USCIS Policy Guidance on Health-related Grounds of Inadmissibility

On January 28, 2014 USCIS issued policy guidance to adjudicators on the health-related grounds of inadmissibility and eligibility for waivers.

According to USCIS, current internal guidance on medical grounds of inadmissibility and  corresponding medical waivers is outdated and does not comprehensively address the policy. The new guidance contained in the USCIS Policy Manual is controlling and supersedes any prior guidance that may be inconsistent.

Taken together with State Department policy as reflected in the Foreign Affairs Manual, this comprehensive government policy on these critical issues will impact professional athletes and others who may be found to have abused alcohol or “controlled substances”, including performance enhancing drugs.

Limits on P-1 Visas for Cuban Baseball Players

As 2014 spring training approaches and the number of Cuban players signing with major league clubs appears to be trending up, teams and agents should keep in mind that P-1 visa stamps for Cuban players issued at the US Embassies and Consulates continue to be valid for only three months and for a single entry into the US.

The limitations on validity and entry on P-1 visas are applicable to all Cubans under the current State Department Reciprocity Schedule for Cuba in the Foreign Affairs Manual – “(t)he validity of (P-1) visas may not exceed the period of validity of the approved petition or the number of months shown, whichever is less.”  Although we have suggested that consular officials should have discretion to issue visas with more generous limitations in compelling circumstances, consular posts appear unwilling to do so.

Impact on Travel to Toronto

Travel to Toronto for away games against the Blue Jays for Cuban players holding P-1 visa status is problematic.  After arriving in the US for spring training they no longer have a valid visa with which to return to the US from subsequent international travel and must apply for a new P-1 visa at the US Consulate in Toronto if accompanying their team on a road trip to Canada – assuming that they are even permitted entry by Canadian border officials.

We have been advised by US consular officials in Toronto for the past few years that it is no longer possible to obtain a visa by filing documents in advance since they are not permitted to request the necessary security clearances for Cuban citizens until the applicant appears in person and is fingerprinted.  The clearance process (“administrative processing”) can take several days or as long as two or three weeks and there is no way of predicting in advance how long it will take in any given case.  For that reason, clubs generally decide that it is safer to leave the Cuban player behind during road trips to Canada rather than risk having him miss more games back in the States while waiting while waiting in Toronto for the visa process to be completed.

 

Celebrities and Others Recognized for Extraordinary Ability or Achievement (O Visas)

The O-1 visa is for prominent individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics or for individuals of “extraordinary achievement” in the motion picture or television industry.

 There are sub-categories of the O Visa for essential support personnel (O-2) accompanying the principal alien for a specific performance or event as well as for dependent family members (O-3).

[Read more…]

Customs & Border Protection: I-94 Automation

In May 2013, US Customs and Border Protection (CBP) rolled out a new automated system of tracking admission to and departure from the United States, replacing the old I-94 card Arrival/Departure Record with a “digital” or electronic record.  The rollout started at select ports of entry on April 30, 2013 and expanded to include all air and sea ports by the end of May.  Because advance information is only transmitted for air and sea travelers, CBP will continue to issue a paper form I-94 at land border ports of entry.

Under the new the automated I-94 system, CBP no longer requires international visitors traveling to the United States by air or sea to complete a paper Form I-94 Arrival/Departure Record upon arrival in the US. Instead, the agency now gathers the pertinent information automatically from their electronic travel records. Upon arrival at the port of entry, a CBP inspector will stamp the travel document of each arriving non-immigrant traveler. The admission stamp will show the date of admission, port of entry, class of admission, and the expiration date of status.  Travelers will also receive a flier alerting them to go to online for their admission record information.

After entry, visitors admitted at the port of entry are able to access their I-94 entry record information online.  A foreign national with an electronic I-94 record can print a copy from the CBP web site: https://i94.cbp.dhs.gov/I94.  The printout of the electronic I-94 information is equivalent to the small, paper I-94 card that was previously stapled into a traveler’s passport by the CBP.

We advise each visitor to check his or her entry stamp before leaving the CBP inspection area to ensure that the admission was properly recorded, including class of admission, date of entry and duration of admission.  There are instances when admission at the port of entry is recorded for a shorter or longer period than may have been previously authorized by US Citizenship & Immigration Service (USCIS).  It is more difficult to correct an admission error once you have left the CBP inspection area.  We suggest that if one has a USCIS-issued Form I-797 Approval Notice indicating approved nonimmigrant visa status, he or she must be ready to present it at the port of entry upon return from any from foreign travel, if necessary.  We also advise visitors to retrieve a copy ofthe new I-94 record from the CBP web site as soon as possible.

Travelers exiting the US will not need to do anything differently. Travelers previously issued a paper Form I-94 would surrender it to the commercial carrier or to CBP upon departure. If travelers did not receive a paper Form I-94, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

For more information and for answers to frequently asked questions, visit CBP’s Form I-94 webpages.

Federico Macia: Special Counsel to Hill Visa Law in Miami

We are delighted to welcome Federico Macia as special counsel to Hill Visa Law in Miami.   Since we opened our law practice in 2004, we have frequently conferred with Fred Macia on questions of law and process in some of the most complicated immigration and visa cases we have ever encountered. Fred has always been willing to “brainstorm” on difficult issues and case strategies. He knows and understands the complexities of the law and the details of government rules and applies them to the facts of each case with unquestioned expertise.   We are excited to have Fred available to assist us on challenging cases – especially for our baseball and other valued Latin American clients in South Florida.

Immigrant Visas & “Green Cards”

Consular Processing and Adjustment of Status

Obtaining permanent residence in the United States through employment or family- based immigration requires successful completion of a multi-stage process subject to strictly defined substantive criteria, confusing bureaucratic regulatory procedures, and lengthy government processing delays.  In most employment-based cases, after the Department of Labor has issued a certification that no qualified American workers were available for the position offered (“labor certification”), the sponsoring employer must  file an immigrant preference petition with US Citizenship and Immigration Services (“USCIS”) on behalf of the foreign worker it wishes to employ.  Only after approval may the employee and any dependent family members file applications for “adjustment of status,” with USCIS or for immigrant visas at a consular office abroad.

Similarly, in family-based cases, a sponsoring relative must first file an immigrant petition on behalf of his or her qualifying family member(s) before those member(s) may apply for immigrant visas or for adjustment of status.  Under limited circumstances in both employment and family cases, the immigrant petition and application for adjustment of status may be filed “concurrently” but not always.

As part of a series of informal memos we have prepared for our clients and friends explaining basic immigration and visa-related concepts, this edition of Hill’s VisaNotes discusses the specific requirements and procedures that must be followed in the last stage of the permanent residence process: visa processing at an American Consulate or adjustment of status at USCIS. The labor certification process and various employment-based immigrant preference categories are discussed in separate editions.

[Read more…]

Specialty Occupation Workers (H-1B Visas)

In order to obtain permission to employ a foreign worker in H-1B visa status, an American employer must first submit a Labor Condition Application (“LCA”) to the United States Department of Labor (“DOL”), attesting to certain requirements related to wages and working conditions.  The employer must then file a petition with US Citizenship and Immigration Services (“USCIS”) on behalf of the worker establishing 1) that the position it seeks to fill qualifies as a “specialty occupation” and 2) that the person it wishes to hire in that position possesses the necessary professional qualifications.

 “The H-1B Visa Cap”

H-1B visas are limited by a “cap” on the number of new petitions that may be approved each year.  In Fiscal Year 2013 (“FY 2004”) which started on October 1, 2012, that number continues to be set at a limit of 65,000 [Read more…]

Priority Workers & Professionals

Employment-based Immigration: Priority Workers & Professionals

The EB-1 “Priority Worker” immigrant preference classification is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics; for “outstanding professors and researchers” in an academic or research environment; or for certain qualifying “multinational managers or executives.”  It is the highest priority of employment-based immigration under current law.

The EB-2 immigrant preference classification is for individuals who have “exceptional ability” in the sciences, arts, or business.

EB-3 classification is for individuals who qualify for permanent employment in positions requiring professionals – individuals possessing a minimum of a Bachelor’s Degree in a field directly related to the prospective employment – or “skilled workers” who possess at least two years of employment experience or related training. [Read more…]

Intracompany Transfers (L-1 Visas)

The L visa category is designed to allow multinational enterprises to transfer key personnel to the United States for relatively long-term but temporary assignments.  In most cases, the individual to be assigned to the United   States must have worked in a qualifying capacity for the enterprise or one of its related companies abroad for at least one year prior to eligibility for transfer in L-1 status. The process involves two distinct steps: filing an employer’s petition with the United States Citizenship & Immigration Services (“USCIS”) at one of its four regional service centers, and, after approval, submitting an individual nonimmigrant visa application to an American consular office overseas.

Qualifying Business Relationship

The current employer abroad and the prospective employer in theUnited States can be a corporation, partnership, or even a sole proprietorship, and need not be a large, multinational organization.  However, a “qualifying relationship” must exist between these two entities.  [Read more…]

Labor Certification Under “PERM”

Obtaining permanent residence in the United States based upon an offer of permanent employment can be a difficult and protracted process. That process includes in most cases undertaking defined recruitment steps appropriate to the industry and occupation in which a job opening is to be filled and subsequent filing of an application for labor certification under the United States Department of Labor (“USDOL”) new “PERM” Regulations.

Only after this recruitment has been completed and USDOL has issued its formal “labor certification” may an employer normally proceed with the filing of a preference petition with US Citizenship and Immigration Services (“USCIS”, formerly, Immigration and Naturalization Service) on behalf of the foreign worker to be hired permanently in the position offered. The process concludes with the filing of individual applications for adjustment of status through USCIS or for immigrant visas with an American consular office outside the United States. [Read more…]

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