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February 2002
Current Issue
PRESIDENT BUSH SIGNS SPOUSAL WORK AUTHORIZATION MEASURES INTO LAW
On January 16, 2002, President George W. Bush signed into law the spousal work authorization bills, which allow spouses of E (Treaty Trader and Investor) and L (Intracompany Transferee) visa holders to obtain employment authorization. It appears that the issuance of an Employment Authorization Document (EAD) will be required in order for the E or L spouse to begin work in the United States.
The new law also reduces the required period of prior continuous employment for certain L visa applicants. Specifically, in the case of a foreign worker applying for an intracompany transferee visa, the required one-year period of continuous employment abroad is reduced to six months if the U.S. employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition.
STATE DEPARTMENT RE-AFFIRMS POLICY FOR H-1Bs IN SUCCESSOR-IN-INTEREST SITUATIONS
The State Department reiterated its position that new petitions are not necessarily required for H-1B nonimmigrants in successor-in-interest situations. Similarly, employees with still-valid petitions for a predecessor employer should not be required to present an approved petition from a successor employer in order to obtain a visa stamp. Successor-in-interest is generally recognized when changes occur within a company, including changes such as, but not restricted to, mergers, acquisitions, and consolidations. The successor entity must assume interests and obligations of the original employer in regard to the terms and conditions of the applicant's employment. Consular Officers may require an applicant to provide evidence of the restructuring, such as a contract, corporate literature, or copies of documents filed with the government of the State of incorporation.
NEW INTERNET LCA FILING SYSTEM
On January 14, 2002, the Labor Department implemented its new service allowing the filing of Labor Condition Applications (LCAs) electronically via the internet, utilizing web-based forms, and instructions. The new program includes a new alternative Form ETA 9035E, and response time for certification is expected to be reduced to just a few minutes, though delays are possible during the initial implementation period. A key difference in the electronic filing versus traditional fax or mail filing is that the LCA form will be signed by an employer after the application is returned certified, rather than before. The Labor Department will continue to accept LCAs on Form ETA 9035 via fax and mail, and employer signatures will continue to be required prior to submission of the faxed or mailed form.
NEW NONIMMIGRANT VISA APPLICATION FORM
Last year, the State Department introduced an updated Nonimmigrant Visa Application (Form DS-156) to replace the expired Form OF-156. The State Department's Visa Office has instructed all U.S. consular posts to strictly use the new DS-156 and destroy all remaining stocks of the old OF-156. Consular posts may no longer accept the OF-156 from the public.
Download the latest edition of Form DS-156, Nonimmigrant Visa Application:
 Form DS-156
NEW FORM FOR NONIMMIGRANT APPLICANTS BETWEEN 16 AND 45
The State Department is now requiring all male nonimmigrant visa applicants between ages of 16 and 45 from all countries to submit a supplementary Form DS-157. U.S. consular posts are authorized to require others to submit the new supplementary form. Only A, G, and NATO nonimmigrant visa applicants, except for A-3, G-5 and NATO-7 applicants, are exempt from this new requirement.
Download the latest edition of Form DS-157, Supplemental Nonimmigrant Visa Application:
Form DS-157
INS TO ACCEPT 10/13/98N VERSION OF I-539 THROUGH MARCH 30, 2002
Because of delays in printing the recently revised Form I-539, Application to Extend/Change Nonimmigrant Status, the INS reports that it will continue to accept the 10/13/98N version of the form through March 30, 2002.
Download the latest edition of Form I-539, Application To Extend/Change Nonimmigrant Status:
Form I-539
CHANGES TO THE IMMIGRANT VISA PROCESS
The State Department has announced changes to the immigrant visa process. Specifically, the numerical designation of packets (Packets 1 through 4, etc.) will be eliminated, and the packets will now have functional titles. For example, Packet 3 will be referred to as "Instruction Package for Immigrant Visa Applicants" and Packet 4 will be referred to as "Appointment Package for Immigrant Visa Applicants". Instruction sheets are being revised. Automated consular systems will continue to refer to the packages by their old packet numbers for the time being.
NEW INDIAN POLICE CERTIFICATE IMMIGRANT VISA POLICIES
All Indian Immigrant Visa applicants aged 16 and over, residing in India, should obtain police certificates from the local Passport Office. Applicants whose Indian passport was issued within the past six months may present just the Passport Office Police Certificate, and need not obtain additional police clearances. Applicants over age 16, whose passports were issued more than six months before the visa application, must also obtain a police certificate from the District Police Office serving the applicant's place of residence. Indian passport holders applying for visas outside India should obtain a statement from their local embassy or consulate confirming they have no criminal record. Non-Indian Immigrant Visa applicants residing in India should obtain police certificates from the District Police Station serving their area of residence. Indian police certificates are not available for foreign (non-Indian) applicants applying outside India. All U.S. consular posts in India except Calcutta are changing to the new policy effective February 1, 2002. Each post will update it own web site, and they are all including new instructions in their appointment letters.
OUR OFFICE PUBLISHES THIS NEWS UPDATE TO PROVIDE THE PUBLIC WITH GENERAL
INFORMATION REGARDING THE LATEST DEVELOPMENTS IN US IMMIGRATION LAW. THE
INFORMATION IN THIS NEWS UPDATE SHOULD NOT BE INTERPRETED AS LEGAL ADVICE.
READERS ARE STRONGLY ADVISED TO CONSULT A QUALIFIED IMMIGRATION LAWYER TO
RESOLVE THEIR INDIVIDUAL CIRCUMSTANCES. FOR CONSULTATION WITH AN IMMIGRATION LAWYER,
PLEASE CALL US AT (626) 279-5341 OR E-MAIL US AT INFO@BCCVISALAW.COM. AN ATTORNEY IN OUR OFFICE WOULD BE HAPPY TO ASSIST YOU.
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