Immigration
Entering the U.S. After a Trip Abroad? Make Sure CBP Admits You for Full Validity Period
Oct. 1 marked the beginning of the federal fiscal year and the date on which those waiting to start employment in the U.S. based on new H-1B petitions begin work. Since many H-1B visa holders may be returning from a trip abroad and entering the U.S. in new visa status, now is a good time to review the rules regarding entry for the full validity period.
Foreign nationals entering the U.S. with new or renewed work-related visas are issued upon entry a stamp in their passport that normally matches the petition validity dates listed on the USCIS I-797 notice approving the petition filed on that individual's behalf. While typically the individual is admitted until the expiration date of the approval notice, also known as the Petition Expiration Date (PED), sometimes the foreign national receives shorter periods of admission. In some instances, this is a result of a U.S. Customs and Border Protection (CBP) error: the CBP officer mistakenly admits the individual until the expiration date of the visa rather than the PED. In other instances, CBP admits the person only for as long as the passport is valid – as the regulations require – even though the PED is much later. The worst-case scenario is when the foreign national's passport is not valid for at least six months from the admission date. In these instances, CBP will refuse entry. Other issues confront those seeking entry in TN, E-3 or Chilean/Singaporean H-1B1 status. These workers often do not possess an I-797 approval notice and therefore no PED. Such employees should travel with a job offer letter that clearly states the period of employment dates.
What can an individual do to correct an entry admission error? Mistakes made by a CBP officer can be corrected at a port of entry or at a CBP office at an international airport. Fixing other problems often requires traveling and re-entering the country. Clients who travel abroad should take care to ensure that their passports are valid for at least six months and double check the entry period noted in the passport upon admission. Clients are reminded that it is the admission stamp in the passport not the PED that controls the individual’s authorized period of admission.
Paper Immigrant Visa Applications (DS-230) Transition to Electronic Application
The Department of State (DOS) is now transitioning to an online immigrant visa application. Immigrant visa applicants will apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and choose their agent online using Form DS-261 (Choice of Address and Agent). Applicants can access both forms on the Web at https://ceac.state.gov/ceac/. These forms replace the paper DS-230 and DS-3032. Generally, if an applicant’s DS-230 has already been submitted and accepted, the applicant will not need to complete the DS-260 UNLESS instructed to do so by the National Visa Center (NVC) or a consular officer. While all posts now require the DS-260, at this time only selected posts are accepting documents submitted electronically. For the vast majority of posts, where electronic document collection is not yet in effect (even though the DS-260 is in use), original documents must still be sent in paper form to NVC. NVC will forward the documents with the rest of the case file to the post. Original documents will be returned to the applicant after the visa interview.
The following is additional guidance from the DOS on what to expect during this transition:
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If a case is already documentarily qualified and awaiting scheduling, the case will proceed with the DS-230.
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If a case is still in the document collection phase and a checklist letter is sent for any reason, even if a DS-230 is on file, you will be instructed to complete Form DS-260.
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If the NVC has already scheduled the consular interview and sent the case to the consular post with the DS-230, then it will stay a DS-230 case. Applicants will not need to complete the DS-260 unless a consular officer requests it.
Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.
In addition, effective Oct. 7, 2013, all K visa applicants are required to complete the DS-160 Online Nonimmigrant Visa Application. The DS-160 replaces Forms I-156, I-156K and DS-230. Some exceptions apply to cases filed prior to Oct. 7.
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail [email protected]