Pending Legislation Would Allow Employers to Store I-9 Forms Electronically

Current federal rules prohibit I-9 Eligibility Verification Forms from being stored electronically, yet requires employers to maintain I-9 documents for at least three years after the date of hire, or one year after employment is terminated. However, many employers maintain the forms for longer simply because it would waste resources to audit their files every year.

H.R. 4306, a copy of which is attached, would allow employers to store Employment I-9 forms electronically. The bill passed the House by a unanimous vote and is expected to be enacted. When passed, the provisions of H.R. 4306 are expected to save time and money, especially for larger employers.

Buffalo, New York USCIS District Office Will No Longer Be Involved in Processing Nonimmigrant Waivers

Aliens who are inadmissible to the U.S., e.g. because they have a criminal conviction, are required to apply for a waiver before they can be admitted to the U.S. Prior to the creation of the Department of Homeland Security (DHS), all nonimmigrant waiver applications submitted for admission at a land port of entry along the Niagara River (Peace Bridge, Rainbow Bridge, or Queenston-Lewiston Bridge) or at pre-flight inspection clearance that fell under the jurisdiction of the Buffalo USCIS office (Toronto, Ottawa, and Montreal airports) were sent to the Toronto airport for adjudication. They were then sent to the Buffalo, NY District Office for final review and signing by the INS District Director.

Since the creation of DHS, all port of entry and pre-flight inspections admissions decisions have been conducted exclusively by the Customs and Border Protection (CBP) agency, whereas the District Office in Buffalo now operates under the auspices of USCIS. Despite the fact that these were different government agencies, waivers continued to be adjudicated in the same manner after DHS creation; waiver applications would be submitted to CBP at the borders and then ultimately forwarded to the USCIS Buffalo District Office for final adjudication.

It soon became clear that this system was inefficient and that officers handling waivers lacked accountability. We had clients waiting outside the U.S. over a year to get a standard nonimmigrant waiver approved. Finally, after the Buffalo District Office made several proposals to DHS Headquarters on how to resolve the problem, DHS acted. As of October 29, 2004, USCIS (and the Buffalo District Office) ceased to be a part of the nonimmigrant waiver application process. The District Office will no longer handle any waiver inquiries.

From now on, all waiver applications submitted at a land port of entry will be handled in Champlain. Champlain’s waiver application process is not yet up and running. All applications currently on hand and subsequently filed at pre-flight inspection will be handled in Toronto. The status line for inquiries about current cases is now at Toronto pre-clearance, at 905-676-2563. We will keep our readers updated as more information becomes available on the new nonimmigrant waiver processing procedures.

USCIS Advises on Timing for 7th Year H-1B Extensions

USCIS has advised that a request for a 7th- and subsequent year H-1B extension must be filed no less than 365 days after the date that the labor certification application was filed. If it is filed before 365 days have run, it is subject to denial, even if the extension would not take effect until after the 365 days.

A concrete example may be of some assistance. Say Martin has been in the U.S. on an H-1B for 5 1⁄2 years and his 6th year is due to expire December 1, 2004. Martin’s employer filed a Labor Certification on his behalf on November 1, 2003. Under the rules of AC21 as amended by the DOJ Authorizations Appropriation Act of 2002, he could not file an extension of H-1B status until after the Labor Certification has been pending for 365 days. Therefore his employer would have to file the H-1B extension application sometime after November 1, 2004. However, because Martin’s status is due to expire on December 1, 2004, the extension application must be filed prior to that date. Otherwise, the extension will be considered “untimely” filed and only approvable upon an exercise of favorable discretion of USCIS.

In light of this information, it would be prudent for employers of H-1B nonimmigrants who may bump up against the 6th year of status to get their labor certification applications filed well over a year in advance of the 6-year H-1B mark. That way the employer will have a larger window of time in which it can file the 7th year H-1B extension.

After the 7th year extension of H-1B status, if additional extensions of stay are needed, this should not be an issue, as the Labor Certification will have been pending well over the requisite year by that time.

A Nonimmigrant’s I-94 Arrival/ Departure Card, Not His Visa, is Controlling As To His Period of Authorized Admission to the U.S.

Aliens entering the U.S. as nonimmigrants must undergo scrutiny by several government agencies. Aliens applying for admission in many nonimmigrant categories (e.g. H-1B, L- 1, O-1, or P) are first required to submit a petition to a USCIS regional service center in the United States. USCIS judges on the basis of the evidence submitted with the petition whether the alien is entitled to enter the U.S. in the applied-for category. If USCIS approves the petition, the alien can then take the USCIS approval notice to a U.S. Consulate in his or her home country to apply for a visa.

Aliens applying for admission in other nonimmigrant categories, such as E-1 or R-1, do not need to submit a petition to USCIS. Rather, they can apply directly at a U.S. Consulate in their home country for a visa.

Unless the alien is a native of Canada and thereby exempt from the requirement that he obtain a visa, he must attend an interview before a consular officer at a U.S. Consulate abroad. If the consular officer, an agent of the U.S. Department of State, determines that the alien is qualified to enter the U.S. in a particular nonimmigrant category, the consulate will issue a visa to the alien. The visa gives the alien the right to board a plane that will land on U.S. soil, and the right to make an application for admission at a U.S. port of entry.

When the alien applies for admission to the U.S. at a land port of entry, pre-flight inspection, or at a U.S. airport, he must present his visa if required to do so. He will be inspected by an officer of the Customs and Border Protection (CBP) agency who will decide whether or not to admit him to the United States. In general, if an alien has obtained a visa from a consulate, the CBP officer will defer to the consulate’s decision to admit the alien. However, in the course of inspection it may become evident that the alien is either not qualified to enter in the visa category for which he seeks admission, or else it becomes clear that the alien is ineligible for admission because of a criminal record for which he has not sought a waiver, for health-related reasons, or for some other reason. It is therefore possible for an alien to have a petition approved by USCIS, to obtain a visa from a consulate, and to show up at a port of entry and be denied admission by CBP. While this does not often happen, it is not unheard of.

When CBP admits an alien to the U.S., it issues him or her an I-94 Arrival/Departure card. The I-94 is made of thin white card stock. The portion of the form given to the alien states his name, the nonimmigrant category in which he is being admitted, the date of his admission, and the date on which his stay expires. If he is admitted in an

Despite the general rule that Canadians are visa-exempt, Canadian citizens entering the U.S. in certain nonimmigrant categories are required to obtain a visa. For example, Canadians are required to obtain an “E” Treaty Trader or Treaty Investor visa from a consulate before entering the U.S. Canadians entering the U.S. in “K” nonimmigrant status as the fiancée of a U.S. Citizen (or the children of a U.S. Citizen’s fiancée) must also obtain visas from a consulate, as must “V” nonimmigrants who are the spouses of U.S. Lawful Permanent Residents faced with long delays in I-130 adjudication.

employment-based nonimmigrant category, the back of the I-94 card will be endorsed with the name of his employer.

The expiration date on the I-94 card determines the period of stay for which an alien shall be authorized to remain in the United States. Usually the expiration date on the I-94 card will coincide with the date on which the USCIS approval notice is due to expire. However, for nonimmigrant classes for which USCIS approval is not required, such as “E” treaty traders or treaty investors or R-1 religious workers, there is no USCIS approval notice. In a 1989 INS cable which is reprinted at 66 No. 42 Interpreter Releases 1207, INS advised that E-1 and E-2 nonimmigrants should be admitted to the U.S. for the maximum period of time allowable under the regulations, regardless of when his or her visa is due to expire. While no similar guidance exists on the issuance of I-94 cards for R-1 nonimmigrants, it would follow that R-1 nonimmigrants, who also apply for visas directly at a consulate and do not receive a USCIS approval notice, should also be admitted for the maximum period of stay allowable under regulation.

That said, aliens should be aware that they must either change their status, extend their stay, leave the U.S., or have some other basis for lawfully staying in the U.S. (such as having an adjustment of status application pending) by the time their I-94 cards expire. Aliens who remain in the U.S. past the date on which their I-94 cards expire are out of status and accrue unlawful presence, which can lead to a 3-year or 10-year bar from being readmitted to the United States upon departure. This is true even if the visa in the alien’s passport has not yet expired. All the visa allows is that the alien can apply for admission to the U.S. in a particular nonimmigrant status if authorized to do so by USCIS and CBP. More information on the 3 and 10 year bars is available on our web site at: http://www.usvisahelp.com/art_chgstatus.html.