Immigration Law Blog

On November 18, 2016, USCIS published a final rule implementing the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) and the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”) which will go into effect on January 17, 2017. The new rule will modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. It will also amend existing regulations in order to make it easier for U.S. employers to hire and retain certain foreign workers who are the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.
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The H2A visa is available for employers to bring in foreign nationals in order to fill temporary agricultural jobs. A prospective employer must make an application on the employee’s behalf by filling out form I-129. In order to obtain an H2A visa, the employer must be able to stipulate that the position to be filled is temporary or seasonal in nature and that there are not sufficient American citizens willing, able, and qualified to perform the temporary work. Furthermore, the employment of foreign nationals must not adversely affect the wages or working conditions of American workers. In addition, the petitioner must be in possession of a temporary labor certification from the U.S. Department of Labor.

The issuance of H2A visas is limited to nationals from 68 approved countries.  An individual may stay in the United States and work under the temporary visa only for the period of time authorized in the employer’s temporary labor certification, which varies from one employer to another.  If the need for employees is greater than anticipated, an employer may apply for an extension for his or her employees under the H2A program. Each extension lasts one year and the maximum stay permitted under this classification is three years. After this, in order to reapply for H2A status, an individual must leave the United States for 3 uninterrupted months before being allowed to return to work in the United States.  Employers are responsible for providing adequate housing for the workers and to provide transportation to and from the workers’ home countries. There is no cap on the number of H2A visas available annually or on the number of H2A visas allowed for any particular country.

H2A recipients are not residents and they are not immigrants.  There is no path to a green card with a H2A visa. Recipients are required to work during their stay. If their employment ends for any reason, their visa expires. They may leave the country and return, but only if authorized by their employer. If they desire to bring family members with them into this country, they must apply separately for an H4 visa. Family members who are recipients of such H4 visas, however, are not permitted to work during their stay in the United States.

It is not only desirable, but also necessary, to consult with an experienced immigration attorney well versed in the complexities of immigration law before submitting an application. Without such assistance, it is extremely difficult to fully understand the limitations and restrictions on any type of visa.

The United States naturalization test, also called a citizenship exam, comes in two parts.  The first part of the test covers an applicant’s knowledge of the United States system of government. During the interview to determine if an applicant is eligible for naturalization, a USCIS officer will select 10 questions from a list of 100 and administer an oral examination to test the applicant’s knowledge of civics. Some examples of questions on the list of 100 include:

• How many amendments are there to the US constitution? (27)
• Who makes the federal laws? (Congress)
• What group of people were taken to America and sold as slaves? (Africans)
• What is the capital of the United States? (Washington D.C.).

A complete list of the one hundred potential questions is available on the USCIS website.

The second half of the citizenship test examines the applicant’s ability to read, write, speak, and understand the English language. Each applicant must be able to read one out of three sentences correctly, and write one out of three sentences correctly in order to demonstrate the ability to read and write in English. A USCIS officer will determine an applicant’s ability to speak and understand English during the eligibility interview on the Application for Naturalization. The best way to study is to practice speaking, reading, and writing every day. The more a person uses the language, the more comfortable he or she becomes with it. Vocabulary flashcards can be a useful study tool as well.

There are exceptions to the English portion of the exam. Applicants who are over the age of 50 do not have to take the English portion of the exam if they have been in the United States on a green card for more than 20 years. Similarly, applicants over the age of 55 do not have to take the English portion of the exam if they have been in the United States with a green card for more than 15 years. A person who qualifies for these exemptions must still pass the civics section of the citizenship test in his or her native language, and is responsible for bringing an interpreter who is fluent in both English and his or her native tongue.

If a person fails one or both sections of the test, a second interview will be administered to the applicant seeking naturalization. The second interview will be between 60 and 90 days after the initial interview and will only cover the portion of the test that the applicant previously failed.

Each year, the United States Department of State administers a Diversity Lottery Immigrant Visa Program, a random lottery which awards approximately 50,000 immigrant visas ("diversity visas") to foreign nationals who meet the simple but strict eligibility requirements and are immigrating from countries with historically low rates of immigration to the United States.

Online registration for this year's lottery, the 2018 Diversity Visa Program (DV-2018), began on Tuesday, October 4, 2016 and will conclude on Monday, November 7, 2016. In order to apply, applicants must submit electronic applications during this registration period using the

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Most citizens of the United States are allowed to leave this country freely. The restrictions on entering the destination country, however, are determined by that country. If a visa is required for travel, one must be obtained. If other documents are required, a traveler can find out by contacting the embassy of the destination country. Each country has its own unique requirements for entry with which all visitors must comply. Airlines may have their own requirements, so travelers should check with them as well.

A person’s right to return to the United States requires proper documentation. If a traveler is undocumented, he or she will be not be permitted entry into the United States. Lawful permanent residents should carry their green card for re-entry. They should also bring a foreign passport, national ID, or U.S. driver’s license to confirm their identity, and form I-131, with supporting documents and applicable fees. A customs official will speak with each traveler to determine whether or not his or her stay outside the country violated the terms of residency. If the customs official feels that the traveler has abandoned his or her residence in the United States, the traveler’s status as a permanent resident may be revoked. A customs official may ask questions concerning a traveler’s community and family ties in the United States, about the individual’s work, property ownership, filing of income taxes, or residence. If the stay abroad was for longer than one year, a re-entry permit, form I-131, may be required. Brief trips will not affect a person’s status, but trips of 6 months or more may affect a person’s ability to become a naturalized citizen and may require form N-470 to correct.

Those who do not hold a green card may still be permitted to travel outside of the United States, depending on the type of visa they hold. Those who have an F-1 or M-1 student visa will be able to travel if the trip is for fewer than 5 months, and if their SEVIS form I-20 is up to date and endorsed for travel by the student’s designated school official. Many non-permanent residents, such as K-1 visa holders, are not allowed to travel abroad. For some, the line is blurred. For those who are in the country on a U Visa, international travel is permitted, but should only be engaged in if absolutely necessary as a traveler might miss important USCIS mailings or attempts at communication from law enforcement agencies. If a traveler has previously overstayed a visa before leaving the United States, or if any other condition of residency has been violated, that individual may be denied re-entry. It is important to consult with an experienced immigration attorney before international travel to avoid problems at the border.

A person may request entry into the United States as a refugee if he or she is located outside of the United States, can demonstrate that he or she is facing persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled in another country, and is otherwise admissible to the United States.

In order to begin the process to apply for refugee status, an individual must first be referred to the US Refugee Admissions Program. Having a family member admitted to the United States as a refugee may help the determination. Immediate family members, including spouses and unmarried children under the age of twenty one, can be included in the application. Same sex partners who are unmarried may link their applications and ask to be resettled in the same geographic area. There are no fees to apply for entry to the United States as a refugee. Refugees have a right to expedited processing if they are facing an acute medical or protection problem. Once an individual or family is approved, they will receive a medical examination, a cultural orientation, and a loan for travel expenses.

Refugees are permitted to work immediately upon entering the United States. They must apply for a green card within one year of their entry, but are excused from paying application fees as well as fees for fingerprinting and biometrics. Refugees are permitted to travel abroad, but to reenter the United States, they must first obtain a Refugee Travel Document. If a refugee returns to the country from which he or she originally fled, the refugee must explain the reason for his or her return and how he or she was able to escape persecution. If these travel restrictions are not met, he or she may not be permitted to reenter the United States. Refugees have all the rights of American citizens including the right to free speech, free exercise of religion, freedom of assembly, freedom from unreasonable searches and seizures and self-incrimination, the right to own property, the right to an education and access to housing, the right to petition the courts for relief, and the right to public assistance where appropriate.

Foreign Nationals with a current 17-month STEM OPT extension are eligible under the new 24-month STEM OPT regulations to apply to add an additional 7 months to their STEM OPT period.  In order to apply for this 7-month extension, eligible Foreign Nationals must properly file a new Form I-765, Application for Employment Authorization (including the required fee and signature) on or before August 8, 2016.  USCIS will not accept applications filed after August 8, 2016.

Foreign Nationals are eligible to add 7 months to their 17-month STEM OPT extension if:

• They are currently participating in the STEM OPT program based on a 17-month extension;
• They request the additional 7-month period by filing a new Form I-765 between May 10, 2016 and August 8, 2016, and within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into their SEVIS record;
• They have at least 150 days of valid employment authorization remaining on their 17-month STEM OPT period on the date that they properly file a new Form I-765; and
• The Foreign National, their DSO, and their employer each meet all of the 24-month STEM OPT extension requirements. 

For additional information, please see

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When a child is adopted from a foreign country, that child must go through the immigration process through the United States Customs and Immigration Service like any other person. The child must be eligible for adoption under the Immigration and Naturalization Act. If a child is adopted from another country and is deemed ineligible, that child will not be permitted to immigrate to the United States. A child under the age of 16 who has resided with his or her adoptive parents for two years may apply for entry under an I-130 petition. This is rarely utilized because of the requirement that the adoptive parent live abroad for two years. Most adoptions are done through one of two processes depending on the country of origin of the child being adopted.

If the child being adopted is from a country that is a party to the Hague Convention, the prospective parents must seek adoption through an approved service provider. They will have to fill out form I-800A to determine whether they are eligible to adopt a child from a foreign country. They will be fingerprinted and undergo a background check and a home study.  The child’s country of origin will then examine your credentials and match you with a child. This process can take months or years. At this point, the prospective parents will meet with the child and decide whether or not to continue the adoption process. The prospective parents must then fill out form I-800 to confirm that the child is eligible to immigrate to the United States, and form DS-260 to request that the child be permitted to immigrate. If everything is in order, the US Consulate will provide a letter confirming the child will be permitted to immigrate to the US. At that time, the adoption process must be completed in the child’s country of origin and prospective parents will receive a copy of the child’s birth certificate, the Hague Adoption Certificate, and an IH-3 visa. If the adoption process will be completed in the United States, the child will be issued an IH-4 visa until the time the adoption process is completed and the parents must also complete form N-600.

In countries which were not parties to the Hague Convention, the process is simpler. The child must be an orphan, or the surviving parent(s) must be unable to care for the child and acknowledge their abandonment of their parental rights in writing. The prospective parents must file form I-600 and apply for an IR-3 or IR-4 visa.

The Supreme Court of the United States has repeatedly held that the protections of the US constitution are limited to U.S. citizen, but individuals maintain certain rights regardless of their immigration status. Every person has the right to equal protection under the law and to due process.  This means that a person accused of not maintaining legal status in the United States has the right to defend him or herself against removal from the country. Similarly, where there are criminal allegations against an undocumented immigrant, that person has all the same rights as would an American citizen. This includes the right to confront witnesses in a trial, the right to representation, and the right against unreasonable searches and seizures by the police.

Regardless of immigration status, everyone has a right to free speech, freedom of religion, and freedom to peaceably petition the government. Undocumented children in the United States have a right to free public education. Publicly funded hospitals are required to provide medical care to all patients. They are prohibited from discriminating against a person based on immigration status. Undocumented immigrants are permitted to file lawsuits against other people and the government for claims arising out of negligence, just like any other person in the United States.

It is, however, against federal law to hire someone who is undocumented. It is the responsibility of the employer to ensure that every employee hired is legally permitted to work. Nonetheless, once a person is hired, that individual is entitled to some rights in the workplace. He or she must be paid the minimum wage. It is improper for an employer to prohibit anyone from forming a union. If an undocumented immigrant is injured on the job, he or she is entitled worker’s compensation and disability if it is part of the employer’s normal practice. Undocumented workers are protected from workplace discrimination and sexual harassment by federal law as well.

Many undocumented immigrants are victims of crimes and are afraid to come forward to the police for fear of deportation. This goes against public policy, so in 2000, the federal government created a new visa to allow undocumented immigrants to stay in the country legally for up to four years if that person is the victim of a qualifying crime. This visa is called a U visa and is an important tool to protect undocumented people from crime.

On April 21, 2016, USCIS began allowing petitioners who have filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more. The inquiry can be submitted by calling the USCIS National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1822), providing the original receipt number, and specifying that the case has been pending for 210 days or more and is outside of normal processing times.
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The Canadian government is now mandating that all visa-exempt foreign nationals, including U.S. Legal Permanent Residents, who fly or transit to Canada must apply for and receive an Electronic Travel Authorization (eTA) prior to their trip. Exceptions include U.S.

Travelers can apply for an eTA online on the Canadian government’s official website. In order to apply, travelers will need: a valid passport from a visa-exempt country (U.S. Lawful Permanent Residents can also apply using a U.S. Refugee Travel Document (Form I-571) or a valid Permit to Reenter the U.S. (Form I-327)); a credit card (a regular or prepaid Visa, MasterCard, or American Express); and a valid email address. Applications cost $7 CAD and most applications are approved within minutes of applying. If a traveler’s application is not approved immediately, they will receive an email within seventy-two (72) hours advising them of next steps.

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