the list of documents that can be accepted to confirm employment authorization and identity for Lists A, B and C on the form.
The new Form I-9 can be found here.