Archive for June 2012


Further Guidance on Failure to Register for NSEERS

June 22nd, 2012 — 10:20am

Although DHS finally ended the NSEERS registration program last year, it recently issued guidance on the limited circumstances under which negative immigration consequences, such as a denial of a benefit, finding of inadmissibility, or commencement of removal proceedings, will result from a foreign national’s prior failure to comply with NSEERS requirements. NSEERS, or the National Security Entry-Exit Registration System, was a special registration process for male foreign nationals from certain countries who were over the age of 16 and who entered the U.S. as nonimmigrants prior to September 10, 2001. Implemented in 2002 in the wake of the September 11 attacks, it sought to record the arrival and departure of individuals mostly from Middle Eastern countries. The program failed as a counterterrorism policy and was discriminatory and relied on racial profiling.  While in its latest memo DHS clarifies that only noncompliance, in and of itself, is not a sufficient basis for such consequences to adhere, DHS has not completely eliminated the lingering consequences of NSEERS: a determination of a willful NSEERS violations may still apply and have negative immigration consequences.  We think this is wrong.  DHS should, once and for all, remove the residual penalties associated with NSEERS.

 

Comment » | Department of Homeland Security

ESTA Travelers: Do Not Risk a Misrepresentation Finding

June 22nd, 2012 — 10:16am

U.S. Customs and Border Protection (CBP), the agency whose officers make the determination at ports of entry regarding admission to the United States, advises that failure to disclose visa refusals for administrative processing or for an incorrect visa category on  visa application, Form DS-160, may be construed as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, and this misrepresentation could make the applicant inadmissible. The ESTA form is required for those foreign nationals who are eligible to enter the United States through the visa waiver program. ESTA applicants are advised to report visa “refusals” as “denials” even when the refusals are for administrative processing or for selecting the incorrect visa category on Form DS-160. This means that even when a consular officer suspends a visa application for administrative processing for receipt of additional documents or other information and those documents are subsequently submitted and the visa is granted, the ESTA applicant should consider that as a denial on the ETSA form. This is because the Department of State (DOS) treats a consular officer’s decision to suspend processing a visa as a visa refusal. Because DOS treats the suspension for administrative processing as a refusal, CBP requires that such refusals be reported on the ESTA application.

The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP advises that it will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission.

CBP also advises that if a visa applicant does not select the correct visa category on the nonimmigrant visa application, Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. Because there may be a record of this error noted by a consular officer, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided even if the applicant is not told that the consular officer has entered such a notation.

Comment » | Customs and Border Protection, Visa waiver program

H-1B Cap Reached

June 22nd, 2012 — 10:13am

On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory H-1B cap for FY 2013. On June 7, 2012, it received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will now reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013. Employers wishing to hire first-time, cap subject H-1B workers will have to wait until April 1, 2013 to file their cases for work that will begin no earlier than October 1, 2013, the first day of FY 2014. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions as well as Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

Comment » | Department of Homeland Security, H-1B

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