Features of the U.S. Immigration Process
Reorganization of U.S. immigration agencies: The functions of the former Immigration and Naturalization Service (INS) are now performed by three government agencies within the Department of Homeland Security: the United States Citizenship and Immigration Service (USCIS) handles immigration benefits e.g. petitions and applications for citizenship and lawful status within the U.S.: Customs and Border Protection (CBP) screens admission to the U.S. at the airports and ports of entry: Immigration and Customs Enforcement (ICE) handles immigration matters within the U.S.
Visa applications: Generally foreign nationals need a visa to enter the U.S. and apply for one at the U.S. Consulate that has jurisdiction over where they live. Nationals of some countries may enter the U.S. as visitors without a visa stamp under the Visa Waiver Program: they must obtain prior authorization through the ESTA system – available online through CBP. Canadians do not need visas, save for E and K status and immigrant visas. Visa applications may take several weeks and sometimes months to schedule and process. Personal interviews are normally required and security checks are made on all applications. If you have a common name or work in a profession that involves “sensitive” technology, your application is likely to take even longer. Consular posts also take fingerprints for the IDENT biometric database.
IDENT: The IDENT system records and maintains a database of facial images and fingerprints from people applying for visas and entering the U.S. On each application for admission, your fingerprints and face will be scanned for matches within the IDENT database.
Form I-94 arrival/departure cards: I-94 arrival/departure cards are no longer generally issued to foreign nationals when arriving in the U.S. Instead, I-94 cards may be accessed and downloaded from the CBP website at https://i94.cbp.dhs.gov/I94/#/home
H-1B cap registration period for 2020/2021: The maximum number of H-1B petitions for the 2019/2020 fiscal year has been filed. USCIS is no longer accepting H-1B petitions, including petitions from foreign nationals whose qualification is a Master’s degree or higher from a U.S. educational institution. Between March 1 and March 20, U.S. employers may register to file an H-1B petition on behalf of specified prospective employees. USCIS will randomly select registrations for which an H-1B petition may be filed for work starting on or after October 1, 2020.
New Public Charge rules: Generally, foreign nationals are not allowed into the U.S. if they are likely to become a public charge. New stringent rules relating to this requirement have been implemented by both USCIS, for people within the U.S., and the Department of State, for people applying for immigrant visas outside the U.S. Age, health, education and skills, and receipt of public benefits are considered, as well as the applicant’s income and assets.
Filing fee surcharges on H-1B and L-1 petitions: Non-exempt H-1B petitions are subject to a $1,500 filing fee surcharge; $750 if the U.S. petitioner, including any affiliate or subsidiary, employs 25 or fewer full-time staff. U.S employers with 50 or more employees, over half of which are in H-1B or L status must pay a further surcharge of $2,000 (H-1B) or $2,250 (L) on new petitions. In addition, a further $500 fraud prevention and detection fee applies to all initial L-1 and H-1B petitions: petitions to amend or extend are not subject to this fee. These filing fee surcharges are all in addition to the base $460 filing fee.
Proposed new laws being considered by Congress: The House of Representatives is considering a new bill to make available E3 specialty occupation professionals visa to Irish citizens. These visas are presently only available to Australian citizens. The bill has the favor of the White House and is expected to receive bipartisan support in Congress.
The Kiwi Act, passed by Congress, provides eligible New Zealand citizens with the option of E1 Treaty Trader and E2 Treaty Investor visas. New Zealand citizens may now apply for both E1 and E2 visas.
Backlogs in immigrant visa numbers: Immigrant visas for employment based applicants are subject to numerical quotas. These are shown on the Visa Bulletin which is available online at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html For example, there is a 16-month backlog for extraordinary ability workers and multinational managers (EB1); a 2-year backlog in this category for Chinese and Indian nationals. Spouses, children, and parents of U.S. citizens (immediate relatives) are not subject to these backlogs but other relatives may have waits from one year (spouses and children of permanent residents) to 13 years (brothers and sisters of U.S. citizens). These backlogs are greater for certain countries that are heavily oversubscribed.
Labor certification (PERM) – the process for Green Cards through employment: The underlying concept is that the Department of Labor (DOL) must certify that there are no qualified and available U.S. workers for the offered position before the employer can sponsor the foreign national. The U.S. employer conducts the recruitment program and, if no qualified U.S. workers apply for the position, then files an electronic attestation with the DOL. The DOL either certifies or audits the attestation; once certified, the U.S. employer must file the immigrant petition to sponsor the foreign worker for a Green Card within 180 days.
Penalties against overstays: Persons who have been unlawfully present in the U.S. after April 1, 1997 for a total of more than 180 days but less than one year will not be allowed back in the U.S. for three years from their date of departure. Persons who remain illegally in the U.S. after April 1, 1997 for a total of one year or more will be inadmissible from the U.S. for 10 years after their date of departure. Longer bars apply to persons who have been removed from the U.S. These bars may apply even to persons who have obtained advance parole (permission to re-enter).
Adjustment of Status: Adjustment of status is the process whereby persons already in the U.S. may adjust their status to lawful permanent resident. To qualify for this process, an immigrant visa must be immediately available, whether through close family relationship, employment or investment. Foreign nationals are not able to adjust status if (i) they entered the U.S. illegally, or (ii) they have worked without authorization or have not maintained lawful status since their entry, unless they qualify for an immigrant visa as immediate relatives. Certain foreign nationals who qualify for an immigrant visa on the basis of employment may still adjust status if they have not been out of status for an aggregate of more than 180 days. Foreign nationals who qualify for immigrant visas but are ineligible for adjustment of status may apply for immigrant visas through U.S. Consulates outside the United States. However, if they have been unlawfully present in the U.S.for more than 180 days, they will be inadmissible for three years if they leave the country. (see penalties against overstays above).