SEVIS Termination After Cap H-1B Consular Processing Approval?

Every year, many F-1 international students are named as beneficiaries in cap H-1B petitions to seek employment authorization. There are multiple ways H-1B status can be granted to an F-1 student. Most H-1B employers request that the F-1 student be granted a change of status from F-1 to H-1B. In this case, the student's status will be changed from F-1 to H-1B seamlessly. 

If the prospective H-1B worker is outside the U.S., employers will request the approval notice to be sent to an overseas U.S. consular office, so that the employee may apply for an H-1B visa to enter the U.S. to commerce H-1B employment. This process is known as “consular processing”. 

While consular processing usually is requested for employees who are outside the U.S., some F-1 students may choose this route even if they are staying in the U.S.  One reason for this decision is that they want to exhaust the OPT/STEM OPT period before starting the H-1B employment period.  

In this situation, the SEVIS record should continue to reflect the student's F-1 or OPT status. However, there are still numerous reports that students' F-1 SEVIS records got automatically terminated on October 1st, even though consular notification was requested and approved in their H-1B petition. Several of our clients also encountered this issue recently. 

For example, one of our clients was currently in the last semester of his academic program, and had a cap H-1B consular processing approval. He was surprised to find out from his school that his F-1 SEVIS record was terminated on October 1st, 2023. Since his H-1B status was not yet effective, he suddenly became out of immigration status. Another client, who recently received her OPT work authorization and opted for consular processing, also received notice that her F-1 status would be terminated because of the H-1B approval. This means she would lose the unused portion of her OPT employment authorization.

If this happens, an F-1 student should contact their school DSO and/or program advisor immediately, and request the officer to perform a "data fix" to the SEVIS record to correct such mistakes in a timely manner. School DSOs should submit a data fix ticket to the SEVIS helpdesk for the correction. An I-797 approval notice reflecting the consular notification would usually be required in a data fix request. The specific language they should be looking for on the notice would be "(t)he above petition has been approved, and notification has been sent to the listed consulate". 

While the erroneous F-1 termination could be frustrating and terrifying, F-1 students should stay calm and take immediate action. Otherwise, their status and work authorization will be jeopardized, and a formal F-1 status reinstatement, which is more complicated and time-consuming, would be required. When in doubt, be sure to reach out to an experienced immigration attorney for advice and assistance.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Broadened National Interest Exception for Qualified H-1B/ L-1 Visas

The Department of State (DOS)  announced further relaxations on 8/12/2020 regarding President Trump's ban on H-1B/L-1 visas. 

One major exception is allowing H-1B and L-1 applicants who "resume ongoing employment in the U.S. in the same position with the same employer and visa classification" to be issued an H or L visa. This typically covers H-1B and L-1 employees who are extending their work authorization with the same employer in the same position. 

What about the H-1B workers who are applying for new employment, changing position or employer, and L-1A applicants who are establishing a new office in the U.S.? 

Alternatively, an H-1B applicant may be eligible for a visa if TWO of the following criteria are met:

1) The employer has a continued need for the services or labor to be performed by the applicant in the U.S. 

Consulate officers will look at Labor Condition Applications (LCAs) to determine if this criterion is met. If an LCA is approved during or after July 2020, it is an indicator itself showing that the employer still needs the H-1B worker. For applicants with an LCA approved before July 2020, Consulate Officers need to look that the complete visa application to determine if the continuous need from the U.S. employer is established. However, if the essential functions of the H-1B position can be done from outside the U.S., this criterion is not met regardless of when the LCA was approved. 

2) The U.S. employer is meeting a critical infrastructure need and the H-1B worker will provide significant and unique contributions to the employer. 

This is a two-prong test. First, the H-1B worker must either in a senior-level position, or provide a service that is unique and vital to the management and success of the employer, or has special qualifications that will provide significant and unique contributions to the U.S. employer. 

Critical infrastructure sectors includes chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. 

3) The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage as provided in the LCA at least 15 percent. 

4) The applicant's education, training and/of experience shows unusual expertise in the specialty occupation in which the applicant will be employed. 

According to the DOS, the applicant can be a doctorate or professional degree holder, or have many years of relevant work experience to demonstrate the advanced expertise. 

5) Evidence to show that the denial of visa under the Presidential Proclamation will cause financial hardship to the U.S. employer. 

For L-1A applicants, a visa may also be issued when at least TWO of the following requirements are met:

1) Will be a senior-level level executive or manager;

2) Has spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

3) Will fill a critical business need for employer relating to a critical infrastructure need. 

For L-1B applicants, if they are not staying with the same employer and same position, they need to fulfill the following requirements before they are able to get a visa:

1) the applicant will provide significant and unique contributions to the U.S. employer; 

2) the applicant's specialized knowledge is specifically related to a critical infrastructure need; AND

3) the applicant spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

The broadened exceptions for H-1B and L visa applicants are positive news. But these exceptions present new requirements that are not easy to fulfill. The pandemic-related travel bans and delayed reopening of the worldwide U.S. Embassies and Consulate Offices are also making it harder for the foreign workers to go back to the U.S, even if they can benefit from these exceptions. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

H and L Visas Processing Limited to Beijing, Guangzhou and Shanghai

Starting March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. H or L visa interviews will no longer be conducted at U.S. Consulate General Chengdu or U.S. Consulate General Shenyang.  U.S. Department of State announced these changes to AILA in a recent liaison meeting.  According to DOS, these changes are made to better handle the high volume and complexity of  H and L visa cases.  The visa categories affected include H-1B, L-1A, L-1B, H-4, L-2, etc.  Chinese visa applicants should pay attention to these changes.  

(Source: AILA Doc. No. 19013039)

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Visa Interview Waiver Program Becomes Permanent

To improve the efficiency of the non-immigrant visa (NIV) application process, and to foster economic activities, the U.S. government introduced a two-year pilot program in January 2012 to waive interviews for certain types of NIV applications.  The program has been made permanent recently by the Department of State, as reported by AILA.  

Under this interview waiver program, consular officers can waive the interview for visa applicants whose previous visas in the same classification expired within the last 12 months.  Applicants must apply for their new visas in the district of their residence.  Further, interviews can also waived for applicants whose previous visas expired between 12 and 48 months ago, unless they are applying for E, H, L, P or R visas.

For example, a foreigner whose B-1 business visa expired one year ago may apply for a new B1 visa in his country of residence without interviews.  However, if the same person decides to apply for an H-1B employment visa, then he will be interviewed.

First time Brazilian visa applicants who are either younger than 16 or older than 65 are also eligible for interview waivers.

American consulates in India further expanded the program to include children applying before their 14th birthday traveling on any visa class; students returning to the U.S. to attend the same school and same program; applicants of H-1B visa applicants; and individual applicants of L1-A or L1-B visas.

In China, where economic development is red-hot, the interview waiver program has also been adopted to facilitate travel of Chinese nationals to the United States.  Consular officers in China may waive interviews for previous holders of B (business/pleasure), C1 (transit), D (crewmembers), F (students), J (exchange visitors), M (nonacademic students), and O (visitors with extraordinary ability) visas when they apply for visa renewals if their previous visas expired with the last 48 months.

In 2011, more than one million non-immigrant visa applications were processed in mainland China with more than 880,000 visas issued.  In 2012, about 1.2 million non-immigrant visas were issued in China, with about 475K visas issued in Beijing, 391K issued in Shanghai, 224K in Guangzhou, 59K in Shenyang, and 54K in Chengdu.  The substantial increase in visa approvals from 2011 to 2012 can be attributed largely to the interview waiver program.

The interview waiver program improves the efficiency of the consulate offices by freeing up visa appointments for first-time visa applicants. For example, the interview waiver program in China was used to free up about 100,000 appointment slots for first-time travelers.  As China's economy takes off, more Chinese citizens are expected to visit foreign countries for personal and business reasons.

Unlike first-time visa applicants, frequent travelers are less likely to overstay their visa status or otherwise violate the U.S.  immigration laws.  Most of them are business travelers or tourists whose presence in the U.S. is crucial to promote the cultural and economic interests of both countries.  Hence, it is reasonable to waive interviews for them.

In spite of the permanency of the interview waiver program, the State Department also makes it clear that consular officers are still obligated to interview applicants for national security reasons or quality control purposes.  Therefore, foreign visitors must always be ready to produce evidence to prove the legitimacy of their travel, and, whenever appropriate, their lack of immigrant intent.

New hope for foreigners who are subject to the three/ten year bar

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

Chennai will no longer process Immigrant Visa petitions as of January 1, 2012.

"Important Announcement: The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for Immigrant Visas.
The Immigrant Visa allows an individual to live and work in the United States on a permanent basis, as well as provides the immigrant the opportunity to work towards U.S. citizenship.
Examples of Immigrant Visa based petitions are those that work toward family reunification of parents, children and siblings. These petitions also include Fiancée and the unique employer category, where one’s employer can petition for the individual and their dependents to immigrate to the United States. This change affects only the locations for processing of Immigrant Visas; it does not change the law or policy for visa processing. Applicants currently in the process of petitioning for an Immigrant Visa may contact ChennaiIVU@state.gov for clarification."

Source: The U.S. Consulate General in Chennai

K-3 MARRIAGE VISA PROCESSING CHANGE

Effectively February 1, 2010, the processing of the K-3 marriage-based visa is changed. If the U.S. State Department National Visa Center (NVC) receives the approved K-3 visa petition and the underlying I-130 immigrant visa petition filed by the same petitioner from the U.S. Citizenship and Immigration Services (USCIS) at the same time, the NVC will administratively close the nonimmigrant K visa petition and continue to process the immigrant visa petition only.

Background
A United States Citizen, after marrying a foreign national, may file petitions for his or her spouse to come to the United States so that they may live as husband and wife. If the foreign spouse lives outside of the United States, there are usually two ways to bring the spouse here. First, the United States citizen may file an immigrant petition for his spouse by using the U.S. Citizenship and Immigration Services Form I-130. Upon approval of the petition, the case will be sent to the National Visa Center in Missouri for further processing. Original documents such as birth certificates need to be presented along with financial support affidavits and documents. Secondly, the petitioner may also choose to file a K petition so that his spouse may come to the United States faster while the immigrant case is pending. This K visa should not be confused with the K-1 fiancée visa, which is designed for unmarried fiancées or fiancés of United States Citizens to travel to the U.S. to get married. For married couples, the K-3 visa should be used. One of the reasons to use the K-3 visa is for the processing time, which is usually a lot faster than the immigrant petition. It has been the practice of the NVC to process both petitions. The foreign spouse may choose to use the K-3 visa to travel to the U.S. first and complete the immigration process here, or to wait for the immigrant visa to be approved and enter the U.S. as legal resident.

Changes of Policy at the National Visa Center
Recently, the NVC announced that in situations where the U.S. Citizen and Immigration Services (USCIS) has approved both the immigrant visa petition and the K-3 petition and forwarded both files to the NVC, the NVC will no longer process both petitions. Instead, the NVC will “administratively close” the K-3 petition and continues to process the Immigrant Visa petition. What it means is that the K-3 file will be closed and placed on the shelf temporarily. If the processing of the immigrant visa for the parties is successful at the end, the K-3 case will no longer be used. The NVC will contact the petitioner and you with instructions for processing their immigrant visa. However, if the NVC does not receive both I-130 petition and the I-129F K-3 petition simultaneously, the NVC will continue to process the K-3 petition by sending it to the embassy or consulate in the country where the marriage took place. If the marriage took place in the United States, the NVC will forwarded the petition to the embassy or consulate that issues visas in the foreigner’s country of nationality.

Conclusion
It appears that the change is to avoid duplicated processing on the government side. By processing only one petition, both time and resources can be saved. However, it is unclear how much impact this change will have on the total processing time. Would it be faster or slower for married couples to be re-united in the U.S. Most U.S. consulate offices especially the busier ones process the K-3 a lot faster than the immigrant visa. It is hoped that consulate processing of the immigration visa will now speed up given that the consulate officers should now have few number of K-3 petitions to process.