 Immigration Law Update
April 2010 |
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| Greetings! | |
Welcome to the latest edition of our Immigration Law Update, which includes an H-1B Cap update, details on the immigration impact of the travel delays caused by the Iceland volcanic eruption, and details of a new travel alliance between the U.S. and Germany that will speed up processing at airports. |
| H-1B Filing Update |
On April 1, 2010, the United States Citizenship and Immigration Service (USCIS) began accepting H-1B petitions for fiscal year 2011 against the 65,000 H-1B cap. As of April 27, 2010, USCIS had received 16,500 petitions towards the cap and 6,900 petitions towards the 20,000 H-1B advanced degree category.
Applicants should make sure to include the proper documentation for the relevant category. For example, for advanced degree cases, applicants should submit evidence of the beneficiary's educational degree. If all of the requirements for the degree have been met, but the degree has not yet been awarded, alternate evidence can be submitted, such as a copy of the beneficiary's final transcript, or a letter from the school's Registrar or other person in charge of records confirming that all of the degree requirements have been met. If you know that you will seek a visa from a consulate abroad once your H-1B application has been approved, then you must include a duplicate copy of the H-1B Petition with the filing. Once a petition is approved, USCIS will send this duplicate copy to the Kentucky Consular Center, which will scan the petition information so that the consulate later can access it and confirm status approval during an applicant's visa interview. USCIS will not make a second copy if one is not provided; therefore, it is important to ensure that the second copy is included to avoid visa processing delays later on. |
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| Volcanic Eruption and Effect on Immigration |
Visitors to the United States who were unable to timely depart due to the Iceland volcano eruption can contact one of two agencies for more information on how to extend their stay. Travelers can contact either the Citizenship and Immigration Service (if traveling under visa waiver or in the U.S. on a visa) or the Customs and Border Protection office at the airport (if traveling under visa waiver).
Many other countries have instituted similar relief measures. Travelers are well advised to save all documentation evidencing that they had plans to depart a country before the expiration of their authorized stay, including: reservation receipts, unused boarding passes, and correspondence with airlines. If travelers can document their intent to depart, then immigration authorities will most likely be understanding (see, for example, U.K. Border Agency guidelines).
Repercussions of the volcanic eruption on immigration may not be felt until much later when the travelers whose departures were delayed seek to re-enter the U.S. or other countries at a future date and records indicate an overstay. Therefore, it is very important that travelers retain evidence that they had planned to leave before the expiration of their authorized stay. |
| Tax Tip - This Month: U.S. Health Care Reform's impact on U.S. Citizens Living Abroad |
The new U.S. health care reform legislation, which requires that all U.S. citizens purchase minimum essential health care coverage or be fined, adds a new provision to the IRS Code (see sec. 1501(b) of the legislation at page 126) that exempts certain U.S. expatriates from this requirement. U.S. citizens living abroad or who are residents of U.S. territories will be treated as having minimum essential coverage under the new Section 5000A (f)(4) of the Internal Revenue Code, whether or not they actually have this coverage.
However, the exclusion for U.S. citizens living abroad only applies to expatriates who meet the IRS' foreign earned income exclusion requirements (i.e., full-time expatriates). To qualify for this exclusion, a U.S. citizen living abroad must establish a tax home in the new country and be either a bona fide resident of that country for a full tax year or spend at least 330 days per 12 consecutive months outside of the United States.
Though many of the new rules don't go into effect until 2014 or 2015, it behooves U.S. expatriates and companies employing U.S. expatriates to seek tax and legal advice in order to prepare an appropriate compliance strategy far in advance.
For more information about the Foreign Earned Income Exclusion see Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad. |
| Global Update |
 Global Travel Alliance between U.S. and Germany
The United States and Germany have launched a partnership to link their trusted traveler programs. The U.S. Department of Homeland Security (DHS) and the German Interior Ministry signed a joint statement in April expressing this intent, and will develop processes for qualified citizens of either country to apply for both the United States' Global Entry program and Germany's "Automatisierte und Biometriegestützte Grenzkontrolle" (Automated and Biometrics-Supported Border Controls - ABG) program. Each uses biometrics to identify trusted travelers, and joining the two programs should make travel faster.
Global Entry is a U.S. Customs and Border Protection (CBP) program allowing pre-approved members an alternative to regular passport processing lines. Average wait times are reduced by 70 percent. More than 75 percent of travelers using Global Entry are processed in less than five minutes. The program is currently available at 20 major airports in the U.S. for U.S. citizens and U.S. permanent residents over 14 years of age who are in possession of a valid machine-readable passport and who consent to a background screening. At the Global Entry kiosks at the airport, members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk's touch-screen, and then present a transaction receipt to CBP officers before leaving the inspection area. To date, more than 42,000 members have enrolled in the program since it was launched in 2008.
Germany's ABG program, which was implemented in 2004 at Frankfurt Airport only, serves a similar function for German citizens. Participants apply at the Enrollment Center in Terminal 1 and provide their passport biographical data and an iris-scan, which information will be stored in the German Federal Police database. Thereafter, these pre-approved members can use special automated control lanes for entry, where their passports and iris are automatically screened. No additional screening by border officers is necessary. To date, 24,500 travelers have registered for the program.
For more information and an application to enroll in the Global Entry program, you can visit the CBP website. For more information on the German ABG program, you can visit the German Federal Police site. Or feel free to contact us with any questions. |
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Please feel free to forward this newsletter to others who may have an interest in these topics. You can also browse past newsletters. If you have any questions, comments or suggestions, please e-mail me at mlh@consular-consulting.com.
Sincerely,
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Magdale Labbe Henke
Attorney-at-Law (U.S.) and
Solicitor of England and Wales (non-practising)
Principal, MLH Consular Consulting
This newsletter is provided for informational purposes only and should not be construed in any way as legal advice. |
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