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Posted on: September 19th, 2016
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TPS Expands Options for Syrian Physicians

By Greg Siskind

Despite the civil war that the world has watched with horror, Syrian physicians are still completing medical school and seeking residency positions in the United States. ECFMG reported in its latest report that 133 Syrian physician received certification from the agency to pursue graduate medical education in the US. That’s roughly the same number as in the years just before the civil war.

Syrian physicians who were in the US on or before August 1st, 2016 may be eligible for an immigration benefit called Temporary Protected Status. Information on applying for TPS can be found at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-syria. TPS allows an individual to remain in the US and be protected from deportation. It also allows recipients to get an employment authorization document, something that can be very beneficial for a physician in graduate medical training.

Physicians who procure TPS who are on J-1 visas don’t get out of the home residency requirement because they have TPS. However, a doctor could delay working in an underserved area or begin work in an underserved area before the J-1 waiver and H-1B visa approval is completed. Note that it is possible to simultaneously have a non-immigrant visa and TPS and if the J-1 doctor gets a waiver, a doctor with TPS can still get to permanent residency. However, USCIS has not opined on the question of whether a physician with TPS would get credit toward completing the J-1 waiver requirements.

Physicians training on an H-1B might find TPS especially helpful. A key challenge for these doctors is dealing with the H-1B cap if they are seeking jobs with employers not exempt from the H-1B cap. A physician on TPS could potentially skip the H-1B process and work with the TPS work card and then seek permanent residency.

The deadline to file a TPS application is January 30, 2017.

 

Hot Topics in Consular Processing

By Adam Cohen and Elissa Taub

Worldwide, U.S. Embassies and consular posts process millions of visas for individuals to visit, work and live in the U.S. each year. Currently, there are several consular posts that are either closed or experiencing notable appointment and/or processing delays.

India – On June 28, 2016, Mission India announced significant delays in obtaining nonimmigrant visa interview appointments at consular posts across India. The wait times for nonimmigrant visa appointments (excluding B, F and J visas) initially ranged from 75 days, on the low end, to over 100 days on the high end. As the summer has progressed, the appointment wait times have increased even further, with wait times in Chennai exceeding 120 days. Individuals needing to book visa interview appointments in India are advised to do so as far in advance as possible or to seek alternative locations for visa processing.

Yemen – The consular section of the U.S. Embassy in Sana’a, Yemen currently is closed. There are alternative processing locations available for Yemeni nationals seeking immigrant and nonimmigrant visas to enter the U.S.

Yemeni nationals seeking to consular process an immigrant visa (green card) abroad will be able to process at the U.S. Embassy in Djibouti. Previously, this processing was to occur in Algeria, but because the Government of Algeria requires all Yemeni nationals to have a visa to enter the country, that plan changed as of April 28, 2016. The U.S. Embassy in Djibouti no longer requires applicants to be physically present in the country prior to transferring their case to that location. Interviews are being scheduled in Djibouti in the order of the date the case became qualified and eligible for scheduling.

Officially, nonimmigrant visa applicants from Yemen may apply in a location that is convenient to them.  For ease of processing, the Department of State has designated the U.S. Embassy in Cairo, Egypt to process visas for Yemeni citizens. Yemeni citizens also might be able to process visa applications smoothly in Kuala Lumpur, Malaysia.

Venezuela – Currently the U.S. Embassy in Caracas, Venezuela is not able to provide new appointments for first time business or tourist visa applicants due to Venezuela’s refusal to issue visas to consular section staff. A limited number of appointments are available to renew or apply for first-time visas in any of the petition-based, student or investor visa categories (i.e., E, F, J, M, H, I, L, O, P, Q, R, T, U). Wait times for those types of visa interview appointments might be longer than the typical 7 days. Immigrant visa processing in Venezuela is unaffected by this issue.

Given the delays and other administrative issues at both the above-mentioned U.S. Embassies and consular posts, as well as temporary disruptions that arise from time to time, there are at least two additional ways to avoid processing visa renewals in those locations.

Renewing Your Visa in Mexico

Third Country Nationals (TCNs), citizens of a country other than Mexico who apply for a non-immigrant visa with their Non-Mexican passport, may apply for a visa at the U.S. Embassy in Mexico City or the U.S. Consulates in Ciudad Juarez, Guadalajara, Hermosillo, Matamoros, Monterrey, Nogales, Nuevo Laredo, or Tijuana. In order to do so, they must be residing in the United States and must apply to renew in the same visa category they currently possess. Note that those renewing B-1/B-2 and H-2 visas are not eligible.  This is great news for many seeking to avoid consular delays in their home country, as well as a long trip home.

Having a U.S. Embassy with a helpful TCN process is only one part of the equation. The relevant question is then “How do I travel to Mexico to access the U.S. Embassy or Consulates there?”  Here, too, there is great news.  Nationals of several different countries can travel to Mexico in a visitor status without the need to apply for a Mexican visa. These countries include many in the Americas (including Venezuela) and Europe, as well as Australia and New Zealand. There is a noticeable lack of several Middle Eastern (including Yemen), African, and Southeast Asian countries (including India and China) on this list.  However, even for those nationals who are not on the Mexican visa waiver list, there is still a way to avoid applying for a Mexican travel visa, if the individuals can present a valid and current United States visa stamped on their passport.

Foreign nationals who are on the visa waiver list or who possess the valid U.S. visa, may obtain a visitor “visitante” permit and can travel to Mexico for tourism or non-paid activities and stay up to 180 days. The permit is issued when the traveler arrives in Mexico by completing a Forma Migratoria Multiple (FMM). This form is issued by airlines and is also available at ports of entry. The travelers must provide to the Mexican immigration authorities their passport (or identity document), proof of valid travel, and a completed FMM. The immigration authorities may also require proof of the purpose of the individual’s travel, such as the following documents:

a) hotel reservations, tickets for the return flight, tour tickets.

b) letter from the foreign employer, indicating that the individual is an employee and that the payment for the services the employee will provide in Mexico will come from the foreign employer.

c) copies of contracts regarding transfer of technology, patents, trademarks, machinery, equipment, knowledge (such as technical training of staff), etc., showing a connection between a foreign party and a company established in Mexico.

d) letter from a public or private organization or institution that invites the individual to participate in an unpaid activity in Mexico. The letter should explain the purpose of the visit and estimate the duration of stay.

e) letter of invitation or acceptance by an institution belonging to the Mexican National Education System for the individual to undertake courses, studies, or projects for a maximum period 180 days.

For those who do not qualify for the visitor permit, the travel visa could be a good option. Anecdotally, it appears that in many cases it does not take very long to process a Mexican travel visa.

Interview Waiver “Drop-box” (India)

In March 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP).  Under this program, repeat travelers to the U.S. may, under certain circumstances, renew their visas without appearing at the U.S. Embassy for an interview. To be eligible, the visa applicant must be able to answer “yes” to all of the following statements:

1. I have a previous U.S. visa in the same class as the visa for which I       wish to apply. For example, the applicant has a prior H-1B visa and wishes to renew the H-1B visa.

2. My most recent visa was issued in India.

3. I received my visa after January 1, 2008 (there is another set of rules for those who received the relevant visa after August 1, 2004 but before January 2, 2008).

4. My prior visa is not annotated “Clearance Received” or “Department Authorization.”

5. My most recent visa (in the same class for which I am applying) was issued on or after my 14th birthday (there is another set of rules for children under 14 years of age).

6. I have no refusals for a visa in any class after my most recent visa issuance.

7. If I am applying for an H or L (individual, since Blanket L-1 visa applicants do not qualify) or R visa, my prior visa in the same class is still valid or expired within the last 12 months.

OR

If I am applying for any other class of visa, my prior visa in the same class is still valid or expired within the last 48 months. Additionally, if I am applying for an F visa, I am continuing as a student at the same school for which my previous visa was issued. If I am applying for a J visa, my current DS-2019 is issued by the same institution as the institution listed on my previous visa.

At the time the visa applicant electronically completes the DS-160 form and registers for the standard account to schedule the visa interview, there will be an option to instead schedule an appointment at a Visa Application Center in India for biometric (fingerprint) processing. The applicant will also receive a “drop-box” submission letter containing a checklist of required documents, including the applicant’s current passport, most recent visa, one copy of the “drop-box” letter, one passport photograph, and supporting documentation relevant to the visa type.

The applicant will drop off this packet of documentation at one of 11 service centers in India (known as Team Stanley Offices).  The Team Stanley employee will review the document checklist before accepting the application for delivery to the U.S. Embassy. If the application is approved, the applicant’s visa and passport will be available for pickup at the Document Collection Center specified by the applicant.  There are many designated Collection Centers in India.

In conclusion, the above options are just two of many, which may prove helpful to avoid processing visas where there are delays and other administrative issues. This article is not exhaustive of all alternative options, which may be discussed with a competent immigration attorney. Please note that this article also is not addressing or encouraging forum shopping where a particular Embassy is not approving an applicant’s visa. Additionally, this article is not addressing administrative processing where visa approval and delivery is delayed for often unknown purposes related to security clearances.  A visa applicant can become subject to additional administrative processing at any U.S. Embassy or Consulate worldwide.

In future issues of Healthcare Immigration News, we will provide more information about TCN processing in other countries and additional options to avoid delays.

 

Moving an H-1B Employee? When Employers Must File an Amended H-1B Petition

By James Hollis

As becomes clear quite quickly to anyone seeking to obtain H-1B status for an employee, the H-1B is tied closely to a specific work location. The reason for this is that the regulatory framework enacting the H-1B provides that employers must file a Labor Condition Application (LCA) for the work location of an H-1B before that H-1B can be approved by USCIS. In the LCA, the employer must specify the work location because, among other things, that work location determines the data used for the prevailing wage. The prevailing wage forms the regulatory ground floor of the possible salary of the H-1B employee.

So, what happens when an H-1B employee is moved to a different work location than was listed in the LCA and in the petition to USCIS? The H-1B regulations provide that the employer must file an amended or new petition when there is a material change to the terms and conditions of employment or the employee’s eligibility for the H-1B. The question is, when does a change in work location constitute a material change that requires filing a new LCA and an amended petition with USCIS?

The answer is when the move of work location takes the employee outside the scope of the geographical area covered by the LCA. In that circumstance, the employer must file a new LCA and file an amended petition to notify USCIS of the change. The H-1B employee may immediately begin working at the new location as soon as the amended petition is filed with USCIS.

The area of employment for purposes of the LCA is the Bureau of Labor Statistics area code. These codes are generally grouped according to metropolitan statistical areas. For example, the fourteen counties comprising the Nashville, TN metropolitan statistical area all have the same BLS area code of 34980. This means that if an H-1B worker was moved within those fourteen counties, no amended petition would be required to be filed. However, upon such a move, the employer would be required to post the previously obtained LCA in the new work location.

There are two exceptions to the above rule. One is for short-term placements of employees. As a result of this exception, an employer does not have to file an amended petition if the employee only remains at the new work location for 30 days or less. In cases where the employee is still based at the work location listed on the LCA and in the original petition, the employee can work for up to 60 days at the temporary work location.

The second exception is for locations that USCIS considers “non-worksites” such as where the H-1B employee is doing temporary professional development, like conferences or staff seminars. USCIS also considers locations “non-worksites” when an H-1B employee doesn’t spend much time at any one location or when the H-1B employee’s job is primarily based at one location but involves occasional travel to other sites. Regulations dictate that, to count as “non-worksites”, these short periods of work cannot exceed five consecutive workdays for any one visit by an H-1B employee or ten consecutive workdays for an H-1B worker employed most of the time at a single location (but with occasional travel to other locations).

 

A Look Ahead at the 2017 Conrad 30 J-1 Waiver Cycle

By Zack Johnson

With summer transitioning into fall, we look ahead to the start of the new Federal fiscal year and the opening of the 2017 “Conrad 30” J-1 waiver season. If you are in the US in J-1 status for graduate medical training and are approaching the end of your program, it is crucial that you become aware of the timeframes the various states have in place for accepting and reviewing applications. Doing so could determine the difference between getting to work in the state of your choosing and winding up in one farther down the list.

Applications for the 2017 “Conrad 30” J-1 waiver cycle will be accepted for processing in most states starting October 3rd, the first business day following the October 1st start to the Federal fiscal year. There are exceptions to this, however, and they go in both directions. Several states are accepting applications right now. In many cases, these are states that do not customarily use all 30 of the waiver recommendations Congress authorizes them to issue each year. A few of these states have it built in to their policies that they will accept applications year-round on a rolling basis (e.g., Alaska and Colorado), while several other states (including Arkansas, Delaware, Hawaii, Kansas, Montana, Oregon, Tennessee, and Wisconsin, among many others) continue accepting applications through the end of the year as a result of the fact that they rarely use up all their slots. In other cases, the states that start accepting applications in September are states that do fill up but which have elected, for one reason or another, to start processing applications prior to the start of the upcoming Federal fiscal year. This includes states such as Texas, Iowa, Indiana, Michigan, Minnesota, New Mexico, and Virginia, which all exist – to varying extents – on the more competitive side of the J-1 waiver spectrum. In contrast, we have Ohio. In each of the last few years, the state of Ohio’s J-1 waiver program has started processing applications in January.

Beyond the matter of when each state allows applicants to begin to send in their packets, it is also important to note the different ways in which states process the applications they receive. Many states process applications on a first come, first served basis. These states will continue accepting applications until they have 30 that meet their requirements to be recommended for approval. In contrast, certain other states establish specific timeframes during which applications will be accepted; the applications received during these periods are assessed against the state’s criteria and priorities, and 30 are chosen from the pool to be recommended for approval. Some of these states routinely receive in excess of 30 applications in their submission windows and only ever have to accept applications for that one segment of the year, while others do not and must open up additional application periods after the first pool has been processed.

Without further ado, let us take a look at the different timeframes that are currently in place for submitting “Conrad 30” J-1 waiver applications. We will begin with the states that have specific application submission timeframes:

Arizona – 10/1 through 11/30; 1/1 through 1/31, if necessary; 2/15 through 6/30, if necessary

(In recent years, Arizona has used all three application acceptance periods.)

Illinois – 10/1 through 10/31; 1/1 through 1/31, if necessary; 4/1 through 4/30, if necessary

(In recent years, Illinois has filled up in October and has not used either of the subsequent acceptance periods.)

Iowa – 9/6 through 10/28

(Iowa will continue to accept applications beyond 10/28 if fewer than 30 approvable applications are received.)

Kentucky – 10/1 through 10/31

Michigan – 9/1 through 11/1

Minnesota – 9/15 through 11/30

New York – 10/1 through 11/30

Any state not listed above currently operates its J-1 waiver program on a first come, first served basis. That does not tell the whole story, however, as the level of competition for waiver slots varies significantly by state. When it comes to the following states that accept and process J-1 waiver applications on a first come, first served basis, it pays to apply as early as possible:

California

Connecticut (likely to fill upon opening on 10/3)

Florida (likely to fill upon opening on 10/3)

Indiana

Maine

Maryland

Massachusetts

Missouri

South Carolina

Texas (likely to fill upon opening on 9/1)

West Virginia

As indicated above, it is reasonable to expect that Connecticut, Florida, and Texas will all fill up more or less immediately upon opening for the year. The other states on this list tend to take a little longer to fill, but there is no way of knowing that the trend will continue. Applying early can help to ensure that your application is among the first 30 the states receive.

 

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