Tag Archives: visa

Stateside Waiver Reduces the Burden of Separation for Immigrant Families

New regulation officially entitled “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” has finally been published and will take effect on March 5th, 2013. President Obama’s promise of immigration reform is finally beginning to take shape and the preservation of family unity seems to be a major point of emphasis in the newest legislation.  The painful separation of families via the consular visa process will be significantly reduced as a result of the new stateside waiver processing.

This legislation applies specifically to thousands of immigrants currently unable to legally adjust their status within the United States, as a result of accruing unlawful presence, by way of illegal entry or a visa overstay of 180 or more days. Previously, these individuals had to seek an official pardon known as an “inadmissibility waiver” from the American consulate in their native country, often an uncertain process for an immigrant on shaky legal footing, leaving their family in the US posed a significant risk of being unable to return, resulting from an automatic ten year ban for those lacking a legal status.

 During the waiver application process an individual must prove that his/her family would suffer extreme hardship as a result of deportation. If the waiver is approved, an individual still must return to their native consulate, to file for a visa, but the risks of being stranded without legal re-entry are significantly minimized with the approval of a waiver beforehand.  Even in successful cases where individuals were granted legal re-entry, many still found themselves stranded in a state of limbo for several months, while consulates finalized their visa applications. Luckily, under the new regulation, waivers of inadmissibility can now be filed stateside, alleviating the stress placed on families during the process. The new legislation aims to standardize and speed up waiver processing, ending the wide variety of consular interpretations of the term “extreme hardship.”  US officials now estimate that waiting times for a visa petition could be reduced to “a matter of weeks.”

Still the difficult and nebulous task of demonstrating extreme hardship incurred by relatives remains central to the process. Additionally, for an individual to qualify for the new stateside waiver rule he/she must:

  • Be present in the United States at the time of filing the application for a provisional unlawful presence waiver
  • Be over the age of 17
  • Must not be inadmissible on the grounds of posing a criminal/national security threat
  • Is the spouse, parent or minor child of a US citizen
  • Is the beneficiary of an approved immediate relative petition
  • Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
  • Will depart from the United States to obtain the immediate relative immigrant visa

At this point, it is unclear how these waivers will be handled by USCIS; it is unlikely that an unsuccessful waiver application will trigger immediate deportation, unless the individual has outstanding offenses in a criminal record or poses a threat to national security. The new stateside waiver law offers individuals more time stateside to ease the burden of travel and an opportunity to gain legal status, if their removal will indeed cause extreme hardship for their immediate relatives. So far the new waiver rule only applies to immediate family members, but could be potentially expanded to include other relatives in the near future.

The application fee for the waiver is $585; individuals may file more than one application through different relative beneficiaries, if their first petition is rejected. Although USCIS will not begin processing applications until March, individuals should take this time to assemble proper documentation and assure that they appear as a beneficiary on an approved immediate relative petition, if they have not yet done so. If you need assistance or have questions about this process, please consult the experienced immigration attorneys at Visawolf.

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Expanded US Visa Interview Waiver Program in India

As of November 19, 2012 American Consulates throughout India have expanded the Interview Waiver Program to include H-1B and L-1 renewals. Under the Interview Waiver Program for India, certain applicants for visa renewal may submit their applications for consideration for streamlined processing, including waiver of a personal interview.

 

Here are the visa categories eligible for the Interview Waiver Program for India

  • Temporary workers on H1-B visas
    • Temporary workers on Individual L1-A or Individual L1-B visas
    • Business/Tourism (B1 and/or B2);
    • Dependent (J2, H4, L2)
    • Students returning to attend the same school and same program
    • Transit (C) and/or Crew Member (D) – including C1/D.
    • Children applying before their 14th birthday traveling on any visa class
    • Applicants applying on or after their 80th birthday traveling on any visa class

 

Some additional notes on the Interview Waiver Program for India

 

  • The applicant must be a citizen or legal resident of India
  • The visa applicant must be renewing a visa that is still valid or that expired within the past 48 months
  • The renewal application must be for the same visa classification as the previous visa.
  • The previous visa must not carry the annotation “clearance received”
  • Even if the applicant meets all the above criteria, a US consular officer may still require an interview for any visa applicant in any category.
  • The applicant may still need to make an appointment for biometrics (fingerprint and photograph) collection
  • All applicants must submit all required fees and the DS-160 application form

 

For more details about procedures for submitting a renewal application, please contact our office or see

http://www.ustraveldocs.com/in/in-niv-visarenew.asp

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H-1B Visas: 3 Facts Employers MUST Know

As October dawns upon us, many employers will be faced with the complexities of the H-1B visa process. In order to alleviate the anxiety and stress associated with this procedure, Visawolf brings you our “H-1B Visas: 3 Facts Employers MUST Know”.

1. What is the earliest an H-1B worker can apply for the new H-1B visa at the US consulate?

The US State Department Foreign Affairs Manual, states that (9 FAM 41.53 N8.4(b)) consular officers are authorized to accept H-B visa petitions and issue visas to qualified applicants up to 90 days in advance of the start date indicated on the approval notice. The officer must inform the visa applicant verbally and in writing that he or she may only use the visa to apply for entry to the United States no more than ten days prior to the H-1B status period indicated on the approval notice. Such visas will be annotated, “Not valid until (ten days prior to the petition validity date.)”

2. Is there a deadline by which an H-1B worker must apply for the visa? Is it ever too late?

No, the H-1B worker can apply for the visa at any time during the validity period of the H-1B approval notice.

However, it will be advantageous to apply for the visa as early as possible. This is because the documentation provided with the H-1B petition will still be fresh at the time the visa applicant goes to the consulate.

If the information in the H-1B petition is not fresh at the time the H-1B candidate goes to the consulate, there is a higher chance that the consulate will ask questions about the job offer and whether the same opportunity exists today as it did when the H-1B petition was filed. More documentation may be required and a lot more time in the visa application process could result.

3. At what point after the H-1B worker enters the United States is the employer required to add him or her to the payroll?

Pursuant to US Department of Labor regulations at 20 CFR § 655.731(c)(6), if the H-1B worker is brought from outside of the U.S., he must be put on the payroll at the time he presents himself for employment or 30 days after arrival in the U.S., whichever comes earlier.

If the foreign national is in the U.S. and a change of status has been applied for, the employment relationship may not commence until the effective date of the change of status. From that date, the employment must commence on the date that the employee presents herself as ready for employment or 60 days after the effective date of the change of status to H-1B, whichever comes earlier.

If the candidate is already in H-1B status with another employer, employment with Sparta can commence as soon as the H-1B petition is filed. Sparta also has the option to delay commencement of employment of the H-1B until the effective date of the H-1B approval notice, or up to 60 days later.

We hope this segment has cleared up any confusion regarding the H-1B visa process. For further inquiries, please respond to this post or contact us directly via email: social@visawolf.com

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