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U.S. Consulates at Vancouver and Montreal Implement New Form DS-160 for Non-Immigrant Visa Applications
Earlier this year the U.S. Department of State (DOS) introduced a new Nonimmigrant Visa Application, the DS-160, that combines and replaces the multiple nonimmigrant visa application forms currently filed by foreign national applicants seeking U.S. visas at U.S. consulates. DOS chose to limit the implementation of the new DS-160 to two U.S. consulates in Mexico -- Monterrey and Nuevo Laredo -- on a pilot basis. Starting October 22, 2008, all foreign nationals applying for nonimmigrant visas at the U.S. consulates in Montreal and Vancouver must use the new form DS-160. For visa interview appointments that occur before October 22, 2008, applicants must complete the DS-156 Electronic Visa Application Form currently in use.
The current nonimmigrant visa application process begins with form DS-156 which, while completed online, is printed and submitted in hard-copy form to a U.S. consulate. By contrast, the
DS-160 is completed and submitted online. The form may be filled out by a third party but ultimately the actual applicant must submit the form on line. Upon submission, the applicant receives a confirmation page that the applicant must take to the visa interview appointment. The information that is submitted electronically is stored in the DOS database and is retrieved by the consular officer at the interview via the confirmation page. The Vancouver Consulate warns that the online application must be completed "fully and properly" or else the visa application may have to be rescheduled.
At the U.S. consulates in Monterrey and Nuevo Laredo, applicants are required to make a separate appointment for biometric data collection (photograph, signature specimen, and fingerprints) at the time they schedule their U.S. consular visa interview appointment. The data collection appointment occurs before the consular visa interview. Montreal and Vancouver do not mention the need for this additional step in the process. However, applicants in those two locations whose interview appointments fall after October 22, 2008 and therefore will require the use of form DS-160, should inquire at the time of scheduling the visa appointment whether an additional appointment for submission of biometric data is required.
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October Visa Availability -- EB-2 Retrogress for India and China; EB-3 Available but Retrogresses Relative to June 2008
The October monthly
Visa Bulletin published by the Department of State (DOS) is awaited with anticipation and hope for advancement of visa availability. The focus for many affected individuals regarding the October Visa Bulletin was the employment-based third preference (EB-3) that became "unavailable” effective July 2008. The question was whether the October cut-off dates would resume where they had left off in June 2008 or whether the cut-off dates would retrogress because of high demand. Excepting Mexico (which picked up where it had left off in June) all EB-3 chargeabilities retrogressed relative to where they were in June. The cut-off date for EB-3 China fell back by 17 months while India's EB-3 date retrogressed by 4 months. In the EB-2 category the China cut-off date retrogressed by 28 months and India by 40 months while the remaining chargeabilities remained “current.”
The reason for this retrogression according to the DOS was that U.S. Citizenship and Immigration Services (CIS) set out to maximize the number of visas used in each category. To do so, the CIS reviewed more cases than there were immigrant visa numbers available. The DOS indicated that "[t]he CIS estimates have proven to be very high" which led to the retrogression of several of the employment-based cut-off dates for October. The DOS predicts that "[l]ittle if any forward movement of the cut-off dates in most employment categories is likely until the extent of the CIS backlog of old priority dates can be determined."
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Is E-Verification Required for F-1 Students Granted Curricular Practical Training?
Some F-1-visaed foreign students who attend school in the United States may be granted permission to engage in hands-on practical experience in their field of study. Curricular Practical Training (CPT) is one such form of permission. CPT is authorized by the educational institution the foreign student attends. When a school authorizes an F-1 student to engage in CPT, the school records such CPT work authorization on the student's Form I-20. Unlike another form of work permission for practical training known as Optional Practical Training (OPT), CPT does not require proof of work permission to be issued by U.S. Citizenship and Immigration Services.
Employers who participate in the government’s
E-Verify program and hire F-1 students with CPT inquired whether or not students with CPT are subject to E-Verify. The Department of Homeland Security (DHS) indicated that students with CPT must be work verified through the E-Verify program. Employers further inquired whether E-Verify was capable of automatically retrieving the student's I-20 information to provide automatic confirmation of the student's eligibility to work. According to DHS, E-Verify does not have the capability to automatically access and verify a student's I-20 data. CPT student names that are submitted for a query through E-Verify will always be sent for secondary verification. This raises concerns of delays in the verification process for students with CPT. DHS indicated that despite the need for secondary verification, employment eligibility should be confirmed within 24 hours as long as the student's record can be located in the electronic data system that stores I-20 information. While this reassurance constitutes good news, E-Verify employers and students might want to budget extra time for the completion of the verification.
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The 2010 Diversity Visa “Lottery”
Foreign nationals interested in participating in the 2010 Diversity Visa lottery will be able to access online entry starting at noon (EDT) on October 2, 2008. The system will remain open for application submission until noon (EST) on December 1, 2008. The relevant information and instructions for the application process for the lottery appear on the
Department of State website. The lottery will result in the random selection of more than 50,000 people from eligible countries who will be given the opportunity to apply for a “green card” or permanent residence in the United States. Diversity Visas are allocated monthly in the government fiscal year running from October 1 through September 30 of the relevant year, and can be tracked by consulting the Department of State
Visa Bulletin.
The Diversity Visa lottery provides immigration opportunities to individuals from countries that historically have posted a lower representation among the immigrating population relative to other regions in the world. While most countries consistently remain on the “eligible” list, several are periodically removed based on the representation criterion. The Diversity Visa lottery for 2009 listed natives of the following countries as
ineligible for the lottery: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependant territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. The Department of State noted that for 2010, Russia is being added back to the list of eligible countries and Kosovo is being added as an eligible country. No additional changes to the list of eligible countries have been announced to date.
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Application for Naturalization (Form N-400) Joins Direct Mail Program
In a continued effort to centralize its operations, U.S. Citizenship and Immigration Services (USCIS) announced that non-military naturalization applicants will be required to submit their applications on Form N-400 to one of two new USCIS lockbox facilities, depending on the applicant's state of residence. The USCIS believes that this effort will further increase efficiency, decrease inconsistencies, and cut costs. For the Lockbox addresses please see the USCIS notice on Direct Mail by clicking
here.
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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. Employers should be aware of the permissible uses of business visitor visas to ensure their employee's entry and duration of stay 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, if 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 country's 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 a 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.
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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.