Chapter 22 - § 22.11 • THE CHANGING WORLD OF IMMIGRATION

• Jurisdiction: Colorado

§ 22.11 • THE CHANGING WORLD OF IMMIGRATION

The events of September 11, 2001, led to sweeping changes in U.S. immigration law and procedure. Those who deal with employees from outside of the United States work in a far more complex environment than they did prior to the terrorist attacks. This section explains a few of the changes and provides practical tips on how to deal with immigration issues in the post-9/11 era.

§ 22.11.1-Overview of Developments in Immigration Law

The events of 9/11 focused the country's attention on the shortcomings of the Immigration and Naturalization Service (INS). The INS failed to track some of the terrorists who entered the United States on student visas. Six months later, to add to the controversy, the INS mailed approval notices for two of the deceased terrorists that would have allowed them to extend their visa statuses and continue their flight training. These failures, along with a multitude of other problems, led to a nearly universal call for the abolition of the INS.

In response, President Bush signed into law The Homeland Security Act of 2002 (Pub. L. No. 107-296), which led to the creation of the new U.S. Department of Homeland Security (DHS). DHS was formed from 22 federal agencies, including the INS. The three primary immigration agencies within DHS include:

1) U.S. Citizenship and Immigration Services (USCIS), which is responsible for providing immigration-related services and benefits, including adjudication of employment-based nonimmigrant and immigrant petitions;
2) Immigration and Customs Enforcement (ICE), which is the principal investigative and enforcement arm of DHS, responsible for enforcing federal immigration and customs laws; and
3) U.S. Customs and Border Protection (CBP), which is charged with protecting U.S. borders, and which conducts the inspection and admission of foreign nationals seeking entry into the United States and the enforcement of customs regulations at the various ports of entry (e.g., airports, land borders, etc.).

Other executive departments also involved with the immigration process include the U.S. Department of State (DOS), which handles visa applications abroad and security checks at overseas embassies and consulates, and the U.S. Department of Labor (DOL), which is responsible for the regulation of alien labor and protection of U.S. workers. In some cases, the DOL is assisted by state government agencies such as state departments of labor or state workforce agencies (SWAs). Additionally, in Colorado, the Colorado Division of Labor is charged with enforcement of Colorado's unique state employment verification law, C.R.S. § 8-2-122, discussed at § 22.11.9.

§ 22.11.2-Scrutiny in Applications for Benefits

In April 2002, just after four Pakistani crewmen had unlawfully obtained visa waivers from a border officer and disappeared into Virginia, the commissioner of the former INS testified before Congress that he had instituted a "zero-tolerance policy with regard to INS employees who failed to abide by headquarters-issued policy and field guidance."²⁹⁶ This directive understandably made a lot of immigration officers nervous. As a consequence, many began to send Requests for Evidence (RFEs), seeking to verify, and often re-verify, employers' assertions in pending visa petitions and to ensure that cases were properly adjudicated. Unfortunately, even though the zero-tolerance policy was eventually rescinded, adjudicators have continued to check and double-check the information in petitions with RFEs. Such requests have led to longer processing times and backlogs at the service centers. Indeed, even when an employer pays for premium processing (an approach by which an employer may pay an additional $1,440 to have a case adjudicated within 15 calendar days), it may find that USCIS will issue RFEs that can still lead to substantial processing delays.

These trends have continued under the Trump administration. Under virtually every employment-based visa category, employers can now expect increased scrutiny. This scrutiny is occurring at the petition stage with USCIS, often leading to requests for additional evidence and sometimes denials. The scrutiny continues at the visa-processing stage at U.S. embassies and consulates throughout the world, frequently leading to greater delays and processing. And the scrutiny continues once foreign-born employees arrive in the United States, with agents from the Department of Homeland Security often conducting on-site inspections (to ensure compliance with applicable law). Consequently, under the current administration, employers who participate in the immigration process can expect greater scrutiny, lower predictability, and greater government interaction.

§ 22.11.3-Employment-Based Nonimmigrant Temporary Visas

Immigration sponsorship of a foreign national by an employer often involves both nonimmigrant visa sponsorship (the temporary work visa) and immigrant visa sponsorship (known as the "green card" or lawful permanent residence). A nonimmigrant visa permits a foreign national to enter the United States for a specific period of time for a narrow purpose. Employment-based nonimmigrant visas are employer-specific and, in most instances, job- and work-location specific. Some of the most common nonimmigrant categories for businesses include B-1, H-1B, H-2B, H-3, L-1, O-1, and TN.

B-1 Visa (Business Visitor)

The most commonly used of all visa types is the B visitor visa. The B-1 visa is available to individuals temporarily entering the United States for business. The B-2 visa is generally for pleasure or tourism purposes. An individual entering the United States on a B-1 visa may attend business meetings, seminars, and training; negotiate contracts; solicit orders for goods manufactured outside the United States; consult with and hold meetings with professional colleagues; and seek investment or employment opportunities within the United States. Often an individual overseas will seek to enter the United States on behalf of his or her foreign-based employer. That individual must continue to be employed by the foreign business, must receive no remuneration from a U.S. source (except reimbursement for certain per diem expenses), and must not engage in any local employment.

The application for the B-1 visa is made directly at the U.S. embassy or consulate in the home country of the individual. He or she should be prepared to document clearly the purpose of the visit by providing a letter of invitation from his or her employer. The B-1 visa process does not require petition approval from USCIS. The individual must be prepared to prove intent to return to his or her home country and an ability to support himself or herself while in the United States. Because Canadians are visa exempt, they do not need to apply for a B-1 visa; instead, Canadians may present the letter of invitation or other appropriate documentation to a CBP officer at the port of entry to gain admission as a business visitor. In addition, individuals from visa waiver countries (or Electronic System for Travel Authorization (ESTA) countries) may bypass the visa application process. Instead, such individuals may simply enroll online in advance of a business trip and visit the United States for up to 90 days.

Once issued, B-1 visas serve as multiple-entry visas, which may be valid for up to 10 years. This means that once the foreign national has the B-1 visa, he or she may repeatedly use the visa during the validity period to apply for admission into the United States for permissible business purposes. The admission period is generally six months, although CBP has the discretion to reduce admission periods to less than that. Once in the United States, for good cause, it is possible to request an extension of stay for an additional six months.

Increasingly, the DOS and CBP are applying scrutiny to those applying for and using the B-1 visa, suspecting attempted circumvention of limits on other visa categories. Therefore, when applying for the B-1 visa or B-1 admission to enter the United States, the foreign national must be ready to explain the purpose of the trip and the necessary duration required to complete the visit. Documentation of ties to his or her home country, such as proof of a job abroad, proof of income or assets abroad, and a clear intent to return home, as well as a letter of invitation setting out a specific itinerary and a return-trip ticket should be available.

Visa Waiver Program (VWP)

The Visa Waiver Program (VWP) allows individuals from certain designated countries to enter the United States for tourism or business for up to 90 days without first obtaining a visa. Currently, there are 39 countries that participate in the VWP with the United States. The restrictions that apply to the B-1 category equally apply to VWP entrants. Moreover, VWP entrants are not permitted to extend their period of stay while in the United States or to change nonimmigrant status. VWP entrants must depart the United States within 90 days of arrival (without an opportunity to extend status).

To enter the United States under the VWP, the foreign national must possess a valid passport from one of the participating countries (country list is provided by the Department of State and may be accessed at: https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html) and must complete his or her online application in the Electronic System for Travel Authorization (ESTA) before traveling. ESTA is an automated system that assists in determining a foreign national's eligibility to travel to the United States using the VWP. As with the B-1 visa, VWP entrants must be prepared to explain the permissible purpose of their visit and provide proof of strong ties to their home country.

H-1B Visa (Specialty Occupation)

The H-1B is available to foreign national professionals coming temporarily to perform services in a specialty occupation for a...