1. State Dept. Releases Instructions on Applying for DV-2016 Program

    Entries for the DV-2016 DV program must be submitted electronically by noon EST (GMT-5), Monday, November 3, 2014.

  2. CBP Designates POEs for First-Time Canadian TN, L Applicants Seeking U.S. Entry Under NAFTA

    Such applicants may continue to go to any port of entry (POE) along the Canadian border for processing, but the agency is encouraging such applicants to go to one of the designated POEs “where you will receive optimized processing.”

  3. China EB-5 Category Unavailable through September; Current in October

    The China EB-5 visa category will become “Current” on October 1, 2014.

  4. DOS Changes Fees for Visa and Citizenship Services

    DOS is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.

  5. CBP Responds to I-94 Web Portal and ESTA Questions

    A recent teleconference focused on issues with the I-94 Web portal and travel history information. Topics included incomplete or inaccurate data on the portal, redress for falsely recorded departures, and automated I-94 corrections.

  6. Government Agency Links

  7. Klasko News

1. State Dept. Releases Instructions on Applying for DV-2016 Program

On September 24, 2014, the Department of State (DOS) released instructions on how to apply for the diversity visa (DV) 2016 program. Entries for the DV-2016 DV program must be submitted electronically at http://www.dvlottery.state.gov by noon EST, Monday, November 3, 2014.

For fiscal year 2016, 50,000 diversity visas will be available. There is no cost to register for the\ DV Program. There are no changes in eligibility this year. For DV-2016, natives of the following countries are not eligible to apply because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

The DOS notice states that based on the allocations of available visas in each region and country, individuals will be randomly selected by computer from among qualified entries. All DV-2016 entrants will be required to go to Entrant Status Check using the unique confirmation number saved from their DV-2016 online entry registration to find out whether their entries have been selected in the DV program. Entrant Status Check will be available at http://www.dvlottery.state.gov starting May 5, 2015, through at least June 30, 2016.

Those whose entries are selected will be directed to a confirmation page that will provide further instructions, including information on fees connected with immigration to the United States. Entrant Status Check will be the only means by which selectees will be notified of their selection for DV-2016. The Department of State will not mail out notification letters or notify selectees by email. U.S. embassies and consulates will not provide a list of selectees. DOS noted, “You are strongly encouraged to access Entrant Status Check yourself and not to rely on someone else to check and inform you.”

To receive a DV to immigrate to the United States, those who are selected still must meet all eligibility requirements. “These requirements may significantly increase the level of scrutiny required and time necessary for processing for natives of some countries listed in this notice including, but not limited to, countries identified as state sponsors of terrorism,” the DOS notice states.

The Federal Register notice with full details is available at https://www.federalregister.gov/articles/2014/09/24/2014-22767/bureau-of-consular-affairsregistration-for-the-diversity-immigrant-dv-2016-visa-program.

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2. CBP Designates POEs for First-Time Canadian TN, L Applicants Seeking U.S. Entry Under NAFTA

U.S. Customs and Border Protection (CBP) is optimizing processing for first-time Canadian TN (Trade NAFTA) and L applicants seeking entry into the United States under the North American Free Trade Agreement (NAFTA). CBP has designated ports of entry (POEs) that will ensure a more efficient approach to processing the high volume of TN and L applicants. CBP explained that such applicants may continue to go to any POE along the Canadian border for processing, but the agency is encouraging such applicants to go to one of the designated POEs “where you will receive optimized processing.”

The designated POEs include locations in Canada, Vermont, New York, Michigan, Washington, and Montana. They are listed athttp://www.cbp.gov/travel/international-visitors/canada-mexicotravel/traveling-tn-or-l-1-visa-canada.

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3. China EB-5 Category Unavailable through September; Current in October

The Department of State’s Visa Office announced that the China employment-based fifth (EB-5) category became unavailable on August 23, 2014, and will remain unavailable for the remainder of fiscal year 2014. The category will again become current on October 1, 2014.

The Department noted that all China EB-5 applicants who have been scheduled for an interview at an overseas post based on the original establishment of the August and September cut-off dates would have been allotted visa numbers for potential use by their case. Such applicants would not be affected by the unavailability of the China EB-5 category for the remainder of FY 2014. In this context, the Department explained, “unavailable” means that “no additional numbers are available for ‘comeback’ cases originally scheduled for interview in an earlier month who are now just returning, or for those just requesting an interview at this time.” The only exception would be if a post had “otherwise unused” numbers available, the Department noted, because applicants either failed to appear or failed to overcome a refusal during the month (i.e., August or September) of the originally scheduled interview.

The Department said that U.S. Citizenship and Immigration Services (USCIS) offices may continue to accept and process China EB-5 cases and submit them to the Visa Office in the normal manner, based on the cut-off dates announced in the August and September Visa Bulletins. However, instead of being acted upon immediately, those cases will be held in the Visa Office’s “Pending Demand” file and then authorized effective October 1, 2014.

The announcement is available at http://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/China%20Employment%20Fifth%20Preference.pdf.

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4. DOS Changes Fees for Visa and Citizenship Services

Effective September 6, 2014, the Department of State is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees. Included are two categories of petition-based nonimmigrant visas and the tiered application processing fees for immigrant visas. The interim final rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services. Lastly, the rule raises the application processing fee for renunciation of U.S. citizenship and lowers the hourly consular officer time charge. The Department of State said it is adjusting the fees in light of the findings of a recent Cost of Service study to ensure that the fees for consular services better align with the costs of providing those services.

Some of the changes include:

  • The processing fee for E treaty trader and treaty investor visa applications will decrease from $270 to $205.
  • The processing fee for an employment-based visa application (based on an approved I-140 alien worker or I-526 alien entrepreneur petition) will decrease from $405 to $345.
  • Other immigrant visa application fees (including for I-360 self-petitioners, special immigrant visa applicants, and all others) will decrease from $220 to $205.
  • Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying any visa-related fees.
  • The Immigrant Visa Security Surcharge, paid by all applicants except those who are statutorily exempted from paying fees, will increase from $75 to $100.
  • The fee for processing an application for waiver of the two-year residence requirement for J-1 exchange visitors will decrease from $215 to $120.
  • The affidavit of support fee will increase from $88 to $120.
  • The fee for processing renunciation of U.S. citizenship requests will increase from $450 to $2,350.

Comments on the interim final rule, which was published in the Federal Register on August 28, 2014, are due by October 21, 2014. The rule, which includes information on additional fee changes and the rationale for the changes, is available athttps://www.federalregister.gov/articles/2014/08/28/2014-20516/schedule-of-fees-for-consular-services-department-of-state-and-overseas-embassies-and.

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5. CBP Responds to I-94 Web Portal and ESTA Questions

The American Immigration Lawyers Association (AILA) held a teleconference with Suzanne Shepherd, Director of the Electronic System for Travel Authorization (ESTA) at U.S. Customs and Border Protection, on August 6, 2014, on issues with the I-94 Web portal and travel history information. Topics included incomplete or inaccurate data on the portal, redress for falsely recorded departures, and automated I-94 corrections.

According to AILA’s teleconference minutes, Ms. Shepherd said that the information on the I-94 website is taken from the I-94 database, not from any other databases related to a traveler’s admissions/departures. CBP has plans to create a crossing history for U.S. lawful permanent residents and U.S. citizens. Ms. Shepherd said this will be a difficult task, however. CBP will need to determine how to query and retrieve data, and resolve privacy issues. CBP does not have a launch date or a set plan yet.

Ms. Shepherd noted that CBP has reached out to U.S. Citizenship and Immigration Services (USCIS) regarding USCIS denials based only on I-94 database information. She said USCIS is training its service center adjudicators not to use I-94 database information alone to make any decisions. Ms. Shepherd asked that examples of USCIS issuing decisions based on I-94 database information alone be sent to CBP through the AILA liaison.

In response to questions about inaccuracies in the system, Ms. Shepherd noted that data entry error can result in a no-match. Matching algorithms should alleviate this problem, she said. For example, if a traveler’s name is spelled wrong on one or more occasions, a different travel history may be created under the alternate spelling. She said that if this happens, the ESTA office or a Deferred Inspection office can correct this by combining the two data sets.

Regarding those whose travel histories are unavailable or unlisted in the online system, Ms. Shepherd noted that the online records include only instances in which an actual I-94, whether paper or electronic, was issued. Therefore, Canadians entering at a land border will not have a crossing history, nor will anyone not issued an I-94 before the electronic I-94 system was implemented.

Ms. Shepherd said that if someone needs a complete travel history, including data that is not reported online, a Freedom of Information Act (FOIA) request is still the way to request a complete report.

In response to a question about whether non-controlled admissions records for Canadians are available in the online system, Ms. Shepherd noted that if a traveler is issued or has surrendered an I-94, the information will be available. If not, it will not be available. She pointed out that this may result in oddities in records. For example, at the land border, if a traveler surrendered an old I-94 at the time of admission rather than upon the previous departure, and was issued a new I-94 on same day, the I-94 website will show the departure and arrival on same day.

Several AILA members have reported instances in which people who had purchased plane tickets to depart the United States but then never used the ticket to depart nevertheless were recorded as having departed. In one of those cases, the person went to Deferred Inspection office, and the officer there, upon viewing the unused plane ticket that corresponded with the incorrectly recorded departure date, was able to correct the I-94 record to delete the erroneous departure.

In the event of a discrepancy between the information in the entry-exit database and either a paper I-94 or an admission stamp (e.g., they show different expiration dates), Ms. Shepherd said that most of the time this will be due to CBP officer error and that Deferred Inspection is an appropriate way to attempt to resolve such an inconsistency.

Ms. Shepherd asked AILA to provide specific examples of any difficulties with correcting erroneous information or with Deferred Inspection.

More information on ESTA is available at https://esta.cbp.dhs.gov/esta/.


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Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

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7. Klasko News

Upcoming Speaking Engagements

On November 5, William A. Stock (Bill) will be speaking to students, administrators and human resources personnel at Stevens Institute of Technology. Bill will discuss visa sponsorship, conduct a training session on the admissions process and compliance, and speak to students about non-immigrant status, H-1B requirements and permanent residency.

Elise A. Fialkowski will be participating at the 2014 NAFSA Region VIII Conference in Williamsburg, VA from November 4-7, 2014. Elise will co-present “Can They Do That? What Is and Is Not Permissible Activity for Those Admitted in B Visa or Visa Waiver Status.” This session will clearly identify permissible/impermissible activities and focus on “gray area” activities for those in B and visa waiver status and well as offer best practices.

Feige M. Grundman will be at Carnegie Mellon University on November 11 where she will be speaking to students about H-1Bs, other nonimmigrant visa options and provide an overview of the green card process.

Elise will be speaking at the 14th Annual Advanced Corporate Immigration Conference, a program presented in cooperation with NJSBA Immigration Law Section & AILA-NJ on November 12, 2014 in Newark, NJ. Elise will serve as a panelist on “Ethical Issues in Other NIV Cases,” a session that will discuss topics including

  • B-1 in lieu of H-1; appropriate representations after Infosys.
  • Is a Process Lead really a Manager?
  • Can everyone be “specialized knowledge”?
  • Strategies for managing the presentation of evidence.
  • When is an amendment required in NIV cases?

For more information on these topics, contact Elise at efialkowski@klaskolaw.com.

On November 19, H. Ronald Klasko (Ron) will provide a webinar course for the MBA for Executives (EMBA) program at the Wharton Business School. For the one hour session, Ron will discuss visa and permanent residence options and will address issues of interest for students who are looking to become entrepreneurs.

Recent Speaking Engagements

Bill and Lisa T. Felix spoke at a program hosted by the Biomedical Postdoctoral Programs of the University of Pennsylvania on Tuesday, October 28, 2014. Bill and Lisa discussed permanent residency, non-immigrant options, immigrant intent, and timing, adjustment of status and maintenance of status, among other topics. Click here for the event page for this event.

Ron attended and spoke at the IIUSA Investment & Economic Development Forum in San Francisco, CA from October 22-24, 2014.

On October 22, Elise was a panelist on “Advanced H-1B Topics” webinar for NAFSA members, a program sponsored by Houston International Insurance Group.

Elise served as discussion leader/moderator for a round table discussion on visa and immigration and emerging market challenges at the Delaware Valley Relocation Council 2014 Fall Summit in Philadelphia on October 21.

Bill spoke at the 2014 AILA Colorado Chapter Rocky Mountain Immigration Law Update in Denver, CO from October 16-17, 2014. Bill served as a panelist on “Prevailing Wage Determinations and Ability to Pay the Wage,” a session that addressed current issues in prevailing wage determinations, used in both H-1 B and permanent labor certification cases. The panel summarized recent holdings of the Board of Alien Labor Certification Appeals that provide employers with tools to obtain realistic market wages for use during the H-1B and labor certification process. For more information, contact Bill at wstock@klaskolaw.com.

Elise was in New Orleans, LA on October 16-17, 2014 to present at the 2014 AILA Fundamentals of Immigration Law Conference. Elise was discussion leader for the session “The Road to Naturalization and Citizenship” and discussed eligibility criteria, interview and examination preparation, post-denial options, and derivative citizenship, among other topics.

On October 17, Ron spoke at the AILA Central Florida Chapter Annual Conference in Clearwater, Florida.

On October 14, Rohit Kapuria presented “EB-5 for Real Estate Developers” to a Chicago based law firm’s transactional practice group. Rohit discussed the potential uses of EB-5 funds for the firm’s clients.

Ron visited Yale University on Friday, October 10 and presented three programs: Green Card Strategies for Researchers;Students, Entrepreneurship and Visas: Yale School of Management; and After OPT: Navigating Immigration and Your Career.

Ron was at the Harvard Business School on October 8 and 9 where he spoke with students about employment options, various H-1B visa options, E, L-1, O-1, H-3, and other permanent resident options including EB-5s. Click here for the PowerPoint presentation.

On Tuesday, October 7, Ron discussed H-1B issues including strategies to enhance chances of getting H-1B, travel and status issues for H-1B approvals, H-1B issues for start-up business, and other visa options with students at the Wharton Business School of the University of Pennsylvania. For the PowerPoint presentation and relevant articles, click here.

Daniel B. Lundy (Dan) and Rohit were in Tampa on September 29, 2014 and spoke to attorneys at a Tampa based law firm. Dan and Rohit discussed the intricacies of the EB-5 program and its use as alternative financing for real estate development projects in Florida.

On September 19, Elise spoke on O-1/EB-1 and A&B/NIW at PBI’s Immigration Law Forum 2014 in Philadelphia. Elise discussed O-1 criteria as against the EB-1A criteria; how much is “enough” for the O-1/EB-1 & EB-2 criteria; NIW criteria and issues; and premium processing or no premium processing.

Rohit spoke at “The EB-5 Summit for Attorneys and Developers” in Chicago on September 12, 2014, a program sponsored byILW.com. Rohit discussed key considerations for developers for the 526 and 829 when putting together a successful regional center. For more information on this event, click here.

Ron was in China from September 8-17, 2014 as a delegate for the Association to Invest In the USA (IIUSA) 2014 trade mission to CIFIT – the 18th annual China International Fair for Investment & Trade in Xiamen, China. Ron was a keynote speaker at the 2014 Overseas Investment & International Wealth Management Forum in Beijing on September 13 where he discussed visa retrogression, impact for Chinese investors and future of the EB-5 program. He also spoke at other programs relating to investment as well. For more information, write to Ron atrklasko@klaskolaw.com.

Recent Publications

Bill’s latest article, “Obama’s Immigration Executive Order Would Follow Predecessors’ Lead” was published in The Legal Intelligencer on October 15, 2014. In the article, Bill addressed news stories that President Obama was planning executive action in the area of immigration, and explained that every president since Dwight Eisenhower – Republican and Democrat – has used executive authority to admit immigrants temporarily in spite of Congressionally-established quotas, and the last five presidents have all provided temporary reprieves from deportation in humanitarian cases while Congress was considering legislation. For more information or to request a copy of this article, email Bill at wstock@klaskolaw.com.

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