Immigration Items and Issues of Special Interest

Non-Immgration VISA
E,L-1,H-1B VISAs

Immigration VISA (Green Card)
Employment-Based Green Card Application

Changed Procedures at U.S. Ports-of-Entry
Useful Links

1.Premium Processing of Business Visas

In 2001 the USCIS introduced a highly practical program called “Premium Processing.” This program can significantly reduce processing time for non-immigrant business visas.

For an additional $1,000.00 processing fee, the USCIS guarantees premium processing applicants a 15-calendar day processing of E, H-1B, H-2B, H-3, L-1, O-1/O-2, P-1/P-2/P-3, Q-1, R-1 and TN non-immigrant business visa petitions. Immigrant visa petitions are not eligible for premium processing yet. The processing fee must be submitted in a separate check or money order. The petition must also be accompanied by a premium processing Form I-907. The USCIS is given an additional 15 days from the date of any request for additional information (RFE).

If an individual files a petition (I-129) using the premium processing option, an accompanying extension or change of status for family members (I-539) is covered as well. There is no premium processing available for separately filed I-539 applications.

2 . Understanding the difference between a visa stamp and an I-94 (Departure Record)

Perhaps the most misunderstood concept among aliens is the difference between the visa stamp and the I-94, also known as the “Departure Record. ”

No discussion of visas can be considered comprehensive without a clear description of the function and purpose of the visa stamp and the Form I-94. It is important that visa holders not confuse the two. For example, a holder of an unexpired visa stamp will be considered in “illegal” status if the I-94 has expired. But if a holder of an expired visa stamp has a valid I-94, such holder is considered to be in legal status in the U.S.

a.  Visa Stamp

When a visa application is granted at an American Consulate abroad, a visa stamp is stamped into the applicant's passport indicating the individual's visa category. Initial visa stamps may only be issued at consular posts abroad and may not be obtained in the U.S. The Visa Office in Washington D.C. will only renew or revalidate an already existing visa stamp which has expired or is soon to expire and only in the same visa category originally granted at a consulate abroad.

The visa stamp permits the visa holder to enter the U.S. during its validity. Once an I-94 has been issued to the visa holder at the U.S. port-of-entry, the visa stamp does not control the period of actual stay in the U.S. Japanese nationals are normally issued “Multiple Entry” visa stamps, allowing the holder to enter and reenter the U.S. as many times as they wish during the period of validity stated on the visa stamp. B-2s, B-1s and Es are usually issued visa stamps for a 5-year period of validity. L-1s and H-1Bs are limited to the exact term of I-797s granted by the USCIS.

b.  I-94

Upon arrival at the U.S. port-of-entry the applicant for admission to the U.S. will present his or her passport containing the visa stamp to a U.S. immigration inspector. This inspector, after asking several basic questions regarding the traveler's purpose in entering the U.S. , will issue an I-94 for varying periods depending on the type of visa and desired length of stay. Thus, the I-94 indicates how long the holder may legally remain in the United States , and is attached to an alien's passport upon entry. E category visa holders will normally be admitted for a two -year period. Hs and Ls will be limited to the entire period granted by the USCIS as reflected on their I-797 approval notice. In the case of Hs and Ls the period of admission may be as long as 3 years. B visa admissions vary from just weeks to a maximum of 6 months based upon the applicant's stated temporary vacation or business purpose.


3. Consequences of Overstaying Non-immigrant Visa

Under USCIS regulations, an alien who is admitted on a non-immigrant visa and who remains in the United States beyond the period of authorized stay (even for one day) becomes subject to Section §222(g), which automatically voids the underlying non-immigrant visa in the alien's country of nationality.

An overstay which extends to 180 days subjects the individual to a 3-year bar to reentry into the U.S. A 365 day overstay increases the bar to 10 years. Waivers of this bar at consular posts in Japan are at very least problematic.

Students under F-1 status and exchange visitors under J-1 status are admitted under D/S (duration of status). As their authorized stay has no expiration date, they are not considered “overstays” nor do they accumulate “unlawful presence” for purpose of the 3 and 10 years bars.

Obtaining a new visa stamp at consular posts in Japan for short periods of overstay should be routine, as long as the individual did not take unauthorized employment during that period of stay.

4. Grace Period for Non-immigrant Visa Holders

A frequent question from clients relates to what is known as a “grace period” for non-immigrant visa holders. A “grace period” is the acceptable amount of time allowed by the USCIS for an individual who has ceased their authorized employment/period of study to apply for new employment.

As a general rule, persons holding work authorization visas such as E, L-1 or H-1Bs are not granted a grace period. Once a person quits or is terminated, technically that person is out-of-status. The USCIS has been considering a grace period for H-1Bs of between 30 to 60 days, but as of yet no such period has been authorized.

On the other hand, students in authorized F-1 status have a grace period of 60 days upon termination of study. M-1 students and J-1 exchange students are allowed a 30-day grace period.

What if non-immigrant worker in E, L-1 or H-1B status is given a leave-of-absence rather than a permanent termination of employment? Under these circumstances a person may be considered still employed and will be eligible to apply for a change of status or authorization for employment with a new employer. However, such applicant may be required by the USCIS to show some evidence of continued employment, such as pay stubs or documentation of employee benefits such as health insurance.

5. Automatic Extension of Employment Authorization for Non-immigrant Workers

Immigration regulations provide an automatic 240-day extension of employment authorization for individuals in L-1, E, H-1B and other non-immigrant classifications whose status has expired but who have filed a timely application for extension of such status. Due to processing delays, USCIS policy is now to extend this 240-day period to whatever period of time is required to adjudicate the extension. Proof of timely filing should be entered into the employee's I-9 file.

6. Travel While Change-of-Status or Extension is Pending

One of the most perplexing and frequently encountered issues for non-immigrants is whether they are allowed to travel abroad while an extension of status or a change from one non-immigrant status to another is pending.

The USCIS takes the position that one may travel abroad while an extension is pending so long as the individual is able to return on a visa stamp which is still valid upon reentry. This policy also includes H-1Bs who have filed sequential change of employer H-1B petitions and are employed with the new employer under the portability provisions .

The USCIS, however, takes a strict stance on travel after filing a request for a change of non-immigrant status. It holds that any alien who travels abroad while a change-of-status request is pending has abandoned that request. Should the individual return to the U.S. and the change of status is granted, this change is deemed void. If an individual in this situation still wishes to change their status, they must either apply for a visa stamp abroad reflecting the new status, or they must re-file their change-of-status petition in the U.S.

7. Effect of Changes in Working Conditions on Non-immigrant Visa Status

 a.Reduction in pay

A reduction in pay is normally not a problem in the case of E or L visas. The reduction is only a potential issue in the case of H-1B visas. Since the employer in an H-1B petition certifies, through the filing of an LCA (Labor Condition Application) with the U.S. Department of Labor, that it is paying at least the prevailing wage for the position, if the reduction in pay results in an actual wage which continues to be at or above the prevailing wage the H-1B petition remains valid and no new LCA need be filed. If the salary drops below the prevailing wage, the H-1B petition becomes invalid.

 b.Reduction in Pay and Hours

Suppose the employer decides to reduce both the hours and wages of a non-immigrant employee.

The USCIS does not require an L-1 to perform full-time services in the U.S. In fact many L-1s hold concurrent positions in the company in Japan and the U.S. , which is permitted by the regulations.

The E treaty regulations (E-1s and E-2s) do not address the number of hours required to be performed in the job so long as the “treaty” individual will be engaged in duties that are supervisory or essential to the operation of the treaty enterprises.

The U.S. Department of Labor has authority over the hours and salary of H-1Bs. Any reduction in an H-1B employee's hours below the standard 35 hour work week would require the filing of a new LCA, indicating that the position is part-time.

The new LCA , aside from showing the part-time employment , must set forth the hourly rate of pay rather than the yearly rate. However, that hourly rate must still meet the prevailing wage for the position held . Thus the employer , when dealing with these changes in working conditions for H-1B employees, must be particularly aware of the DOL provisions as they relate to wages and hours.

8. I-9 Forms and Employer Verification Responsibility

In September of 2003, the USCIS released an Employer Information Bulletin clarifying the responsibility of the employer as it relates to employment eligibility verification. The Bulletin establishes to reconfirm the standard for review of employment eligibility documents is that of “reasonableness.” Therefore, the employer is not attesting to the legality of the status of the individual presenting the documents but rather that such documentation “reasonably appears to him or her… to be genuine.”

9. Notice of Address Change

In 2002, USCIS regulations were implemented requiring that all non-immigrants and permanent residents in the U.S. must notify the USCIS of changes of address within 10 days of such change. Such notice must be on a Form AR-11 sent to London, KY . If a non-immigrant has an application pending with the USCIS he or she should advise the USCIS office processing his or her application.