Articles Posted in Non-immigrant Visas

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klimkin [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayTitle 8 of the United States Code, which deals with immigration and nationality, defines multiple grounds for inadmissibility, by which the federal government may deny a prospective immigrant entry to the U.S., and deportability, by which it may remove an immigrant from the country. Drug abuse and drug addiction, even without a criminal conviction, are considered grounds for both inadmissibility and deportability. This has been the case since Congress passed the Immigration and Nationality Act of 1952. See Castaneda de Esper v. INS, 557 F.2d 79, 82 (6th Cir. 1977). As a report published by Vice several months ago notes, this can be difficult to enforce, since it relies on an immigrant’s honesty on immigration forms, or an inadvertent admission, such as through medical records.

U.S. courts have generally held that drug addiction does not, in and of itself, mitigate criminal liability for drug-related offenses, although some judges have expressed concern about criminalizing mere drug possession when addiction is involved. See, e.g., United States v. Moore, 486 F.2d 1139, 1243 (D.C. Cir. 1973) (Wright, J.; Bazelon, C.J.; Tamm, J.; Robinson, J.; dissenting) (“[I]in determining responsibility for crime, the law assumes ‘free will’ and then recognizes known deviations ‘where there is a broad consensus that free will does not exist’ with respect to the particular condition at issue.”) Federal authorities in immigration cases have a lower burden of proof than in criminal cases, so this principle would certainly seem to apply in decisions regarding inadmissibility and deportability.

Drug abuse and addiction are considered health-related grounds for inadmissibility. 8 U.S.C. § 1182(a)(1)(A)(iv). Federal law allows waivers for other health-related grounds, i.e., subsections (a)(1)(A)(i) through (iii), under 8 U.S.C. § 1182(g). Subsection (iv) is conspicuously absent from that list. For example, a prospective immigrant without a vaccination record for certain illnesses, who would be inadmissible under § 1182(a)(1)(A)(ii), may obtain a waiver by demonstrating that they have received a vaccination, that a vaccination would not be “medically appropriate,” or that it would go against their “religious beliefs or moral convictions.” 8 U.S.C. § 1182(g)(2). The only waiver that might be available for all health-related grounds, including subsection (iv), applies to victims of human trafficking and individuals involved in trafficking investigations. 8 U.S.C. §§ 1101(a)(15)(T), 1182(d)(13)(B)(i).

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By Kalyan Kanuri (Godavari Bridges Uploaded by NotFromUtrecht) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe federal government offers a variety of temporary, or nonimmigrant, work visas that allow employers to hire an individual from abroad for a specific job, with the understanding that the person is expected to return to their country of origin once their visa expires. New York and New Jersey businesses should be aware of some of the different types of temporary work visas in order to determine which would work best for them.

Visa Petition Procedures

For any type of work visa, the employer must petition U.S. Citizenship and Immigration Services (USCIS) on behalf of the worker. The employer is therefore the “petitioner” in this process, and the worker is the “beneficiary.” Temporary work visas are valid for anywhere from several months to multiple years, depending on the type of visa and the number of extensions granted.

Labor Certification

The petition process for some work visas require a certification from the Department of Labor regarding the worker and the specific job that the employer is offering. This labor certification must attest that no workers in the U.S. are reasonably available and that the employment of this worker will not have a significantly negative effect on the wages or working conditions of U.S. workers.

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEvery year, hundreds of thousands of international students attend American colleges, universities, and other schools with temporary student visas. According to the Institute of International Education, more than 886,000 international students were enrolled in the U.S. during the 2013-14 academic year. About half that number, 450,000 international students, studied in the U.S. during the 1993-94 school year. As the number of international students applying to and enrolling in American schools continues to climb, however, the student visa system is not keeping up with the demand or the realities of life for these students. It is a critical and under-appreciated area of need in the immigration system.

Types of Student Visas

Several types of nonimmigrant visas are available for people traveling to the U.S. for study. The visa holder typically must return to their home country when their visa expires, which usually occurs soon after they graduate or their program ends.

– The F-1 visa is available to full-time students at American colleges and universities. Spouses and children may accompany them with F-2 visas. “Border commuters,” who live in Canada or Mexico but attend school in the U.S., may enter the country with an F-3 visa. 8 U.S.C. §§ 1101(a)(15)(F), 1184(l); 8 C.F.R. § 214.2(f).

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By Christine Zenino from Chicago, US (Best View of Portofino  Uploaded by russavia) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsWhen a person petitions for a nonimmigrant visa outside the U.S., the Department of State (DOS) usually has authority over the petition, and the consular official who reviews the petition has a substantial amount of discretion. The media reported several months ago on a Chilean couple who had been living in New York City for several years, but who were denied re-entry after they left the country with their children to go on vacation. The apparent reason for the denial was a lawsuit brought by a former employee under a federal human trafficking statute. While a judge dismissed the case, the consular officer reportedly concluded that the couple was nevertheless inadmissible.

The couple, described in the media as “Chilean aristocrats,” moved to New York City in 2011 with their two children. The wife later gave birth to their third child in New York. They came to the U.S. so that the wife could study graphic design. They brought the children’s nanny with them from Chile, but the nanny’s employment only lasted for about two months after their arrival. Two years later, the nanny sued the couple, claiming that they had “enslaved” her by bringing her to the U.S. on false pretenses, taking her passport, restricting her to a locked room, withholding food and medicine, and allowing the children to physically assault her. Garnica v. Edwards, et al, No. 1:13-cv-03943, complaint (S.D.N.Y., Jun. 10, 2013). The lawsuit included a civil claim for human trafficking under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. § 1595.

The couple and their three children traveled to Italy for a vacation in August 2014. They intended to stay for three weeks and return on September 6, but the DOS denied the wife’s student visa renewal. The U.S. Consulate reportedly told her that she had failed to report involvement in human trafficking on her visa renewal application, and that it had denied the application because she had not been truthful. Their only conspicuous connection to human trafficking, however, was the nanny’s lawsuit, which was still pending in September 2014.

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linux-154544_640.pngU.S. Citizenship and Immigration Services (USCIS) issued a final rule in February 2015 extending employment authorization to dependent spouses of certain people who are in the U.S. on H-1B work visas. These dependent spouses are able to come to the U.S. with an H-4 nonimmigrant visa, but are excluded from employment. Completing this rule is part of President Obama’s immigration executive actions, which he announced in November 2014, with the goal of reducing financial burdens on guest workers and their families who are on a track to legal U.S. residence.

Federal immigration law provides H-1B nonimmigrant visas for workers in “speciality occupations” and fashion models. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Spouses and dependent children of H-1B visa holders are permitted to come to the U.S. with an H-4 visa, which has the same duration as the H-1B visa. 8 C.F.R. § 214.2(h)(9)(iv). Prior to the new final rule from USCIS, they were not permitted to work unless they obtained their own nonimmigrant visa that included work authorization. This resulted in H-1B workers who brought their spouses and children to the U.S. being limited to one income.

The immigration executive action announced by the White House in November includes directives to USCIS and other agencies to “modernize, improve and clarify immigrant and nonimmigrant programs,” with the goal of “grow[ing] our economy and creat[ing] jobs.” One of the directives, according to a summary provided by USCIS, is to issue a final rule extending work authorization to H-4 visa holders whose H-1B visa holder spouses “are on the path to lawful permanent resident status.”
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The_Great_Wall_of_China_at_Jinshanling.jpgThe U.S. Department of State (DOS) announced in late 2014 that it would extend the validity of certain nonimmigrant visas for nationals of the People’s Republic of China (“China”) under a new reciprocity agreement with that country. The agreement significantly extends the validity of visas for tourists, business visitors, students, and exchange visitors. Chinese tourism has become a substantial factor in the global marketplace. Nearly two million Chinese nationals visited the U.S. in 2013, and the number of Chinese visitors to the New York City area has nearly tripled in recent years. DOS’s announcement demonstrates how the government can adjust visa and immigration regulations to promote relationships with other countries.

Reciprocity” is an important principle in U.S. visa policy. It simply means that two countries’ visa requirements for the citizens of the other country match each other. The countries may lift restrictions against each other, or they may impose additional restrictions. The U.S. has reciprocity agreements with numerous countries around the world.

In its press release announcing the new reciprocity agreement with China, the White House stated that about 1.8 million Chinese nationals visited the U.S. in 2013, adding $21.1 billion to the economy. This number only constitutes about two percent of Chinese travelers that year, although they reportedly rank the U.S. as their top choice for a destination. The New York Times reports that the number of Chinese tourists visiting New York City increased by 182 percent between 2010 and 2013. Many Chinese tourists are staying in New Jersey hotels during their vacations, so increasing tourism could benefit both New York City and Northern New Jersey.
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USA_Visa_-_Arg.jpgThe H-1B program is no stranger to controversy, but a recent report by NBC Bay Area and The Center for Investigative Reporting (CIR), based on a lengthy investigation, provides a comprehensive look at the problems faced by many specialty guest workers. India accounts for the greatest number of H-1B visa holders every year. Indian guest workers may be most susceptible to companies that allegedly violate various requirements of the H-1B program, withhold workers’ wages, and engage in other unlawful practices. The federal government has fought these practices in both civil and criminal cases, and workers have sought relief for violations of state and federal employment laws.

H-1B visas are available to workers in specialty occupations, meaning jobs that require a bachelor’s degree or higher in a specific field. Technology companies in Silicon Valley and elsewhere hire thousands of H-1B workers every year. Federal law caps the total annual number of new H-1B visas at 65,000, and the available slots fill within days. According to NBC Bay Area, about 64 percent of H-1B visas went to workers born in India in fiscal year 2012, six percent more than the previous fiscal year.

Companies described as “body shops” have been accused of violating the law by petitioning for H-1B visas on behalf of thousands of workers from countries like India. A worker must have an “employer-employee” relationship with the petitioner. The body shops allegedly falsely claim that a job is already waiting for the worker, when they actually operate as staffing consultants for the tech industry, providing H-1B workers on a contract basis.
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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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I-94_form_front.jpgU.S. Customs and Border Protection (CBP), part of the Department of Homeland Security (DHS), began processing certain travel documents for nonimmigrant visitors electronically last year, and it recently made arrival and departure histories available online. CBP used to require all visitors to fill out a Form I-94 or I-94W, the Arrival/Departure Record, in paper format upon their arrival in the U.S. The agency hopes that electronic processing will improve efficiency and reduce costs. For individuals who are in the U.S. on an H-1B or L-1 visa, quick access to travel records may help them recapture time spent out of the country in order to extend their visas.

The I-94, in its paper form, was simply a two-part form (PDF file) with a section for “Arrival” and one for “Departure.” Upon arriving in the U.S., a nonimmigrant visitor would complete the “Arrival” section, which asks for the person’s name, country of citizenship, passport information, flight information, and contact information in the U.S. A CBP officer would review the form and give the final approval for admitting the person as a nonimmigrant visitor. Upon his or her departure from the U.S., the person would surrender the “Departure” section to a CBP officer in order to create a complete record of the person’s stay.

DHS expanded the definition of Form I-94, via a new rule published in the Federal Register in March 2013, to include an electronic format. Instead of requiring visitors to fill out the form when they arrive, DHS says that it can create an electronic version of the form with information obtained during the inspection by CBP officers, as well as information DHS already obtains from airlines, other carriers, and the Department of State. People who arrive at border points of entry by land, as opposed to air or sea, must still submit paper I-94’s. CBP says that it will continue using paper forms for refugees, asylees, and certain other classes.
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U.S._Citizenship_and_Immigration_Service.jpgU.S. Citizenship and Immigration Services (USCIS) announced earlier this year that it will be giving increased scrutiny to companies that employ workers with L-1 nonimmigrant visas. These visas are available to certain employees of international companies, allowing them to transfer within the company from an office abroad to one in the United States. The Office of the Inspector General (OIG) for the Department of Homeland Security (DHS) released a report in 2013 expressing concern about the ability of USCIS to enforce the L-1 visa program’s requirements on a consistent basis. As a result, USCIS is stepping up investigations and enforcement of L-1 visas, including plans for unannounced site visits to employers of L-1 visa holders.

The L-1 visa is available to executives, managers, and certain other employees of companies that have offices in the United States and in foreign countries. An employer petitioning for an L-1 visa must show a qualifying relationship with a foreign company, such as common ownership by a parent company. Employees must have worked for the company abroad for at least a twelve-month period during the previous three years, and must be seeking to come to the U.S. in order to serve in an executive or managerial capacity for the employer. The employee may also qualify for an L-1 visa if they possess “specialized knowledge.” 8 U.S.C. § 1101(a)(15)(L).

USCIS informally defines “executive capacity” as having the “ability to make decisions of wide latitude without much oversight.” Federal immigration law defines “managerial capacity” broadly, including management of a subdivision of the employer’s organization, supervisory authority over certain operations or personnel, and discretion over regular activities or functions of the organization. 8 U.S.C. § 1101(a)(44)(A)-(B), 8 C.F.R. § 214.2(l)(1)(ii)(B)-(C). “Specialized knowledge” refers to knowledge of various aspects of the organization, such as its product or services, or its position in international markets. 8 C.F.R. § 214.2(l)(1)(ii)(D).
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