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EIG Dispatch | January 29, 2016

January 29, 2016

HIGHLIGHTS

  • USCIS Policy Memo on Comparable Evidence Provision for O Nonimmigrant Visa Classifications
  • UPDATE: Significant Petition Fee Increases for H-1B and L-1 Petitioners Take Effect
  • UPDATE: Tightened Restrictions to the Visa Waiver Program, Effective as of January 21st
  • Turkish Embassy in London Changes Procedure to Schedule Visa Application Appointments

USCIS Policy Memo on Comparable Evidence Provision for O Nonimmigrant Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) has drafted a policy memorandum with guidance for adjudication of O nonimmigrant petitions that, if put into effect, would expand the documents a petitioner can use to provide evidence for the beneficiary’s extraordinary ability.

Under current USCIS regulations, an O-1 beneficiary must submit evidence demonstrating sustained national or international acclaim and recognition in their field in the form of a nomination or receipt of a significant national or international award; or establish eligibility by providing evidence as set forth under the regulation’s criteria.  Alternatively, a beneficiary may submit “comparable evidence” when the enumerated criteria in the regulation does not readily apply to the applicant’s occupation. Currently, when a beneficiary submits comparable evidence, USCIS will only consider the comparable evidence when the petitioner has successfully demonstrated that the majority of criteria does not apply to the beneficiary’s occupation. USCIS will then evaluate the comparable evidence in lieu of the enumerated criteria.

In its proposed guidance, USCIS intends to allow a petitioner to prove when a specific criterion under the regulation does not apply to a beneficiary’s occupation, then offer comparable evidence. Additionally, the proposed guidance requires that the petitioner give a detailed reason as to why a criterion is not applicable to the beneficiary’s occupation and state why the offered evidence is comparable to the regulation’s criterion.  A petitioner must still provide evidence of the beneficiary’s eligibility by submitting at least three separate evidentiary criteria under the regulation.

The memorandum is currently under a thirty day comment period. EIG will continue to monitor any changes to USCIS adjudication policy and keep you informed.


UPDATE: Significant Petition Fee Increases for H-1B and L-1 Petitioners Take Effect

U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2016 that it will now implement the new fee increases for certain H-1B and L-1 petitions.  The fee increases are mandated under the Consolidated Appropriations Act, 2015 that was signed into law on December 18, 2015.

Petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L nonimmigrant status, will now have to submit an additional fee of $4,000 for H-1B petitions and $4,500 for L-1 petitions.  The fee increase applies to petitioners requesting an initial grant of nonimmigrant status, or seeking authorization to change employers while holding such nonimmigrant status.  Petitioners must still submit the existing H-1B and L-1 fees, including the base processing, the Fraud Prevention and Detection fee, the American Competitiveness and Workforce Improvement Act (ACWIA) fee, and the premium processing fee, if applicable.

USCIS may begin to issue a Request for Evidence 30 days after January 12, 2016 to determine if the new fee applies to a specific petition.  Petitioners should wait to respond to the RFE before submitting the additional fee or a response as to why the fee does not apply.


UPDATE: Tightened Restrictions to the Visa Waiver Program, Effective as of January 21st

As an update to a previous article, following the San Bernardino terrorist attack, significant changes have been made to the Visa Waiver Program (VWP) as a result of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (The Act).

The Act, which was integrated in the Omnibus Appropriations Bill for 2016, prohibits nationals of VWP countries and/or those who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 from participating in the VWP.  Effective January 21, 2016, an additional VWP restriction was implemented which excludes dual nationals of VWP countries who are also nationals of the countries mentioned above. Individuals who would otherwise be eligible to enter the U.S. under the VWP, but are restricted under these changes, should apply for a B visa for short term entry.

While the Department of Homeland Security (DHS) may waive these restrictions, DHS will do so on a case-by-case basis only after determining whether it would be in the interests of U.S. law enforcement and/or national security. Those who may be eligible for a waiver include individuals who traveled to Iran, Iraq, Sudan, or Syria (1) on behalf of international organizations, regional organizations, and sub-national governments on official duty; (2) on behalf of a humanitarian NGO on official duty; or (3) as a journalist for reporting purposes. Additionally, individuals who traveled to Iran or Iraq for legitimate business-related purposes may also be excluded from the restrictions.


Turkish Embassy in London Changes Procedure to Schedule Visa Application Appointments

In addition to the Turkish implementation of mandatory online applications, the Turkish Embassy in London now requires individuals applying for work visas to schedule their appointments by email instead of using the online appointment booking system. Applicants are now instructed to email londra@csgb.gov.tr to book their appointments. In the email, applicants should provide their contact information, the name and address of the Turkish employer, job title, and intended employment dates. Upon receipt of the email, an appointment date will be scheduled by the Turkish Embassy.

Before scheduling an appointment, applicants for work visas must first submit their application form online along with other relevant documents. Once this information is provided to the appropriate consulate for pre-processing, applicants may then schedule an appointment with the consulate where they will be required to provide an executed application form and original copies of other documents.

The Turkish Embassy’s purpose in this procedural change is to alleviate the backlog in appointments and prevent further misuse of the online appointment booking system.