Expansion of US-VISIT to Wider Group of Non-Citizens
Effective January 18, 2009, the Department of Homeland Security (DHS) expanded the list of non-U.S. citizens who are required to submit biometric information (digital fingerprints and a photograph) through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program upon entry to the United States. The US-VISIT system enables the collection and storage of biometric information for purposes of verifying the identities and travel documents of foreign nationals.
Before January 18, foreign nationals who arrived at a U.S. port of entry with a nonimmigrant visa and individuals traveling without a visa as part of the Visa Waiver Program (VWP) were already required to submit biometric information through the US-VISIT system.
The following non-U.S. citizens have been added to the list:
- Lawful permanent residents of the United States (LPRs or green card holders);
- Individuals seeking admission to the United States on immigrant visas;
- Individuals seeking admission as refugees or asylees;
- Canadian citizens who are required to obtain a Form I-94 upon entry (i.e., those applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q 1, Q 3, R, S, T, TN). Excluded from this expanded list are most Canadian citizens entering for business trips or pleasure visits;
- Canadian citizens who require a waiver of inadmissibility to enter the United States;
- Individuals paroled into the United States; and
- Individuals applying for admission under the Guam Visa Waiver Program.
Non-U.S. citizens entering the United States at a
land border port of entry may be processed differently at the discretion of the Homeland Security inspector:
- Rather than being required to provide biometrics upon entry, LPRs will have to do so only if they are referred to secondary inspection;
- All other non-U.S. citizens required to use US-VISIT under the new rule will be required to provide biometrics during secondary inspection; and
- Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have a Form I-94 will still be required to go through US-VISIT procedures, at the discretion of Homeland Security officers.
DHS does not anticipate that the increase in the list of individuals who are required to use the US-VISIT system will impact processing or wait times. More information about the purpose of US-VISIT is available
here.
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Legislative Update -- Immigration Legislation Under the New Administration
Commentators and immigration legislation advocates differ regarding what will happen with immigration reform under the Obama administration. So far, three schools of thought have emerged: (1) there will be comprehensive immigration reform in this administration’s the first year; (2) current economic conditions will detract from the focus on immigration in the near-term; and (3) piecemeal immigration legislation will emerge in the first year followed by comprehensive reform in 2010.
The 110
th Congress was marked by the failure of several important legislation proposals, including the DREAM Act, the H-1B numerical cap increase, AgJOBS, and the recapture of immigrant visas that were unused (wasted) over many years. Most commentators agree that refraining from addressing immigration issues is not an option for the Obama administration. While the economy will be at center stage, the President is expected to follow through on his promise to achieve comprehensive immigration reform. The President’s selection of Janet Napolitano for Secretary of Homeland Security has signaled to many reform supporters that the President is committed to immigration reform. The questions are when and how extensive immigration reform will be.
Given the economic challenges the United States faces, the President’s primary focus will be on reviving the U.S. economy. However, having pledged to seek comprehensive immigration reform, the President is unlikely to abandon his pledge. What is likely to occur is piecemeal legislation in the short term, with a comprehensive measure possibly to be introduced later this year and debated in 2010. Predicted to be considered in the nearer term due to their relatively mild impact on the economy include the DREAM Act or a similar legislation providing legalization opportunities for undocumented, now college-age students who came to the U.S. as children, and AgJOBS, a measure to provide legalization options for agricultural workers to address the recognized shortage of seasonal farm labor.
Thus far in Congress, a select few law-makers have focused on expanding the controversial E-Verify program and on opposing the Immigrant Children's Health Improvement Act (ICHIA) that repeals the 5-year bar on medical benefits for legal permanent resident children and pregnant women. The latter effort did not succeed as President Obama recently signed a bill reauthorizing the State Children's Health Insurance Program (SCHIP) which includes the ICHIA provisions. Comprehensive immigration reform bills have already been introduced in the Senate and in the House of Representatives but have not advanced to the committee hearing stage.
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Gardasil Vaccine Required for Young Women Applying for Permanent Residence
Applicants for U.S. permanent resident status must complete a medical examination to be approved for U.S. resident ("green card") status. Part of the examination requires applicants to have completed vaccination for certain vaccine-preventable diseases. In 2008, the U.S. government mandated that females between the ages of 11 and 26 receive one dose of Gardasil, a vaccine intended to prevent cervical cancer. A three-dose regimen of Gardasil costs $360, so one dos is $120. Out of the 14 vaccines required for permanent residence, 13 are designed to combat infectious contagious diseases. Gardasil is the exception. The new Gardasil requirement has triggered criticism for its sweeping applicability.
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Business Visitors - When Can You Use a Visitor Visa Traveling To and From the US?
Visas for business travelers, when used properly, are a valuable resource when an employer is interested in sending an employee to the United States or to another country as a business visitor.
In the United States, the “B-1 visitor for business” is the available visa category. "Business" refers to conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature. Business does not include purely local employment or labor for hire. The law draws a sharp distinction between "doing business" and "working," though in practice deciding where business ends and working begins is not always easy. U.S. consular and immigration officers are particularly sensitive to activities that appear to go beyond "business" and spill over into employment.
To qualify as a “business visitor,” one must:
- be an employee of a company outside the United States and remain an employee of such a non-U.S. company during the business trip;
- remain on the payroll of such foreign (meaning, non-U.S.) company during the business visit;
- undertake a temporary visit with a firm end date (a specific date on the return airline ticket helps, as opposed to an “open ticket”); and
- engage only in “permissible activities” that do not amount to working for the U.S. company and performing a U.S. job.
The following are examples of clearly acceptable uses of the B-1 category:
- engage in commercial transactions that do not involve gainful employment in the U.S. (for instance, a representative of a foreign computer manufacturer coming to the U.S. to take orders in the U.S. for computers that are manufactured abroad);
- negotiate contracts;
- consult with business associates;
- litigate;
- participate in scientific, educational, professional, or business conventions or conferences; and
- undertake independent research.
Similar to business travel to the United States, business travelers to other countries should be aware of the rules regarding their travel and the limitations that exist for such business visits. Because the rules for each country vary, we recommend that business travelers determine in advance what types of activities are permissible during their stay. As a general rule business travelers should not engage in what can be considered "work" or "employment." While the line between "business" and "work" or "employment" can often be fuzzy, a general rule of thumb is whether the activities result in productive work, whether the home country company or the foreign company is providing remuneration, and whether the home country company or the foreign company is benefiting from the visit. If the visit might include what can be considered productive work, of the visitor is paid by the foreign company or if the visit will primarily benefit the foreign company, a work permit might be required instead.
Each countries' rules are somewhat different and can vary from the general "rule of thumb" discussed above. Because China and Canada are popular destinations for business travelers, we offer a brief summary of the business visitor rules to point out the differences that exist between these two countries' laws.
China. The Business Visa (F Visa) is issued to an foreign national who is invited to China for a visit, an investigation, a lecture, to do business, a scientific-technological and culture exchanges, or short-term advanced studies or internship for a period of no more than six months. Common business activities include negotiations, attending conferences, training sessions, and business meetings, but in contrast to the regulations for the U.S. B-1 visa and contrary to the general "rule of thumb," employees of a foreign employer
may participate in short-term productive work as long as it is on behalf of the foreign employer and does not involve the primary work for the domestic Chinese company.
Canada. To enter Canada as a business visitor, the visitor must meet the following qualifications: there can be no intent to enter the Canadian labor market, the activity must be international in scope (cross-border commercial activity), the visitor must be remunerated by the foreign employer, the foreign employer must be located outside of Canada and the profits must accrue outside Canada. Allowable activities include attending business meetings, providing after-sales service (including persons entering Canada to service equipment purchased outside of Canada based on an original or extended sales or service agreement); providing training, making sales and conducting negotiations (as long as the product or services are not made in Canada and the goods are not delivered in the same visit to Canada), and attending conferences or conventions. The rules surrounding business visitors in Canada are very specific. For example, if a Canadian company has directly contracted for services from a foreign company, the visitor performing the services requires a work permit, even though the visitor is not receiving direct remuneration from a Canadian source.