March 2016 Newsletter
In This Issue
DHS Implements VWP Changes in Response to Terrorism Concerns, Announces Further VWP Travel Restrictions
In January, the United States began implementing changes to the Visa Waiver Program (VWP) under a new law. Travelers in several categories are no longer eligible to travel or be admitted to the United States under the VWP. The Department of Homeland Security (DHS) announced on February 18, 2016, that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 by adding Libya, Somalia, and Yemen as three countries of concern. DHS is limiting VWP travel for certain individuals who have traveled to these countries.
Under a new law enacted by Congress in December 2015, the Secretary of Homeland Security had 60 days to determine whether additional countries or areas of concern should be subject to the travel or dual nationality restrictions under the Act. In consultation with the Director of National Intelligence and the Secretary of State, the Secretary of Homeland Security determined that Libya, Somalia, and Yemen be included as countries of concern, specifically for individuals who have traveled to these countries since March 1, 2011. The restriction on Visa Waiver Program travel does not apply to dual nationals of these three countries. DHS said it continues to consult with the Department of State and the Office of the Director of National Intelligence to develop further criteria to determine whether other countries should be added to this list.
The United States began implementing changes under the new law in January 2016. The three additional countries designated join Iran, Iraq, Sudan, and Syria as countries subject to restrictions for VWP travel for certain individuals. Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis, DHS said. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of a humanitarian nongovernmental organization on official duty; or as a journalist for reporting purposes.
DHS said the latest addition of the three countries indicates "the Department's continued focus on the threat of foreign fighters." DHS said it was the latest step in a series of actions over the past 15 months "to strengthen the security of the Visa Waiver Program and ensure the Program's requirements are commensurate with the growing threat from foreign terrorist fighters, many of whom are nationals of Visa Waiver Program countries."
DHS noted that those affected will still be able to apply for visas using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, DHS states, "U.S. embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The new law does not ban travel to the United States, or admission into the United States, and the great majority of Visa Waiver Program travelers will not be affected."
Click here to read the announcement.
Updated ESTA Form
US Customs and Border Protection (CBP) has announced that a new version is now available online of the Electronic System for Travel Authorization (ESTA) form used by travellers to apply for visa-free travel to the US under the Visa Waiver Program. The updated form now includes questions addressing the travel eligibility requirements imposed by a recent change in US law. CBP suggests that the updated form will help them determine when to grant waivers allowing ESTA travel to people who have recently travelled to certain countries (including Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen) for government-related, humanitarian or business purposes.
US Embassy London - New Website; Scheduling Visa Appointments
The US Embassy in London has launched its updated website with new organization and mobile-viewing features under the new web address https://uk.usembassy.gov.
Tech, Business Executives Petition Congress To Undo New Restrictions on Visa-Free Travel
Almost three dozen technology and business executives petitioned the U.S. House of Representatives and Senate to repeal new visa provisions restricting visa-free travel to the United States for certain travelers under the Visa Waiver Program. The petitioners say the new rules are discriminatory and bad for the U.S. economy.
Signatories to the petition include Mark Cuban, owner of the Dallas Mavericks and Landmark Theatres; Jack Dorsey, CEO of Twitter and Square; Omid Kordestani, Chairman of Twitter and former Chief Business Officer of Google; Max Levchin, Co-Founder of Paypal; Ben Silbermann, CEO of Pinterest; and others.
The petition notes that until now, citizens of the United States, Europe, Japan, South Korea, and others (38 countries in total) enjoyed a reciprocal arrangement to travel visa-free. The new law ends this right for travelers to the U.S. "based on discriminatory criteria," the signatories note. They argue that this "invites reciprocal measures restricting U.S. citizens traveling to Europe and the other countries, potentially weakening the power of the U.S. passport for millions of U.S. citizens."
In addition, they say that "discriminating based on national heritage is inconsistent with American values. In effect, certain provisions of the new law require visas for Europeans and other citizens with Iranian, Sudanese, Syrian, or Iraqi heritage." The signatories likened this to Congress mandating "special travel papers for citizens based on their faith or the color of their skin." In the balancing act between fighting terrorism and upholding American liberties, they say, "these provisions go too far."
The signatories also said they believe the new restrictions harm U.S. business interests. "Millions of European, Japanese, and Korean citizens travel as employees, customers, and suppliers of American firms. Requiring many of them to get visas imposes bureaucratic delays on U.S. firms. This reduces the agility and liberty of U.S. firms, makes us less competitive in the global economy, and will ultimately cost jobs," they warned.
The petition states that the signatories support the bipartisan Equal Protection in Travel Act (H.R.4380/S.2449). "We encourage Congress to enhance security via technology leadership and international cooperation without creating barriers that isolate us from our global partners," they said.
The petition, which has 1,320 supporters so far, is here.
USCIS Will Accept H-1B Petitions for FY 2017 Beginning April 1, 2016
On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master's degree or higher are exempt from the 65,000 cap.
USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year's program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS has used the lottery for the H-1B program for the last several years.
Premium processing for cap-subject petitions. H-1B petitioners may still continue to request premium processing together with their H-1B petitions. However, USCIS may temporarily adjust its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season.
Filing. USCIS reminds H-1B petitioners that when the temporary employment or training will be in different locations, the state where the company or organization's primary office is located will determine the appropriate Service Center to which petitioners should send the Form I-129 package, regardless of where in the United States the various worksites are located. When temporary employment or training will be in different locations, the address on page 1, Part 1 of Form I-129 is for the organization's primary office. When listing a "home office" as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.
Cases will be considered accepted on the date USCIS "takes possession of a properly filed petition with the correct fee."
State Dept. Estimates Visa Number Availability in the Coming Months
The Department of State's Visa Bulletin for March 2016 includes estimates of visa number availability (potential monthly movement) in the coming months. Estimates for the employment-based categories include:
China: Up to five months
India: Up to three months
Worldwide: The rapid forward movement of this cut-off date during the past 10 months should generate a significant amount of demand for numbers. When such demand begins to materialize, it will be necessary to limit movement of this cut-off date.
China: Up to five months
India: Up to one month
Mexico: Will remain at the Worldwide date
Philippines: Up to four months
Current for most countries
This category will remain "Current" for most countries.
China-mainland born: Slow forward movement
The above projections for the employment categories indicate what is likely to happen on a monthly basis through June based on current applicant demand patterns, the Visa Bulletin explains. Recent trends in cut-off date movements are not guaranteed for the future, and it is possible that "corrective" action may be required to maintain number use within the applicable annual limits. The Visa Bulletin notes that determinations of the actual monthly cut-off dates are subject to fluctuations in applicant demand and a number of other variables.
The Visa Bulletin for March 2016 is here.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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