How to avoid problems when traveling to USA

The most common type of temporary visa to the US is the visitor or the B2 visa. The visa is used for a temporary stay in the US of less than six months. When traveling with a B2 visa, a traveler should understand that he/she should not have any prior immigration violations.
A B2 visa holder who previously applied for extension of his authorized stay in the US must ensure that his application was favorably granted. If the application was previously denied, the B2 visa holder must not have incurred unlawful presence. He should not have overstayed in the US, even for only a day.
The three-year and 10-year bars to admission are triggered if there is unlawful presence in the US of more than six months or one year, respectively. The traveler may not enter the US for three years if he previously overstayed in the US for more than six months but less than one year. Those who previously overstayed for more than one year will be barred from entering the US for 10 years. These are the penalty bars for overstaying tourists.

Airport-to-airport cases
For those who applied for extensions of stay and whose applications were denied, there is a possibility that they will encounter problems at the port of entry. Even if the three-year and 10-year bars do not apply to them, they may still be denied admission to the US if it is discovered that they had even just one day of unlawful presence.
While it is not the penalty bar, the legislation under Immigration and Nationality Act Section 221(g) provides for a cancellation of the visas at the port of entry. This is the reason some B1/B2 visa holders face deportation upon their entry to the US. Several travelers identify this process as the “A-to-A” or the “airport-to-airport” process, so called because the immigration officer will deny entry at the airport and compel the return of the visitor to his port of origin.
There are several reasons for subjecting travelers to the airport-to-airport process. The most common is the record of a prior overstay of the tourist in the US.
Common cases of an intending immigrant visitor visa holder are those involving registered nurses from the Philippines.
A tourist visa holder who happens to be a nurse will be questioned at the port of entry regarding her intention to enter the US. If it is discovered that she will take the nursing board or the NCLEX and plan to find a petitioner, the immigration officer may deny entry to this nurse even if she has a valid visitor’s visa.
It is also common for CBP officers to search a traveler’s baggage in a secondary inspection. If it is discovered, for example, that a nurse is carrying her diploma and transcript, she may be suspected of being an “intending immigrant.” She may be denied entry and sent back to Manila on the next available flight.
When the intention of the traveler is not clearly determined on first inspection, further questioning may be conducted. A visitor visa holder, for example, may say that she is visiting her US citizen fiancé for a few months. If, after further interrogation, this visitor admits that she is planning to marry her US citizen fiancé in the US, she will be denied admission. She will be told to obtain a fiancé visa because the visitor visa is not the appropriate visa based on her intentions.

Green card holders
While most B1/B2 visa holders are closely scrutinized in their intentions, the green card holders or permanent residents may also be asked detailed questions. If it is determined that green card holders stayed outside the US for many months and are returning to the US to stay only for a short period, there is a strong probability that they will be put in secondary inspection. The immigration officer will determine whether the holders intend to abandon their green cards.
Once a green card holder’s record shows that there are more months or years spent in the Philippines than in the US, there may be a finding of abandonment. When there is “abandonment,” the green card holder will be given the choice to give up his green card or fight his case before the immigration judge. The good news for green card holders, however, is that there is no expedited removal or “A-to-A” process. The green card holders have a right to a hearing, unlike the nonimmigrant visa holders.
Lately, green card holders who have had criminal cases in the past (even if they have already been dismissed or sentences have been served) may also encounter some problems at the ports of entry. It is always advisable to carry court records indicating a resolution of their criminal cases especially if there is no conviction. This will assist the CBP officer in determining whether the green card holder may or may not be subject to removal before the immigration judge.
The fact that a traveler has a valid visitor’s visa, a nonimmigrant visa, or even a green card, is not a guarantee that there will be no problem at the US port of entry. Prior immigration violations, unlawful presence, extended stays, or very old criminal convictions may still pose problems at the ports of entry.
Most of the port-of-entry cases may be avoided by proper planning and by understanding the consequences of one’s past actions. Stating accurate, honest intentions is very crucial. Carefree traveling is now a thing of the past. Taking proactive steps to avoid problems and expedited removal is key to a smooth and well-deserved vacation.


H-1B- Procedural changes and Frequently Asked Questions

Under the immigration law, the H-1B program allows US employers to hire foreign nationals in "specialty occupation" positions for which they require a bachelor's degree or the equivalent. Under the current law, there is a cap on the number of new H-1B petitions that are granted during each federal fiscal year. While current trends suggest the cap might not be hit as early this year as in some years, procedural changes related to prevailing wage requirements could catch employers off-guard and cause delays.

What Are the H-1B Cap Numbers?

During the boom, the H-1B cap was temporarily set at 195,000, but as of October 1, 2003, the cap has been returned to 65,000. Of those, 6,800 H-1B are allocated to citizens of Singapore and Chile under the recent trade agreements with those countries, reducing the number generally available to 58,200 for the remaining countries.
In December 2004, Congress carved out an exemption of 20,000 more “bonus” numbers to the H-1B cap, but reserved them for foreign workers with U.S. Master’s or higher degrees. For this Master’s  or  advanced  degree  cap,  the  first 20,000  qualifying  H-1B  petitions received for employment in FY2011 will not be counted toward the regular H-1B cap.
The quota is available starting October 1, and petitions can be filed up to six months in advance, that is, on April 1, 2010. The demand has outstripped the supply in recent years. In 2008, the Department of Homeland Security agency that processes H-1Bs, U.S. Citizenship & Immigration Services, received more than 163,000 H-1B petitions by April 7, depleting the cap in one week.   USCIS resorted to randomly selecting which petitions would be accepted, and which would be refused and returned. The process is referred to as the “H-1B lottery.”
In contrast, for FY2010, while the Master’s cap was hit by June 2009, the regular cap remained unfilled until December 21, 2009. At that time, USCIS applied the random lottery selection process to the H-1B petitions received that day.

What Are the Procedural Changes This Year?

This year, there is a change in processing for the H-1B prevailing wage requirement. A preliminary step in filing an H-1B petition is to show that the employer will pay the prevailing wage by obtaining a certified Labor Condition Application (LCA). The Department of Labor, not the Department of Homeland Security, processes prevailing wage requests. Employers submit a Form 9035 online to the DOL through its web-based portal called iCERT. The Form must be submitted to USCIS, after submission to the DOL, along with the H-1B petition or the H-1B petition will be rejected.
For a time, LCA certification occurred more-or-less instantaneously. Under the current DOL system, Form 9035 LCA processing can take upto a week or more.   Therefore, LCAs should be filed well in advance to avoid delays and a risk that the cap might be hit.

Who Is Exempt From the H-1B Cap?

New employees hired in H-1B status are subject to the cap, unless they are exempt. Many people can still obtain H-1B status through exemptions to the H-1B cap, in particular the following:
•   Petitions for persons who currently hold H-1B status and seek an extension do not count towards the H-1B cap numbers;
•   An H-1B worker can move to a new employer without using an H-1B cap number;
•   In some cases, persons who previously held H-1B status can regain H-1B status without using an H-1B cap number;
•   Institutions  of  higher  education,  nonprofit  research  organizations  and  governmental research organizations are exempt from the cap; and
•   The caps carved out for citizens of Chile and Singapore are rarely hit.

What are the alternatives to an H-1B?

There are various alternative immigration options other than H-1B status, including, but not limited to the following:
•   L-1 intracompany transfers for persons who worked for a foreign entity related to a U.S. company for at least one year;
•   For Canadians and Mexicans, TN status under the North American Free Trade Agreement (NAFTA);
•   J-1 training and other exchange programs;
•   E-1/E-2 treaty investor and treaty trader status for numerous countries;
•   E-3 visas for Australians;
•   O-1 for extraordinary ability with degrees;
•   Returning to school for a higher level of education and work authorization;
•   Labor certification for permanent resident status under the “PERM” process as a first step toward “green cards.” However, there are processing backlogs for many types of permanent resident applications.

What Does This Mean for Employers?

An employer cannot hire a person in the United States without proper work authorization. While the person cannot work without work authorization, there are ways to tide the person over for short periods of time while waiting for adjudication. In particular, in some instances the employer can give the potential employee a “signing bonus” as some support for the person waiting for the adjudication, so long as the person does not work in the interim and has status to remain in the United States while waiting for the H-1B.
Employers who are considering hiring a foreign national in H-1B status should plan to prepare and send theie petition to USCIS on March 31, 2010, or as soon thereafter as possible, for the coming year’s H-1B quota.
Employers need to resist any temptation to have potential employees begin or continue working, even in what might be considered volunteer positions, without the proper work authorization. Hiring employees without the proper authorization can subject the employer to penalties and subsequent scrutiny under the immigration law.

Prepare for filing H-1B petitions- Acceptance date approaching

On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will start accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a very popular choice for companies who want to hire foreign workers to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree or the equivalent.  
There are 65,000 H-1B visas available each year, with an additional 20,000 H-1B visas reserved for holders of U.S. master's or higher degrees. Although USCIS  normally reaches the quota in the first week of filing in previous years, the quota in 2009 was not filled until December 2009. Since we anticipate that the H-1B visa numbers will be filled more quickly this year as the economy starts to recover, an April 1st target date for filing H-1B applications will increase the chances of a successful H-1B petition.
To meet the target filing date of April 1st, it is recommended that employers start evaluating their needs for H-1B workers now. Unlike previous years, there is no longer the possibility of one-day approval from USDOL for Labor Condition Applications - which are required in order to file the H-1B petition with USCIS. The USDOL is generally taking seven days to process Labor Condition Applications and it is expected that this processing time will increase as employers prepare to file the H-1B applications.
Possible candidates for H-1B visas are current employees or potential new hires now working in F-1, J-1, L-1 and TN categories whose employment authorization will expire before October 2011.


Citizenship and Integration grant opportunities announced by USCIS

The U.S. Citizenship and Immigration Services (USCIS) has announced the availability of two different grants, totaling $7 million that are designed to promote citizenship education and immigrant integration in communities across USA.
“Each aspiring citizen represents a personal story of sacrifice and triumph,” said USCIS Director Alejandro Mayorkas. “This funding will increase opportunities for English language instruction, promote the rights and responsibilities that define our nation, and provide much-needed support for individuals on the path to citizenship.”
The first grant is aimed at strengthening locally-based citizenship preparation programs. The second grant will aim to increase the capacity of members or affiliates of national, regional, or statewide organizations to offer citizenship services in underserved communities. USCIS expects to announce an estimated 50 award recipients in September of 2010.
Those organizations planning to apply for either of the grants must send a mandatory letter of intent to by March 26, 2010. To apply for either of the programs, visit Applications for both grant opportunities are due by April 30, 2010.
During the fiscal year 2009, USCIS awarded $1.2 million in grants to 13 immigrant-serving organizations across the country. These awards are currently expanding services and outreach on U.S. citizenship, educational opportunities, and available resources to nearly 70,000 LPRs in 11 states.