Today, the U.S. Department of State issued a revised visa bulletin for October 2015 changing the eligible filing dates. EB India, China and Philippines are impacted. EB-2 China was moved back by 1 year and 4 months, EB-2 India moved back 2 years, and EB-3 Philippines moved back 5 years. The Department of State reported that following discussions with the Department of Homeland Security, the dates for filing applications were adjusted to better reflect a time frame that would justify immediate action in the application process. USCIS has confirmed that the agency will be following the dates on the revised bulletin for determining eligibility to file applications for permanent residency in the month of October.
The revised dates are going to cause major upset to the many foreign nationals who believed that they would be eligible to apply to adjust status to permanent residency based upon official Department of State guidance. As explained in our prior post, the ability to file these applications facilitates eligibility for ancillary benefits such as employment portability, child status protection, travel and employment authorization for family members.
On at least one other occasion major changes to the visa bulletin such as this were sufficient to prompt a lawsuit and result in USCIS being forced to honor the prior visa bulletin. Mehlman Barnes LLP will continue to monitor this issue and will provide updates as they become available.
Effective Thursday, September 24, 2015, USCIS announced suspension of final adjudications of employment-based Form I-485 applications to register or adjust status to permanent resident. The announcement is the result of the Department of State reporting that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015.
This suspension applies to all employment-based adjustment applications pending with USCIS through September 30, 2015 (the remainder of FY2015). USCIS is continuing to accept adjustment of status applications that are filed when the foreign national’s priority date is earlier than the cut-off date published in the September Visa Bulletin for his or her preference category and country of chargeability. USCIS will resume final adjudication of employment-based adjustment applications beginning October 1, 2015, when visa numbers are again available.
The worldwide cosmetics industry has combined revenues exceeding $170 billion. As a historical matter, this booming industry has been led by a handful of heavy market players such as Proctor and Gamble, Shiseido Company, and L’Oréal Cosmetics to name a few. With exception to those headquartered in the United States, the remaining industry leaders have something in common in that most are headquartered within a visa waiver country with substantial operations also taking place in the United States. This makes business travel to the United States for industry employees as convenient as carrying a TSA-approved beauty kit through security to avoid hassles at the airport. When it comes to business travel, however, HR teams in the cosmetics industry must beware of the convenience of the visa-free “beauty kit” offered by the Visa Waiver Program (VWP). Absent intracompany travel compliance controls, industry employers may be unknowingly availing themselves to liabilities for violating U.S. immigration laws.
The United States’ VWP is facilitated through ESTA, an online application system administered by U.S. Customs and Border Protection (CBP). The VWP essentially allows travelers for business or tourism from designated countries to travel to the U.S. for up to 90 days without a visa. There are currently 38 countries eligible for travel pursuant to VWP, including most western and eastern European countries as well as select Asian countries including Japan. Nationals of the 38 countries seeking to travel pursuant to VWP simply need to submit an application through ESTA, pay a nominal application fee, and receive application approval. In most instances approval is granted within seconds, making it possible to apply literally moments prior to boarding the plane. Approved ESTA applications are valid for a period of two years, or until the passport expires, whichever is earlier.
The problem with the proverbial beauty kit we know as VWP is that its convenience and ease-of- use facilitates fast and efficient visa-free business travel, but it does not facilitate U.S. employment authorization. Visiting the U.S. in VWP status will be compliant with U.S. immigration laws if the individual employee is simply attending business meetings with colleagues. However, if the visit is comprised of more than discussing business strategies in a conference room setting, a work authorized immigration status is likely required. Conducting any gainful employment activity in the U.S. in VWP status constitutes a violation of immigration laws and can result in significant fines as well as future mandated compliance requirements for the employer.
The burden falls on the employer and the business traveler to ensure compliance and proper use of immigration status. Most international companies have a process in place whereby employees may request an invitation letter from the U.S. host entity explaining the parameters and the dates of the intended business visit. Unfortunately, however, in many international companies the potential consequences for improper use of VWP aren’t taken seriously or simply aren’t realized. Many employers fail to maintain compliance controls in intracompany travel programs and as a result the information presented in invitation letters is not always authenticated by HR prior to the employee’s departure. Compliance issues are likely to go undetected for quite some time, allowing liabilities to multiply, until a pattern or practice of non-compliance is either detected or reported and an investigation ensues.
To put the potential ramifications of visitor travel violations in perspective for cosmetics industry employers, consider a recent case stemming from the high technology industry. In 2013, Infosys, an India-based technology and consulting company was fined $34 million dollars by the U.S. government for visa fraud. The charges surfaced after an employee of the company reported that the company routinely generated “invitation letters” containing false statements about what activities employees were actually performing while visiting the U.S. The letters stated that visiting employees were traveling for purposes of “meetings” or “discussions” when the true purpose was productive employment activities. This case and the $34 million fine that ensued highlights how the lack of internal intracompany travel compliance controls can carry significant consequences.
It is important to note that while the charges in the Infosys case were based on an employer circumventing U.S. immigration laws surrounding B-1 visitor visa travel, the consequences for VWP travel violations are just as serious. U.S. immigration laws use the same definition to define business travel for purposes of both B-1 and VWP eligibility, the only distinction being that the B-1 visa stamp is required for nationals of countries that are not VWP eligible. Henceforth, business travel that amounts to improper gainful employment carries similar consequences regardless of whether a B-1 visa or VWP facilitated the U.S. entry.
Much like the conveniences the TSA-approved beauty kits offer to travelers who wish to avoid delays at airport security, VWP travel is attractive to industry employees for avoiding the delays that typically accompany visa processing and/or visa-based admissions. It is even fairly common for CBP to admit VWP travelers without first reviewing invitation letters. Nonetheless, be cautioned that over the course of time as travel patterns are monitored the likelihood of noncompliance detection increases. Accordingly, HR teams in the industry must exercise due diligence to ensure that intracompany travel compliance protocols are in place prior to allowing any employees to visit U.S. operations. Failure to implement intracompany travel compliance controls now could leave employers in possession of a beauty kit at the bargain price of $34 million.
Today, USCIS and the State Department announced a ground breaking change with respect to determining green card availability. Pursuant to the new announcement, the State Department’s monthly visa bulletin will now encompass two “priority dates.” One priority date acts as an eligible filing date for purposes of applying for an employment-based green card and the other acts as an eligible final action date, at which time the green card application may ultimately be adjudicated.
The benefits of this announcement will be far reaching. Nationals of countries such as China and India have historically experienced backlogs upwards of 10 years to become eligible to even apply for a green card and receive the ancillary benefits associated with pending green card applications such as employment portability, child status protection, travel and employment authorization for dependent family members. While this new procedure will not alleviate or completely remove the backlogs to attain green cards, it will make available these ancillary benefits to many classes of individuals much sooner than the old system would allow.
For assistance with determining green card eligibility for your foreign national employees, contact Mehlman Barnes LLP.
Mehlman Barnes LLP partners confirmed to speak at the 28th Annual AILA California Chapter’s Conference to be held November 12th to 14th at the Loews Coronado Bay Resort. Attorney Shannon N. Barnes will speak as part of a distinguished faculty on hot immigration law topics in California, while Sharon R. Mehlman will lead a panel discussion concerning immigration solutions for small businesses.