An Immigration Roundup
Following are select highlights of immigration events in June and July 2004.
1. New EAD Cards: What is the Difference? by Jennifer Hopkins (June 16, 2004)
On June 1, 2004 U.S. Citizenship and Immigration Services (USCIS) issued a Press Release regarding the new Employment Authorization Documents (EADs), Form I-766.
The purpose of the EAD, one of the most widely used immigration documents, is to provide "proof to employers that an individual is authorized to work in the United States." The new card is designed with added security features to prevent fraud and counterfeiting, including a magnetic strip, a two-dimensional barcode, and several other features to determine the card's authenticity.
An EAD is typically valid for up to one year, although in some cases a longer period of time is authorized. The Press Release states that there are currently "about 24,000" EAD cards produced each week!
Will your existing "old" EAD card still be considered valid? Unless/until further notice from the USCIS, it would appear that your EAD card issued prior to the implementation of the security features will be considered valid until its expiration date.
2. Recent Fee Increase: Guidance For Improper Rejection of Cases by Jennifer Hopkins (June 17, 2004)
On April 29, 2004 fee increases became effective for many USCIS benefits applications. U.S. Citizenship and Immigration Services (USCIS) has provided information for individuals who filed their applications on time, and believe their application was improperly rejected but only because of the fee increase: "...resend the entire application package as originally submitted, to the Service Center where they originally filed," AND:
However, the article also states that: "USCIS is not aware of any improperly rejected cases where the only reason for the rejection was the incorrect fee involving the fee increase."
For more information, please refer to the Fee Rejection Information article on the USCIS website.
3. Difference between Visa Stamp and Visa Status by Lorenzo Lleras
As many of our clients and readers know, the Department of State recently announced that in July of 2004, it will stop processing of visa stamp renewals via mail. We have received numerous phone calls and e-mails from individuals who are concerned about their H-1B petitions, including transfers, renewals and first time applications. The purpose of this notice is to clarify what the Department of State announcement means.
The immigration functions of the federal government are divided among different agencies, including Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) and the Department of State. Roughly speaking, Citizenship and Immigrations Services is responsible for controlling immigration once a person arrives to the United States while the Department of State is more concerned with who can apply to enter into the United States in the first place.
To explain what the visa stamp is, I would like to use the analogy of the deli counter at your local supermarket. When a person wants to order a cut of meat from the deli counter, they must first get a little ticket with a number in order to order that cut of meat. If a given person does not have that little ticket, the person behind the counter will not take the order. Think of the visa stamp as that little ticket. It is the visa stamp that lets a person apply to enter the United States from abroad. If a visa stamp says that it is valid until July 10, 2005, it means that the person who was awarded that visa stamp can use it at any time to attempt to enter the United states before it expires on July 10, 2005.
Think of Citizenship and Immigration Services (CIS) as the person standing behind the deli counter. Once you present the number, in this case the visa stamp issued by the Department of State, they decided whether they can help you or not. As far as CIS is concerned, helping you means whether they let you into the United States, and if so, for how long.
The reason why the analogy does not entirely work is because in the real world, CIS has two more jobs in addition to serving you after you present your visa stamp. CIS has a role in whether the Department of State gives you the visa stamp in the first place. For most types of visas, one must first process an application with CIS before one can go to the consulate abroad to apply for the visa stamp (notable exceptions are the tourist visa, the student visa and the investor visa.) The other job that CIS has is that once they permit you to enter the United States, they control the length of time for which you may remain in the United States. With most types of nonimmigrant categories, including the H-1B, you may apply with CIS to change the terms of your stay. That includes changing from one category to another (think of F-1 to H-1B or B-2 to H-1B), extending your period of stay (think about renewing your H-1B for another 3 years) or changing your sponsor for your stay in the United States (think about a change of employers and an H-1B transfer.) Note that to do any of these things you do not have to leave the United States, provided you have observed the rules of your stay. In other words, there is no requirement to go get another visa stamp to take any of these steps. You only need the visa stamp in the appropriate classification when you apply to re-enter the United States.
The way the law is now, for most nonimmigrant categories, most commonly the H, E and L categories, a person can apply for a new visa stamp through the mail provided that it has not been expired for more than one year. For example, a person who entered with an H-1B valid for three years, can extend their stay for another three years through an application with CIS. Once CIS approves the extension for another three years, the person could then apply to renew their H-1B visa stamp through the mail with the Department of State so that the next time they travel abroad, they do not have to stop at a U.S. consulate.
It is the last part of the process that will no longer be allowed. From now on, any person who wishes to renew a visa stamp will need to do it at a consulate. Notice that for people who have maintained their status in the United States, this has nothing to do with the process to change or extend status once in the United States.
The change in policy is a direct result of the events of 9/11. Every applicant for a U.S. visa must now have their fingerprints and photos taken by a U.S. official. The Department of State does not currently have the capability to do this in the United States. They do not have offices all over the United States with employees who can take the fingerprints of an applicant and verify that those fingerprints are for the applicant standing in front of them.
This change will affect everybody and it is an inconvenience. It is inconvenient because if you find that you will be traveling abroad and that your visa stamp is not current, you will have to go to a consulate abroad. This will increase the workload of consulates abroad and will probably contribute to delays in processing visa petitions. Consequently, it is very important that you contact the consulate and make the necessary arrangements before you travel abroad if your visa stamp is not current. Preparation and knowing the process at the specific consulate is the only way to avoid surprises concerning processing times.
Many of our clients and readers have asked me whether this is a sign that getting visa stamps will be tougher. My view is that this is not a message that things are getting tougher. The United States Department of State really does not have the set up to process visa requests here in the United States while at the same time ensuring that they are taking the security measures that are being required of them.
That being said, getting visa stamps cannot be taken for granted. The security check procedures can cause delays and there are more things that consuls are looking for. I can share with you the experiences of one of our clients this past month. Our client possesses a valid H-1B from CIS. However, he did not have an H-1B visa stamp and he had to travel home. Because he had to travel home, he needed to get a valid visa stamp in order to apply to re-enter the U.S. as an H-1B worker. When our client applied for his H-1B visa stamp at the U.S. consulate in his home country, the security check revealed that a person with the same name had committed a crime. The consulate could not issue the H-1B visa stamp until they got feedback from U.S. law enforcement agencies confirming that while both individuals shared the same name, our client was not the one with a criminal issue. This resulted in a delay of two weeks. The delay could have lasted for months but our client was fortunate that the law enforcement agencies replied very quickly.
I hope that this article was not too corny, and forgive the analogy to the deli counter, but I wanted to attempt to explain this in terms that are easier to understand. Through the years I have learned that it is difficult to completely understand the difference between the approval notices from immigration and the visa stamp. In summary it all boils down to this: the immigration service petition and the I-94 card control your ability to remain in the U.S. for a given period of time and the visa stamp only controls the period of time when you may apply to enter the U.S. from abroad. It is only the process to renew the visa stamp that is changing.
4. US - Japan To Exchange Diplomats by Jennifer Hopkins (July 7, 2004)
On July 1, 2004, a Press Release was published by the U.S. Department of State announcing a new Diplomatic Exchange Program between the U.S. and Japan. The new program, agreed upon by U.S. Secretary of State Colin Powell and Japanese Foreign Minister Yoriko Kawaguchi, will exchange diplomats from each respective country annually, beginning in 2005. According to the Press Release, this diplomatic exchange is "the first of its kind in Asia [and] symbolizes the strength of the U.S.-Japan relationship, which marks its 150th Anniversary this year."
Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice representing corporations nationwide in visa management, compliance, and HR training. The A/V rated firm and its web site, www.usvisanews.com, were named a winner of the 2002 Inc. Magazine Web Award, receiving recognition along with 14 other companies as the best Web companies in America. In 1999, the firm was named "One of America’s Top Ten Internet/Virtual Companies" in the Inc. Magazine and Cisco Systems "Growing with Technology Awards." The site is one of the most visited and widely read resource on the Internet on U.S. immigration law, attracting subscribers from all over the world, the media and from within the U.S. government. Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.