Planning Travel to the United States: ESTA 72 Hour Minimum

During one of the busiest travel seasons of the year, it is important to take note of strict time cut offs for applications for entrance into the United States. Those eligible to enter into the United States through the Visa Waiver Program (VWP), in particular, should apply for Electronic System for Travel Authorization (ESTA) at least 72 hours before departure to avoid any possible entry denials. Maintaining awareness of important deadlines will prevent any unnecessary delays to entry.

ESTA Eligibility

The VWP allows citizens from several eligible countries to enter the United States without a visa for up to 90 days for either business of pleasure. Eligible countries include countries within the European Union, Chile, Taiwan, and many more. Those who wish to enter through the VWP must not be currently in possession of a visitor’s visa and must hold a valid passport. As of 2018, the fee for ESTA is $14.

ESTA Purpose

Since the early 2000s, the ESTA program has enabled the Department of Homeland Security to gather important security information about travelers entering the United States from both air and sea. Previously, ESTA application processing was allowed on the same day of travel. However, to increase security and processing efficiency, all applications should be submitted three days before departure. Those that attempt to apply the same day of departure could be denied authorization to enter the United States, and therefore will be unable to board their flight. To avoid any mishaps, Customs and Border Patrol suggests applying for ESTA at the time of booking your flight. Once submitted and approved, applicants may check the status of their ESTA or make any changes if necessary. Families traveling to the United States may file group applications and pay all required fees through the ESTA application management system. If you have any questions about assisting family members traveling to the United States, or require assistance yourself, please feel free to request a consultation.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

H-1B Pre-Registration: USCIS Proposed Rule

The speculation about drastic changes to the H-1B registration process has come to fruition with the new proposed rule out of the Department of Homeland Security. The amendment to the current H-1B specialty occupation visa program would require petitioners to electronically register with the United States Citizenship and Immigration Service (USCIS) prior to start of the H-1B lottery each year. USCIS would open the online registration process two weeks before the beginning of the filing period for the new fiscal year. This change would eliminate the requirement for employers to complete paper cap-subject applications during the first week of April.

Major Changes

  1. Shortened Application: Petitioning employers would be required to electronically register each beneficiary they wish to sponsor through the H-1B visa program. However, only those registrations selected by USCIS will be required to produce a completed H-1B cap subject petition, including the DOL Labor Condition Application and the long form petition for nonimmigrant worker, or Form I-129.
  2. Reversed Selection Process: The new proposed process would reverse the H-1B selection process. USCIS would begin the filing season by first selecting H-1B regular cap applications, including those registrations eligible for the H-1B advanced degree cap exemption. Then, USCIS will select the 20,000 cap-exempt advanced degree petitions. 

 Analysis

In the proposed rule, DHS intends the change in the registration process to produce more H-1B petitions that are selected for beneficiaries for master’s degree or higher degrees. Specifically, DHS estimates that the change will increase the number of master’s degree or higher beneficiaries, with degrees from U.S. institutions, by 16 percent annually. In addition to an increase in the number of H-1B beneficiaries with higher degrees, DHS intends to waive the initial fees for pre-registration in order to save administration costs. DHS estimates that the change would save petitioners a range from $47.3 million to $75.5 million in filing fees. In addition, USCIS would save $1.6 million in processing costs.

Although these savings are attractive, some employers may experience difficulties employing foreign nationals with bachelor degrees or degrees from outside the U.S.. While it is uncertain if the new rule will apply to the 2019 filing season, the proposed rule is open for public comment until January 2ndof 2019.

Colleges Sue DHS Over Student Visas

The United States Citizenship and Immigration Service (USCIS) and the Department of Homeland Security (DHS) are being sued by several colleges over changes to administrative policies changes related to foreign students. In August this year, USCIS changed the method by which USCIS officers calculated unlawful presence accrued by students (J-1, F-1, and M-1). This left many students who had experienced a temporary lapse in status vulnerable to unlawful presence accrual. The plaintiffs claim that the new policy unfairly penalizes students “acting in good faith” with re-entry bans up to ten years.

Policy Change

After August 9thof this year, students on J-1, F-1, and M-1 visas became vulnerable for unlawful presence, an immigration status that if held for more than 180 days, results in a three year ban from the United States. The policy change made students accrue unlawful presence beginning:

  • On the day they no longer pursue a course of study or the authorized activity indicated by their visa, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any “authorized grace period;”
  • The day after their I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain period; or
  • The day after either an immigration judge or Board of Immigration Appeals, orders them to be excluded, deported, or removed, regardless if the decision is appealed.

USCIS claims the changes were meant to hold students accountable for violating the terms of their visas. However, the plaintiffs in the lawsuit find the policy change to be unfair to students accused of status violations.

Lawsuit

The colleges serving as the complainants, Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College claim that the policy change affects both their students and the overall financial health of the higher education institutions. Currently in the District Court of Middle North Carolina, the lawsuit awaits response from DHS representatives.  A representative for Haverford College, stated in an interview that the policy irreparably disrupted [the] students’ educational plans, and Haverford has lost tuition as a result.” The plaintiffs aim to return unlawful presence accrual regulations to those predating the August 9thchange.

Record US Asylum Seekers in Canada

According to Canadian officials, asylum applications from United States citizens have seen a six fold increase in the first year of the Trump Administration. Over 2,550 US citizens applied for asylum in Canada, the largest spike in applications from US citizens since 1994, according to data from Immigration, Refugees and Citizenship Canada. In an interview with the Guardian, Montreal based immigration lawyer Stéphane Handfield said that the US applicants were disproportionately “children of non-residents” and seek asylum in Canada to prevent family separation.

End of TPS in US

Over the last year, the Trump Administration has ended several programs granting temporary protected status, or TPS. The program permits individual’s of certain nationality to remain in the US without risk of deportation. Additionally, TPS allows protected nationals to obtain an employment authorization document and apply for travel authorization. Countries are typically protected under TPS following an extreme natural disaster or outbreak of war. However, several nationals, including those from Haiti and Nepal which experienced devastating earthquakes, have lost protected status. Without TPS, these foreign nationals may not work legally in the US and must leave the country. Spurred by the end of protected status and continued negative immigration rhetoric, families with US-born children have fled the United States to Canada to avoid separation.

Response from Canada

The vast majority of asylum seekers traveling to Canada are from Haiti and Nigeria. Citizens from the United States, ranked third for asylum seeks, are primarily the children of non-citizens from the above-mentioned countries. Without protections in the United States, many Haitian families believe they can cross into Canada without penalty. However, representatives from the Canadian government warn against undocumented crossings. In response to the influx of asylum seekers Canada’s minister of immigration, Ahmed Hussen spoke with the New York Times. “We don’t want people to illegally enter our border and doing so is not a free ticket to Canada,” Mr. Hussen said in an interview. “We are saying, ‘You will be apprehended, screened, detained, fingerprinted, and if you can’t establish a genuine claim, you will be denied refugee protection and removed.”

USCIS Lawsuit: H-1B Visa Duration

A recent lawsuit filed in the U.S. District Court for the District of Columbia, ITServe Alliance v. USCIS, aims to limit the discretionary powers of the United States Customs and Immigration Service (USCIS) in limiting the approved duration of H-1B visas. ITServe Alliance, the largest association of information technology “IT” Services, Staffing, Consulting organizations, filed the lawsuit in hopes to change the ways in which USCIS processes and adjudicates H-1B visas.

Background

The lawsuit comes in response to continued employer dissatisfaction over the processing and approval of H-1B visa petitions. The plaintiff, ITServe Alliance, represents one of the largest populations of employers for the highly skilled immigrant work program, the IT sector. Like many other companies, members of the ITServe Alliance must compile an extraordinary quantity of documentation in order to file an H-1B petition. Besides the lengthy application process, employers like those ITServe Alliance are unduly burdened by the costs associated with H-1B petition filings. Regardless of this burden, USCIS may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion. In response, ITServe Alliance has filed a lawsuit claiming that USCIS lacks the written authority to reduce the duration of an H-1B visa below the three-year minimum.

Lawsuit

ITServe Alliance has asked a district judge to rule whether USCIS is within its administrative powers, outlined by the Administrative Procedure Act, to “exercise discretion and approve H-1B visas for any duration it deems supported by the employer’s evidence.” ITServe Alliance claims that USCIS carries no legal power to limit H-1B visa to durations less than three years. In exercising this administrative power, USCIS has, at times, approved visas for a period only of a few days. Consequently, firms have received approval notices afterthe H-1B visa has expired. Besides these abnormal cases, USCIS’s discretionary power to limit the duration of H-1B visas has left many employers hesitant to file new petitions. Although it is uncertain whether USCIS will change its administrative behavior in the near future, we will continue to keep readers updated on any changes.

International Students on CPT & OPT Denied H-1B Visas

Under new guideline interpretations, many former international students have received denials for H-1B benefits from the United States Customs and Immigration Service (USCIS). According to some reports, F-1 students who have completed work in their field for more than 12 months while earning a degree and in the one-year period following graduation, may be ineligible for H-1B visa benefits. Unfortunately, many students at the end of their Optional Practical Training (OPT) have received denials for their applications to switch to an H-1B visa and must return to their home countries and seek H-1B benefits from their local consulate.

Curricular Practical Training & Optional Practical Training

While studying in the United States, international students have two unique opportunities to gain practical working experience in a career relevant to their field of study. During their program of study, students may complete a for-credit work experience in a field relevant to their major. This program, known as Curricular Practical Training (CPT), allows students to work for up to 12 months while completing their degree. OPT is similar to CPT, but occurs after an F-1 has received their degree, and lasts up to 12 months unless the student receives an extension through STEM OPT. Some students complete both CPT and OPT experiences during their stay as an international student. Now, USCIS has determined that the total duration of work performed for practical training cannot exceed 12 months.

H-1B Denials

For years, students have been able to complete both CPT and OPT with no issues. However, under new practice, students with more than 12 months working experience due to CPT and OPT will be interpreted as having failed to maintain valid F-1 status, and therefore ineligible to switch from an F-1 to an H-1B visa. According to reports, students are continuing to receive approval for OPT spanning for 12 months, regardless if they have completed CPT during their program of study. Therefore, USCIS sets many international students up for denial from H-1B benefits and potential bars for additional visas. Although USCIS does not deny students from completing a period of practical training longer than 12 months, the accumulation of CPT and OPT work experience longer than 12 months will cause students to violate their F-1 status.

We strongly recommend F-1 students to be proactive about their maintenance of status by seeking legal advice in case they do not fully comprehend the law. It may not be enough for them to rely on the DSO’s advice or the USCIS’ approval of OPT following the CPT.

California Representative Attempts to Save H-4 EAD Program (H-1B)

As previously reported, the work authorization (H-4 EAD) program that allows the spouses of H-1B visa beneficiaries to find work while in the United States with their family is set to end under the Trump Administration. However, two California Congresswomen are gearing up to fight for the continuation of the Obama-era H-4 EAD program.

H-4 Employment Protection Act

On November 16th, Representative Anna G. Eshoo (CA-18) and Zoe Lofgren (CA-19) introduced the H-4 Employment Protection Act, which would prohibit the Trump Administration from ending the Obama rule that expands work authorization to include the spouses of H-1B visa holders. Congresswomen Eshoo and Lofgren represent the majority of San Jose, which is more commonly known as Silicon Valley.

One of the largest recruiting areas for highly skilled foreign workers, Silicon Valley hosts many families on the H-1B program. Since spouses are permitted to work through the H-4 visa program, many residents of Silicon Valley were able to pursue their own careers alongside their husbands and wives. In total, the H-4 EAD program has allowed over 100,000 H-1B spouses, primarily women, to obtain employment authorization documents. The Trump Administration is likely set to end the program before January next year.

“Protecting work authorization for these H-4 visa holders is a matter of both economic fairness and family unity,” Congresswomen Eshoo stated in a press release. “Eliminating this benefit would create a painful choice for many immigrants to either split up their families or return to their home countries and use their talents to compete against American businesses.” Residing in California can be especially challenging for families living off of the income of a single H-1B holding earner. Eshoo and Lofgren’s bill aims to protect those families that are vulnerable to the cut in income associated with the termination of the H-4 program.

Congresswomen Lofgren echoes this concern: “Prohibiting H-1B dependent spouses from working is of no benefit to our country, and if allowed to move forward, many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration. This much needed bill will block the Trump Administration from needlessly harming our economy and the lives of skilled immigrant families.”

Proposed H-1B Lottery Changes: Winners and Losers

As news continues to circulate about the proposed pre-registration process for the H-1B visa lottery, the Trump Administration has hinted on a new prioritization strategy for H-1B beneficiaries with master’s degrees and higher. Thus, the April 2019 lottery could see a pre-registration process that skews greatly towards those with advanced degrees, especially for individuals with advanced degrees from a United States college or university.

 New Proposal

According to Bloomberg Law, the unreleased proposal aims to “increase the probability of the total number of petitions selected under the cap filed for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year.” The proposal for pre-registration processing could also place greater limitation to minimum wages for H-1B beneficiaries. Thus, USCIS would seek to grant H-1B visas to foreign nationals graduates from masters and doctoral programs in the United States who have high paying employing petitioners. In a scheduling document, the White House stated that it hoped the proposal would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The statement also cited that the change is “being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation.” Through the pre-registration process, and the new skewed selection criteria, DHS intends to more fully abide by the standards outlined in the Executive Order Buy American Hire American.

Winners and Losers

For employers with a high demand for advanced degree holders, this potential proposal could mean smooth sailing come April. Especially for firms in Silicon Valley, the prioritization of foreign nationals with masters and higher degrees from United States institutions allows employers to source employees from prestigious institutions. However, for those employers that employ H-1B visa holders with bachelor’s degrees, or advanced degrees from foreign institutions, the change could bring about staffing troubles. According to Mercury News, “[o]utsourcing and staffing companies such as Infosys, Cognizant, Tata, Wipro and Deloitte tend to obtain more visas for bachelor’s degree holders.” If the changes affect the April 2019 lottery, companies and potential beneficiaries could be in serious trouble.

Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.