June 30, 2009:   Helpful guidance from the US Department of State for nonimmigrant visa applicants; updated H-1B petition count

The US Embassy in London has published on YouTube a helpful three-minute video entitled ‘Attending a Nonimmigrant Visa Interview.’  Prospective visa applicants will find it well worth their time.  In addition, the Department of State—the US governmental department that issues visas--has produced a 12-page pamphlet for nonimmigrant visa applicants, informing them of their rights while in the US, including the rights to be treated and paid fairly.

An updated H-1B petition count has been issued. As of June 26, 2009 approximately 44,800 H-1B cap-subject petitions had been received by the USCIS. This represents an increase of only approximately 400 petitions in the two weeks since the last count.  Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.  The USCIS is continuing to accept both types of petitions and will do so until it determines that sufficient numbers have been received to reach the statutory limits, taking into account that not all of the petitions are likely to be approved, and that some may be revoked or withdrawn.

June 23, 2009:  Use of emergency and temporary passports on the Visa Waiver Program; PPS returns for some immigrant petitions

Beginning on July 1, 2009 holders of non-electronic emergency and temporary passports from the UK and 25 other countries will no longer be eligible to travel to the US on the Visa Waiver Program (‘VWP’).   This change does not affect passport holders from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia and South Korea, who have always required an electronic passport for visa-free travel.  It also does not affect German citizens, as German temporary or emergency passports have never been valid for travel under the VWP. 

Beginning June 29, 2009 accelerated adjudications by means of Premium Processing Service (PPS) will once again be available for some types of I-140 immigrant petitions, including aliens of extraordinary ability.  PPS will not, however, be available for those persons applying as multinational executives or managers.  For the text of the USCIS announcement on the subject, click here.

June 16, 2009: Green card delays; H-1B’s still available

US Citizenship and Immigration Services has announced that new immigrants may experience delays of up to 8 weeks in the issuance of their new permanent resident cards, colloquially known as ‘green cards.’   This is due to the updating of card production equipment. 

As of June 12, 2009 approximately 44,400 H-1B cap-subject petitions had been received by the USCIS.   This estimate is a  retrogression from the previous figure of 45,800 announced on May 29, 2009.   Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.  The USCIS is continuing to accept both types of petitions and will do so until it determines that sufficient numbers have been received to reach the statutory limits, taking into account that not all of the petitions are likely to be approved, and that some may be revoked or withdrawn. 

June 1, 2009: A pause in the service

Our lawyers are in the US, attending the annual conference of the American Immigration Lawyers Association.  ‘Weekly Update’ will resume on June 16.

May 26, 2009: O-1 visa in the spotlight

A recent article in Business Week magazine is one of the few in the popular press to discuss the O-1 visa for aliens of extraordinary ability or extraordinary achievement:  ‘When Only “Geniuses” Need Apply’.  If you would like further information regarding the standard of ability or achievement required for this route to an immigrant or nonimmigrant visa, please see any of our articles on the subject:

• Not Just for Rocket Scientists: Green Cards for Aliens of Extraordinary Ability in Business
• Extraordinary or Just Ordinary? Appellate Decisions Give Guidance on How to Prove You’re an Alien of Extraordinary Ability
• Lights! Camera! Visa! Aliens of Extraordinary Achievement in Film and Television
• Extraordinary Ability in Business

May 19, 2009: New procedure for some visa applicants at the US Embassy London

The US Embassy in London is introducing a new prescreening procedure that promises to reduce the delays currently experienced by some visa applicants in obtaining a visa appointment date. 

In the past all applicants who had ever been arrested, convicted or cautioned for a criminal offense, or who had been removed from the US or denied entry (‘affected applicants’) were required to apply for an appointment with the Visa Coordination Officer.  This often resulted in a wait of several months for an appointment. 

Effective immediately affected applicants who call the Embassy’s schedulers at the Operator-Assisted Information Service will be given an e-mail address to which they must send various documents particular to their situation.  For example, an applicant with a criminal record might be asked to send a police certificate from the Association of Chief Police Officers.  Embassy employees will then review the information, decide whether a VCO or standard appointment is appropriate, and e-mail the applicant their decision. 

May 12, 2009:  H-1B’s still available; immigrant visa availability tightens

The number of petitions filed seeking new H-1B’s for employment to begin October 1, 2009 has remained almost static for several weeks, according to the most recent USCIS update.  As of April 27, 2009 the USCIS reports having received approximately 45,000 petitions subject to the overall annual cap and 20,000 petitions potentially qualifying for the advanced degree cap exemption.  The agency is continuing to accept both types of petitions and will do so until it determines that sufficient numbers have been received to reach the statutory limits, taking into account that not all of the petitions are likely to be approved, and some may be revoked or withdrawn. 

Meanwhile, the Department of State reports that demand for immigrant visas/green cards in the employment-based categories has surged.  There has been a particularly great demand from people already resident in the United States, who are applying for adjustment of status.  This past month the cut-off priority date for applicants chargeable to India applying in the employment-based second preference (‘EB-2’), for persons of exceptional ability and members of the professions holding advanced degrees, moved backward (‘retrogressed’) by over 4 years.   A review of the Visa Bulletin shows that in May 2009 Indian applicants in the EB-2 category could apply for immigrant visas, or adjustment of status, if their priority date was before the cut-off of February 15, 2004.  In June such applicants will be able to apply only if their priority date is before the new cut-off of January 1, 2000.  The Department of State warns that during the remainder of the US Government’s fiscal year, which ends on September 30, 2009, availability of immigrant status through either immigrant visas or adjustment of status ‘cannot be guaranteed, and the establishment of cut-off dates, or retrogression of existing cut-off dates, cannot be ruled out.’ 

May 5, 2009:  New procedural rules for I-864 affidavits of support

On April 28, 2009 the US Department of State released new regulations for consular officers reviewing the I-864 Affidavits of Support required of most people sponsoring relatives for immigrant visas or adjustment of status.  To see the new rules, click here.  For additional information on the affidavit of support, including information as to when it is required, please see our website article A Beginner’s Guide to the Affidavit of Support .

April 28, 2009:  New web page for Visa Section, US Embassy London

The Visa Section at the US Embassy in London has a new web page:  http://www.usembassy.org.uk/visaservices/.   It contains information on a wide variety of topics, from immigrant visas to retrieving property left at the Embassy.  Subscription via RSS feed is available, and blogs with opportunity for comment and moderated discussions are promised.

April 21, 2009:  Visas for HIV-positive applicants; H-1B’s still available

The Department of State has amended its regulations for the issuance of visitor visas to persons who test positive for HIV.  (Persons with HIV are inadmissible to the US, and ineligible for visas, unless a waiver of inadmissibility/ineligibility is obtained.)  The new regulations create a speedier alternative to the typical case-by-case waiver adjudication for those persons who meet the requirements, which include a limit of 30 days stay per entry.  Case-by-case waiver adjudication remains available for other cases, including persons who wish to apply for a wider variety of visas or who seek stays of longer than 30 days.  For a fact sheet from the Department of Homeland Security, click here.

The new visa application procedure is set out in the Foreign Affairs Manual. In addition to the other forms required for a visa application, HIV positive applicants applying for visas under the new scheme must read and sign form DS-5512 which outlines eligibility requirements for this streamlined processing.

H-1B’s continue to be available for employment during Fiscal Year 2010—that is, for employment to begin on or after October 1, 2009.  As of April 13, 2009 the USCIS had received approximately 43,000 H-1B petitions for visas subject to the annual quota (or ‘cap’) and approximately 20,000 petitions potentially qualifying for the advanced degree cap exemption.  The agency will continue to accept petitions until it determines that sufficient numbers have been received to reach the statutory limits, taking into account that not all of the petitions are likely to be approved, and some may be revoked or withdrawn.  Updates on the numbers of petitions filed are published by the USCIS at http://www.uscis.gov/h-1b_count.

April 15, 2009:  A sign of the economic times

A week after what had been the anticipated cut-off date for the filing of H-1B petitions for employment in the new fiscal year, the USCIS is continuing to accept petitions for H-1B visas.   During the previous filing periods in 2007 and 2008 the annual quota for new H-1B’s was filled within the first few days of availability, necessitating a lottery to determine which petitions would be adjudicated.  For additional information and periodic updates on the number of petitions filed you may wish to bookmark the USCIS home page:  http://www.uscis.gov/portal/site/uscis

April 7, 2009 : New visa interview appointment times at the US Embassy in London

April 2, 2009 : H-1B petition crush

On Wednesday, April 1 the annual stampede for H-1B visas begins.   Last year the US Citizenship and Immigration Services reported receiving nearly 163,000 H-1B petitions during the five day filing period that ended on April 7, 2008.   Those petitions were seeking a total of 78,200 new H-1B visas for employment to begin on October 1, 2008; 20,000 of that number are reserved for persons who have earned advanced degrees from a US institution of higher education.

Why such a crush in April?  It is because H-1B petitions cannot be filed more than six months in advance of the requested start date of employment.  The annual quota of H-1B visas becomes available on October 1 of each year—the first day of the US Government’s fiscal year (‘FY’).  Therefore petitions for the new ‘crop’ of H-1B’s cannot be filed before April 1. 

Employers seeking H-1B visas for employment to begin during FY2004 were able to file petitions until the annual cap was reached on February 17, 2004.   In spite of subsequent Congressional action adding 20,000 visas for advanced degree holders, the FY2006 cap was reached on August 12, 2005—the first time the cap was reached even before the beginning of the fiscal year in which the visas would be used.   The next year the cap was reached even more quickly;  the allotment of FY 2007 visas was exhausted on June 1, 2006.   This set the stage for FY2008 (employment to begin on October 1, 2007) when the USCIS reported having received on the first two days of filing more than enough petitions to fill the annual quota.  

This year the USCIS has announced that it will follow the same procedure as last year, conducting a lottery among all petitions received between April 1 and April 7.   For further details from the USCIS about the FY2010 H-1B filing procedure, click here.