Immigration Insights - October Issue

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Reminder About Travel Risk While Adjustment of Status is Pending

A recent U.S. federal court case serves as a reminder that travel abroad while an adjustment of status (to permanent resident) application is pending with U.S. Citizenship and Immigration Services (USCIS) can be risky.

Mr. Hassan, a Pakistani citizen, traveled abroad while his adjustment of status application was pending and planned to return to the United States based upon a valid and unexpired "advance parole" travel authorization issued by USCIS. While Mr. Hassan was abroad, USCIS denied his adjustment of status application and revoked the advance parole document. When Mr. Hassan attempted to re-enter the U.S., he was denied admission, placed in expedited removal proceedings, and removed (deported). He filed a lawsuit but the court concluded that advance parole is granted by USCIS solely to allow one to return to the United States while one's adjustment of status application is pending. The court decided that once an adjustment application is denied, continued usage of the advance parole document is not permissible.

We recommend that employers keep their employees' underlying H-1B, L-1 or other underlying temporary visa classification alive at least until USCIS approves the Immigrant Petition that is the basis for the adjustment application and perhaps even throughout the pendency of the adjustment of status stage. If USCIS denies the adjustment of status application, USCIS cannot remove the adjustment applicant if he or she holds a valid and unexpired underlying nonimmigrant visa status, nor may the government normally refuse to re-admit to the United States someone holding a valid H-1B or L-1 visa. In situations where there are additional issues beyond the uncertainty about whether USCIS will approve the Immigrant Petition (such as a status issue or other eligibility issue), keeping the underlying work visa classification alive through the point of the final decision (and not just through the point of Immigrant Petition approval) on the permanent residence application may be advisable.

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Extension of the "Conrad State 30" Program for Foreign Medical Graduates

Under U.S. immigration law, talented foreign doctors are eligible to come to the United States to engage in graduate-level residency training in specialized areas such as pediatrics, family medicine, and obstetrics. These foreign doctors typically are issued J-1 (Exchange Visitor) visas to complete residency training and are, by U.S. law, required to return to their country of citizenship or last residence to live for at least two years before they can change to H-1B (professional worker), L-1 (intracompany transferee) or U.S. permanent resident status.

The Conrad State 30 program created 30 waivers of the J-1 two-year foreign return requirement for each State per year to exempt these J-1 physicians to provide critically needed medical services to people lacking adequate medical care. The physicians eligible for a waiver must practice within specific medical specialties and must commit to practicing in the subject medically underserved areas for a specific period of time. This valuable waiver program has recently been extended for five years.

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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. The U.S. government has recently mandated that females between the ages of 11 and 26 must receive one dose of Gardasil, a vaccine intended to prevent cervical cancer. A three-dose regimen of Gardasil costs $360, so one dose 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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USCIS Issues H-1B Benefit Fraud & Compliance Assessment

U.S. Citizenship and Immigration Services (USCIS) recently issued the results of a study by its Office of Fraud Detection and National Security concerning the H-1B Specialty Worker nonimmigrant work visa program. USCIS conducted a statistically random sampling of pending and completed H-1B cases over a recent six-month period. USCIS' sample consisted of 246 cases drawn from a total of 96,827 cases filed between October 1, 2005 and March 31, 2006. USCIS found that a total of 51 cases out of the 246 represented either fraud, a technical violation, or more than one technical violation. The further breakdown was 33 cases involving fraud and 18 cases involving a technical violation or violations. The most common technical violations cited by the report were that the beneficiary was not working at location specified in the case, the employee was not being paid the required wage, or the employee had been "benched."

USCIS found that the fraud and technical violation profile was higher for smaller companies that had been in business for fewer than 10 years, had gross income of less than $10 Million and sponsored foreign nationals with bachelor's degrees (but not graduate degrees). USCIS also discovered that cases for beneficiaries in the accounting, human resources, business analyst, and sales and advertising occupations were more likely to contain fraud or technical violations than other occupations. USCIS intends to make procedural changes to more effectively target fraud and discover technical violations.

Our clients and friends should reinforce their focus on the following when preparing and filing H-1B petitions:

• ensure that all representations in the petition and supporting documents are accurate and consistent with internal records;
• ensure that pay records are maintained that prove payment of the required wage; and
• notify us if the employee's work location will change -- before the location change takes place -- so that steps can be taken to ensure compliance with the Labor Condition Application (LCA) rules, which may include posting the LCA at the new facility, filing a new LCA, or filing an amended H-1B petition, depending on the circumstances and timing.

Expansion of the Visitor "Visa Waiver Program"

The Visa Waiver Program (VWP) allows citizens of selected countries to travel to the United States for tourism or business without a visa. Currently, 27 countries are on the VWP list. The travel restrictions for non-visaed travelers include U.S.-stays not exceeding 90 days, holding a return ticket if traveling by sea or air, and traveling only for business, pleasure, or transit. (For a list of the VWP countries and a summary of the VWP program please click here).

Earlier this month, President Bush hosted representatives from 13 countries who are seeking to be added to the VWP. Seven of those countries will become part of the program "in about a month," and the remaining six are on the "visa waiver road map."

The new additions will be the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea. The nations on the "road map" are Bulgaria, Cyprus, Greece, Malta, Poland, and Romania. Being on the "road map" signifies that the countries are taking steps to meet the U.S. government's requirements for qualification for the VWP.

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Period of Stay for Trade-NAFTA Professionals Increased to Three Years

Trade-NAFTA (visa symbol "TN") professionals from Canada and Mexico are now eligible for three-year admission periods compared to the one-year periods of admission previously authorized. Dependants of TN professionals also will be eligible for three-year admission periods. Extensions of stay approved for TN professionals may now be authorized for three years, as well.

The TN classification allows certain professionals under NAFTA (e.g., accountants, engineers, attorneys, pharmacists, scientists, teachers, and others) to apply for admission to the United States on a temporary basis. This category is not subject to a numerical cap, allowing for more predictability in the planning process by both employers and employees. For a summary of TN category and a list of occupations for which TN classification is available, please click here.

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Update: Supplemental Final Rule on No-Match Letters Published

On October 23, 2008, the U.S. Department of Homeland Security (DHS) issued a supplemental final rule regarding Social Security "No-Match Letters."

In the initial "No Match" rule published last summer, DHS outlined a series of steps an employer should take upon receipt of a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records (otherwise known as an SSA “no-match” letter, including giving the employer and employee 90 days to resolve the mismatch. However, the original rule was never implemented due to a lawsuit. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit against DHS, claiming that the rule is inconsistent with current federal law and would result in irreparable harm to workers and employers if implemented. On August 31, 2007, a federal judge in California granted a temporary injunction filed by the AFL-CIO, and the SSA, precluded from referencing the DHS rule, did not send out No Match notices to an estimated 140,000 employers nationwide.

This new supplemental final rule contains some additional analysis but there is no substantial change from the original "No Match" rule. DHS Secretary Michael Chertoff stated that DHS has "taken action to address the courts' concerns on the original rule," and "will ask the court to lift the injunction." A status hearing is scheduled for November 21, 2008. If the court grants DHS's motion, then the supplemental rule can be implemented.