Visa Waiver Program Expanded to Include Seven New Countries
The visa waiver program allows citizens of countries with low overstay rates to enter the U.S. as business visitors or tourists without first having to obtain a visa stamp at a U.S. consulate abroad. The seven new countries are: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. These countries have also agreed to allow U.S. citizens to visit without first having to obtain a visa stamp. Additional information on the program, including a list of participating countries and permissible visitor activities can be found at: www.travel.state.gov
Trade-NAFTA (TN) professional workers from Canada or Mexico may now obtain 3 year I-94 cards to facilitate a stay of up to 3 years in the U.S. Previously, TN professionals were limited to a stay of 1 year following each entry or extension. The TN nonimmigrant classification is limited to professionals working in certain qualified fields specifically listed in the NAFTA treaty. Most TN eligible positions require the applicant to possess a bachelor’s degree, although a limited number of occupations permit workers to qualify for the status based on alternative professional credentials.
Employers contemplating structural changes or cost-cutting measures involving foreign workers should consult with immigration counsel prior to making such changes. Processes including H-1B, H-1B1, E-3 and PERM labor certification are work site specific and require the payment of a specific minimum salary amount. Changes in work-site location or salary reductions may require additional filings.
While sponsoring foreign workers for immigration benefits does not change the normal employment at will nature of the employer-employee relationship, other considerations may apply if employment is terminated. The employer should notify the government when an employee sponsored under the H-1B, H-1B1, E-3 categories is no longer employed in order to cut-off any continuing wage obligation incurred through the labor condition application (Form ETA-9035). Further, the current H-1B laws require the employer to offer to pay for the foreign worker’s cost of return transportation to the home country. That obligation does not extend to family dependents.
In parting on good terms, it is also the practice of many employers to request the assistance of immigration counsel to review the circumstance of individual employees to provide advice regarding individual immigration options following the termination of employment.
USCIS recently released its H-1B Benefit Fraud & Compliance Assessment report. The report included the review of 246 cases from a pool of 96,827 filed between October 1, 2005 and March 31, 2006. The report concluded that 13.4% of the cases were fraudulent (33 cases), 7.3% of the cases involved a technical violation (18 cases), for an overall violation rate of 20.7%. Examples of fraud included petitions submitted for businesses that do not exist and the submission of fraudulent education credentials. Technical violations included not paying the employee the promised wage or requiring the employee to pay the ACWIA filing fee of $1500/ $750. The report found that firms with fewer than 25 employees or gross incomes of less than $10 million had an overall higher violation rate. The violation rate was very low for engineering and science related positions (0%-8%), but significantly higher for computer professional and business related positions (27% – 42%). Violation rates were also lower for positions staffed by a foreign worker who held a master’s or higher degree.
This report is likely to result in increased H-1B related site visit and audits by USCIS, ICE (Immigration and Customs Enforcement) and possibly DOL (U.S. Department of Labor). ICE investigations may lead to criminal prosecution in egregious cases. The likely impact for most employers will be the issuance of many more requests for additional evidence (RFEs) by USCIS in the coming year. The USCIS report will also likely provide ammunition for the voices that oppose legal immigration, and has already been a subject of focus for Lou Dobbs and other anti-H-1B commentators. Given the difficulties that are also being experienced in the L-1 program, the temporary employment of foreign workers under the H and L visa programs is unlikely to become any less burdensome in the coming new year.
The full report can be found at: www.uscis.gov
The Department of State will gradually begin to use a more comprehensive visa application form, the DS-160. This form will replace the DS-156 standard visa application form, the special DS-157 form required form males between the ages of 16 and 45, and the DS-158 form required for student and exchange visitor applicants. Currently, the new DS-160 form is only in use at a limited number of U.S. consulates in Canada and Mexico, although its use will gradually be expanded to other consulates. As with any change, the new DS-160 will likely result in longer visa stamp processing times at the posts now learning to work with the new form.
For more information, see: www.travel.state.gov
Many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Foreign 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