U.S. Immigration Law & the U.S. Border

Religious Work Visa

2012-02-13T16:28:00.000-08:00

The Religious Worker (R) visa is for persons seeking to enter the United States (U.S.) to work in a religious capacity on a temporary basis, under provisions of U.S. law, specifically the Immigration and Nationality Act.. It allows members of a religious organization to enter the US and work for the same religious organization.

R Visa Requirements for eligibility
1. At least two years of membership with a religious organization.
2. Intent to stay in the U.S. on a temporary basis (i.e. when your R visa expires you will return to your home country)
3. The religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status
4. The organization is petitioning for you to work for them.
5. You will work for them as a minister or in a religious vocation or occupation.
R Visa Dependents
Dependents of the R-1 visa applicant (e.g. Spouse/children) are eligible for an R-2 visa, but they are not permitted to legally work within the United States. Therefore, evidence of their financial support while in the U.S. would be necessary at the visa interview.
R Visa Application process

The applicant's prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS). The petition must be approved before the prospective religious worker can apply for a visa at a U.S Consulate. Visa applicants must bring the approved I-129 petition receipt number to the interview, so that petition approval can be verified.

P Visas for Artists, Athletes, and Entertainers

2012-02-07T21:08:00.001-08:00

The following is excerpted from Title 8 of the Code of Federal Regulations, Section 214.2 (p):

(p) Artists, athletes, and entertainers—(1) Classifications—(i) General. Under section 101(a)(15)(P) of the Act, an alien having a residence in a foreign country which he or she has not intention or abandoning may be authorized to come to the United States temporarily to perform services for an employer or a sponsor. Under the nonimmigrant category, the alien may be classified under section 101(a)(15)(P)(i) of the Act as an alien who is coming to the United States to perform services as an internationally recognized athlete, individually or as part of a group or team, or member of an internationally recognized entertainment group; under section 101(a)(15)(P)(ii) of the Act, who is coming to perform as an artist or entertainer under a reciprocal exchange program; under section 101(a)(15)(P)(iii) of the Act, as an alien who is coming solely to perform, teach, or coach under a program that is culturally unique; or under section 101(a)(15)(P)(iv) of the Act, as the spouse or child of an alien described in section 101(a)(15)(P) (i), (ii), or (iii) of the Act who is accompanying or following to join the alien. These classifications are called P-1, P-2, P-3, and P-4 respectively. The employer or sponsor must file a petition with the Service for review of the services to be performed and for determination of the alien's eligibility for P-1, P-2, or P-3 classification before the alien may apply for a visa or seek admission to the United States. This paragraph sets forth the standards and procedures applicable to these classifications.(ii) Description of classification.(A) A P-1 classification applies to an alien who is coming temporarily to the United States:(1) To perform at specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level or performance, or(2) To perform with, or as an integral and essential part of the performance of, and entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, and who has had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provides functions integral to the performance of the group.(B) A P-2 classification applies to an alien who is coming temporarily to the United States to perform as an artist or entertainer, individually or as part of a group, or to perform as an integral part of the performance of such a group, and who seeks to perform under a reciprocal exchange program which is between an organization or organizations in the United States and an organization or organizations in one or more foreign states, and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers.(C) A P-3 classification applies to an alien artist or entertainer who is coming temporarily to the United States, either individually or as part of a group, or as an integral part of the performance of the group, to perform, teach, or coach under a commercial or noncommercial program that is culturally unique.(2) Filing of petitions—(i) General. A P-1 petition for an athlete or entertainment group shall be filed by a United States employer, a United States sponsoring organization, a United States agent, or a foreign employer through a United States agent. For purposes of paragraph (p) of this section, a foreign employer is any employer who is not amenable to service of process in the United States. Foreign employers seeking to employ a P-1 alien may not directly petition for the alien but must use a United States agent. A United States agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept service of process in the United States in proceedings under section 274A of the Act, on behalf of the foreign employer. A P-2 petition for an artist or entertainer in a reciprocal exchange program shall be filed by the United States labor organization which negotiated the reciprocal exchange agreement, the sponsoring organization, or a United States employer. A P-3 petition for an artist or entertainer in a culturally unique program shall be filed by the sponsoring organization or a United States employer. Essential support personnel may not be included on the petition filed for the principal alien(s). These aliens require a separate petition. The petitioner must file a P petition on Form I-129, Petition for Nonimmigrant Worker. The petition may not be filed more than one year before the actual need for the alien's services. A P-1, P-2, or P-3 petition shall be adjudicated at the appropriate Service Center, even in emergency situations.(ii) Evidence required to accompany a petition for a P nonimmigrant. Petitions for P nonimmigrant aliens shall be accompanied by the following:(A) The evidence specified in the specific section of this part for the classification;(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien(s) will be employed;(C) An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and(D) A written consultation from a labor organization.(iii) Form of documentation. The evidence submitted with an P petition should conform to the following:(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, establishment, or organization where the work has performed.(B) Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability, or, in the case of a motion picture or television production, the extraordinary achievement of the alien, which shall specifically describe the alien's recognition and ability or achievement in factual terms. The affidavit must also set forth the expertise of the affiant and the manner in which the affiant acquired such information.(C) A legible copy of a document in support of the petition may be submitted in lieu of the original. However, the original document shall be submitted if requested by the Director.(iv) Other filing situations—(A) Services in more than one location. A petition which requires the alien to work in more than one location (e.g., a tour) must include an itinerary with the dates and locations of the performances.(B) Services for more than one employer. If the beneficiary or beneficiaries will work for more than one employer within the same time period, each employer must file a separate petition unless an agent files the petition pursuant to paragraph (p)(2)(iv)(E) of this section.(C) Change of employer—(1) General. If a P-1, P-2, or P-3 alien in the United States seeks to change employers or sponsors, the new employer or sponsor must file both a petition and a request to extend the alien's stay in the United States. The alien may not commence employment with the new employer or sponsor until the petition and request for extension have been approved.(2) Traded professional P-1 athletes. In the case of a professional P-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Form I-129 for P-1 nonimmigrant classification. If a new Form I-129 is not filed within 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete shall be deemed to be in valid P-1 status, and employment shall continue to be authorized, until the petition is adjudicated. If the new petition is denied, employment authorization will cease.(D) Amended petition. The petitioner shall file an amended petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or the beneficiary's eligibility as specified in the original approved petition. A petitioner may add additional, similar or comparable performance, engagements, or competitions during the validity period of the petition without filing an amended petition.(E) Agents as petitioners. A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A United States agent may be: the actual employer of the beneficiary; the representative of both the employer and the beneficiary; or, a person or entity authorized by the employer to act for, or in place of, the employer as its agent. A petition filed by an United States agent is subject to the following conditions:(1) An agent performing the function of an employer must specify the wage offered and the other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.(2) A person or company in business as an agent may file the P petition involving multiple employers as the representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes a complete itinerary of services or engagements. The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, the names and addresses of the establishment, venues, or locations where the services will be performed. In questionable cases, a contract between the employer(s) and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.(3) A foreign employer who, through a United States agent, files a petition for a P nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.(F) Multiple beneficiaries. More than one beneficiary may be included in a P petition if they are members of a group seeking classification based on the reputation of the group as an entity, or if they will provide essential support to P-1, P-2, or P-3 beneficiaries performing in the same location and in the same occupation.(G) Named beneficiaries. Petitions for P classification must include the names of beneficiaries and other required information at the time of filing.(H) Substitution of beneficiaries. A petitioner may request substitution of beneficiaries in approved P-1, P-2, and P-3 petitions for groups. To request substitution, the petitioner shall submit a letter requesting such substitution, along with a copy of the petitioner's approval notice, to the consular office at which the alien will apply for a visa or the Port-of-Entry where the alien will apply for admission. Essential support personnel may not be substituted at consular offices or at Ports-of-entry. In order to add additional new essential support personnel, a new I-129 petition must be filed.(3) Definitions. As used in this paragraph, the term:Arts includes fields of creative activity or endeavor such as, but not limited to, fine arts, visual arts, and performing arts.Competition, event, or performance means an activity such as an athletic competition, athletic season, tournament, tour, exhibit, project, entertainment event, or engagement. Such activity could include short vacations, promotional appearances for the petitioning employer relating to the competition, event, or performance, and stopovers which are incidental and/or related to the activity. An athletic competition or entertainment event could include an entire season of performances A group of related activities will also be considered an event. In the case of a P-2 petition, the event may be the duration of the reciprocal exchange agreement. In the case of a P-1 athlete, the event may be the duration of the alien's contract.Contract means the written agreement between the petitioner and the beneficiary(ies) that explains the terms and conditions of employment. The contract shall describe the services to be performed, and specify the wages, hours of work, working conditions, and any fringe benefits.Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.Essential support alien means a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot be readily performed by a United States worker and which are essential to the successful performance of services by the P-1, P-2, alien. Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien.Group means two or more persons established as one entity or unit to perform or to provide a service.Internationally recognized means having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.Member of a group means a person who is actually performing the entertainment services.Sponsor means an established organization in the United States which will not directly employ a P-1, P-2, or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition.Team means two or more persons organized to perform together as a competitive unit in a competitive event.(4) Petition for an internationally recognized athlete or member of an internationally recognized entertainment group (P-1)—(i) Types of classification—(A) P-1 classification as an athlete in an individual capacity. A P-1 classification may be granted to an alien who is an internationally recognized athlete based on his or her own reputation and achievements as an individual. The alien must be coming to the United States to perform services which require an internationally recognized athlete.(B) P-1 classification as a member of an entertainment group or an athletic team. An entertainment group or athletic team consists of two or more persons who function as a unit. The entertainment group or athletic team as a unit must be internationally recognized as outstanding in the discipline and must be coming to perform services which require an internationally recognized entertainment group or athletic team. A person who is a member of an internationally recognized entertainment group or athletic team may be granted P-1 classification based on that relationship, but may not perform services separate and apart from the entertainment group or athletic team. An entertainment group must have been established for a minimum of 1 year, and 75 percent of the members of the group must have been performing entertainment services for the group for a minimum of 1 year.(ii) Criteria and documentary requirements for P-1 athletes—(A) General. A P-1 athlete must have an internationally recognized reputation as an international athlete or he or she must be a member of a foreign team that is internationally recognized. The athlete or team must be coming to the United States to participate in an athletic competition which has a distinguished reputation and which requires participation of an athlete or athletic team that has an international reputation.(B) Evidentiary requirements for an internationally recognized athlete or athletic team. A petition for an athletic team must be accompanied by evidence that the team as a unit has achieved international recognition in the sport. Each member of the team is accorded P-1 classification based on the international reputation of the team. A petition for an athlete who will compete individually or as a member of a U.S. team must be accompanied by evidence that the athlete has achieved international recognition in the sport based on his or her reputation. A petition for a P-1 athlete or athletic team shall include:(1) A tendered contract with a major United States sports league or team, or a tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport, and(2) Documentation of at least two of the following:(i) Evidence of having participated to a significant extent in a prior season with a major United States sports league;(ii) Evidence of having participated in international competition with a national team;(iii) Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition;(iv) A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized;(v) A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;(vi) Evidence that the individual or team is ranked if the sport has international rankings; or(vii) Evidence that the alien or team has received a significant honor or award in the sport.(iii) Criteria and documentary requirements for members of an internationally recognized entertainment group—(A) General. A P-1 classification shall be accorded to an entertainment group to perform as a unit based on the international reputation of the group. Individual entertainers shall not be accorded P-1 classification to perform separate and apart from a group. Except as provided in paragraph (p)(4)(iii)(C)(2) of this section, it must be established that the group has been internationally recognized as outstanding in the discipline for a sustained and substantial period of time. Seventy-five percent of the members of the group must have had a sustained and substantial relationship with the group for at least 1 year and must provide functions integral to the group's performance.(B) Evidentiary criteria for members of internationally recognized entertainment groups. A petition for P-1 classification for the members of an entertainment group shall be accompanied by:(1) Evidence that the group has been established and performing regularly for a period of at least 1 year;(2) A statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and(3) Evidence that the group has been internationally recognized in the discipline for a sustained and substantial period of time. This may be demonstrated by the submission of evidence of the group's nomination or receipt of significant international awards or prices for outstanding achievement in its field or by three of the following different types of documentation:(i) Evidence that the group has performed, and will perform, as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;(ii) Evidence that the group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;(iii) Evidence that the group has performed, and will perform, services as a leading or starring group for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;(iv) Evidence that the group has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings; standing in the field; box office receipts; record, cassette, or video sales; and other achievements in the field as reported in trade journals, major newspapers, or other publications;(v) Evidence that the group has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or(vi) Evidence that the group has either commanded a high salary or will command a high salary or other substantial remuneration for services comparable to other similarly situated in the field as evidenced by contracts or other reliable evidence.(C) Special provisions for certain entertainment groups—(1) Alien circus personnel. The 1-year group membership requirement and the international recognition requirement are not applicable to alien circus personnel who perform as part of a circus or circus group, or who constitute an integral and essential part of the performance of such circus or circus group, provided that the alien or aliens are coming to join a circus that has been recognized nationally as outstanding for a sustained and substantial period of time or as part of such a circus.(2) Certain nationally known entertainment groups. The Director may waive the international recognition requirement in the case of an entertainment group which has been recognized nationally as being outstanding in its discipline for a sustained and substantial period of time in consideration of special circumstances. An example of a special circumstances would be when an entertainment group may find it difficult to demonstrate recognition in more than one country due to such factors as limited access to news media or consequences of geography.(3) Waiver of 1-year relationship in exigent circumstances. The Director may waive the 1-year relationship requirement for an alien who, because of illness or unanticipated and exigent circumstances, replaces an essential member of a P-1 entertainment group or an alien who augments the group by performing a critical role. The Department of State is hereby delegated the authority to waive the 1-year relationship requirement in the case of consular substitutions involving P-1 entertainment groups.(iv) P-1 classification as an essential support alien—(A) General. An essential support alien as defined in paragraph (p)(3) of this section may be granted P-1 classification based on a support relationship with an individual P-1 athlete, P-1 athletic team, or a P-1 entertainment group.(B) Evidentiary criteria for a P-1 essential support petition. A petition for P-1 essential support personnel must be accompanied by:(1) A consultation from a labor organization with expertise in the area of the alien's skill;(2) A statement describing the alien(s) prior essentiality, critical skills, and experience with the principal alien(s); and(3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer.(5) Petition for an artist or entertainer under a reciprocal exchange program (P-2)—(i) General. (A) A P-2 classification shall be accorded to artists or entertainers, individually or as a group, who will be performing under a reciprocal exchange program which is between an organization or organizations in the United States, which may include a management organization, and an organization or organizations in one or more foreign states and which provides for the temporary exchange of artists and entertainers, or groups of artists and entertainers.(B) The exchange of artists or entertainers shall be similar in terms of caliber of artists or entertainers, terms and conditions of employment, such as length of employment, and numbers of artists or entertainers involved in the exchange. However, this requirement does not preclude an individual for group exchange.(C) An alien who is an essential support person as defined in paragraph (p)(3) of this section may be accorded P-2 classification based on a support relationship to a P-2 artist or entertainer under a reciprocal exchange program.(ii) Evidentiary requirements for petition involving a reciprocal exchange program. A petition for P-2 classification shall be accompanied by:(A) A copy of the formal reciprocal exchange agreement between the U.S. organization or organizations which sponsor the aliens and an organization or organizations in a foreign country which will receive the U.S. artist or entertainers;(B) A statement from the sponsoring organization describing the reciprocal exchange of U.S. artists or entertainers as it relates to the specific petition for which P-2 classification is being sought;(C) Evidence that an appropriate labor organization in the United States was involved in negotiating, or has concurred with, the reciprocal exchange of U.S. and foreign artists or entertainers; and(D) Evidence that the aliens for whom P-2 classification is being sought and the U.S. artists or entertainers subject to the reciprocal exchange agreement are artists or entertainers with comparable skills, and that the terms and conditions of employment are similar.(iii) P-2 classification as an essential support alien—(A) General. An essential support alien as defined in paragraph (p)(3) of this section may be granted P-2 classification based on a support relationship with a P-2 entertainer or P-2 entertainment group.(B) Evidentiary criteria for a P-2 essential support petition. A petition for P-2 essential support personnel must be accompanied by:(1) A consultation from a labor organization with expertise in the area of the alien's skill;(2) A statement describing the alien(s) prior essentiality, critical skills, and experience with the principal alien(s); and(3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer.(6) Petition for an artist or entertainer under a culturally unique program—(i) General. (A) A P-3 classification may be accorded to artists or entertainers, individually or as a group, coming to the United States for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.(B) The artist or entertainer must be coming to the United States to participate in a cultural event or events which will further the understanding or development of his or her art form. The program may be of a commercial or noncommercial nature.(ii) Evidentiary criteria for a petition involving a culturally unique program. A petition for P-3 classification shall be accompanied by:(A) Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the alien's or the group's skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the alien's or group's skill, or(B) Documentation that the performance of the alien or group is culturally unique, as evidence by reviews in newspapers, journals, or other published materials; and(C) Evidence that all of the performances or presentations will be culturally unique events.(iii) P-3 classification as an essential support alien—(A) General. An essential support alien as defined in paragraph (p)(3) of this section may be granted P-3 classification based on a support relationship with a P-3 entertainer or P-3 entertainment group.(B) Evidentiary criteria for a P-3 essential support petition. A petition for P-3 essential support personnel must be accompanied by:(1) A consultation from a labor organization with expertise in the area of the alien's skill;(2) A statement describing the alien(s) prior essentiality, critical skills and experience with the principal alien(s); and(3) A copy of the written contract or a summary of the terms of the oral agreement between the alien(s) and the employer.(7) Consultation—(i) General. (A) Consultation with an appropriate labor organization regarding the nature of the work to be done and the alien's qualifications is mandatory before a petition for P-1, P-2, or P-3 classification can be approved.(B) Except as provided in paragraph (p)(7)(i)(E) of this section, evidence of consultation shall be a written advisory opinion from an appropriate labor organization.(C) Except as provided in paragraph (p)(7)(i)(E) of this section, the petitioner shall obtain a written advisory opinion from an appropriate labor organization. The advisory opinion shall be submitted along with the petition when the petition is filed. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which support the conclusion reached in the opinion. Advisory opinions must be submitted in writing and signed by an authorized official of the organization.(D) Except as provided in paragraph (p)(7)(i) (E) and (F) of this section, written evidence of consultation shall be included in the record of every approved petition. Consultations are advisory and are not binding on the Service.(E) In a case where the Service has determined that a petition merits expeditious handling, the Service shall contact the labor organization and request an advisory opinion if one is not submitted by the petitioner. The labor organization shall have 24 hours to respond to the Service's request. The Service shall adjudicate the petition after receipt of the response from the labor organization. The labor organization shall then furnish the Service with a written advisory opinion within 5 working days of the request. If the labor organization fails to respond within 24 hours, the Service shall render a decision on the petition without the advisory opinion.(F) In those cases where it is established by the petitioner that an appropriate labor organization does not exist, the Service shall render a decision on the evidence of record.(ii) Consultation requirements for P-1 athletes and entertainment groups. Consultation with a labor organization that has expertise in the area of the alien's sport or entertainment field is required in the case of a P-1 petition. If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which support the conclusion reached in the opinion. If the advisory opinion provided by the labor organization is favorable to the petitioner it should evaluate and/or describe the alien's or group's ability and achievements in the field of endeavor, comment on whether the alien or group is internationally recognized for achievements, and state whether the services the alien or group is coming to perform are appropriate for an internationally recognized athlete or entertainment group. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition.(iii) Consultation requirements for P-1 circus personnel. The advisory opinion provided by the labor organization should comment on whether the circus which will employ the alien has national recognition as well as any other aspect of the beneficiary's or beneficiaries' qualifications which the labor organization deems appropriate. If the advisory opinion is not favorable to the petitioner, it must set forth a specific statement of facts which support the conclusion reached in the opinion. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition.(iv) Consultation requirements for P-2 alien in a reciprocal exchange program. In P-2 petitions where an artist or entertainer is coming to the United States under a reciprocal exchange program, consultation with the appropriate labor organization is required to verify the existence of a viable exchange program. The advisory opinion from the labor organization shall comment on the bona fides of the reciprocal exchange program and specify whether the exchange meets the requirements of paragraph (p)(5) of this section. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion.(v) Consultation requirements for P-3 in a culturally unique program. Consultation with an appropriate labor organization is required for P-3 petitions involving aliens in culturally unique programs. If the advisory opinion is favorable to the petitioner, it should evaluate the cultural uniqueness of the alien's skills, state whether the events are cultural in nature, and state whether the event or activity is appropriate for P-3 classification. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion. In lieu of the above, a labor organization may submit a letter of no objection if it has no objection to the approval of the petition.(vi) Consultation requirements for essential support aliens. Written consultation on petitions for P-1, P-2, or P-3 essential support aliens must be made with a labor organization with expertise in the skill area involved. If the advisory opinion provided by the labor organization is favorable to the petitioner, it must evaluate the alien's essentiality to and working relationship with the artist or entertainer, and state whether United States workers are available who can perform the support services. If the advisory opinion is not favorable to the petitioner, it must also set forth a specific statement of facts which support the conclusion reached in the opinion. A labor organization may submit a letter of no objection if it has no objection to the approval of the petition.(vii) Labor organizations agreeing to provide consultations. The Service shall list in its Operations Instructions for P classification those organizations which have agreed to provide advisory opinions to the Service and/or petitioners. The list will not be an exclusive or exhaustive list. The Service and petitioners may use other sources, such as publications, to identify appropriate labor organizations. The Service will also list in its Operations Instructions those occupations or fields of endeavor where it has been determined by the Service that no appropriate labor organization exists.(8) Approval and validity of petition—(i) Approval. The Director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist in his or her adjudication. The Director shall notify the petitioner of the approval of the petition on Form I-797, Notice of Action. The approval notice shall include the alien beneficiary's name and classification and the petition's period of validity.(ii) Recording the validity of petitions. Procedures for recording the validity period of petitions are:(A) If a new P petition is approved before the date the petitioner indicates the services will begin, the approved petition and approval notice shall show the actual dates requested by the petitioner as the validity period, not to exceed the limit specified in paragraph (p)(8)(iii) of this section or other Service policy.(B) If a new P petition is approved after the date the petitioner indicates the services will begin, the approved petition and approval notice shall generally show a validity period commencing with the date of approval and ending with the date requested by the petitioner, not to exceed the limit specified in paragraph (p)(8)(iii) of this section or other Service policy.(C) If the period of services requested by the petitioner exceeds the limit specified in paragraph (p)(8)(iii) of this section, the petition shall be approved only up to the limit specified in that paragraph.(iii) Validity. The approval period of a P petition shall conform to the limits prescribed as follows:(A) P-1 petition for athletes. An approved petition for an individual athlete classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period up to 5 years. An approved petition for an athletic team classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period of time determined by the Director to complete the competition or event for which the alien team is being admitted, not to exceed 1 year.(B) P-1 petition for an entertainment group. An approved petition for an entertainment group classified under section 101(a)(15)(P)(i) of the Act shall be valid for a period of time determined by the Director to be necessary to complete the performance or event for which the group is being admitted, not to exceed 1 year.(C) P-2 and P-3 petitions for artists or entertainers. An approved petition for an artist or entertainer under section 101(a)(15)(P)(ii) or (iii) of the Act shall be valid for a period of time determined by the Director to be necessary to complete the event, activity, or performance for which the P-2 or P-3 alien is admitted, not to exceed 1 year.(D) Spouse and dependents. The spouse and unmarried minor children of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization.(E) Essential support aliens. Petitions for essential support personnel to P-1, P-2, and P-3 aliens shall be valid for a period of time determined by the Director to be necessary to complete the event, activity, or performance for which the P-1, P-2, or P-3 alien is admitted, not to exceed 1 year.(9) The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien or a change of nonimmigrant status.(10) Revocation of approval of petition—(i) General. (A) The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of this section. An amended petition should be filed when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the Director who approved the petition.(B) The Director may revoke a petition at any time, even after the validity of the petition has expired.(ii) Automatic revocation. The approval of an unexpired petition is automatically revoked if the petitioner, or the employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies the Service that the beneficiary is no longer employed by the petitioner.(iii) Revocation on notice—(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;(2) The statement of facts contained in the petition were not true and correct;(3) The petitioner violated the terms or conditions of the approved petition;(4) The petitioner violated requirements of section 101(a)(15)(P) of the Act or paragraph (p) of this section; or(5) The approval of the petition violated paragraph (p) of this section or involved gross error.(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of the date of the notice. The Director shall consider all relevant evidence presented in deciding whether to revoke the petition.(11) Appeal of a denial or a revocation of a petition—(i) Denial. A denied petition may be appealed under 8 CFR part 103.(ii) Revocation. A petition that has been revoked on notice may be appealed under 8 CFR part 103. Automatic revocations may not be appealed.(12) Admission. A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.(13) Extension of visa petition validity. The petitioner shall file a request to extend the validity of the original petition under section 101(a)(15)(P) of the Act on Form I-129 in order to continue or complete the same activity or event specified in the original petition. Supporting documents are not required unless requested by the Director. A petition extension may be filed only if the validity of the original petition has not expired.(14) Extension of stay—(i) Extension procedure. The petitioner shall request extension of the alien's stay to continue or complete the same event or activity by filing Form I-129, accompanied by a statement explaining the reasons for the extension. The petitioner must also request a petition extension. The extension dates shall be the same for the petition and the beneficiary's stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the petition and the alien's stay are combined on the petition, the Director shall make a separate determination on each. If the alien leaves the United States for business or personal reasons while the extension requests are pending, the petitioner may request the Director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa.(ii) Extension periods—(A) P-1 individual athlete. An extension of stay for a P-1 individual athlete and his or her essential support personnel may be authorized for a period up to 5 years for a total period of stay not to exceed 10 years.(B) Other P-1, P-2, and P-3 aliens. An extension of stay may be authorized in increments of 1 year for P-1 athletic teams, entertainment groups, aliens in reciprocal exchange programs, aliens in culturally unique programs, and their essential support personnel to continue or complete the same event or activity for which they were admitted.(15) Effect of approval of a permanent labor certification or filing of a preference petition on P classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. This provision does not include essential support personnel.(16) Effect of a strike—(i) If the Secretary of Labor certifies to the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed, and that the employment of the beneficiary would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers:(A) A petition to classify an alien as a nonimmigrant as defined in section 101(a)(15)(P) of the Act shall be denied; or(B) If a petition has been approved, but the alien has not yet entered the United States, or has entered the United States but has not commenced employment, the approval of the petition is automatically suspended, and the application for admission of the basis of the petition shall be denied.(ii) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (p)(16)(i) of this section, the Commissioner shall not deny a petition or suspend an approved petition.(iii) If the alien has already commenced employment in the United States under an approved petition and is participating in a strike or labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers but is subject to the following terms and conditions:(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as all other P nonimmigrant aliens;(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and(C) Although participation by a P nonimmigrant alien in a strike or other labor dispute involving a work stoppages of workers will not constitute a ground for deportation, an alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired, will be subject to deportation.(17) Use of approval of notice, Form I-797. The Service has notify the petitioner on Form I-797 whenever a visa petition or an extension of a visa petition is approved under the P classification. The beneficiary of a P petition who does not require a nonimmigrant visa may present a copy of the approved notice at a Port-of-Entry to facilitate entry into the United States. A beneficiary who is required to present a visa for admission, and whose visa expired before the date of his or her intended return, may use Form I-797 to apply for a new or revalidated visa during the validity period of the petition. The copy of Form I-797 shall be retained by the beneficiary and present during the validity of the petition when reentering the United States to resume the same employment with the same petitioner.(18) Return transportation requirement. In the case of an alien who enters the United States under section 101(a)(15)(P) of the Act and whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of suh nonimmigrant status and the petitioner are jointly and severally liable for the reasonable cost of return transporation of the alien abroad. For the purposes of this paragraph, the term "abroad" means the alien's last place of residence prior to his or her entry into the United States.

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Blog about U.S. Immigration Law, Enforcement, Policy, and the U.S. Border written by lawyers from the multi-national immigration law firm Millar & Smith. Our U.S. Immigration Attorneys serve clients from offices in Seattle, New York, Burnaby, Vancouver, Bellingham and Blaine.

Preparation and filing of forms and official documents is complex. The experienced U.S. immigration lawyers at the immigration law firm of Millar & Smith, PLLC can answer questions and provide expert advice and recommend strategies and provide full service representation. Services include all investor case E-1, E-2, EB-5, L-1A, L-1B, H-1, O-1, P-1, P-2, J-1, K-1, K-3, I-130, I-129F, Naturalization, Citizenship, U.S. Passports, Waiver cases, Criminal Issues, Deportation, Removal Proceedings, and all types of Green Cards.

Duncan Millar
Millar & Smith, PLLC Immigration Attorneys
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Preemption – the Supreme Law of the Land?

2012-02-07T21:00:00.001-08:00

Supreme Court Schedules Arguments

for Arizona's Immigration Law S.B. 1070

Tuesday, February 07, 2012

The U.S. Supreme Court has announced it will hear arguments on April 25, 2012 in Arizona v. United States, No. 11-182, a case addressing whether states may adopt their own immigration laws, and – in a larger and more politically-charged context – whether the concept of preemption will be the "supreme Law of the Land."

Coming in an election year, a decision for Arizona S.B. 1070 would be a legal and political body blow to the Obama administration; a decision striking down Arizona's law would be a defeat not only for Arizona Republican Governor Jan Brewer (who, asserting the federal government has been remiss in addressing border security, said "Arizona has been more than patient") but also for the politicians and would-be upholders of the nation's security who have drafted the so-called copy cat immigration laws in other states – Alabama's H.B. 56; Georgia's H.B. 57; and Utah's H.B. 497.

Four provisions in Arizona"s S.B. 1070 are in question: First, the law instructs Arizona law enforcement officials to try to determine an individual's immigration status any time someone is arrested or detained if they have reason to believe the individual may be an unlawful alien. (And what might inform the arresting officer's reasoning?) Second, the law makes it a violation of Arizona law for someone to fail to register as an alien under federal law. A third section makes it illegal for unlawful aliens to work or to try to obtain work. And the fourth provision gives Arizona police the power to make warrantless arrests (!) of anyone whom they have probable cause to believe has engaged in activity that would make them deportable under federal law.

The U.S. Justice Department sued to block the Arizona law. A federal judge, John Noonan of the Ninth Circuit Court, issued a preliminary injunction against these four provisions, finding that federal law likely preempted Arizona's efforts. In April 2011, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the preliminary injunction. Arizona filed a petition for certiorari in which it cited an urgent need to be able to enforce state law.

Although Arizona argues that S.B. 1070 represents an effort to cooperate with the federal government, the federal government counters that "cooperation" is a narrow concept that requires state and local law enforcement officials to operate within the framework of federal law. What Arizona has done instead, the Ninth Circuit found, is to create its own, separate immigration policy – which Ninth Circuit Judge John Noonan described as a policy of "attrition" that was intended to actively reduce the numbers of unlawful aliens in the state.

It is not the case that there is preemption because a federal law and a state law relate to the same subject. The question is when a federal law preempts a state law, and the clearest case is when Congress specifically says it intends to preempt all state laws in a field. This is "express preemption."

Difficult disputes involve "implied preemption," a situation in which Congress has not made its intention entirely clear. Implied preemption may be found in two different scenarios. The first, which is sometimes called "conflict preemption," occurs when there is a conflict between federal and state laws that makes it difficult or impossible to comply with both. The second occurs when Congress passes a law that leaves no room for state regulation. This may be called "field preemption" because Congress has occupied the field.

Article I, section 8, paragraph 4 of the U.S. Constitution gives Congress the power "[t]o establish a uniform Rule of Naturalization." The federal government has asserted that the power to regulate immigration rests with Congress and the executive branch and that federal immigration laws are intended to be comprehensive. At the same time, federal officials have encouraged state and local police to cooperate with federal immigration law enforcement efforts.

In signing the Arizona legislation in April 2010, Governor Jan Brewer pronounced it was "another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix."

Arizona now wants to position that its law is an effort to cooperate with federal enforcement, maintaining that the system of federal enforcement is "broken" and that "it is widely recognized that the federal immigration laws are not adequately enforced." The state asserts this failure of federal efforts should give the states more leeway to adopt immigration laws that will make a difference in the flow of unlawful aliens across borders into the United States.

Will the self-described constitutionalists walk the walk or just talk the talk? Will preemption indeed be the "supreme Law of the Land?"

Stay tuned.

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Foreign Affairs Manual on Nonimmigrant Waivers

2012-02-01T21:44:00.001-08:00

NONIMMIGRANT WAIVERS THROUGH U.S. CONSULATES

9 FAM 40.301 N1 DEPARTMENT'S INA 212(D)(3)(A) WAIVER AUTHORITY

The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers of nonimmigrant visa (NIV) ineligibilities to the Department of Homeland Security (DHS) for approval. You should not hesitate to exercise this authority when the alien is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests. The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded.

9 FAM 40.301 N2 CRITERIA FOR INA 212(D)(3)(A) WAIVER RECOMMENDATION

The following conditions must be met before an INA 212(d)(3)(A) waiver can be recommended or granted:

(1) The applicant is not inadmissible under INA 214(b);
(2) The applicant is not inadmissible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), or INA 212(a)(3)(E);
(3) The applicant is not seeking a waiver of nonimmigrants documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4). (See 9 FAM 41.1, 9 FAM 41.2, and 9 FAM 41.3.); and
(4) The applicant is, otherwise, qualified for the nonimmigrant visa (NIV) he or she is seeking.

9 FAM 40.301 N3 FACTORS TO CONSIDER WHEN RECOMMENDING A WAIVER

You may recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of N2 (see 9 FAM 40.301 N2 above) and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
You should consider the following factors, among others, when deciding whether to recommend a waiver:
1. (1) The recency and seriousness of the activity or condition causing the alien's inadmissibility;
2. (2) The reasons for the proposed travel to the United States; and
3. (3) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 40.301 N4 SPECIAL PROCESSING FOR CERTAIN WAIVERS REQUESTED BY U.S. LAW ENFORCEMENT AGENCIES

Certain INA 212(d)(3)(A) waivers requested at the initiative of interested U.S. Government agencies for law enforcement purposes require special handling and should be processed in accordance with the guidance provided in 9 FAM Appendix G, 600.

9 FAM 40.301 N5 VALIDITY OF INA 212(D)(3)(A) WAIVERS

Unless otherwise specified, an INA 212(d)(3)(A) waiver is valid for one application for entry into the United States during the period of the waiver validity. The limitation indicated in the waiver order is to be noted immediately below the visa stamp.

9 FAM 40.301 N6 REFERRAL OF WAIVER RECOMMENDATIONS

9 FAM 40.301 N6.1 When to Submit Applications to DHS/Customs and Border Protection (CBP)

With the exception of those cases described in 9 FAM 40.301 N6.2 below, and cases involving K and V nonimmigrants, you must submit INA 212(d)(3)(A) waiver recommendations to the DHS/CBP, Admissibility Review Office (ARO)/DHS in Minneapolis. Such recommendations may be for a maximum period of one year with multiple applications for admission, except as specified in9 FAM 40.301 N6.2 below. You must create a written record of all waiver recommendations. If you do not believe that the alien should be admitted temporarily despite the ground of inadmissibility (if you do not want to recommend a waiver), do not submit a recommendation to Department of Homeland Security (DHS)/Customs and Border Protection (CBP).
If the applicant wishes to pursue the application, you must submit the case to the Department for an advisory opinion, or in the case of an INA 212(a)(3)(B) inadmissibility, a security advisory opinion. As a reminder, you should report fraud or any other criminal immigration violation to the responsible Immigration and Customs Enforcement (ICE) Attaché, through the appropriate channels. If you want to request a waiver for K and V nonimmigrants, you must submit the recommendation for a nonimmigrant waiver along with the Form I-601, Application for Waiver of Grounds of Inadmissibility, to the overseas United States Citizenship and Immigration Services (USCIS) office having jurisdiction over your location.

9 FAM 40.301 N6.2 When To Submit Applications To Department for Review

You must provide all relevant information regarding the alien's case when requesting the Department's determination of whether a waiver should be recommended. You must also refer the following categories of cases to the Department for a determination of whether to recommend a waiver of inadmissibility to the Admissibility Review Office (ARO)/DHS:

1. (1) Any case in which you have doubts as to whether an INA 212(d)(3)(A) waiver recommendation is warranted, or know or believe the Department has pertinent information not available to you;
2. (2) Any case, regardless of the ground of inadmissibility, in which the alien or the alien's representative (e.g., family member, attorney) requests that a waiver be considered, even if you believe the waiver is not warranted;
3. (3) Any case in which the Department's security advisory opinion is required (see 9 FAM Appendix G, 500);
4. (4) Any case in which we previously declined to recommend, or the Attorney General or Secretary of Homeland Security, to grant, an INA 212(d)(3)(A) waiver to an alien;
5. (5) Any case in which the alien's presence or activities in the United States might become a matter of public interest or of foreign relations significance;
6. (6) Any case in which you want to recommend a waiver valid for more than one year (see 9 FAM 40.301 N6.2-3 below).
Provide all relevant information regarding the alien's case via a Security Advisory Opinion (SAO) or Advisory Opinion (AO) as appropriate, when requesting the Department's determination of whether a waiver should be recommended. (See 9 FAM 40.301 PN1.)

9 FAM 40.301 N6.2-1 When You Do Not Support the Application

If, after considering the relevant factors, you do not support an INA 212(d)(3)(A) waiver, do not submit the case to the Admissibility Review Office (ARO)/DHS. Submit the application to the Department since DHS authority to approve a waiver requires a favorable recommendation from either the post or the Department. Since we have independent authority to submit waiver recommendations, you may pass a request to the Department without a recommendation. However, you are generally in a better position to adjudicate waiver requests since you have direct access to the applicant and are more familiar with the case than the Department.

9 FAM 40.301 N6.2-2 When Alien Requests Waiver Action

If an alien who meets the criteria described in 9 FAM 40.301 N2 above wishes to pursue the INA 212(d)(3)(A) waiver application even though that you believe it is not warranted, you must submit the application for the Department's review.
You may not refuse an alien's request for the Department's review of your decision that a waiver is not justified. You, however, may submit a recommendation to the Department against such waiver along with the reasons for your objection to the waiver.

9 FAM 40.301 N6.2-3 When Requesting Multiple Entry Waivers Valid for More Than One Year

a. If an alien meets the criteria for a waiver as set forth above, you may recommend a waiver valid for multiple applications for admission for a period of more than one year, but not to exceed five years, except as specified in 9 FAM 40.301 N6.3 below. In general, requests for waivers of more than one year must be referred to the Department. However, if an alien has received two or more one-year (or longer) waivers, you may submit the recommendation for a waiver directly to the Admissibility Review Office (ARO) without referral to the Department, but only if:

(1) The inadmissibility is based on an INA 212(a)(6)(C) finding relating to a misrepresentation made more than ten years ago; or
(2) The inadmissibility is based on an INA 212(a)(2) finding relating to convictions for:

(a) A non-violent crime involving moral turpitude which is over ten years old and for which the sentence imposed was one

9 FAM 40.301 Notes Page 5 of 8

U.S. Department of State Foreign Affairs Manual Volume 9- Visas

year or less; or
(b) Possession of a small amount of drugs for personal use.

b. In all other cases involving waivers of more than one year, submit recommendations to DHS through the Department. The senior consular officer at the post must approve the recommendation. Recommendations for multiple entry waivers of more than one year shall be reserved for cases of aliens who travel frequently to the United States. You must believe that the admissions will not be prejudicial to the U.S. interests and will contribute to trade and commerce, including tourism, or serve a compassionate or humanitarian purpose.

9 FAM 40.301 N6.3 Aliens Not Eligible for Multiple Entry Waiver Recommendations

A recommendation for waiver of inadmissibility valid for multiple applications for admission is not available to an alien who:

(1) Has a mental or physical disorder;
(2) Is a narcotic drug addict or a narcotic trafficker;
(3) Is afflicted with a communicable disease;
(4) Was convicted for committing a serious crime involving moral turpitude such as arson, assault with a dangerous weapon, housebreaking, incest, rape, or voluntary manslaughter and has not been rehabilitated and integrated into society for at least five years since the date of conviction or release from confinement, whichever is later in time; or
(5) Has engaged in prostitution or has procured or attempted to procure or import prostitutes or has received proceeds of prostitution within 10 years immediately preceding the visa application.

9 FAM 40.301 N6.4 Consistency in Requesting a Waiver

You must maintain consistency in your waiver recommendations. If you
requested a waiver for a particular applicant in the past, you should do so for future applications, unless there is new derogatory information, a material change in the purpose of their trip, or some other material change in circumstances relevant to the factors to be considered under INA 212(d)(3)(A).

9 FAM 40.301 N7 WHEN PROCESSING WAIVERS FOR GOVERNMENT GRANTEES

Whenever an alien who is inadmissible under INA 212(a) is to be recommended for a leader grant, U.S. Government scholarship, or Department sponsored exchange, all required processing, including a waiver of inadmissibility must be completed before the nominee is informed that he and/or she is being considered for such a grant. For this reason the required processing must be completed without the normal visa application or personal interview of the alien. Name checks as required, a security advisory opinion, if required, and the waiver recommendation must be processed through the Department.

9 FAM 40.301 N8 INA 212(D)(3)(A) WAIVER OF INA 212(A)(1)

For information regarding an INA 212(d)(3)(A) waiver of a medical ground of ineligibility for an alien proceeding to the United States to undergo medical treatment, see 9 FAM 40.11 N13.

9 FAM 40.301 N9 POSTING OF BONDS IN CERTAIN CASES

Whenever the posting of a departure bond is required by DHS in connection with INA 212(d)(3)(A) action, the bond is to be posted at the time the alien applies for admission into the United States; you should not require evidence that the bond has been filed as a condition of visa issuance.

9 FAM 40.301 N10 NAME CHECK REQUIREMENTS

See reciprocity schedule for individual countries.

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Foreign Affairs Manual on Unlawful Presence

2012-02-01T21:30:00.001-08:00

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 40.92 NOTES

9 FAM 40.92 N1 INTERPRETATION OF "UNLAWFUL PRESENCE"

INA 212(a)(9)(B)(ii) (8 U.S.C. 1182(a)(9)(B)(ii)) provides the following construction for the term "unlawful presence": "... the alien is present in the United States after the expiration of the period of stay authorized by the [Secretary of Homeland Security] or is present in the United States without being admitted or paroled." Under this construction, an alien would generally be unlawfully present if he or she entered the United States without inspection, or stayed beyond the date specified on the Form I-94, Arrival and Departure Record, or was found by the Department of Homeland Security (DHS) or an immigration judge or the Board of Immigration Appeals (BIA) to have violated status. However, even aliens fitting into one of these categories may be deemed to be in a period of authorized stay in certain circumstances, as noted below.
DHS has interpreted "period of stay authorized by the Secretary of Homeland Security" as used in the construction of unlawful presence in INA 212(a)(9)(B)(ii) to include:
1. (1) For aliens inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:
  1. (a) The expiration of the Form I-94 (or any extension); or
  2. (b) A formal finding of a status violation made by DHS or an immigration judge or the BIA in the context of an application for an immigration benefit or in removal proceedings, whichever comes first.
2. (2) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS or an immigration judge or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;
  (3) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the period of time between the granting of VD and the date for their departure, if the alien departs according to the terms of the grant of VD;
  (4) For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the Form I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

1. (a) The alien does not work unlawfully while the application is pending and did not unlawfully prior filing the application; and
2. (b) The alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:
  
  (i) That the application was subsequently approved; or
  
  (ii) If the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous, and the alien did not work without authorization prior to or during the pendency of the application. (See 9 FAM 40.92 N5 below.)
  (5) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);
  (6) For aliens covered by Temporary Protected Status (TPS), the period after TPS went into effect and prior to its expiration; and
  (7) For aliens granted deferred action, the period during which deferred action is authorized.
  (The foregoing above list is not exhaustive.)

c. You should note that any unauthorized presence accrued prior to the filing of an application for adjustment of status, or the granting of voluntary departure, or the date a prima facie TPS application is filed (if the application is approved) is not "cured" by the subsequent period of authorized stay that these events trigger, and additional unauthorized presence will resume accruing after these authorized periods lapse.

For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless an immigration officer or immigration judge (IJ) or the BIA finds a status violation in the context of a request for an immigration benefit or a deportation proceeding in removal proceedings. Therefore, your belief that an alien violated his or her status in the United States is not, in itself, sufficient for an INA 212(a)(9)(B) finding, unless the alien entered without having been inspected and admitted or stayed beyond the Form I-94 specified date. Otherwise, only a finding of violation of status by the DHS or an IJ or the BIA can cause a period of "unlawful presence" to begin.
A finding of status violation by DHS or an IJ or the BIA is not required in the case of an illegal entrant or an alien who overstays the date specified on the Form I-94. If you find that an alien entered without inspection and admission or stayed beyond the date on the Form I-94, and remained in the United States more than 180 days after entering without admission or after the expiration of his or her Form I-94, a determination of inadmissibility under INA 212(a)(9)(B) would be warranted (unless some exception to INA 212(a)(9)(B) applies in the particular case).
When calculating unlawful presence, the date that the Form I-94 (or any extension) expires is considered authorized and is not counted. In addition, the date of departure from the United States is not counted as unlawful presence. In duration of status cases where DHS or an IJ or the BIA makes a formal status violation finding, the alien begins accruing unlawful presence on the date of the finding (i.e., the date the finding was published/communicated). For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 1, 2008, not May 28, 2001. Note that, in the event that an IJ made the status violation finding and concurrently issued a voluntary departure order, no unlawful presence would accrue if the applicant complied with the order by making a timely departure.

9 FAM 40.92 N2 INADMISSIBILITY UNDER INA 212(a)(9)(B)

INA 212(a)(9)(B) went into effect on April 1, 1997, and the statute is not retroactive. Periods in illegal status prior to April 1, 1997, therefore, cannot be considered when calculating the period of unlawful presence accrued for purposes of 212(a)(9)(B)(i).
Neither of the INA 212(a)(9)(B)(i)(I) (180+ days but less than a year) or INA 212(a)(9)(B)(i)(II) (one year+) time frames is cumulative. The unlawful presence must occur in the same trip to the United States, and periods of unlawful presence accrued on separate trips cannot be added together. However, separate periods of unlawful presence occurring during the same overall period of stay (e.g., unlawful presence before and after a period of voluntary departure) should be added together to calculate total unlawful presence during a particular stay.
Both provisions are triggered by departure from the United States, and the bar against reentry applies from the date of departure.

9 FAM 40.92 N2.1 INA 212(a)(9)(B)(i) Departure Prior to Commencement of Proceedings Required

The three-year bar of subsection INA 212(a)(9)(B)(i)(l) applies only to aliens who left the United States voluntarily before the DHS commenced proceedings against them. If the alien was unlawfully present for a period of more than 180 days and less than a year but deportation proceedings had begun before the alien's departure, he or she would not be inadmissible under the three-year bar of INA 212(a)(9)(B)(i)(I). However, such an alien might well become inadmissible under INA 212(a)(9)(A), if removed. In addition, such an alien might become inadmissible under INA 212(a)(6)(B) for failure to attend a hearing unless the alien had made an appropriate arrangement in that regard before departing.

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar of the INA 212(a)(9)(B)(i)(II) does not contain the samelanguage as the three-year bar relating to the alien having departed voluntarily prior to commencement of deportation proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under deportation orders.

9 FAM 40.92 N3 ASYLEE EXCEPTION TO INADMISSIBILITY UNDER INA 212(a)(9)(B) REQUIRES BONA FIDE APPLICATION

INA 212(a)(9)(B)(iii)(II) provides that no period of time in which an alien has a bona fide application for asylum pending should be taken into account when calculating the period of unlawful presence, unless during such period the alien was employed in the United States without authorization. The Department of Homeland Security (DHS) has determined that an application for asylum that has an arguable basis in law or fact, and is not frivolous, whether or not approvable, is a bona fide application for purposes of the exception set forth in INA 212(a)(9)(B)(iii).

9 FAM 40.92 N3.1 Confirming Bona fide Application for Asylum

a. If a visa applicant who would otherwise be inadmissible for a visa under INA 212(a)(9)(B) claims the benefit of the bona fide asylum exception, you should first determine whether the alien engaged in unauthorized employment while the asylum claim was pending, and if any part of such employment occurred on or after April 1, 1997. (See 9 FAM 40.92 N3.2 below.) If so, the alien would not be eligible for the bona fide asylum exception, and he or she should, therefore, be refused under INA 212(a)(9)(B). If not, it will then be necessary to determine whether the asylum claim was "bona fide." To do so, you should cable a request to the DHS/USCIS Asylum Division Headquarters Office of Asylum ("RUEAHLA/HQ CIS IAO Washington DC"), copy to the Post Liaison Division (CA/VO/F/P), to confirm the bona fides of such application. Posts should classify such cables "SBU-NOFORN". You may not take the fact that the alien has received advance parole back into the United States to pursue the asylum application as proof that DHS has already made a determination that asylum claim is "bona fide."

Your request for confirmation should provide the DHS Asylum Office with a short, simple statement of the basic facts and should, at a minimum, include the following information:
1. (1) The alien's complete name, date of birth, and "A" number (DHS file number);
2. (2) When and where the alien lived in the United States;
3. (3) When and where the alien filed the asylum application;
4. (4) Whether the alien worked in the United States;
5. (5) If the alien worked in the United States, whether DHS had authorized such employment and, if so, what type of authorization documents the alien had been given;
You may presume the application to have been bona fide if the post receives no report from the "HQDHS for Asylum Office" within 60 days from the date of the referral.

9 FAM 40.92 N3.2 Work Without Authorization After April 1, 1997, Bars Use of Asylee Exception

Under INA 212(a)(9)(B)(iii)(II), an alien is entitled to the exception for bona fide asylum applicants only if the alien has not worked without authorization while such application is/was pending. Because INA 212(a)(9)(B) only went into effect on April 1, 1997, however unauthorized employment prior to that date should not count against the alien. Therefore, only unauthorized employment occurring on or after April 1, 1997, will disqualify the alien from being eligible for the bona fide asylum exception in INA 212(a)(9)(B)(iii)(II).
Prior to seeking the DHS confirmation that the asylum application was bona fide, you should interview the applicant with particular attention to questions relating to possible unauthorized employment by the alien. If the alien has engaged in unauthorized employment, during the pendency of the asylum application, and if any portion of the unauthorized employment occurred on or after April 1, 1997, then the alien would be ineligible for the exception and no purpose would be served in submitting the case to DHS for a determination of whether the asylum claim was bona fide.

c. You should note that aliens who apply for asylum may be able to obtain work authorization from DHS if their application is pending for more than 180 days even if they are not in a status that would normally allow employment. In such cases, the alien will receive an "employment authorization document" (EAD) from DHS. Posts should, therefore, examine the facts carefully before concluding that a particular employment was not authorized. In some cases, the determination of whether the alien's employment was authorized will be determined on whether it can be verified that the alien in fact filed an asylum claim. Such cases must necessarily be submitted to DHS.

9 FAM 40.92 N4 OTHER EXCEPTIONS 9 FAM 40.92 N4.1 Minors

Any period of time that an alien spends unlawfully in the United States while under the age of 18 would not count toward calculating the accrual of unlawful presence for purposes of INA 212(a)(9)(B).

9 FAM 40.92 N4.2 Family Unity

This provision stems from Section 301 of the Immigration Act of 1990 (IMMACT 90) and relates to the spouses and children of legalized aliens who have not themselves yet become lawful permanent residents. This exception applies only if they maintain protection under that provision, which means that they must regularly apply for re-registration under it.

9 FAM 40.92 N4.3 Battered Spouses and Children

The battered spouses and children provision exception stems from the related provisions in INA 204(a)(1)(A)(iii)(I) (8 U.S.C. 1154(a)(1)(A)(iii)(I)) and INA 212(a)(6)(A)(ii) (8 U.S.C. 1182(a)(6)(A)(ii)). In this instance, a critical requirement is a direct relationship between the battering or cruelty and the violation of the terms of the alien's nonimmigrant visa. In this context, the abuse must have started before and led to the alien's accrual of unlawful presence. This requires, at a minimum, establishing the dates of arrival and termination of the authorized stay, as well as the timing of the abuse and its relationship to the continued stay beyond that date.

9 FAM 40.92 N4.4 Victims of a Severe Form of Trafficking in Persons

The victims of a severe form of trafficking in persons exception stems from INA 212(a)(9)(B)(iii)(V), which provides that INA 212(a)(9)(B)(i) should not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in 22 U.S.C. 7102) was at least one central reason for the alien's unlawful presence in the United States.

9 FAM 40.92 N5 "TOLLING" FOR GOOD CAUSE

Subparagraph (iv) of INA 212(a)(9)(B) provides for "tolling" for up to 120 days of a possible period of unlawful presence during the pendency of an application to change or extend NIV status. This subparagraph applies only to possible inadmissibility under subsection INA 212(a)(9)(B)(i)(I). The tolling is only permitted if the alien is lawfully admitted to or paroled into the United States, has filed a nonfrivolous application for a change or extension of status prior to the date of expiration of the authorized period of stay, and has not been employed without authorization in the United States before or during the pendency of such application.

DHS has inferred that the "120 days" limitation was probably predicated on an assumption that they would be able to adjudicate the application within that time frame. Due to DHS backlogs, however, some cases have been pending as long as six months or more, during which the applicants could incur the three or 10-year penalties through no fault of their own if only the first 120 days were tolled and the application was ultimately denied. Therefore, for all cases involving potential inadmissibility under INA 212(a)(9)(B) whether under the three-year bar of 212(a)(9)(B)(i)(I) or the 10-year bar of INA 212(a)(9)(B)(i)(II), DHS has decided to consider all time during which an application for extension of stay (EOS) or change of nonimmigrant status (COS) is pending to be a period of stay authorized by the Secretary of Homeland Security provided:
(1) The application was filed in a timely manner; i.e., before the expiration date of the Form I-94, Arrival and Departure Record;

(2) The application was "nonfrivolous"; and
(3) The alien has not engaged in unauthorized employment (whether before or after April 1, 1997).
NOTE: AlthoughINA212(a)(9)(B)didnotgointoeffectuntilApril1, 1997, and the law is not retroactive, unauthorized employment prior to April 1, 1997, will render an alien ineligible for the nonfrivolous COS and/or EOS exception because aliens who have engaged in unauthorized employment are generally not eligible for change or extension of nonimmigrant stay, and therefore, an application under such circumstances should generally be considered frivolous.
c. To be considered "nonfrivolous" the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in activities incompatible with his or her status). It is not necessary to determine that the DHS would have approved the application for it to be considered nonfrivolous.

9 FAM 40.92 N6 WAIVERS

Nonimmigrants who are inadmissible under INA 212(a)(9)(B) may apply for an INA 212(d)(3)(A) waiver. (See 9 FAM 40.301.)
An immigrant visa (IV) applicant who is inadmissible for a visa under INA 212(a)(9)(B) may not apply for a waiver unless he or she is the spouse or son or daughter of a U.S. citizen or lawful permanent resident (LPR). A waiver under INA 212(a)(9)(B)(v) will be granted in such a case only if the applicant can establish that denial of his or her admission would result in extreme hardship for the U.S. citizen or LPR.

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Aliens allowed to work incident to status; Does your visa allow you to work?

2012-02-01T21:04:00.001-08:00

TITLE 8 - ALIENS AND NATIONALITY

CHAPTER I - DEPARTMENT OF HOMELAND SECURITY

SUBCHAPTER B - IMMIGRATION REGULATIONS

PART 274A - CONTROL OF EMPLOYMENT OF ALIENS

subpart b - EMPLOYMENT AUTHORIZATION

274a.12 - Classes of aliens authorized to accept employment.

(a) Aliens authorized incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)(8), or (a)(10)(16) of this section, and who seeks to be employed in the United States, must apply to the Bureau of Citizenship and Immigration Services (BCIS) for a document evidencing such employment. BCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States.

(1) An alien who is a lawful permanent resident (with or without conditions pursuant to section 216 of the Act), as evidenced by Form I551 issued by the Service. An expiration date on the Form I551 reflects only that the card must be renewed, not that the bearer's work authorization has expired; (2) An alien admitted to the United States as a lawful temporary resident pursuant to sections 245A or 210 of the Act, as evidenced by an employment authorization document issued by the Service; (3) An alien admitted to the United States as a refugee pursuant to section 207 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (4) An alien paroled into the United States as a refugee for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (5) An alien granted asylum under section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document, issued by BCIS to the alien. An expiration date on the employment authorization document issued by BCIS reflects only that the document must be renewed, and not that the bearer's work authorization has expired. Evidence of employment authorization shall be granted in increments not exceeding 5 years for the period of time the alien remains in that status.

(6) An alien admitted to the United States as a nonimmigrant fianc or fiance pursuant to section 101(a)(15)(K)(i) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document issued by the Service; (7) An alien admitted as a parent (N8) or dependent child (N9) of an alien granted permanent residence under section 101(a)(27)(I) of the Act, as evidenced by an employment authorization document issued by the Service; (8) An alien admitted to the United States as a citizen of the Federated States of Micronesia (CFA/FSM) or of the Marshall Islands (CFA/MIS) pursuant to agreements between the United States and the former trust territories, as evidenced by an employment authorization document issued by the Service; (9) Any alien admitted as a nonimmigrant spouse pursuant to section 101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document, with an expiration date issued by the Service; (10) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (11) An alien who has been granted extended voluntary departure by the Attorney General as a member of a nationality group pursuant to a request by the Secretary of State. Employment is authorized for the period of time in that status as evidenced by an employment authorization document issued by the Service; (12) An alien granted Temporary Protected Status under section 244 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (13) An alien granted voluntary departure by the Attorney General under the Family Unity Program established by section 301 of the Immigration Act of 1990, as evidenced by an employment authorization document issued by the Service; (14) An alien granted Family Unity benefits under section 1504 of the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law 106554, and the provisions of 8 CFR part 245a, Subpart C of this chapter, as evidenced by an employment authorization document issued by the Service; or (15) Any alien in V nonimmigrant status as defined in section 101(a)(15)(V) of the Act and 8 CFR 214.15.

(16) An alien authorized to be admitted to or remain in the United States as a nonimmigrant alien victim of a severe form of trafficking in persons under section 101(a)(15)(T)(i) of the Act. Employment authorization granted under this paragraph shall expire upon the expiration of the underlying T1 nonimmigrant status granted by the Service.

(b) Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service: (1) A foreign government official (A1 or A2), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government entity; (2) An employee of a foreign government official (A3), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government official; (3) A foreign government official in transit (C2 or C3), pursuant to 214.2(c) of this chapter. An alien in this status may be employed only by the foreign government entity; (4) [Reserved] (5) A nonimmigrant treaty trader (E1) or treaty investor (E2), pursuant to 214.2(e) of this chapter. An alien in this status may be employed only by the treaty-qualifying company through which the alien attained the status. Employment authorization does not extend to the dependents of the principal treaty trader or treaty investor (also designated E1 or E2), other than those specified in paragraph (c)(2) of this section; (6) A nonimmigrant (F1) student who is in valid nonimmigrant student status and pursuant to 8 CFR 214.2(f) is seeking: (i) On-campus employment for not more than twenty hours per week when school is in session or full-time employment when school is not in session if the student intends and is eligible to register for the next term or session. Part-time on-campus employment is authorized by the school and no specific endorsement by a school official or Service officer is necessary; (ii) [Reserved] (iii) Curricular practical training (internships, cooperative training programs, or work-study programs which are part of an established curriculum) after having been enrolled full-time in a Service approved institution for one full academic year. Curricular practical training (part-time or full-time) is authorized by the Designated School Official on the student's Form I20. No Service endorsement is necessary.

(7) A representative of an international organization (G1, G2, G3, or G4), pursuant to 214.2(g) of this chapter. An alien in this status may be employed only by the foreign government entity or the international organization; (8) A personal employee of an official or representative of an international organization (G5), pursuant to 214.2(g) of this chapter.

An alien in this status may be employed only by the official or representative of the international organization; (9) A temporary worker or trainee (H1, H2A, H2B, or H3), pursuant to 214.2(h) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional H2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Form I129 to petition for H2B classification. If a new Form I129 is not filed within 30 days, employment authorization will cease. If a new Form I129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease; (10) An information media representative (I), pursuant to 214.2(i) of this chapter. An alien in this status may be employed only for the sponsoring foreign news agency or bureau. Employment authorization does not extend to the dependents of an information media representative (also designated I); (11) An exchange visitor (J1), pursuant to 214.2(j) of this chapter and 22 CFR part 62. An alien in this status may be employed only by the exchange visitor program sponsor or appropriate designee and within the guidelines of the program approved by the Department of State as set forth in the Form DS2019, Certificate of Eligibility, issued by the program sponsor; (12) An intra-company transferee (L1), pursuant to 214.2(1) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained; (13) An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O1), and an accompanying alien (O2), pursuant to 214.2(o) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional O1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new Form I129 petition for O nonimmigrant classification. If a new Form I129 is not filed within 30 days, employment authorization will cease. If a new Form I129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease.

(14) An athlete, artist, or entertainer (P1, P2, or P3), pursuant to 214.2(p) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional P1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new Form I129 for P1 nonimmigrant classification. If a new Form I129 is not filed within 30 days, employment authorization will cease. If a new Form I129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease; (15) An international cultural exchange visitor (Q1), according to 214.2(q)(1) of this chapter. An alien may only be employed by the petitioner through whom the status was obtained; (16) An alien having a religious occupation, pursuant to 214.2(r) of this chapter. An alien in this status may be employed only by the religious organization through whom the status was obtained; (17) Officers and personnel of the armed services of nations of the North Atlantic Treaty Organization, and representatives, officials, and staff employees of NATO (NATO1, NATO2, NATO3, NATO4, NATO5 and NATO6), pursuant to 214.2(o) of this chapter. An alien in this status may be employed only by NATO; (18) An attendant, servant or personal employee (NATO7) of an alien admitted as a NATO1, NATO2, NATO3, NATO4, NATO5, or NATO6, pursuant to 214.2(o) of this chapter. An alien admitted under this classification may be employed only by the NATO alien through whom the status was obtained; (19) A nonimmigrant pursuant to section 214(e) of the Act. An alien in this status must be engaged in business activities at a professional level in accordance with the provisions of Chapter 16 of the North American Free Trade Agreement (NAFTA); or (20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.

(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending.

(1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A1 or A2) pursuant to 214.2(a)(2) of this chapter and who presents a fully executed Form I566 bearing the endorsement of an authorized representative of the Department of State; (2) An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E1) pursuant to 214.2(e) of this chapter; (3) A nonimmigrant (F1) student who: (i) Is seeking employment for purposes of optional practical training pursuant to 8 CFR 214.2(f), provided the alien will be employed only in an occupation which is directly related to his or her area of studies and that he or she presents an I20 ID endorsed by the designated school official; (ii) Has been offered employment under the sponsorship of an international organization within the meaning of the International Organization Immunities Act (59 Stat. 669) and who presents a written certification from the international organization that the proposed employment is within the scope of the organization's sponsorship. The F1 student must also present a Form I20 ID or SEVIS Form I20 with employment page completed by DSO certifying eligibility for employment; or (iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I20 ID and Form I538 (for non-SEVIS schools), or SEVIS Form I20 with employment page completed by the DSO certifying eligibility, and any other supporting materials such as affidavits which further detail the unforeseen economic circumstances that require the student to seek employment authorization.

(4) An alien spouse or unmarried dependent child; son or daughter of an officer of, representative to, or employee of an international organization (G1, G3 or G4) pursuant to 214.2(g) of this chapter who presents a fully executed Form I566 bearing the endorsement of an authorized representative of the Department of State; (5) An alien spouse or minor child of an exchange visitor (J2) pursuant to 214.2(j) of this chapter; (6) A nonimmigrant (M1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. The alien may be employed only in an occupation or vocation directly related to his or her course of study as recommended by the endorsement of the designated school official on the I20 ID; (7) A dependent of an alien classified as NATO1 through NATO7 pursuant to 214.2(n) of this chapter; (8) An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application: (i) Has not been decided, and who is eligible to apply for employment authorization under 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date; or (ii) Has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal; (9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an unauthorized alien as defined in section 274A(h)(3) of the Act while his or her properly filed Form I485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence; (10) An alien who has filed an application for suspension of deportation under section 244 of the Act (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the Act, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Pub. L. 104208 (110 Stat. 3009625) (as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA)), title II of Pub.

L. 105100 (111 Stat. 2160, 2193) and whose properly filed application has been accepted by the Service or EOIR.

(11) An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to 212.5 of this chapter; (12)(13) [Reserved] (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment; (15) [Reserved] (16) Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter.

(17) A nonimmigrant visitor for business (B1) who: (i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15) (B), (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States; (ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or (iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality.

(18) An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (i) The existence of economic necessity to be employed; (ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and (iii) The anticipated length of time before the alien can be removed from the United States.

(19) An alien applying for Temporary Protected Status pursuant to section 244 of the Act shall apply for employment authorization only in accordance with the procedures set forth in part 244 of this chapter.

(20) Any alien who has filed a completed legalization application pursuant to section 210 of the Act (and part 210 of this chapter).

(21) A principal nonimmigrant witness or informant in S classification, and qualified dependent family members.

(22) Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter).

Employment authorization shall be granted in increments not exceeding 1 year during the period the application is pending (including any period when an administrative appeal is pending) and shall expire on a specified date.

(23) An Irish peace process cultural and training program visitor (Q2), pursuant to 214.2(q)(15) of this chapter and 22 CFR 41.57 and 22 CFR part 139. An alien in this status may only accept employment with the employer listed on the Certification Letter issued by the DOS' Program Administrator.

(24) An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law 106553, and the provisions of 8 CFR part 245a, Subpart B of this chapter.

(25) An immediate family member of a T1 victim of a severe form of trafficking in persons designated as a T2, T3 or T4 nonimmigrant pursuant to 214.11 of this chapter. Aliens in this status shall only be authorized to work for the duration of their T nonimmigrant status.

(d) Basic criteria to establish economic necessity. Title 45Public Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic criteria to establish eligibility for employment authorization when the alien's economic necessity is identified as a factor. The alien shall submit an application for employment authorization listing his or her assets, income, and expenses as evidence of his or her economic need to work. Permission to work granted on the basis of the alien's application for employment authorization may be revoked under 274a.14 of this chapter upon a showing that the information contained in the statement was not true and correct.

[52 FR 16221, May 1, 1987] Editorial Note: For Federal Register citations affecting 274a.12, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.

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“Anchor” Babies— Myth or Reality?

2012-01-23T22:35:00.001-08:00

Among the new entries in the recently released fifth edition of the New American Heritage Dictionary is the term "anchor baby."

Their definition reads:

"anchor baby n. A child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially such a child born to parents seeking to secure eventual citizenship for themselves and often other members of their family."

Among the critics of the dictionary's definition is Mary Giovagnoli, Director of the Immigration Policy Center. Writing for immigrationimpact.com, Ms. Giovagnoli says the definition of the term is "disturbing," and that although the use of the term has "skyrocketed," the usage appears to be driven by anti-immigrant sentiment.

Indeed, anti-immigrant sentiment seems to have become ubiquitous in some political circles and in certain media.

"In an era where politicians and pundits have no qualms about being imprecise, dictionary editors need to be—even if that means calling a term 'highly charged,' 'political,' or 'down right nasty,'" writes Ms. Giovagnoli.

On December 3, Ms. Giovagnoli published an update, "American Heritage Dictionary Responds to 'Anchor Baby' Definition Criticism" in which she said that the executive editor of the New American Heritage Dictionary has agreed to revise their definition to reflect the derogatory nature of the term.

The dictionary's revisions notwithstanding, U.S. immigration law requires the sponsor of an immigrant (in this case the child would be the sponsor of the parent) to be a U.S. citizen 21 years of age or older. Put another way, the undocumented parent of a U.S. citizen baby must wait 21 years for their child to reach the age at which the child can sponsor their parent for permanent resident status (a green card).

A number of other factors may also play into the differential. For example, was the undocumented parent legally admitted to the U.S. or did they enter the U.S. without inspection? And once the parent is approved for a green card, they must wait another 5 years before being eligible to naturalize, i.e. achieve U.S. citizenship.

Hence, in addition to being pejorative, the term "anchor baby" as defined by the New American Heritage Dictionary is misleading at best, and in reality, false.

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New Startup Will Attempt to Bypass Hurdles of U.S. Immigration System

2012-01-23T22:34:00.001-08:00

Speaking on Immigration and American Competitiveness at a U.S. Chamber of Commerce Meeting on September 28, Mayor Bloomberg voiced his opinion that we should dramatically expand the numbers of green cards available for the highest-skilled workers we need to join the U.S. economy permanently.

"These high-skill workers," he said, "will not only help create thousands of jobs, they'll also give us knowledge of foreign markets that will help U.S. businesses increase their exports."

But companies such as Intel, Microsoft, and many others have been unable to persuade Congress to take action.

Recently, Intel, unable to import several dozen engineers from Finland because the H-1B annual visa quota had been hit, created a new R&D facility in Helsinki and will employ the workforce overseas.

In 2007 Microsoft created a new facility for up to 5,000 workers in nearby Vancouver, Canada. Those thousands of jobs will now go to Canadians.

Many U.S. firms, trying to find enough workers with STEM degrees — science, technology, education, and math — are forced to import labor and brain power through the H-1B visa, a program that allows 65,000 highly-trained foreign nationals to immigrate to the United States annually, and work, in some cases for as long a six years. But U.S. companies find that the annual H-1B visa quota — 65,000 — is restricting their efforts to hire the people they need.

Enter a startup called Blueseed.

According to founder Max Marty, Blueseed is seeking to bypass the political process by purchasing a fancy cruise ship, anchoring it in international waters off the coast of California, and operating a floating hotel with space for up to 1,000 employees and entrepreneurs serving nearby high-tech companies.

Part of the Blueseed business model is that the ship's residents will be able to make regular trips to the mainland to meet with clients, investors, and business partners, and Blueseed will provide a regular ferry service between the ship and the United States. Blueseed residents, however, would need to do their actual work, such as designing software, on the ship.

Another key element of the Blueseed business model is the assumption that the offshore workers will be able to obtain B-1 visas.

A person may be eligible for a B-1 visa if they will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

consulting with business associates;
traveling for a scientific, educational, professional or business convention, or a conference on specific dates;
settling an estate;
negotiating a contract;
participating in short-term training;
transiting through the United States: certain persons may transit the United States with a B-1 visa;
deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa.

In order to be eligible for a B-1 visa, a person must demonstrate the following:

the purpose of their trip is to enter the United States for business of a legitimate nature;
they plan to remain for a specific limited period of time;
they have the funds to cover the expenses of the trip and their stay in the United States;
they have a residence outside the United States in which they have no intention of abandoning, as well as other binding ties which will ensure their return abroad at the end of their visit;
they are otherwise admissible to the United States.

And one other thing the new startup will need — paying customers. Company founder Max Marty says Blueseed will charge rent, but also take a small equity stake in each startup that comes on board. He aims to cultivate a network of investors to help identify promising entrepreneurs, and says Blueseed will also accept applications directly from would-be startups.

Perhaps one benefit to U.S. business in general is that Blueseed will generate a new conversation about America's flawed immigration system, raising the ante for Congress to enact meaningful and useful reform. Mayor Bloomberg, for one, would probably like that.

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Mayor Bloomberg Tamps Down NYC’s Cooperation With ICE

2012-01-23T22:33:00.001-08:00

New Bill Limits City's Cooperation with Immigration Officials at Rikers Island

On Tuesday, November 22, Mayor Michael Bloomberg signed a new bill into law that will prevent the Department of Corrections (DOC) from releasing immigrants to Immigration and Customs Enforcement agents if the immigrants have no criminal convictions, are not known gang members, or are not on the U.S. terror watch list.

Under an initiative known as the Criminal Alien Program, information about prisoners being held at Rikers Island is shared with Immigration and Customs Enforcement (ICE) agents. Agents from ICE who are stationed at Rikers can interview foreign-born inmates and decide whether they want to place the inmate on an immigration hold or detainer. If a detainer is lodged against an inmate, the DOC will hold that person at Rikers for 48 hours after their case is closed. This extra detention is intended to give ICE agents an opportunity to assume custody of the individual.

"Under the new legislation, if an inmate gets an ICE detainer but has no record of criminal history or pending cases, and no other record of being a threat to the community, the Department of Correction will not honor the detainer," said Sharman Stein, Deputy Commissioner for Public Information at the DOC.

"We are sending a strong and unified message that this city will no longer allow innocent immigrants who pose no threat to be unfairly detained and deported due to an antiquated immigration system," said City Council Speaker Christine Quinn, also adding that it was an historic day for the city and immigrant communities in New York.

ICE counters that The Criminal Alien Program, enables them to identify an illegal alien with a criminal record and prevent them from being released into the general public and potentially committing other crimes. Immigration advocates and some politicians, however, have argued the city works too closely with ICE and that many individuals with no prior criminal record end up being deported.

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Student Visas — General Overview and Basic Steps

2011-12-31T19:50:00.001-08:00

Once you have been accepted as a student at a U.S. academic institution, you must obtain a visa before beginning your journey. Advance planning is important; be sure to get started on your preparations months before you want to begin your journey. Note: Workshops on how to complete the visa application process are offered in many countries by the U.S. State Department’s Bureau of Educational and Cultural Affairs.

After your acceptance to a college or university, and before you begin applying for a visa, your new school needs to send you the proper documentation that enrolls you in the Student and Exchange Visitor Information System (SEVIS). SEVIS is a Web-based information system that keeps track of foreign students and other exchange program participants, and allows information sharing among the various institutions and government agencies that students and exchange visitors are involved with during their journey to the United States and their stay in the country.

You must pay a fee to be enrolled in SEVIS, and you will need to retain your proof of payment for presentation during your visa interview at the U.S. embassy. The fee varies according to the type of study or exchange program you are participating in and the type of visa you are applying for. The SEVIS fee for most students is $200.

Next, make an appointment for a visa interview by contacting the nearest U.S. Embassy or Consulate.

Visa processing procedures can vary, depending on the U.S. Embassy or Consulate, but all student visa

and exchange visitor visa applicants are given priority.

When you get an interview, you must assemble all the required documentation. This includes the payment receipt of the SEVIS fee, the visa-qualifying document supplied by your academic institution, financial support documents, the visa application processing fee and a properly completed visa application form. Also review the information provided on the embassy or consulate Web sites.

In applying for a visa, you need to be aware that the visa alone does not guarantee entry to the United States. With a visa, a foreign citizen is allowed to travel to a U.S. port of entry. Upon arrival there, a U.S. Customs and Border Protection inspector makes the decision about the individual’s admission into the country.

Types of Visas for Students and Exchange Visitors

F-1, or Student Visa: The visa for people who want to study at an accredited U.S. college or university, or to study English at a university or language institute.

J-1, or Exchange Visitor Visa: The visa issued to people who will be participating in an educational or cultural exchange program.

M-1, or Student Visa: The visa for those enrolled in nonacademic or vocational programs.

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Duncan Millar

Millar & Smith, PLLC Immigration Attorneys

Bellingham | Seattle | Vancouver | New York

www.usborderlaw.com

duncanm@usborderlaw.com

Direct: 604.634.3772

Main: 604.634.3769

USA: 360.734.5260

Licensed in Washington | B.C. Practitioner of U.S. law

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Student Visas — Misconceptions and Realities

2011-12-31T19:49:00.005-08:00

Myth 1: The United States sets a quota on visas to limit the number of foreign students entering the country.

Reality: There is no limit to the number of student visas issued by U.S. embassies and consulates around the world. If you are a qualified student visa applicant who has gained admission to a U.S. institution, the State Department wants you to pursue that opportunity.

Myth 2: I can improve my chances of getting a visa if I hire an education agent.

Reality: Don’t believe anyone who tells you they can help you get a visa. Do not pay money or enter into an agreement with such a person. Self-proclaimed visa “fixers” have no special access to the U.S. government.

Myth 3: A visa applicant needs to document a minimum income level.

Reality: A student visa applicant should be able to provide financial evidence that shows you, your parents, or your sponsor have sufficient funds to cover your tuition and living expenses during the period of your intended study.

Myth 4: Only the academic superstars get visas.

Reality: Visas are not reserved for the very best students, but getting a visa depends on first having gained acceptance to a college or university in the United States. When you have been academically admitted to the institution or accepted as a participant in an exchange program, the academic institution will provide you with the appropriate form required by SEVIS. You will be required to submit this form when you apply for a visa. You will need to demonstrate to the consular officer who conducts your interview that you are a serious student who is well-informed about the admitting institution. You also need to show that you have a well-developed plan of study and are knowledgeable about the subject you are studying.

Myth 5: During your visa interview, the consular officer will be waiting to hear the “right” answers.

Reality: The consular officer will want to hear your own answers and an honest description of your personal circumstances.

Myth 6: You’ll get a visa only if you are proficient in English.

Reality: If you are planning to study English in the United States, you do not need to show proficiency in the language. Command of the English language is one factor that consular officers will use in evaluating the overall competence of a student applying for a visa. Sufficient English proficiency, however, is a pre-requisite for J1 exchange visitor visa applicants.

Myth 7: You’ll get a visa only if you have relatives in the United States.

Reality: This is not true. The interviewing consular officer may ask about relatives in the United States during the visa interview, just as he or she may ask about your family situation in your home country.

Myth 8: International students are not permitted to work while visiting the United States on a student visa.

Reality: Some job opportunities are possible, especially in on-campus work-study programs with limited hours.

Myth 9: You must have your entire future planned out to get a visa.

Reality: You need to be able to discuss a realistic study plan, but not a detailed plan for your entire career.

Myth 10: You must return to your home country immediately upon completion of your degree.

Reality: You may apply for Optional Practical Training to work for up to one year in your field in the United States to gain practical experience.

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Duncan Millar

Millar & Smith, PLLC Immigration Attorneys

Bellingham | Seattle | Vancouver | New York

www.usborderlaw.com

duncanm@usborderlaw.com

Direct: 604.634.3772

Main: 604.634.3769

USA: 360.734.5260

Licensed in Washington | B.C. Practitioner of U.S. law

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Student Visas — Applicants (for F-1 and M-1 visas) — Overview

2011-12-31T19:49:00.003-08:00

For student related information, visit the EducationUSA website created by the Department of State, Bureau of Educational and Cultural Affairs, to learn about educational opportunities for undergraduate and graduate study, opportunities for scholars, financial aid, testing, admissions, and much more. For a brief overview, visit the America.gov article Basics on U.S. Visas.

The first step for a prospective nonimmigrant student is being accepted for enrollment in an established school which is SEVP certified. In general, for academic students attending a university, college, high school, private elementary school, seminary, conservatory or other academic institutions, including a language training program, an F visa is the appropriate category. For students attending vocational or other recognized nonacademic institutions, other than a language training program, an M visa is generally the appropriate category.

If you are going to the U.S. primarily for tourism, but want to take a short course of study that is recreational, and the course is less than 18 hours per week, you may be able to do so on a visitor (B) visa. If your course of study is 18 hours or more a week, you will need a student visa. When traveling to the U.S. to attend seminars, conferences or a program of study for academic credit then you will need a student visa.

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Duncan Millar

Millar & Smith, PLLC Immigration Attorneys

Bellingham | Seattle | Vancouver | New York

www.usborderlaw.com

duncanm@usborderlaw.com

Direct: 604.634.3772

Main: 604.634.3769

USA: 360.734.5260

Licensed in Washington | B.C. Practitioner of U.S. law

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Student Visas — When Do I Need to Apply?

2011-12-31T19:49:00.001-08:00

Students are encouraged to apply for their visa early to provide ample time for visa processing. Students may apply for their visa as soon as they are prepared to do so.

Students should note that Embassies and Consulates are able to issue your student visa 120 days or less, in advance of the course of study registration date. If you apply for your visa more than 120 days prior to your start date or registration date as provided on the Form I-20, the Embassy or Consulate will hold your application until it is able to issue the visa. Consular officials will use that extra time for application processing.

Students are advised of the Department of Homeland Security regulation which requires that all initial or beginning students enter the U.S. 30 days or less in advance of the course of study start/report date as shown on the Form I-20. Please consider this date carefully when making travel plans to the U.S.

A beginning student who wants an earlier entry into the U.S. (more than 30 days prior to the course start date), must qualify for, and obtain a visitor visa. A prospective student notation will be shown on his/her visitor visa and the traveler will need to make the intent to study clear to the U.S. immigration inspector at port of entry. Before beginning any studies, he or she must obtain approval for a change to Exchange Visitor status, filing Form I-539, Application for Change of Nonimmigrant Status and pay the fee. Also you must submit the required Form I-20 to the Department of Homeland Security office where the application is made. Please be aware that one cannot begin studies until the change of classification is approved.

Continuing students may apply for a new visa at any time, as long as they have been maintaining student status and their SEVIS records are current. Continuing students may also enter the U.S. at any time before their classes start.

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Duncan Millar

Millar & Smith, PLLC Immigration Attorneys

Bellingham | Seattle | Vancouver | New York

www.usborderlaw.com

duncanm@usborderlaw.com

Direct: 604.634.3772

Main: 604.634.3769

USA: 360.734.5260

Licensed in Washington | B.C. Practitioner of U.S. law

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Student Visas — What Is SEVIS and SEVP?

2011-12-31T19:48:00.007-08:00

The Student and Exchange Visitor Program (SEVP) is designed to help the Department of Homeland Security (DHS) and Department of State better monitor school and exchange programs and F, M and J category visitors. Exchange visitor and student information is maintained in the Student and Exchange Visitor Information System (SEVIS). SEVIS is an Internet-based system that maintains accurate and current information on non-immigrant students (F and M visa), exchange visitors (J visa), and their dependents (F-2, M-2, and J-2). SEVIS enables schools and program sponsors to transmit mandatory information and event notifications via the Internet, to the DHS and Department of State (DOS) throughout a student or exchange visitor's stay in the United States. Select SEVIS to go to the DHS, U.S. Immigration and Customs Enforcement Internet site and learn more.

All student applicants must have a SEVIS generated I-20 issued by an educational institution approved by DHS, which they submit when they are applying for their student visa. Your school is responsible for entering your information for the I-20 student visa form into SEVIS. The consular officer will need to verify your I-20 record electronically through the SEVIS system in order to process your student visa application. Unless otherwise exempt, all F-1 or M-1 principal applicants must pay a SEVIS I-901 fee to the DHS for each individual program. See the SEVP Fact Sheet for a fee list. See SEVIS-901 Fee for further information on how to pay the fee.

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Duncan Millar

Millar & Smith, PLLC Immigration Attorneys

Bellingham | Seattle | Vancouver | New York

www.usborderlaw.com

duncanm@usborderlaw.com

Direct: 604.634.3772

Main: 604.634.3769

USA: 360.734.5260

Licensed in Washington | B.C. Practitioner of U.S. law

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