CBP Goes Paperless: The New Electronic I-94 and What it Means for Travelers

On May 1, 2013 US Customs and Border Protection (CBP) began the roll-out of its new electronic I-94 system. By the end of May, paper I-94s will be eliminated for all foreign national travelers except those entering at land border ports. This means that any foreign national traveler entering the United States at an air or sea port, will receive only a notation in their passport with their entry date, type of status and the expiration date of their stay. Information will be recorded and retrieved by CBP by scanning the traveler’s passport. Upon exiting the United States, travelers do not need to do anything differently. Those with paper I-94s will continue to surrender them to the commercial carrier or CBP upon departure and those who entered with the new process will have their departure recorded via electronic manifest.

Accessing I-94 Records: To verify the information contained in an electronic Form I-94, travelers should go to http://www.cbp.gov/i94 to review their record. Travelers are also advised to print out a paper copy of the electronic I-94 information for their records. This record will only be available until the traveler’s next entry into the United States, so it is imperative for foreign nationals who intend on seeking visa extensions or legal permanent residence to maintain accurate and complete electronic I-94 records. Any errors discovered should be immediately reported to nearest CBP office so that they may be quickly corrected.

Maintaining Accuracy: In the new process, CBP will be relying heavily on the manifest arrival and departure records provided by the airlines to record entry and departure information for foreign national travelers. As a result it is imperative to ensure that personal information such as name and date of birth is correct and consistent throughout the traveler’s documents and travel record.

I-9 Completion: The new electronic I-94 will make employment eligibility verification and I-9 form completion more complicated. The new I-9 form with an issue date of March 8, 2013 should be used for all new-hires and re-verifications. On this form, employees with temporary work authorization are now required to include their passport number and the country of issuance on the form. Employers, when completing Section 2, List A should record passport information and visa information. The expiration date of the employee’s immigration status should be included in the employer’s tickler system so that reverifciation may be completed on time. Be careful not to confuse the expiration date of the passport or visa with the expiration date of the person’s legal immigration status, as these will rarely be the same.

Phased Implementation: Implementation of electronic I-94s began on April 30, 2013 and will continue through the end of May 2013. See the Automated I-94 Rollout web page for implementation information and schedules. During the first week, the system was implemented at Charlotte (NC) International Airport, Chicago O’Hare International Airport, Houston Bush Intercontinental Airport, Las Vegas International Airport, Miami International Airport and Orlando International Airport. During the second week, CBP expanded into major air and sea ports by region, including the air sea ports in the New York/Newark, NJ area, Boston and ten other cities. Ports in Los Angeles and San Francisco, among other regions, are being implemented the week of May 14, along with pre-flight clearance stations abroad. The move to an electronic system is estimated to save the government $15.5 million

For more information on this or any immigration topic, please contact Valentine Brown vbrown@duanemorris.com (215) 979-1840.

May Visa Bulletin: Strong EB-3 Advancement for All Areas except India

The May Visa Bulletin has been released by the Department of State and things are looking up for those in the EB-3 category with large advancements for Chinese, Mexican, and all other chargeability area nationals.

With regard to the EB-2 category, Chinese nationals will experience over a one month advancement from April 1, 2008 to May 15, 2008; while Indian nationals remain at September 1, 2004, which has not changed since the end of 2012. In the meantime, Mexican, Filipino, and nationals from all other areas of chargeability remain current in EB-2 through May of 2013.

All of those in the EB-3 category will see advancements in their priority dates. Chinese, Mexican, and all other chargeability areas will see large advancements of up to eight months, while Indian nationals will an advancement of 14 days.

As always, due to the fear of retrogression, its vitally important that I-485 applications be filed in the first month of visa availability. If your priority date is current or will become current based on the May 2013 visa bulletin, please contact our office.

For additional information regarding the Visa Bulletin, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

H-1B Lottery Complete: Applicants have 2/3 Chance of Success

USCIS announced today at 3:00 PM that it had received approximately 124,000 H-1B Visa applications from April 1 through April 5. Because this number exceeded the 20,000 Masters Cap + 65,000 regular Cap, USCIS initiated the lottery procedure. The fact that the lottery has already been completed is a welcome improvement over past years when the lottery was not completed until much later in April. Having the lottery done early will allow applicants who did not get selected additional time to evaluate thier immigration options and make other plans, prior to the expiration of their current immigration status.

Chance of Success: Based upon the number of applications received, each applicant will have an unscientific 2/3 chance to obtain an H-1B visa number. The chance calculation is not exact as we do not know how many of the 124,000 applications received were persons with a US Masters degrees. The Masters degree cap lottery was conducted first, with any losers being added to the regular cap lottery.

H-1B applicants will either receive a USCIS receipt notice, signifying that their applications have been successful and selected in the lottery, or they will receive their complete application, including their filing fee checks back in the mail, with a notice indicating that they did not get picked.

Premium Processing: As previously indicated, in a USCIS statement, the agency will begin premium processing H-1B applications on April 15, 2013, thus the statutory 15 day period will commence on that date.

We should start receiving H-1B receipt notices within the next several days. Normally the rejected applications take much longer to be mailed, because they must be handled by humans in the mailroom, whereas USCIS receipts are all system generated.

If you application has not been selected, it is best to consult with your immigration attorney to determine the best options for addressing this disappointing news. Often other options are available, such as a change of status to a different status, or a STEM OPT extension. This is not however, the case for all applicants and some may be required to return home after their current status expires.

Cap Exempt H-1Bs: It is important to remember that the H-1B cap does not affect all H-1B applicants. As stated in its press release today: “USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers;
• allow current H-1B workers to work concurrently in a second H-1B position.”

We are hopeful that with the strong likelihood of immigration reform, this might be our last H-1B cap for a while. Proposals currently under consideration would increase the cap to a maximum of 300,000 depending upon prior H-1B usage, economic and unemployment rate factors. We will keep our fingers crossed.

If you have any questions regarding this information or other options to the H-1B, please contact Duane Morris.

Any News on the H-1B Cap?

No news yet.  Under the H-1B cap lottery system, USCIS will accept H-1B applications until April 5, 2013.  If after that initial count, it has received sufficient number of applications to reach the cap, there will be a lottery. If not, it will continue accepting applications until the cap is reached.

In past years, the first official cap count has been issued on April 8 or 9, with unofficial information coming from the American Immigration Lawyers Association and other groups a day or two earlier. This pattern normally continued with USCIS giving cap counts on Monday or Tuesday, including all of the applications that were received in the previous week.

As soon as we hear any news, we will pass it on.

Also, a great article came out yesterday from the Brookings Institution analyzing the I Squared Act and its potential effect on the H-1B visa. For a good breakdown of how the cap could be increased (or decreased) under the pending legislation read here.

H-1B Cap Update: High Likelihood of Lottery on April 5

Update: As the first day of the FY2014 H-1B cap approaches, more information about the number of H-1B cap filings expected  at USCIS on April 1 is becoming available. Although there is no hard and fast reporting mechanisim, it is now widely expected that the cap will be exceeded by April 5, 2013 thus necessitating a lottery.  Under the lottery requirements, USCIS will accept applications on Monday April 1 through Friday April 5.   If this number is over the 65,000 regular cap and 20,000 masters cap, they will then enter all applications into a lottery for the available  visa slots.  For more information on the process  visit the H-1B FY 2014 Cap Season Web page  

 Who is covered by the Cap: Each H-1B worker is counted only once every 6 years, so the H-1B cap only applies to persons who are getting H-1B status for the first time. Extensions of status and change of employer applications are not affected.  Employees of Universities and other non-profit research institutions are also not affected as they are exempt from the H-1B cap

 What this means for Employers: If you have any employees on Optional Practical training that will expire before April 1, 2014, it is imperative that you submit an H-1b application for them during this year’s cap season. There is still time to do this now,  especially since filings will be accepted through at least April 5, 2013.  If the cap is not reached by April 5, USCIS will continue to accept applications until the maximum number is reached, so it is to everyone’s benefit to prepare and submit H-1B applications up unti USCIS announces that the cap has been reached.

 Effect on Premium Processing: Announcements from USCIS yesterday indicate that it is anticipating that the cap will be reached by April 5, 2013, thus requiring it to begin the lottery process. It is also anticipating that  requests for premium processing for H-1Bs will be at historic levels. As a result it has announced that Premium Processing for H-1Bs  will begin on April 15, 2013, not on the day the H-1B petition arrives at USCIS.

We are still available to do last minute filings so please call 215 979 1840 for assistance.

New I-9 Form Finally Released- 60 Day Grace Period for Implementation

The long awaited NEW Employment Eligibility Verification, Form I-9 (Rev. 03/08/13) has finally been released by USCIS.  After months of reviewing over 6,000 comments, USCIS has finalized the new form with some key changes:

• New data fields, including the employee’s foreign passport information, phone number, and email address;
• Expanded form instructions; and,
• Revised form layout- increasing the form from one to two pages.

 The additional new data fields are likely to have the most impact on employers since hiring managers will require additional training to recognize the new fields, understand their significance, and apply the compliance rules to ensure the form’s proper completion.  The expanded form instructions will be helpful as a source of guidance for how to complete the already complex form.

 While the new form goes immediately into effect upon publication, employers will have a 60 day transition period during which they may continue to use previous versions of Form I-9 (Rev. 08/07/09 and Rev. 02/02/09).  Employers may also use this 60 day grace period to ensure that their electronic I-9 systems are compliant with the new Form I-9.

 For additional information regarding the new Form I-9, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

CBP Issues Sequestration FAQs and Plans

Customs and Border Protection (CBP) The Department of Homeland Security agency resposible for the movement of people and goods across international boundaries has published several statements on how sequestration will affect its operations:

Travel and Trade: In a FAQ issued on Saturday, CBP indicates that “under the automatic sequestration cuts, we anticipate reducing agency-wide expenditures significantly during the remainder of Fiscal Year 2013. CBP Field Operations, the office responsible for securing the U.S. border at ports of entry, will experience budget cuts equating to the loss of several thousand CBP officers at these ports of entry, in addition to significant cuts to operating budgets and programs. Stakeholders in the travel and trade industries will see service impacts and CBP employees will be furloughed. Additional information regarding priorities during sequestration, reduced hours of operation at ports and increased airport wait times of up to 50% or more are provided.

Imports: CBP has issued a FAQ on how the sequestration cuts may affect the movement of imports into the United States.  The agency states that “at the national level, OFO and the Office of International Trade (OT) Headquarters staff will participate in weekly telephone conference calls, coordinated through the Office of Trade Relations, with cargo industry stakeholders to address the impacts of the sequester on imported shipments. As part of the weekly conference call, OFO, OT, and industry stakeholders will discuss modifications to this document to address impacts caused by sequestration.” It also answers such questions on port monitors, responses to trade disruptions and whether any special procedures will be put in place for conveyance diversions during sequestration.

Cargo Priorities: CBP has also issued a framework for cargo priorities under sequestration. CBP states that the following “roadmap” will be used to reduce the impact of sequestration on business:

• Improving the automated systems and processes for receiving advance information on cargo and passengers and using that information for targeting terrorism risks or other threats;
• Modernizing our commercial operations, and working with our trade partners to secure the nation and to keep commerce flowing;
• Integrating other government agencies into our risk-based strategy and into a seamless process that is both efficient and effective; and
• Working with other countries to secure the global trade lanes and with the World Customs Organization to promote a global and more unified approach to supply chain security

The Immigrationist will provide additional updates on agency changes as a result of sequestration as they become avialable.