Canada - Reminder: Visa-Exempt Nationals to Require Electronic Travel Authorization On or After September 29, 2016

August 30, 2016

On or after September 30, 2016, visa-exempt nationals who plan to enter or exit and re-enter Canada by air must apply for an Electronic Travel Authorization (eTA) prior to boarding a flight to Canada. Exceptions include U.S. citizens and travelers with a valid Canadian Temporary Resident Visa. Canadian citizens, including dual citizens, and Canadian permanent residents cannot apply for an eTA.

Visa-exempt nationals who plan to enter or exit and re-enter Canada by air will be able to board their flight and enter Canada as long as they have appropriate travel documents, such as a valid passport, until September 29, 2016.

Online applications for the eTA and a full list of visa-exempt nationals is available on the Citizenship and Immigration Canada website.

What This Means for Foreign Nationals
Affected foreign nationals should obtain an eTA by the deadline. 

This alert is for informational purposes only.

Switzerland - Third Quarter Quotas Exhausted

August 30, 2016

The third-quarter quotas for L- and B-Permits for European Union nationals on assignment lasting more than four months have been exhausted. Employers who wish to send EU nationals on assignment to Switzerland will need to wait until October 1, 2016, when fourth-quarter quotas become available.

Background

Because some cantons allowed EU nationals to start their assignments prior to the release of the quota numbers for the third quarter of 2016, many L- and B-Permits were claimed prior to the announcement. 

Work permit quotas apply to first-time applicants and those converting an L-Permit into a B-Permit only. Applicants renewing their L- or B-Permits are not subject to quotas. 

What This Means for Employers and Foreign Nationals 

Employers should plan their foreign employees' assignments in advance to avoid rejections due to quota exhaustion. Employers assigning EU nationals to Switzerland should check with the canton where they will file their work permit application to determine whether it accepts applications before the next quota numbers are released. 

This alert is for informational purposes only.

Saudi Arabia - Labor Market Testing Now Required for Work Authorization Process

August 30, 2016

Employers in the private sector must complete a labor market test to obtain block visas, effective immediately. The new requirement is expected to complicate and add several weeks to the overall work authorization process. Obtaining a block visa is the first stage of the work authorization process, and is mandatory for all employers seeking to hire foreign nationals in Saudi Arabia.

Labor Market Test Process

Employers must post job opening advertisements for positions to be filled by foreign workers on the Human Resources Development Fund's electronic system, called Taqat, which is linked to the Ministry of Labour and Social Development's online portal. Employers will likely be required to conduct job interviews of minimally qualified candidates who respond to the posting to prove the employer's efforts to find suitable local workers. 

The Ministry of Labour will adjudicate block visa requests if the employer demonstrates that no suitable local candidate was found through the job posting. The duration of the posting depends on the job title and is determined by the Ministry of Labour. 

All online job postings must include the following mandatory fields: 

• The job type, such as whether it is a permanent position, a short-term position, an internship etc.;
• Job title;
• Occupation level;
• Number of positions available;
• Required education level;
• Minimum experience required; and
• Desired start date and gross salary.

Additional position requirements, such as language requirements, licenses, certificates or trainings, are optional. 

Employers must confirm in the posting that female candidates would have suitable facilities at their work place, according to Saudi labor law.

Employers seeking block visas for foreign nationals who would work on government-contracted or government-supported projects will also be subject to the new requirement.

What This Means for Employers and Foreign Nationals

The new mandatory labor market testing process adds several steps to the overall work authorization process. Employers may experience longer processing times for work authorization applications and they may need to budget for increased processing costs. Employers may also need to develop new internal processes to interview and evaluate local candidates who respond to job postings. 
  
This alert is for informational purposes only. 

United States - USCIS Proposes Parole Program for Foreign Entrepreneurs

A new U.S. Citizenship and Immigration Services proposal would create a mechanism to allow up to five years of temporary stay, on a case-by-case basis, for qualifying foreign entrepreneurs who establish a U.S. start-up entity that has substantial U.S. investment and the potential for rapid growth and job creation. The proposed regulation is expected to be published in the Federal Register on August 31.


The long-awaited proposed regulation was first announced in November 2014 as part of President Obama's planned executive actions to encourage innovation and support U.S. high-skill businesses and workers . The purpose of the program is to fill a gap in the U.S. immigration system and allow promising foreign entrepreneurs who might not meet the eligibility criteria of existing visa programs to remain in the United States to grow their businesses and make contributions to the U.S. economy.

However, the program would not provide an immigration status to approved applicants. Rather, qualifying entrepreneurs could receive parole - a discretionary permission to remain in the United States - but would not be eligible for permanent residence unless they qualified under another U.S. immigration program. 

Qualifying Entrepreneurs

A foreign entrepreneur could demonstrate eligibility for the parole program by meeting the following criteria:
  • The applicant must have established a U.S. start-up business within three years before the application for parole;
  • The applicant must hold an ownership interest in the startup of at least 15 percent;
  • The applicant must play an active and central role in the operations of the business, and not merely be an investor; and 
  • The start-up must have received a capital investment of at least $345,000 from qualified U.S. investors or at least $100,000 in grants or awards from qualifying U.S. federal, state or local government entities. Foreign nationals who only partially satisfy the funding criteria would need to provide additional compelling evidence of the start-up's substantial potential for rapid growth and job creation. 

Duration of Stay in the United States

Approved entrepreneurs would be paroled into the United States for an initial period of up to two years, and would be authorized to work for the start-up entity only. Qualifying dependents would also receive parole for up to two years, and spouses would be eligible to apply for employment authorization. 

An additional three years of parole could be granted if the entrepreneur demonstrated that the entity continues to operate; the entrepreneur continues to play a central role in the business; and the business has created jobs, received substantial additional funding, generated significant revenue or a combination of these.  

As a discretionary grant, parole could be revoked by the U.S. government at any time if the start-up ceases operations or otherwise ceases to provide a significant public benefit to the United States.

No more than three entrepreneurs could be granted parole per start-up entity.

What's Next for the Proposed Entrepreneur Parole Program

Once the regulation is published, individuals and organizations will have 45 days to provide feedback.  After the public comment period closes, DHS will review the feedback it receives and prepare to issue a final version of the regulation, which could differ from the proposal. The entrepreneur parole program would not be implemented until the final regulation is approved, a process that is likely to take several months. 

This alert is for informational purposes only.

Brazil - Visa Processing and Document Legalization to be Delayed Due to Public Worker Strike

August 25, 2016

A strike by Brazilian Ministry of Foreign Affairs (MFA) workers will result in delayed visa processing and document legalization procedures, both in Brazil and at many consulates worldwide.

In Brazil, local document legalization procedures and the transmission of visa pre-approvals to consular posts will be subject to delays, due to reduced personnel. 

The MFA Union's website lists the following consulates as participating in the strike:
  • Atlanta, Chicago, Hartford, San Francisco, United States;
  • Berne and Geneva, Switzerland;
  • Berlin, Germany
  • London, England;
  • Santiago, Chile;
  • Shanghai, China;
  • Quito, Ecuador.

Overseas, it is within each individual consular post's discretion whether to participate in the strike. Additional posts could join in the strike at any time.

What This Means for Employers and Foreign Nationals

Immigration processing will likely remain fluid until the strike ends.At this time, there is no indication how long the strike will last. It could expand to workers at other government agencies, though there have been no confirmed reports that this has occurred yet.

Foreign nationals and their employers should be prepared to postpone business travel and/or assignment start dates if needed.Foreign nationals applying for visas or legalizing documents are advised to confirm processing availability with the corresponding consulate.
This alert is for informational purposes only. If you have any questions, please contact the global immigration professional.

Dominican Republic - Ministry of Foreign Affairs Suspends the Issuance of All Visas Until Further Notice

August 25, 2016 

The Dominican Republic has suspended the issuance of all visas, due to a Ministry of Foreign Affairs decree that was issued shortly after the appointment of a new Minister. Business and work visas will not be issued by Dominican consulates abroad until the Ministry lifts the suspension - the timing of which is unknown. The suspension applies to both new and pending visa applications.

A visa is required for anyone seeking to enter Dominican Republic for business or work.

The suspension, however, does not impact tourists who are eligible to obtain a Tourist Card upon arrival based on their citizenship. The suspension also does not impact new and renewal residence permit applications or any other application filed in-country with the General Directorate of Immigration.

What This Means for Employers and Foreign Nationals

Anyone with immediate plans to travel to Dominican Republic for business or work and who does not already hold a visa for their trip will likely need to postpone their plans until the Ministry of Foreign Affairs provides further information.

This alert is for informational purposes only. 

United States - USCIS to Propose Temporary Parole Program for Entrepreneurs

August 25, 2016

The federal Office of Management and Budget (OMB) has cleared a USCIS proposal to create a program that would provide temporary parole, on a case-by-case basis, to certain foreign investors, researchers and entrepreneurs who will establish a start-up entity in the United States. The proposed rule, entitled "Significant Public Benefit Parole for Entrepreneurs," would require applicants to demonstrate that they have substantial U.S. investor financing or show potential for innovation or job creation through the development of new technologies or cutting-edge research. 

The proposed rule is likely to be published in the Federal Register in the coming days. The specifics of the program - including eligibility criteria and procedures - will not be known until publication. 

The entrepreneur parole program was first announced in November 2014 as part of President Obama's planned executive actions to encourage innovation and support U.S. high-skill businesses and workers. 

What's Next for the Proposed Entrepreneur Parole Program

Once the rule is published, individuals and organizations will have an opportunity to provide feedback during a comment period, which is typically 30 to 60 days long. After the public comment period closes, DHS will review the feedback it receives and prepare to issue a final version of the regulation. The entrepreneur parole program would not be implemented until the final regulation is approved, a process that is likely to take several months.   

This alert is for informational purposes only. 

US Emergency Travel

In case of an emergency, and before leaving the United States, you should know what documents will be required to reenter the United States as well as understand whether or not your departure will negatively impact your application(s) for immigration benefits.

As a general rule, any person who is not a U.S. citizen or non-citizen U.S. national is subject to immigration review each time the person seeks admission to the United States from any place outside the United States.  Even if you have already been admitted as a permanent resident (you have a green card) you are subject to review by an immigration official.  If, during such review, you are determined to be inadmissible (even though you may have been admissible previously), you may be denied admission.

If you are seeking admission or parole at a port of entry you generally must have in your possession a valid and unexpired travel document (e.g. a green card, U.S. visa, an advance parole document) to present to the officer at the port of entry. 

Depending on your immigration status or if you have an application for an immigration benefit pending, different types of travel documents may be required if you (including permanent residents) wish to return to the United States lawfully after travel abroad.  These documents should be applied for, in certain cases, prior to your departure from the United States.  Please see the "Travel Documents"  page for more information on the types of travel documents.

Caution

Travel outside of the United States may have severe consequences if you are in the process of adjusting your status (applying for a green card). In general, if you are seeking immigrant status (a green card) and depart the United States without the appropriate documentation (i.e. advance parole) you may be inadmissible to the United States upon return, or even if admitted, you may be found to have abandoned your application.

If you have been admitted as a nonimmigrant and have applied to extend the period of authorized nonimmigrant stay, or have applied to change to a different nonimmigrant status, you will automatically abandon the application if you leave the United States before USCIS makes a decision on the advance parole application.  Receipt of an advance parole document does NOT prevent abandonment of the change of status or extension of stay application.  Upon returning to the United States, you are likely to be denied admission if your current status has expired.

For the reasons stated above, it is important that you obtain the proper documentation before leaving the United States.  Also, you should keep in mind that admission into the United States is not guaranteed even if the appropriate documents are obtained.  In all cases, you are still subject to immigration inspection or examination at a port of entry to determine whether you are admissible into the country and whether you are eligible for the immigration status sought.

Asylum applicants, asylees, refugees, and lawful permanent residents who obtained such status based on their asylum or refugee status are also subject to special rules with regard to traveling outside the United States.  Additional information regarding traveling outside the United States as well as the consequences that could result if an asylum applicant, an asylee, a refugee, or a lawful permanent resident who obtained such status based on his or her asylum or refugee status returns to his or her country of claimed persecution may be found in the Fact Sheet entitled "Traveling Outside the United States as an Asylum Applicant, an Asylee, or a Lawful Permanent Resident Who Obtained Such Status Based on Asylum Status." 

Unlawful Presence

If you depart the United States after accruing certain periods of unlawful presence in the United States (time spent in the United States illegally) you may be barred from admission for either three years or ten years, depending on the amount of unlawful presence an individual has accrued.  Any departure from the United States may trigger this ground of inadmissibility, even if you have obtained an advance parole document.

If you have accrued more than 180 days, but less than 1 year, of unlawful presence and who voluntarily depart the United States before the start of removal proceedings are inadmissible if you seek admission within 3 years of the date of their departure.  If you have accrued 1 year or more of unlawful presence and you depart the United States, whether or not removal proceedings have started, you are inadmissible if you seek admission within 10 years of the date of departure.

Criteria for Expedited Processing of an Application
  • USCIS will expedite an application, including an application for a travel document, Form I-131, in certain situations, which may include:
  • Severe financial loss to company or person;
  • Emergency situations;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or National Interest Situation (Note: The request must come from an official U.S. Government entity and state that delay will be detrimental to the Government.); 
  • USCIS error; or
  • Compelling interest of USCIS.
  • A completed and signed Form I-131, Application for Travel Document
  • The correct I-131 filing fee
  • Evidence to support the emergency request (e.g. medical documentation, death certificate)
  • Two passport-style photos.
How to file:

You may submit an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283, or by submitting a written request and supporting documentation with your application.
Emergency Advance Parole Documents

If you are experiencing an extremely urgent situation, you may visit your local office to request an emergency advance parole document.  When visiting a local office to request emergency advance parole, you should bring the following items:
To apply for an emergency travel document, you must file Form I-131, Application for a Travel Document, complete with supporting documentation, photos and applicable fees. See the application for specific filing instructions.

Where to file

Where to file the Form I-131 depends on the benefit sought.  See the form instruction page for details.  Your local office may accept an emergency advance parole application if you are experiencing an extremely urgent situation.  Business trips, weddings, holiday parties, and other planned events would usually not be considered an emergency situation.  If you are filing Form I-131 for an emergency travel document at your local office based on an extremely urgent situation, you are encouraged to make an Infopass appointment first. "Make an Appointment (Infopass)."

Where to file

You must apply for the travel document before leaving the United States.  Generally, an applicant for a travel document must also complete biometrics capture at an Application Support Center (ASC) prior to departure from the United States.  Failure to do so may cause the applicant to lose permission to reenter the country and lead to the denial of any other applications pending.

Brazil - Registration Appointment Delays Likely in São Paulo

August 23, 2016

Foreign nationals scheduling appointments in São Paulo to register their work visas and obtain a Registro Nacional de Estrangeiro (RNE) can expect delays due to the implementation of a new IT system at the Federal Police. It is not known how long such delays will last. 

The Federal Police in São Paulo are implementing a new IT system that is expected to cause delays for foreign nationals seeking to schedule appointments to register their work visas and obtain a Registro Nacional de Estrangeiro (RNE) - a temporary identification document. While the new system is being implemented, appointment slots will not be available online and walk-in appointments will not be possible.

It is not known how long these delays are expected to last. 

Similar delays are not expected in other cities in Brazil, as São Paulo is the only city confirmed to be implementing this new system.

What This Means for Employers and Foreign Nationals

Foreign nationals arriving to work in São Paulo should expect delays in obtaining an appointment to obtain a RNE and should take such delays into consideration. Employers should take note of the possibility for delays because foreign employees must obtain a RNE before they can be placed on Brazilian payroll, though they can start working before the RNE is obtained.

This alert is for informational purposes only. 

Avoid Payment Scams: USCIS Does Not Accept Fees By Phone or Email

Immigrants all over the country are being targeted in scams. Don’t be one of the victims! Scammers may call or email you, pretending to be a government official. They will say that there is a problem with an application or additional information is required to continue the immigration process. They will then ask for personal and sensitive details, and demand payment to fix any problems.

Remember, USCIS officials will never ask for payment over the phone or in an email. If we need payment, we will mail a letter on official stationery requesting payment.   

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

Visit the Avoid Scams Initiative at www.uscis.gov/avoid-scams for more information on common scams and other important tips. If you have a question about your immigration record, call customer service at 800-375-5283 or make an InfoPass appointment at http://infopass.uscis.gov.

Nicaragua - Entry Visa Now Required for Venezuelan Nationals

August 24, 2016

Venezuelan nationals seeking to enter Nicaragua now require a consular visa with a pre-approval from the General Directorate of Immigration, a process that takes 45-60 days. 

Effectively immediately, Venezuelan nationals require a "consulted visa" to enter Nicaragua for both business and tourism.  The consulted visa requires a two-step application process and takes 45-60 days: a pre-approval from the General Directorate of Immigration, and a visa issued by the appropriate Nicaraguan consulate for the applicant's residence.  Previously, Venezuelan nationals did not require a visa to enter Nicaragua.

For the pre-approval, the inviting entity must present the following documents to the General Directorate of Immigration:   

  • Copy of the foreign national's passport bio page and all pages with visa stamps;
  • Invitation letter addressed to the appropriate Nicaraguan consulate for the foreign national's residence;
  • National-level police clearance from the country or countries of residence covering the past three years;
  • Copy of the national ID (cédula) of the host company's legal representative; and
  • A guarantee deposit equal to the return airfare to the foreign national's country of residence.
  • If an individual is inviting the foreign national: Inviting individual's salary certificate and pay stubs from the Social Security office, and a copy of his or her cédula.
  • If dependents will accompany the foreign national, legalized originals of their vital records (birth and/or marriage certificates) must also be presented.

What This Means for Employers and Foreign Nationals

Venezuelan nationals seeking to travel to Nicaragua should allow an additional two to three months to prepare documents and file the applications needed to enter the country.  While the official decree related to this change has yet to be released, immigration officials have begun to implement the rule at all ports of entry.

This alert is for informational purposes only. 

Canada - Latest Express Entry Draw Remains Low, but With Higher Qualifying Score than Previous Draws

August 24, 2016

Immigration, Refugees and Citizenship Canada will invite 750 candidates to apply for permanent residence in its most recent Express Entry draw. The minimum qualifying score for this draw will increase to 538, substantially higher than previous draws.

Immigration, Refugees and Citizenship Canada (IRCC) is conducting its 41st Express Entry draw through tomorrow.

  • IRCC will issue 750 invitations to those who have submitted an Expression of Interest to apply for permanent residence.
  • The minimum qualifying score for this draw is 538, a substantial increase from the last draw's qualifying score of 490.

The number of invitations remains low, as in recent draws. The frequency and size of Express Entry draws are at the discretion of IRCC. 

What This Means for Employers and Foreign Nationals

While a Labour Market Impact Assessment (LMIA) or Provincial Nomination (PN) approval will guarantee an employee's selection and invitation for permanent residence, such documents are not required in all cases. 

This alert is for informational purposes only. 

Malaysia - Tougher Requirements Take Effect September 1 for Employment Pass Applications Submitted to Malaysia Digital Economy Corporation (MDEC)

A series of new requirements will take effect September 1, 2016 for employers with Multimedia Super Corridor status that submit Employment Pass applications to the Malaysia Digital Economy Corporation, including a longer passport validity requirement, a new cooling off period for certain renewal and conversion applications, and several new documentation requirements. 

The Malaysia Digital Economy Corporation (MDEC) recently announced a series of new requirements for Employment Pass (EP) applications and related filings that are submitted by employers with Multimedia Super Corridor (MSC) Malaysia status. The new requirements will take effect September 1, 2016.

Longer Passport Validity Requirement:  For both new and renewal EP applications and related filings, the foreign national's passport - as well as any accompanying dependents' passports - must have at least twelve months of remaining validity at the time their Stage 2 application is filed. We would advise foreign nationals and accompanying dependents to have at least 15 months of remaining validity on their passports when entering Malaysia to account for the in-country processing times.

Approval Letter Now Required:  Foreign nationals and any accompanying dependents seeking to enter Malaysia to obtain an EP (whether in Categories I, II, or III), a Dependent's Pass (DP), or a Long Term Social Visit Pass (LTSVP) must obtain MDEC's Stage 1 approval letter before entering Malaysia. This requirement is applicable to Stage 1 approval letters issued on and after September 1, 2016. 

New Cooling Off Period:  Foreign nationals, and any accompanying dependents, in the following four situations will be required to leave and remain outside of Malaysia for a three-month cooling off period before they can reenter Malaysia for the filing of their Stage 2 application:
  • Employees with EPs in Category III - which are those EPs held by individuals whose monthly salary is between RM 2,500 and 4,999.99 - who are seeking to change employers;
  • Employees with EPs in Category III seeking their fourth EP, either as a renewal or who are changing positions;
  • Employees seeking to convert a Social Visit (Temporary Employment) Pass to an EP, whether in Categories I, II or III; or
  • Employees seeking to convert a Professional Visit Pass (PVP) with the duration of 12 months to an EP, whether in Categories I, II or III.
Reference Visa (VDR) Required for EP in Category III: Existing pass holders seeking to convert their passes (for example DP, PVP, LTSVP and Student's Pass) to an EP in Category III will be required to exit Malaysia and obtain a Reference Visa (VDR) before they can reenter. As discussed above, these individuals may also be subject to a new cooling off period. This is also applicable to existing employees with EPs in Category III who are changing employers in Malaysia.

EP Holders Seeking to Attend University While in Malaysia: EP holders in Malaysia seeking to take up higher learning studies on a part-time basis at a public or private university in Malaysia will be able to obtain a new passport endorsement called Permission to Study. The Permission to Study application must be submitted by the EP holder's local sponsor after the employee's EP is endorsed into his or her passport. 

New Process for Children Born in Malaysia: If an EP holders' child is born in Malaysia, a DP must be obtained for the child within six months from the child's date of birth. If a DP is not obtained during that time, a Special Pass must be obtained before a DP can be endorsed into the child's passport. Both the EP holder and the newborn child must be physically present at the Immigration Department to submit the Special Pass application. 

Original Supporting Documents Required for LTSVP Renewals: The Long Term Social Visit Pass is sometimes used by family members of EP holders who are not eligible for Dependent Passes. These LTSVP holders will be subject to new original supporting documentation requirements as follows when seeking to renew their LTSVPs:
  • Children of EP holders who are 18 years old or older will require an original letter from both a Commissioner for Oaths and the child's home-country embassy in Malaysia that confirms his or her eligibility for LTSVP status, that is to say that he or she is unmarried, unemployed and under the custodial care of the principal EP holder.
  • The common law wife of an EP holder will require an original confirmation letter from her home-country embassy in Malaysia as proof of their common law relationship.
What This Means for Employers and Foreign Nationals

Employers should generally expect longer processing times for EP applications and related filings after September 1, particularly for employees and accompanying dependents to whom any of the circumstances discussed above apply, such as foreign nationals seeking to change employers or EP holders with family members holding LTSVPs rather than Dependent Passes. 

Employers should also pay close attention to employees and accompanying dependents holding EPs in Category III in light of the new cooling off period and VDR requirements, especially those who have already renewed their EPs several times. 

This alert is for informational purposes only

United States - Update on Visa Appointment Backlogs at U.S. Consulates in India

Visa appointment backlogs at U.S. consular posts in India have further increased in the last several days. Foreign nationals who need to apply for an H or L visa in India currently face visa appointment wait times of 75 to more than 125 days at the U.S. consulates in Chennai, Hyderabad, Kolkata, Mumbai and New Delhi. The appointment backlog is likely to delay U.S. employment start dates and reentry to the United States, unless applicants are able to secure a visa appointment at another consulate. Backlogs are likely to increase as the October 1 start date for FY 2017 H-1B cap employment nears.

U.S. consulates in India continue to experience significant backlogs in nonimmigrant visa appointments for H, L and other employment-based nonimmigrant visas. Foreign nationals seeking a nonimmigrant visa are facing wait times of 75 to more than 125 days to secure an appointment in Chennai, Hyderabad, Kolkata, Mumbai and New Delhi.  Appointment wait times for B-1/B-2 visitor visas and F-1 student visas are four to 22 days. 

Demand for U.S. visas has increased over the last several months, but there has been no increase in consular staff at the U.S. mission to India, leading to the current backlog.

A lternatives for Visa Applicants Affected By the Backlogs

If you are an Indian national with an imminent need to obtain an employment-based nonimmigrant visa, you and your dependents may be able to apply at a U.S. consulate outside India as third-country nationals (TCNs). However, there are additional travel costs associated with this option, and you may also need to obtain a foreign visa to visit the third country. 

Applying at the U.S. consulate in Kolkata, which previously had an appointment backlog of just 13 days, is no longer an option for imminent travel ; wait times have increased to 126 days since August 22. 

What This Means for Employers and Foreign Nationals 

The lengthy backlogs mean that Indian employment-based nonimmigrant visa applicants are likely to face delays in beginning their U.S. employment.  Indian H, L and other employment-based nonimmigrants already in the United States may face delays in international travel and reentry.  The backlogs are likely to increase as the October 1 start date for FY 2017 H-1B cap employment nears. 

This alert is for informational purposes only.

Justice Department Proposes to Expand Employer Liability for Immigration-Related Discrimination Claims

The Justice Department has proposed a regulation  that seeks to enhance its ability to enforce federal immigration-related anti-discrimination laws, with significant potential impact to employers. If implemented, the rule would increase employers' exposure to discrimination claims. 

The rule would give the Justice Department up to five years from the time of an alleged violation to bring a complaint or conduct an investigation. Currently, it is limited to 180 or 210 days to bring a complaint or investigate one. The agency would have the authority to waive the 180-day time limit for an individual employee to file a discrimination charge against an employer. Furthermore, the proposed rule would give expanded investigative powers to the agency, both in terms of what information it could access and from whom it could obtain information. 

Employers would be liable for discrimination if they treat employees differently based on immigration status, regardless of their reasons for the different treatment, and even where the employer does not take adverse action against those employees - provisions that appear inconsistent with federal employment discrimination statutes.  

This alert is for informational purposes only.

Lengthy Visa Appointment Backlogs at U.S. Consulates in India

Foreign nationals who need to apply for an H or L visa in India currently face visa appointment wait times of 75 to more than 115 days at the U.S. consulates in Chennai, Hyderabad, Mumbai and New Delhi.  The appointment backlog is likely to delay U.S. employment start dates and reentry to the United States, unless applicants are able to secure a visa appointment at another consulate.  Backlogs are likely to increase as the October 1 start date for FY 2017 H-1B cap employment nears.


U.S. consulates in India are experiencing significant backlogs in nonimmigrant visa appointments for H, L and other employment-based nonimmigrant visas. Foreign nationals seeking a nonimmigrant visa are facing wait times of 75 to more than 115 days to secure an appointment  in Chennai, Hyderabad, Mumbai and New Delhi. The delays do not affect B-1/B-2 visitor visas or F-1 student visas. 

Demand for U.S. visas has increased over the last several months, but there has been no increase in consular staff at the U.S. mission to India, leading to the current backlog. 

Alternatives for Foreign Nationals and Employers

If you are an Indian national with an imminent need to obtain an employment-based nonimmigrant visa, you and your U.S. employer should consider the following options:
  • Apply at the U.S. consulate in Kolkata.   The U.S. consulate in Kolkata currently has a wait time of 13 days for employment-based nonimmigrant visa appointments, but that period is likely to increase as foreign nationals with an imminent need to travel book appointments there. If you are seeking an H-1B, individual L-1 or other employment-based nonimmigrant visa, you may be able to get an appointment in Kolkata, but you must act quickly because appointment slots are likely to be filled soon. This option is not available to principal applicants for blanket L-1 visas in India, which are under the sole jurisdiction of the U.S. consulate in Chennai. However, blanket L-2 dependents applying separately from the principal nonimmigrant may apply in Kolkata. 
  • Apply at a U.S. consulate outside India as a third-country national (TCN).  You and your dependents may be able to secure a TCN visa appointment at a consulate outside India. This may be the only option for blanket L-1 visa applicants with a need to travel to the United States soon. However, there are additional travel costs associated with this option, and you may also need to apply for a foreign visa to the third country.  
What This Means for Employers and Foreign Nationals

The lengthy backlogs mean that Indian employment-based nonimmigrant visa applicants are likely to face delays in beginning their U.S. employment. H and L nonimmigrants already in the United States may face delays in international travel and reentry. The backlogs are likely to increase as the October 1 start date for FY 2017 H-1B cap employment nears.