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News

2011-04-04
  USCIS Reminds Japanese Nationals Impacted by Recent Disaster - Questions and Answers
2010-12-22
  Suspension of I-129 Export Controls Questions on I-129
2010-12-17
  The New Export Control Attestation Requirement on Form I-129
2010-12-15
  1. Special Considerations when Filing an L-1B Petition for Outsourced Employees / L-1B Petitions for Off-site Design Engineers Are Especially Problematic
2010-12-15
  2. Special Notes Related to H-1B Visas
2010-12-15
  3. Site Visits – Nonimmigrant Visa Revocation
2010-12-15
  4. Preparation for NIV Visa Stamp Interview at Consular Post
2010-12-15
  5. Random Notes on Nonimmigrant Visa Processing
2011-04-04
USCIS Reminds Japanese Nationals Impacted by Recent Disaster - Questions and Answers
In light of the recent earthquakes and tsunami, U.S. Citizenship and Immigration Services (USCIS) reminds Japanese nationals of certain U.S. immigration benefits available upon request.

USCIS understands that a natural disaster can affect an individualfs ability to establish or maintain lawful immigration status. The following questions and answers address temporary relief measures available to nationals of Japan.

[Questions and Answers]

Q1. What are my options if I am a Japanese national who entered the United States under the Visa Waiver Program (VWP)?

A1. There is no provision under U.S. law to extend the stay of an individual admitted under the VWP. However, if you were admitted under the VWP and are unable to return because of the recent disasters in Japan, you may request satisfactory departure. If granted, you will have up to 30 days to leave the United States without penalty for exceeding your authorized stay. If you are at an airport, please contact the U.S. Customs and Border Protection office at the airport. All others please visit the USCIS local office.

Q2. I am a Japanese national and cannot return to Japan at this time due to the disaster. I have a non-immigrant visa in my passport (and was not admitted under the VWP). My allowed time to stay in the United States has either expired or is about to expire. What are my options? Can I work during my stay in the United States?

A2. You may file a request to change or extend your nonimmigrant status if you still meet the existing criteria for your specific nonimmigrant category. For example:

If you are a B-1 or B-2 visitor, you may apply for a six-month extension on the basis that you are unable to return to Japan at this time due to the events following the disaster. However, you would not be authorized to work or attend school in the United States.If you are no longer able to extend your non-immigrant status, USCIS will consider requests to change your status to B-1 or B-2.Typically, an extension application must be filed before the authorized stay expires. However, USCIS may accept applications for change of status or extension of stay if your authorized admission has expired.

To change or extend your nonimmigrant status you must submit:

A Form I-539, Application To Extend/Change Nonimmigrant Status,The $290 filing fee (no waiver of this filing fee is available), andEvidence establishing that the events that began March 11, 2011, are the basis for your inability to return to Japan prior to the expiration of your authorized period of admission.If you were in a lawful, nonimmigrant status on March 11, 2011, you will be excused for filing late until May 11, 2011. After May 11, 2011, eligibility for delayed filing will be determined on a case-by-case basis.

Q3. I am a Japanese national granted parole to enter the United States temporarily. However, I am unable to return to Japan due to the disaster and my parole has expired or is about to expire. What are my options? Can I work during my stay in the United States?

A3. If you are a Japanese national who has already been paroled into the United States by USCIS, you may apply for an extension of your parole (gre-paroleh) by making an InfoPass appointment at your local USCIS field office. The length of the extension is at the USCIS district directorfs discretion, but normally will not exceed six months. To qualify for re-parole, you will need to demonstrate that you were or are currently prevented from returning to Japan before the expiration of your current or last authorized parole. You will also need to present a genuine, expired or unexpired Form I-94 that shows an expiration date between March 11, 2011, and May 11, 2011. If your period of authorized parole was current on March 11, 2011, you will be excused for filing late up to May 11, 2011. After May 11, 2011, eligibility for delayed filing will be determined on a case-by-case basis.

Once your parole has been extended, you may apply for employment authorization by filing Form I-765, Application for Employment Authorization. For instructions on how to apply, please refer to the filing instructions on Form I-765.

Q4. I am a Japanese national granted advance parole to travel outside of the United States. I cannot return to the United States from Japan due to the disaster, and my allowed time is expiring or about to expire. What are my options?

A4. USCIS grants Japanese nationals currently living outside of the United States an automatic extension of advance parole until May 11, 2011. Ports of entry have been instructed to accept the auto-extended Form I-512, Authorization for Parole of Aliens into the United States. Affected individuals need not bring any additional documentation with them to the airport.

Q5. I am a Japanese national F-1 student currently enrolled in school in the United States. Due to the disaster, I can no longer cover the cost of my education. What are my options? Can I work during my stay in the United States?

A5. If your family in Japan is funding your studies, you may be eligible for work authorization based on severe economic hardship. According to the regulations at 8 CFR 214.2(f)(9)(II)(C) and (D), F-1 academic students may request off-campus employment authorization based on severe economic hardship caused by unforeseen circumstances beyond their control, such as changes in the financial condition of their source of support. If your family is encountering difficulties with funding your studies in the United States due to the recent natural disaster in Japan, you may apply for employment authorization based on severe economic hardship. To qualify, you must establish that you:

Have been an F-1 academic student for at least one full academic year;Are in good academic standing and carrying a full course load; andNeed employment authorization to avoid severe economic hardship.You will need to obtain a recommendation from your Designated School Official (DSO). If your DSO agrees that you should receive employment authorization based upon severe economic hardship, he or she will update your SEVIS record with a recommendation that will be reflected on your Form I-20. Your DSO will need to sign and date your new I-20. Once you obtain this recommendation you must file Form I-765, Application for Employment Authorization, with your properly endorsed Form I-20, according to the filing instructions on the form. Although the filing fee for Form I-765 is $380, you may apply to have that fee waived due to your inability to pay. For guidance on how to file a fee waiver request, please visit www.uscis.gov/feewaiver.

Q6. I am a Japanese national whose case is pending with USCIS. I need my case expedited due to the recent disaster in Japan. What are my options?

A6. Given the need for immediate relief, USCIS will expedite certain applications and petitions. Standard requirements for security checks remain in place under expedited procedures.

If a U.S. citizen or lawful permanent resident requests expedited processing of a Form I-130, Petition for Alien Relative, the case will be expedited where a visa number is readily available.

Japanese nationals with benefit applications pending in the United States who must travel quickly for emergent reasons will need to apply for advance authorization for parole to return to the United States. USCIS will expedite the processing of Form I-131, Application for Travel Document, in such cases, where we have been advised of the emergent need to travel.

Q7. Where can I find more information about immigration relief benefits?

A7. For more information on USCIS humanitarian programs, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.
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2010-12-22
Suspension of I-129 Export Controls Questions on I-129
We have learned (today Dec. 22, 2010) that USCIS will be temporarily suspending the requirement that H-1B, H-1B1, L and O-1A petitioners complete the export controls/ITAR questions on Part 6 of the new I-129 form (Nov. 23, 2010 revision). An announcement is expected shortly. No further details are known nor whether the USCIS will permanently discontinue that the question be answered.
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2010-12-17
The New Export Control Attestation Requirement on Form I-129
For H-1B, H-1B1, L-1 and O-1 Petitions

I-129 petitions received by USCIS on or after December 23, 2010 must be on the new version of the form. USCIS will reject petitions using previous editions of the form beginning on that date.

Background

U.S. law prohibits the "export" of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting activities.

Technology or source code is considered "released"for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national.

Therefore, to properly complete the new I-129 form, an employer must understand the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required.

Controlled "technology" and "technical data Technology" and "technical data" that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR.

The EAR uses the term "technology" to refer to information for the development, production or use of "dual-use" products or software. "Technology" that is required for the development, production or use of items on the EAR's CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use. An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, section 734.2(b)(2)(ii) of the EAR (15 CFR ˜734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is gdeemed to be an export to the home country or countries of the foreign national.h This is commonly referred to as the gdeemed exporth rule.

While the ITAR does not use the phrase "deemed exports," the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR ˜120.17(a)(3)) states that an export occurs when "technical data" is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

Therefore, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.
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2010-12-15
1. Special Considerations when Filing an L-1B Petition for Outsourced Employees / L-1B Petitions for Off-site Design Engineers Are Especially Problematic
Many Japanese companies utilize the L-1B visa category to dispatch from Japan highly skilled engineers or IT specialists to their client's manufacturing facilities in the U.S. to provide technical support or engineering design services for automotive components or cell phones manufactured in the U.S. The USCIS is especially restrictive in adjudicating L-1B visas for automotive design engineers and IT engineers providing out-sourced services at their clientfs premises notwithstanding that these engineers are highly skilled and are being dispatched from Japan to the U.S. to apply their specialized knowledge in carrying out their assignments at the client's facilities.

To succeed in this particular type of L-1B petition, in addition to establishing that the duties performed require specialized knowledge and documenting that the employee has such specialized knowledge, the petitioner must provide evidence that it controls the employee. The USCIS is adamant about the requirement that the petitioner and not the end client retains ultimate control and authority over the outsourced worker.

These special additional requirements for outsourced L-1B workers are the result of an "Anti-job shop" provision added to the L-1 regulations in 2004. These regulations provide that L-1B temporary workers cannot work primarily at a worksite other than that of their petition employer if either (a) the work is controlled and supervised by a different employer from the petitioner or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer.

Therefore, the petitioner when outsourcing its workers must clearly explain in the company letter which accompanies the L-1B I-129 visa petition, the specialized knowledge required to perform the duties and control by the petitioner of the outsourced worker. The petitioner should also provide, as additional evidence, a contract between the petitioner and the client verifying that the prospective outsourced employee will remain under the petitioner's full control at all times.

If the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personnel from Japan on projects located at the worksite of its clients to perform such specialized services, and the worker remains under the principal control and supervisions of the petitioning employer, and otherwise meets the basic requirements for L classification, the alien would not be subject to the anti-job shop provisions of the L regulations and an L-1B petition should be approved.
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2010-12-15
2. Special Notes Related to H-1B Visas
I. Majority Corporate Stockholder Or Sole Owner Not Qualified For H-1B Visa Status

For a petitioning organization to qualify for H-1B employees it must establish an "employer-employee" relationship. This means that the organization must control the H-1B beneficiary. Where the beneficiary of an H-1B petition is the sole owner and employee or the prospective beneficiary owns over 50% of the company shares of stock and no one to control or fire such employee- no requisite employer – employee exists. Therefore, neither a majority stockholder or self-petitioning owner can petition for himself or herself.


II. Independent Contractors Are Also Not Qualified for H-1B Status

A beneficiary who is not claimed as an employee for tax purposes (usually paid on a Form 1099) or who works on commission, who sells products to others, whose work is not controlled by the petitioner and whose work schedule is not controlled by the petitioner is an independent contractor and not an employee and, therefore, not eligible for H-1B visa status.


III. H-1B Petitions For Off-site Employment Are Closely Scrutinized

Many Japanese consulting firms, automotive parts designers and telecommunications manufacturers make frequent use of the H-1B visa category for their engineers or other professionals to be outsourced and perform services at the end clients' facilities. However, work assignments outside of the petitioner's premises and at the end clients' premises are closely examined by the USCIS in its H-1B adjudication process. The Petitioner, in addition to establishing that the occupation is a specialty occupation and the beneficiary qualifies for the position based upon his or her advanced education, must clearly demonstrate that it has control of such outsourced employee including the right to control the beneficiary's work including the ability to hire, pay, fire, supervise and be responsible for the overall work and that such employee will do so for the duration of the H-1 period of validity.

Documents in addition to the usual educational credentials provided with the H-1B petition supporting this type of outsourced assignments may include some of the following:

 A signed employment agreement detailing the terms and conditions of the employment.
 An employment offer letter from the Petitioner to the Beneficiary that clearly describes the nature of the employer-employee relationship and the services to be performed.
 Relevant portions of contracts with end clients of the Petitioner demonstrating that petitioner will continue to control the off-site employee.
 Signed contractual agreements, statements of work, work orders, service agreements and letters between the petitioner and authorized officials of the ultimate end-client companies.

An end client letter may serve as the best evidence of all to satisfy the employer-employee relationship for an outsourced employee as it provides an insight into the employer-employee relationship by describing the employment relationship between the petitioner, the beneficiary and the end client and the work performed by the beneficiary.

Unfortunately, I have found that in many instances, end client letters are difficult to obtain as many end clients do not want to disclose the use, by them, of contract employees. Therefore, work order and invoices may be useful alternative evidence of a qualifying employer relationship. These additional requirements are similar to the anti-job shop provision of L-1 regulations.

The USCIS in the case of H-1B extensions for off-site employees may request even more evidence such as W-2s and paystubs as well as evidence of work performed during the first 3 years of H-1B visa status.


IV. No New H-1B Petition Required Where New Employer is Successor-in-Interest

The USCIS does not require an amended or new H-1B petition where a new corporate entity succeeds to the interests of the original petitioner particularly where the duties and terms of employment remain the same and the successor company has assumed responsibility for the companyfs existing H-1B. Nor is a new LCA required as the location of the new entity has not changed. The Public Access File (I-9) should be supplemented with a sworn statement assuming liability for the existing H-1B employees.

Additionally, a port-of-entry letter should be provided to the beneficiary to facilitate his or her reentry into the United States.



V. Affect of Corporate Downsizing on H-1Bs

When Japanese corporations take certain measures to cut costs some cost saving measures can have a serious impact on an employee's H-1B visa status.

1. Reduction in Salary

The H-1B employer is required to pay the H-1B employee the prevailing wage or higher for the particular occupation. If the decreased wage is not lower than the prevailing wage then the individual's H-1B is not affected and the employer continues in compliance with the H-1B regulations. If the wage will be reduced below the required wage the employer continued employment of the employee at the reduced wage would place the employer in violation of the H-1B regulations.

Q: At a USCIS site visit, it is discovered that an H-1B's salary is below the prevailing wage established for the foreign worker's occupation. Can anything be done to protect the continued validity of the H-1B and protect the employer from possible fines?

A: Yes, if it can be demonstrated that the dollar value of the employee's benefits when added to the actual salary meets or exceeds the prevailing wage the employer is in compliance and the validity of the H-1B is not adversely impacted.

2. Employee Downtime

Mandatory downtime such as forced unpaid vacations will place the H-1B employee in violation of his or her immigration status. However, the employer in this scenario is not in violation for the simple reason that the employee is not providing services to the employer. If, for example, an H-1B's services are temporarily disrupted by a factory closing the H-1B will not be affected if the H-1B is fully paid during the downtime. If he or she is not paid, the H-1B holder would not be maintaining H-1B status.

3. Layoffs

An H-1B is in violation of H-1B status on the day of termination of his or her employment notwithstanding that the event was not the result of poor work performance and totally beyond the control of the H-1B holder. The payment of severance pay after termination does not extend the period of authorized employment.

4. Notification Requirement at Termination

The employer is required to notify the USCIS when an H-1B holder ceases employment whether the H-1B holder voluntarily leaves the employer (quits) or is fired.


H-1B Portability

An H-1B beneficiary may freely change employers, but a new H-1B petition is required to be filed with the USCIS by the new employer. The applicable USCIS regulations popularly called "portability" permit a foreign national in H-1B status to begin working for a new employer as soon as a new H-1B is filed. The regulations provide that such foreign national is authorized to accept new employment upon the receipt by the USICS of a new petition, and that the foreign national is authorized to be employed until the new petition is adjudicated. If the new petition is denied, work authorization ends.

Travel Abroad Whi1e New H-IB Petition Pending

A foreign national who holds a valid H-1B visa stamp and who has ported to a new employer pursuant to a pending H-1B petition may travel internationally with his or her preexisting H-1B visa stamp and the I-797 receipt notice for the new petition. The new I-797 receipt notice is not a substitute for a visa stamp. Without a valid H-1B visa stamp issued at a Consular Post abroad, an individual cannot be readmitted to the United States.

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2010-12-15
3. Site Visits – Nonimmigrant Visa Revocation
In the past, site visits were not common and usually focused on certain types of employers or certain types of high fraud nonimmigrant visas, such as R-1s (religious workers) and where a small petitioning company files an unusually large number of petitions for computer programmers of Indian origin. The site visit policy has shifted and site visits have escalated dramatically and now happen to any type of employer that files an H-1 or L-1 visa petition on behalf of a foreign worker. H and L extensions are particular triggers for site visits. Since 2008 nonimmigrant petitioners have been required to add a "fraud fee" of $500.00 in addition to other filing fees for H-1B and L-1 petitions, thus, the funding for site visits is readily available.

A major focus at site visits is the salary. The beneficiary must receive the minimum wage set-forth on the Labor Condition Attestation (LCA) submitted with the original H-1B or L-1 petition. Site visits are normally conducted without notice to either the employer or the beneficiary. If you feel that you are not prepared for a site visit, you have the right to an attorney. Upon requesting an attorney, the site visit investigator must discontinue the visit and reschedule another site visit. Requesting that an attorney be present is prudent even if an attorney will not available at the next site visit. The delay will give the employer time to properly prepare the information sought by the site investigator. It is my experience, that often times unprepared company representatives or beneficiaries themselves may provide misleading information because of nervousness or simply through an honest lack of recall. Combine this with the inexperience of the site visit investigators, as this is a relatively new procedure, and you have the makings of a disaster. For example, if the beneficiary works 35 hours per week, this must be pointed out to the site investigator as the salary may appear to be less than the LCA wage for a 40 hour work week, thus triggering an unnecessary Notice of Intent to Revoke for paying less than the LCA wage.

At the very beginning of the Site Visit ask for the inspector's business card which provides the name, title and agency information prior to providing any information or documentation to the investigator. Do not speak with any USCIS agent without a witness present. This may discourage the site inspector from being creative or inventive in his report. As explained below, site inspections can have "Draconian" results so I recommend that the employer or a company representative take notes of all information and documents requested by the investigator, as well as the information and documents shown to the investigator. You may also ask that the site visit be recorded. This may actually shift some of the stress of the visit to the site investigator. The conduct and outcome of a site visit cannot be underestimated as it can result and has resulted in the revocation of an H or L visa petition and ultimately the departure from the U.S. of the H or L visa holder.

The site visit investigator will recommend to the USCIS that a nonimmigrant petition be revoked if it is found that facts contained in the petition are not true. Typically, that the beneficiary is not performing the job described in the petitioner's letter, the beneficiary is being paid less than the prevailing wage as established on the Labor Condition Attestation (LCA) filed with the petition or that the business itself is merely a "mail drop" (no actual office exists). Upon a finding by the site investigator of material discrepancies from the facts set out in the petitioner's letter, the USCIS will send the petitioner a Notice of Intent To Revoke. The notice will set forth a detailed statement of the reasons for revocation and the petitioner will be granted 30 days to respond to the Notice. A decision to revoke can be appealed, but during the appeal time, which can exceed one year, the beneficiary is out-of-status and is not permitted to continue to work for the petitioner.

It is, therefore, incumbent upon the human resources manager or other designated company representative to review all H-1B and L-1 petitions to ensure the accuracy of the information as to the beneficiary's qualifications, the nature of the job, and the terms and conditions of the employment as specified in the petition. This review should also be conducted with each H-1 or L-1 beneficiary to ensure that the beneficiary clearly knows his primary job responsibilities as often, in Japanese companies, an individual may have other minor responsibilities.

In sum, as information obtained through the site visits may be used by the USCIS to assess the employer's and employee's compliance with immigration laws and that any derogatory information obtained during the visit can be used to deny a petition or revoke a previously-approved petition, it is of utmost importance to be properly prepared for a site visit.
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2010-12-15
4. Preparation for NIV Visa Stamp Interview at Consular Post
It is at times difficult to convey to the client the importance of proper preparation for the actual nonimmigrant visa interview. After all, the USCIS has approved an L-1 or H-1B petition and all that remains is a chat with an American Consul and visa stamp reflecting that visa will be granted. Recently, however, visa stamp denials have become more frequent in Japan based upon errors or mistakes discovered at the interview based upon inconsistent documentation or contradictory statements made by the applicant. In the case of treaty applicants for E-1 or E-2 visas this becomes even more important as the Consular Officer is making the initial decision as to the applicant's qualification.

The successful interview consists of three elements: Personal appearance, providing the required and correct documentation and being well prepared to respond accurately to the Consular Officer's questions.

1. Appropriate Dress and Demeanor

Consular Officers are, at last, human beings. They are influenced, just as we all are, by appearance. If you will be assuming a business or professional position, you should be appropriately dressed – a white shirt, jacket and tie for men and business dress for women. Hair should be neatly cropped, beards and mustaches close cut or shaved-off. Tattoos should be covered wherever possible. Those applicants in the arts should look neat but may dispense with the jacket and tie.

Though difficult for some Japanese at the initial greeting and while responding to the American Consul's questions, look directly into the eyes of the Consul. Looking down or down or asque when truthfully responding to questions may be misinterpreted by the Consul.

In this context, suppose at the end of the interview the Consular Officer tells you that he is denying the visa. It would be quite proper for you to look directly at the Consular Officer and politely ask, "Why? Would you please tell me your reasons for the denial?" This may result in the consular reconsidering his decision or will provide some reasoning which may be used in a reapplication to later overcome the denial.

2. Documentation

The applicant will normally be required to present a Japanese passport valid for at least 6 months, an original approval notice in the case of L and H visas and an employer letter. In the case of an E-1 or E-2 application the documentation is considerably more extensive particularly with a showing of trade between Japan and the U.S. for E-1 visas and investment in regard to E-2 visas.

The employer letter should be in the original and clearly identify the employer and its activities and the position to be held by the applicant. When the application is petition-based i.e. L-1 or H-1B, always bring a copy of the petition separate from the basic documentation to take to the interview. In most cases, the consular officer will not need to see the original petition because consular posts are now able to access the details of approved nonimmigrant visa petitions through an electronic Petitioner Information Management Service (PIMS) report created by the Department of State. However, it is much better to be prepared with a copy of the original petition rather than risk having the consular officer postpone a decision until additional information or documents can be extracted from PIMS. In any event, whatever supplementary documentation you have should be easily accessible. Consuls may become annoyed at waiting while one fumbles for documents.

3. The Actual Oral Interview

It is imperative that all visa stamp applicants be well prepared for their interview and ready to respond to the consular officer's questions. While it may seem like a very basic reminder, I strongly recommend that applicants review the petition or application documents with your attorney and possible issues with the applicant before the interview to ensure that the visa stamp applicant fully understands the basic criteria for their visa classification. Therefore, carefully reviewing all of the supporting documents a day or two prior to the interview should allow for the visa applicant's responses to be clear.

Consular Officers rely heavily the oral answers at the visa interview to determine whether the applicant is qualified to receive the visa stamp. An average visa interview takes only five to seven minutes. Within that time period, the visa officer will review the DS-160 Form, which is a long biographic form, the passport of the visa applicant, any background note of the visa application already in the "system", and conduct an oral interview of the application. Needless to say, there is no time for the visa applicant to wander or ramble in their responses to the visa officer.

The visa interview is of paramount importance to visa officers since they have seen fake applications or those where the proposed job duties vary considerably from those stated in the original petition. Applicants must respond accurately and assuredly to the questions asked. Consular officers often look unfavorably on those unable to give straight and clear answers to their questions.

Although Consular Officers in Japan are usually culturally astute, cultural differences can sometimes find their way into the visa interview process and adversely affect its outcome. For example, Japanese have difficulty with double negatives so that a "yes" may mean "no" or vice versa.

Some Japanese applicants simply do not interview well because they see a Consular Officer as an authority figure and defer to him or her and sometimes even going as far as to accept a Consular Officer's incorrect statement as correct. Other applicants may feel uncomfortable talking about themselves and their accomplishments or qualifications and are seen by such Consular Officers as not forthcoming or unqualified. Sometimes nervousness or fear combined with a lack of fluency in English will render an applicant nonresponsive or simply incoherent. In such event, we usually advise the client that there is nothing wrong in asking the Consular Officer that the interview be conducted in the Japanese language. However, if the visa applicant's job title under H-1B is Editor and qualification for H-1B is based upon a degree in English or English Literature this request could very well be seen as suspect.

Consular Officers in Japan have long held suspicions with regard to certain types of employers and occupations. For example, Market Research Analysts granted H-1Bs for travel agencies in the U.S. are thought actually to hold the position of travel agents or tour guides by American Consuls. H-1B Financial Analysts with Japanese Banks are suspected to be destined for positions as Tellers. H-1B Staff Accountants in smaller companies are suspected of holding the position of Bookkeeper or other menial positions. Thus, the applicant in these types of circumstances must be prepared to clearly explain their prospective duties with the U.S. company and dispel any doubts the American Consul may have.

In this information age American Consuls in some cases will look at the petitioner's website and other information available on-line to verify company information. In one quite unusual case of an E visa application at the American Embassy in Tokyo, the American Consul discovered that the treaty organization had allowed its certificate of incorporation lapse for failure to pay its annual corporation tax in the State of Texas. The treaty organization totally unaware of this oversight promptly paid the tax and upon a showing of corporate compliance, the E visa was granted. While this may be an extraordinary example of Consular scrutiny it is important for the company and the applicant or beneficiary to provide accurate facts in the form of documentation or statements at the actual interview.


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2010-12-15
5. Random Notes on Nonimmigrant Visa Processing
1. Premium Processing

The USCIS will decide E-1, E-2, H, L, O,P, Q and TN petitions within 15 days upon the filing of a Request for Premium Processing and payment of the premium processing fee. This Form I-907 request may be filed simultaneously with the I-129 petition or separately at a later time while the petition is pending in the USCIS. Foreign nationals who already hold H-1B status and file for permission to work for a new employer and are eligible for portability (explained below) may not need premium processing as they are permitted to begin working for the new employer (petitioner) upon the filing of the new I-129 petition with the USCIS and before actual adjudication is completed.


2. Visa Approval Notice

When a nonimmigrant visa petition is approved, the USCIS issues a Form I-797 Notice of Action of approval. The approval notice contains the petition file number, date of filing, date of approval, and petition validity period as well as the beneficiary's name and visa classification. If a change or extension of status is also granted, there is a new I-94 at the bottom of the Form I-797 notice containing the same control number as the beneficiary's previous I-94 issued upon admission. Most American Consuls require the original I-797 petition approval notice for issuance of a nonimmigrant visa, even though the notices should not be needed now that U.S. Department of State is using the Petition Information Management Service (PIMS) (discussed below).


3. PIMS – Department of State Visa Fraud Protection System

The Petition Information Management Service (PIMS) program is the American Consuls' primary source of evidence to be used in verifying petition approval. Before issuing an H, L, O, P, or Q visa, Consular Posts must now verify the approval of the underlying petition through the Consular Consolidated Database (CCD) in a report called PIMS even if the visa applicant has the original of Form I-797 approval notice. If the petition approval information is not in the CCS, the post must e-mail the Kentucky Consular Centerfs (KCC) Fraud Protection Unit (FPU) for confirmation of the petition approval before the visa can be issued. This e-mail procedure will result in no more than a one or two day delay in the visa issuing process at the Consular Post.


4. Typographical Errors on the Visa Approval Notice

The American Embassy in Tokyo and American Consulate in Osaka have a policy of refusing nonimmigrant visas where the I-797 approval notice contains typographical errors, incorrect birth dates, name misspellings, or other clerical errors. As obtaining an amended approval notice, can take a long time, it is, therefore, important for the petitioner or the beneficiary to review the I-797 approval notice carefully upon receipt and attempt to have USCIS correct mistakes as soon as possible.


5. Change of Nonimmigrant Visa Status

USC1S regulations permit most foreign nationals in the United States in lawful status to apply for change of status to another nonimmigrant classification. Foreign nationals in F-1 (student) status may apply for change of status to H-l B provided the petition is filed during the foreign national's period of study or practical training.

When the application for change of status is approved USC1S issues a new 1-94 on the I-797 Notice of Action of approval form. It is important to note that upon departure from the United States that status is lost and the foreign national must apply for a new visa stamp at a U.S. consulate to return and continue in the new status.

Those Japanese nationals in the U.S. on a Visa Waiver are not eligible for change of status.


6. Extension of Nonimmigrant Visa Status

Except foreign nationals admitted under the Visa Waiver Program, most nonimmigrants admitted to the United States may apply for extension of their stay in certain increments specified by the regulations for each visa category.

Visa status dependent upon approval of a petition (such as H-l B, L-l), as well as change to or extension of E visa status, requires the filing of Form 1-129 with USC1S along with the appropriate supplements, supporting documents, and a filing fee. A request for an I-129 petition extension should be filed during the validity of the original petition.

As stated above extensions must be timely filed, however, sometimes late applications may be approved with an explanation for the late filing. The USC1S has been known to excuse such late petition where it can be shown the delay was due to extraordinary circumstances beyond the control of the petitioner and the petitioner has not otherwise violated his or her nonimmigrant status (such as legal employment).


7. Remaining in the U.S. beyond date on the I-94
(Three and Ten-year Bars)

The applicable regulations provide that a nonimmigrant who stays beyond the time granted on his or her I-94 form begins to accrue unlawful presence. Such nonimmigrant who accrues more than 180 days of unlawful presence and leaves the United States is banned from returning to the U.S. for three years. Overstaying the final date on the I-94 for one year or more and then departing the U.S. will result in a ten-year bar. More specifically, unlawful presence begins on the day after the individual's I-94 expires. Those immigrants with admission for duration of status such as F-1 students or J-1 trainees are not subject to the bars, as there is no fixed date on their I-94s which unlawful presence could begin.
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