Malta added to Visa Waiver Program

The Department of Homeland Security (DHS) now allows Maltese nationals to make use of the Visa Waiver Program (VWP), as of December 30, 2008. Travellers will be able to enter the US for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

To travel to the United States under the VWP, an alien must be from a participating country and must (1) be seeking entry as a tourist for a period of 90 days or less; (2) be a national of a VWP participant country; (3) present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure; (4) execute the required immigration forms; (5) if arriving by air or sea, arrive on an authorized carrier; (6) not represent a threat to the welfare, health, safety or security of the United States; (7) have not violated U.S. immigration law during a previous admission under the visa waiver program; (8) possess a round trip ticket; and (9) waive the right to review or appeal a decision regarding admissibility or to contest other than on the basis of an application for asylum, any action for removal.

For more information about the Visa Waiver program and ESTA, please see our blog post dated 11/17/08: http://martinvisalaw.blogspot.com/search/label/visa%20waive.

Can my spouse or children work when they accompany me to the US?

Foreign nationals usually want to know if their spouse and/or children can work when the family moves to the US because of the principal's job. Unfortunately, the answer is "No' in most cases, which can be very difficult for spouses who are used to having their own career and income in their home country.

The spouse will be eligible for work authorization if s/he is in dependent L-2 or E status. Spouses of people working in the US in status other than L-1 or E are not eligible to work in their dependent status (with limited exceptions for J-2 spouses). They may be eligible for another status, independent of the principal, that would allow them to work. Children in dependent status, except at the final stage of the green card process, cannot get work authorization.

The spouse can get work authorization by filing a Form I-765 with the USCIS. This can be done once s/he has entered the US in E/L status, and takes about 3-4 months for approval. Until the I-765 is approved, the spouse cannot work.

What is the difference between "visa" and "status"?

It is very common for people to use the term "visa" when referring to a foreign national's immigration status in the US. For example, people will ask "what visa do I need to study here?" or "when does your visa expire?" when they really want to know when the authorized stay expires. So what exactly is a "visa" and why is using that word confusing?

1. "Visa" vs "status" explained.

Unless you are Canadian, you will need a visa stamp on your passport to enter the US. The visa is the stamp on your passport that you get a U.S consulate outside the US. You cannot get a visa in the US. The visa is a travel document and is only needed to enter the US. Once you are in the US, you can stay past the expiration of your visa as explained below.

"Status" means that category in which you entered the US (e.g. H-1B, L-2, B-1) and the length of time you can stay here. This may not always be the same as the visa, for example if you entered in F-1 status, using an F-1 visa, and then changed to H-1B status.

2. How long can I stay in the U.S?

You can stay in the US as long as your status allows. Normally, this length of time is dictated by your I-94. The I-94 is the small white (or green if you used the Visa Waiver Program to enter) card that a US immigration officer put in your passport when you entered the US. If you had a change or extension of status approved after you first entered the US, the approval notice will have a new I-94 attached to the bottom. This new I-94 should show long you can stay here. However, any travel close to the approval, or after the approval, might affect how long you can stay in the US, so please ask your attorney for specific advice.

3. Do I need a new visa after my status has been extended?

In general, you only need a new visa stamp in your passport to return to the US after the current visa has expired. If you are not traveling, you can stay in the US after the expiration of your visa provided that your status has been extended. If you travel before your visa has expired, and you have an extension approval, you should show both the old, unexpired, visa and the extension approval, to the immigration officer and you should get the extension end date on your new I-94.

4. Do I need a new visa after my status has been changed?

If you are not traveling, you can stay in the US after a change of status without needing a new visa. After the change of status has been approved, however, you will need to get a new visa (showing the new status) before you can return to the US in the new status.

5. Where can I get a visa?

You can get a visa at a consulate in your home country or in another country to which you have close ties. Many foreign nationals also apply for visas at consulates in Canada or Mexico. Please check the website of the consulate where you want to apply, for specific procedures, document requirements, and waiting times.

What are the steps to a green card via family sponsorship?

1. I-130 Immigrant Petition.
The US citizen or permanent resident petitioner (sponsor) files a Form I-130 with the USCIS or with a US consulate outside the US, if the petition is outside the US. If both the petitioner and the beneficiary are inside the US, and if they qualify as Immediate Relatives, the 2nd step can be filed concurrently with the first. In all other cases, the beneficiary must wait until the I-130 is approved and the priority date is current before he can file the 2nd step.

2. Adjustment of Status or Consular Processing.
The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, his dependent family members also file for permanent residence at this stage. This final step involves the foreign national showing to USCIS or the consulate that there is no reason why should not be admitted as permanent residents, i.e. that there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status.
If the foreign national’s priority date is current*, he can file the Adjustment of Status (AOS) with the I-130. Filing the I-130 and AOS concurrently typically always happens in marriage-based cases. If the priority date is not current, the foreign national must wait until it is current before he can file the AOS. Once the USCIS is ready to approve permanent residence, the foreign national and his “sponsor” are called for interview at their local USCIS office. Once the immigration officer is satisfied that the relationship is genuine, and that the foreign national has no bars to admissibility, CIS approves the case.

(ii) Consular Processing.
If the foreign national prefers, he can complete the permanent residence at his home consulate. This may be required if the foreign national is outside the US when the process is started. If the foreign national chooses consular processing, he cannot do the 2nd step until and I-130 is approved AND the priority date is current.

* Please see the FAQs on my website for an explanation of these terms. http://www.martinvisalaw.com/

What are the steps to a green card through employment?

Yesterday I wrote about the different preference categories in permanent residence (green card) processing. Employers and foreign nationals frequently ask what the steps are to getting a green card, so these are outlined below. Tomorrow I'll explain the steps in a family-based case.

PERMANENT RESIDENCE APPLICATION PROCEDURE

1. Labor Certification

1. If the preference category requires a test of the US job market, the first step involves getting a labor certification (called PERM) approved by the Department of Labor (DOL). The employer needs to conduct a prescribed number of recruitment methods, to see whether there is an available, qualified, US worker interested in the position. Because of the uncertainties of the job market, this is the most unpredictable step in the immigration process. Martin Immigration Law works closely with employers to analyze the position, requirements, and advertising, and to answer questions regarding the process. However, no immigration law firm can review resumes or screen applicants.

2. I-140 Immigrant Petition

(i) With labor certification
Once the labor certification is approved, the employer files an immigrant visa preference petition with the US Citizenship and Immigration Service (CIS, formerly INS). This petition needs to prove the following to USCIS:
(a) that the DOL has approved a PERM on behalf of this foreign national;
(b) that the foreign national has the education and experience required as listed on the labor cert. The employee will need to provide educational documents and copies of experience letters. Martin Immigration Law will discuss these with the employee at Step 1.
(c) that the employer can afford to pay the salary listed on the PERM.

(ii) Without labor certification
If the employee is in a category that does not require labor certification, the process starts with the employer filing an I-140. In that situation, the I-140 needs to include extensive detail about the employee’s qualifications for the classification requested. For example, if the employer is asking that the employee be classified as an outstanding researcher, we must include evidence of the foreign national’s publications, presentations, research experience, education, recommendation letters, etc.

3. Adjustment of Status or Consular Processing

The final step is filed by the foreign national with the USCIS or with the consulate overseas (via the National Visa Center (NVC)). Whichever route the foreign national takes, her dependent family members also file for permanent residence at this stage. This final step involves the employee and her family showing to USCIS or the consulate that there is no reason why they are not permitted to get permanent residence, i.e. there are no criminal, medical, fraud, etc bars to a green card. To show this, each applicant needs to provide certain medical reports, birth and marriage documents, police records, and other documents that will be explained in detail by your immigration lawyer.

(i) Adjustment of Status
If the foreign national’s priority date is current*, s/he can file the Adjustment of Status (AOS) with the I-140, or while the I-140 is pending. If the priority date is not current, the foreign national must wait until it is current before she can file the AOS.

(ii) Consular Processing
If the foreign national prefers, she can complete the permanent residence at her home consulate. If she chooses this option, she cannot do the 3rd step until and I-140 is approved AND the priority date is current. Consular processing used to be faster than AOS sometimes, but with concurrent filing of AOS now available, consular processing is less popular. It is also more cumbersome because of the travel requirements and the need for more documents than with AOS.

* Please see the FAQs on my website for an explanation of these terms.

What are preference categories and priority dates in immigration law and why do they matter?

There are 2 main routes to permanent residence (green card) in the US: employment-based and family-based. Less common routes include asylum, diversity lottery and investment.

Employment and family-based applicants are divided into different categories. In family cases, the categories depend on the family relationship. For example, married sons and daughters of US citizens are 3rd family-based preference. Employment cases are divided based on the type of position and job requirements. For example, foreign nationals in positions that require a master’s degree OR a bachelor’s degree and 5 years of experience are 2nd preference, or EB-2. For more details, click on the Permanent Residence link here: http://www.martinvisalaw.com/faqs.html.

Your priority date is generally the date that the first step in permanent residence (PR) was filed for you. This usually means the date that (a) labor certification was filed; (b) an I-140 was filed (if no labor certification was required); or (c) an I-130 was filed in a family-based case. Priority dates are important because they determine your place in the queue for the final step of the PR process. The Department of State publishes a Visa Bulletin every month, showing which priority dates are “current” for the following month. You can only file the final step of the PR process if the priority date is current.

The waiting periods vary depending on your preference category and your country of birth. The latest Visa Bulletin, showing the current priority date, is here: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

New rules for temporary farmworkers announced

The US Citizenship and Immigration Services (CIS) published changes to immigration regulations that will "streamline the hiring process of temporary and seasonal agricultural workers." These workers come to the US in H-2A status, however employers have long complained that the process is so cumbersome that the growing season is over before the workers get the visas to come here. One reason for the delay is the fact that the Department of Labor has to certify that there is a shortage of US workers available. This procedure is, unfortunately, not made any easier by the new rules.

Immigrant rights advocates complain that the new rules do not allow undocumented workers who are currently in the US to apply for the visas. Why don't they just go home and apply? Because if they leave the US, they are subject to 3 or 10 year bars on returning, in most cases.

The changes to the H-2A regulations include:

• Relaxing the current limit on H-2A employers to petition for multiple, unnamed agricultural
workers;
• Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may
remain in the country following the expiration of his or her temporary H-2A stay;
• Reducing from 6 months to 3 months the time an H-2A worker who has spent 3 years in
the US stay outside the US before s/he cat get H-2A status again;
• Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, IF the new employer is participating in USCIS’ E-Verify program;
• Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A
workers as a condition of employment;
• Requiring an approved temporary labor certification in connection with all H-2A petitions;
• Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and
• Permitting the approval of H-2A petitions only for nationals of certain countries designated as
important to the operation of the program and appearing on a list to be published annually in the
Federal Register. The initial list of participating countries to be published simultaneously with
this Final Rule includes Mexico, Jamaica, and 26 others.

For FAQs on the rule: http://www.uscis.gov/files/article/h2a_qa_11dec08.pdf.

For an article on NPR's Morning Edition:

http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=98174972&m=98174951

Homeland Security reality TV show. Seriously.

My jaw dropped last night when I saw an ad on TV for a new ABC reality show: "Homeland Security USA." The show starting in January, and will focus mostly on the work of the Customs and Border Protection (CBP). It will also show other agencies, including the other immigration agencies.

The first episode, called "This Is Your Car on Drugs," will highlight the work of CBP at LAX Airport, a Blaine, Wash. U.S.-Canada border crossing, a stretch of the U.S.-Mexico border near Tucson, Ariz. and another border crossing at San Ysidro, Calif. It also will highlight an incident involving barbecued bats at the International Mail Center in Carson, Calif. Yeuch.

"It’s kind of a combination of the two most popular shows on TV, 'Cops' and '24,'" said David Heyman, director and senior fellow of the Homeland Security program at the Center for Strategic and International Studies. http://voices.washingtonpost.com/federal-eye/2008/12/homeland_security_gets_primeti.html?hpid=news-col-blog

This I have to watch........

Uncle Sam wants nonimmigrants

The Defense Department wants to enlist legal immigrants with critically-needed skills into the military. This pilot program is aimed at health care professionals holding needed medical specialties (physicians and nurses) and people with skills in strategic foreign languages and cultures, qualifications that are important to present and future military operations. The DOD has long allowed legal permanent residents to enlist. This program now allows nonimmigrant (temporary) visa holders to enlist, provided that they have lived in the US for at least 2 years.

Accelerated citizenship is available to people who serve the nation by joining the military during a time of war.

More information here: http://www.defenselink.mil/releases/release.aspx?releaseid=12384 and here: http://www.defenselink.mil/news/MAVNI-Fact-Sheet.pdf

Obama citizenship fight ends

The US Supreme Court has rejected a claim that President-elect Barack Obama is ineligible to serve as President because he had dual nationality at birth. The US Constitution requires presidents to be "natural-born citizens", i.e. born on US territory, not naturalized later. President-elect Obama was born in Hawaii, thereby qualifying him as a "natural-born citizen." Other lawsuits allege that his Hawaii birth certificate is fake. However independent bodies, including the nonpartisan Factcheck.org, believe it is genuine.

Slumdog Millionaire recommended. Thoughts on Maximum City?

I saw the movie Slumdog Millionaire recently, and really enjoyed it. I managed to see it at a preview screening with the director, Danny Boyle (also of Trainspotting fame, among others). I spoke with him afterwards and he was incredibly unpretentious, interested, and talkative. He probably asked me more questions than I asked him! He confirmed that the movie was partly shot in Dharavi, a huge slum in the center of Mumbai/Bombay. http://ngm.nationalgeographic.com/2007/05/dharavi-mumbai-slum/jacobson-text

About a million people live in one square mile in Dharavi. I first heard about Dharavi on the radio a few months ago, and have read more about it since. There are even tour companies that bring tourists through Dharavi - something I definitely want to do on my longed-for visit to India.

Seeing the movie, and reading about the horrific attacks in Mumbai, reminded me of a book that was recommended by an Indian client - Maximum City. This is a highly-acclaimed book by Suketu Mehta about the history and development of this amazing city. I haven't read the book, however it's next on my (ever-growing) list. http://www.metacritic.com/books/authors/mehtasuketu/maximumcity

Mehta wrote an op-ed for the New York Times on the Mumbai attacks: http://www.nytimes.com/2008/11/29/opinion/29mehta.html?_r=2&adxnnl=1&adxnnlx=1228496590-xLpVxPR5ICsOy6CWmgNorg

Deportees staying away because of recession?

NPR's Morning Edition is doing a very interesting series this week about the US-Mexico border. This morning, the show discussed the fact that many undocument immigranted that are deported back to Mexico decide not to try to return to the US. Their reasons include the lack of jobs and the increased danger and difficuly in crossing the border. The show says "In the past, many of these migrants would immediately try to cross back into U.S. But now, with the economic downturn and beefed-up security measures along the border, an increasing number are saying it's not worth the trouble. "

One immigrant aid agency in Nogales, Mexico (at the Arizona border), states that it helped 689 people return to their Mexican homes in 2007, but has helped 6,000 in 2008 so far.

The series continues for the rest of this week: http://www.npr.org/templates/story/story.php?storyId=97467703

Diversity lottery deadline for 2010 is near

The deadline for entering the 2010 diversity lottery for permanent residence (green card) is very close. All application must be submitted electronically by 12/1/08. As a "winner" of the lottery myself, 15 years ago, I encourage everyone who is eligible to apply as soon as possible. The odds may be long, but somebody has to win. Good luck!

Holiday Travel Guidelines for Foreign Nationals

The USCIS Office of Community Relations issued a reminder that certain people must get Advance Parole before traveling outside the US for the holidays. Martin Immigration Law circulated a "Holiday 2008 Travel Guidelines" document to clients and friends a few weeks ago, and you can review this on our website. It is always a good idea to make sure that you have the correct documents to return to the US well before making any international travel plans.

Anti-immigrant hate crimes are on the rise

Coincidentally, I came across 2 articles today that referred to the alarming growth of white supremacist and skinhead groups. These groups are increasing their verbal and physical attacks on minorities, including immigrants. In 2007, 68% of the hate crimes in Los Angeles County were related to race, ethnicity or national origin.

The first article was on NPR radio this evening. The segment discussed the increase in hate crimes, and then had a very disturbing discussion about skinheads recruiting in high schools. The groups actively recruit teenagers, especially through the use of music. They distribute "hate rock" with racist lyrics, that kids sometimes even use on their MySpace pages. http://www.npr.org/templates/story/story.php?storyId=97399519.

The other article that I read was on the Immigration Policy Institute blog: http://immigrationimpact.com/2008/11/24/neo-nazis-join-anti-immigrant-movement/. This posting includes a clip from a TV interview with a self-professed skinhead. He was trying to improve the image of skinheads (maybe start by not calling yourselves skinheads??) and promote the group as a benign, pro-White, advocacy group for "European-Americans." I'm a white European-American immigrant, but he sure doesn't speak for me.

Immigration groups support Napolitano as head of DHS

The American Immigration Law Foundation (a branch of the American Immigration Lawyers Association) and the Immigration Policy Center have applauded the nomination of Janet Napolitano as future head of the Department of Homeland Security. A joint statement says: “Arizona Governor, Janet Napolitano is an outstanding choice to head the Department of Homeland Security. In choosing Napolitano, the incoming administration has tapped a leader with a deft combination of political saavy and policy know-how. As a border governor, Napolitano has been in the eye of the immigration storm and has shown that she understands that it is in our nation’s interest to not only secure our borders, but also to provide for a realistic and practical immigration system that is in tune with our country’s economic needs. Napolitano has been a leading voice for comprehensive immigration reform, including improved border security measures and a system to bring undocumented immigrants ‘out of the economic shadows.’ Her lifetime of public service is a testament to her incredible integrity, aptitude, and commitment to the American people.”

State Department shows increase in student visas approved in 2008

In fiscal year (FY) 2008, the U.S. Department of State issued a record high number (710,631) student and exchange visitor visas. This is a 9.1% increase from FY 2007; and over 26% more than FY 2001. The State Department issued almost 40% more student and exchange visitor visas to Chinese nationals than in FY 2007, which was itself 40% more than 2006.

I find it especially encouraging that there are major increases in the number of visas issued to visitors from the Middle East - 26.2% more in 2008 than in 2007. However, the big question is whether these students can stay in the US after they graduate, and use their education here. Unless Congress increases the H-1B quota, that seems unlikely.

The press release states that "The State Department, along with the Department of Homeland Security and other U.S. government agencies, recognizes that one of the foundations of the U.S. academic and scientific communities is vibrant international participation. America’s outstanding academic and research institutions are as valuable to U.S. national security as protection of our borders."

Department of State announces new intercountry adoption website

On 11/17/08, DOS announced the launch of a website devoted exclusively to intercountry adoption, with information such as who is eligible to adopt, from which countries Americans adopt children, what protections the Hague Adoption Convention provides to families and more.

News article on Texas drivers licenses for foreign nationals

http://www.statesman.com/news/content/news/stories/local/11/18/1118license.html
Along with refusing to issue driver's licenses to people who cannot prove lawful status in the US, DPS has proposed issuing a different style of license to foreign nationals. The licenses will be valid only until the person's legal status expires. Immigrants whose legal status is scheduled to expire in less than six months cannot get a license or ID card at all. As we all know, it is extremely difficult to manage without a car in Texas. Preventing someone from getting a driver's license because, e.g. their status expires in less than 6 months, or because a time-filed extension has not yet been approved, is enormously frustrating for many people

7 new countries added to Visa Waiver Program

The US Department of State has increased the number of participating Visa Waiver Program countries from 27 to 34. The seven new countries are: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia. The 27 countries that were already in the VWP before November 17, 2008 are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Starting today, visitors from the 7 new countries will need to apply for ESTA (Electronic System for Travel Authorization) before they travel. From January 12, 2009 onwards, all VWP travellers will need ESTA clearance. Full details about the ESTA program, including FAQs and information sheets, are here: http://www.cbp.gov/xp/cgov/travel/id_visa/esta/.

High tech companies are getting creative in hiring foreign nationals

An article in the Harvard Business Review discusses strategies that companies are adopting when the shortage of H-1B visas prevents them hiring the employees that they want.
http://harvardbusinessonline.hbsp.harvard.edu/hbsp/hbr/articles/article.jsp?ml_action=get-article&articleID=F0811C&ml_page=1&ml_subscriber=true

Dallas county jail now checking immigration status of inmates

All Dallas County Jail inmates will have their fingerprints run through a massive federal database to identify immigrants who can be deported. The jail began running fingerprints through the immigration database on Wednesday. Only seven agencies in the country were selected for the pilot program, including four jails in North carolina, and jails in Boston, Houston and Dallas. Click on the title of this post to link to the Fort Worth Star Telegram news article.

USCIS updates the E-verify requirement for federal contractors, to start 1/15/09

On November 13, 2008, the USCIS (formerly INS) updated their website regarding new E-verify requirements starting in 2009. Federal contractors and subcontractors will be required to begin using the USCIS’ E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in the United States. The new rule implements a June 2008 Executive Order directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after Jan. 15, 2009, will include a clause committing government contractors to use E-Verify.

More details are on the CIS website: http://www.uscis.gov/files/article/FAR_13Nov08.pdf and CIS FAQs are here: http://tinyurl.com/5e5lhl.