TN and L Visa Holders Enter at Select Ports of Entry to US from Canada

Beginning in mid-September, US Customs and Border Protection (CBP) is streamlining the entry process for first-time Canadian TN and L applicants seeking entry into the US under NAFTA. CBP has designated ports of entry that will ensure a more efficient approach to processing the high volume of TN and L applicants.

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities at a professional level. The L-1 nonimmigrant classification — Intracompany Transferee Executive or Manager — enables a US employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the US. This classification also enables a foreign company that does not yet have an affiliated US office to send an executive or manager to the US with the purpose of establishing one.

While there is no requirement to go to these designated ports of entry, first-time applicants are encouraged to enter through these ports for ‘optimized processing’ at 14 ports, including 4 pre-clearance centers.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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H1B Spouses May Be Allowed to Work in the US

DHS has proposed allowing spouses of H1B visa holders in H4 status to work while waiting for their legal permanent residence to be approved.

The idea is to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining time in the US, strengthen entrepreneurship and innovation, and to help the US attract and retain highly-skilled immigrants.

The H1B visa holder must have an approved I-140 form and should have an extension of their H1B status beyond 6 years.

Specifically, the change to the regulation would:

  • Update the regulations to include non-immigrant highly-skilled specialty occupation professionals from Chile and Singapore (H-1B1), and from Australia (E-3), in the list of classes of aliens authorized for employment incident to status with a specific employer;
  • Clarify that H-1B1 and principal E-3 non-immigrants are allowed to work without having to separately apply to DHS for employment authorization; and
  • Allow E-3, H-1B1, and CW-1 non-immigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94 Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.
The proposed rules will be published shortly and will invite comments for a 60 day period.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us
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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

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CBP Allows Domestic Partnerships and Blended Families to File a Single Customs Declaration

On 12/13/2013, the US Customs and Border Protection (CBP) broadened the definition of “members of a family residing in one household” to include long-term same-sex couples and other domestic relationships, a departure from the usual practice of a ‘family’ file multiple forms for each member, creating extra paperwork and a waste of processing time on entry to the US.

The rule will become effective on January 17th, 2014 after the holidays. The rule applies to both returning US citizens, US residents and international visitors who can now file a joint customs declaration for items purchased or brought from overseas.

CBP expects this process streamlining to save up to $2.8 million annually in personnel time.

New Definition of Domestic Relationships

“Domestic relationship” would be defined to include:

  • Foster children, stepchildren, half-siblings, legal wards, other dependents, and individuals with an in loco parentis or guardianship relationship with the children.
  • Two adults who are in a committed relationship including, but not limited to, long-term companions and couples in civil unions or domestic partnerships where the partners are financially interdependent, and are not married to, or a partner of, anyone else.

“Domestic relationship” excludes roommates or other cohabitants who do not meet the above definition.

“Members of a family residing in one household” will continue to include relationships of blood, adoption and marriage.

What This Change Will Mean to Travelers

For US Citizens and Residents

  • Under the new definition of domestic relationship, one combined family declaration can be presented to the CBP officer upon arrival.
  • For returning U.S. residents to be considered members of a family and group their exemption from customs duty and internal revenue tax, individuals must have lived in one household at their last permanent residence and intend to live together in one household in the U.S.
  • As with any joint declaration, verbal or written, the person making and/or signing the declaration will be held accountable for its validity.
  • If family members are U.S. residents, regulations allow them a personal duty exemption of up to $800 per individual and up to $1,600 per family.

For International Visitors

  • Under the new definition of domestic relationship, one combined family declaration can be presented to the CBP officer upon arrival.
  • For visitors to the U.S., regulations allow them certain exemptions (gifts, tobacco, personal effects, etc,), and they will be able to file a single family declaration, but they do not have the same personal duty exemption of $800 (individual) and $1,600 (members of a family) allowed to returning U.S. residents. As with any joint declaration, verbal or written, the person making and/or signing the declaration will be held accountable for its validity.

The Takeaway

Families are now redefined to include domestic partnerships, civil unions, unmarried persons living together, couples in same sex relationships and their biological, adopted and foster children. Families must reside together and continue to reside in the same home after they return to the US. There must be a financial relationship between the couple, which could mean a joint tax return or other means of sharing the financial burden of their home.

See also:
DOMA Issues After the Passage of “US v. Windsor”
USCIS releases FAQ on Immigration Benefits for Same Sex Marriages

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Is I-94 so important?

Form I-94 and its Uses

This piece of paper that measures 4×5 inches is how a non-immigrant visa (NIV) holder proves that he or she has exited the country. Clients often call us because they were told when they re-entered the US that they did not surrender their Form I-94 on exit. The paper is also very important to international students because it shows that they are here for the duration of the status of their visa — i.e. they do not have to exit until their program is over, and this stay could, under the right circumstances, exceed the length of their stamped visa. The I-94 is also used for Form I-9 purposes, to record the foreign passport, visa and I-94 number, and serves as a List A document for purposes of worker identity and work authorization. No other document needs to be produced by the worker as eligibility to work, which protects both the employer and employee.

Now with the electronic I-94, the apple cart has been tipped! Years of procedure and practice are to be replaced by a new process that State DMVs, federal agencies and employers need to learn. Software has to be amended to accept electronic I-94 cards.  The good news is that a duplicate I-94 can be printed as long as the NIV is in the US; the I-94 record disappears as soon as the NIV exits the US.

Form I-102 should still be used to correct mistakes in the record (filing fee $330); however, US Customs and Border Protection (CBP) should be contacted in case of mistakes in the I-94 passport stamp. If CBP issued you Form I-94, I-94W, or I-95 with incorrect information (ex: misspelled name, incorrect date of birth, visa classification or date of admission), you should not file Form I-102. You will need to go in person to the nearest CBP port of entry (POE), or the nearest CBP deferred inspection office (DIO), to have the information corrected. For locations and hours of operation, visit CBP’s website at www.cbp.gov.

If you would like more information, please read my overview of electronic I-94.

More resources:
FAQ on what to enter to retrieve an I-94
How to obtain a copy of the new I-94
ICE I-94 Fact Sheet

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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CBP Announces Electronic Form I-94 Arrival/Departure Record

Form I-94 is the main way in which persons who are not US citizens, and who are not legal permanent residents, demonstrate their legal entry into the US. Customs and Border Protection (CBP) have announced the digital automation of Form I-94 Arrival/Departure, which will standardize travelers’ arrival and inspection processes, and ultimately lower costs and travelers’ wait time. Currently, CBP does not have a fail-safe method of keeping track of non-immigrant departures — an electronic I-94 could eliminate this loophole.

In late March, CBP published an interim final rule to the Federal Register, which redefines the definition of Form I-94 to include the electronic format and will be effective on April 26, 2013. Non-immigrants, who enter the US by air or sea will not have to submit paper Forms I-94.  But those who are subject to secondary inspection and asylees, refugees and parolees, will be required have to submit a paper form given to them by a Customs and Border Patrol officer. Travelers who enter through land border ports of entry will receive paper versions of Form I-94.

CBP will maintain I-94 records for all travelers who require one, but all records will instead be entered into the system in an electronic format and not given to the traveler. CBP will scan the traveler’s passport, creating an electronic arrival record for that person. Travelers will receive a CBP admission stamp on their travel documents, which detail the date and class of admission, and the admitted-until date. Departures will also be recorded electronically — if the traveler has a paper I-94, then he/she must surrender it upon leaving the US.

Some agencies will require a paper copy of Form I-94. USCIS will ask applicants to fill out paper copies when requesting particular benefits; and the State Department of Motor Vehicles (DMVs) will ask for paper copy submissions. In addition, non-immigrants with work authorization can present paper copies of Form I-94 to their employers during the Form I-9 process. If a traveler needs a paper copy of Form I-94, it will be available at www.cbp.gov/I94.

The Takeaway

Since this program is very new, we can expect confusion from all corners for a while, and differences in enforcement and paper documentation requirements from agencies. If you are a non-citizen, who is not a permanent resident, you will not receive a paper I-94 form from CBP as you enter the US, if you come by air or by sea. You will continue to receive a paper I-94 if you come by land from Canada or Mexico, if you require a secondary inspection, or you are a refugee or asylee. The problem is that USCIS and individual state-run agencies, such as drivers licence bureaus, will continue to require the now defunct I-94 form. In addition, it will become important to log onto the CBP website to ascertain that all your details on the electronic record are correct, and to print out a copy for your non-immigrant record. The electronic record will be erased from the system on departure from the US — maintaining a paper copy to prove departure may be useful under these new circumstances.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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