UPDATE -- The State Department has announced that as of June 26, all visa issuing posts are back online and are able to issue visas normally. The department expect to have the existing backlog of pending visa cases cleared before the July 4 Independence Day holiday. Following up on our earlier post regarding the ongoing “visa freeze” caused by technical problems with the Department of State’s Consular Consolidated Database (CCD), we attended a meeting today with State Department officials who provided updated information.
As background, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9, and posts worldwide are currently unable to issue visas for travel to the U.S. In today’s meeting, State Department officials stated that they hope to have the system at least partially operational at some point next week (June 22 – June 26). Officials also confirmed that once the system is operating again, posts will prioritize applications as they work through the backlog. Priority will be given to emergency humanitarian cases, H-2A applications based on current agricultural needs, and F-1 students and J-1 exchange visitors who have impending program start dates. Department officials reiterated that those with a pending application whose passport is being held by the post may withdraw their application and request the return of their passport if they have a need to travel elsewhere than the U.S. However, individuals must be aware of the ramifications of this as it pertains to future visa applications, especially applications for an ESTA clearance to travel under the Visa Waiver Program. After returning the passport to an applicant making such a request, the post will issue a “refusal” (denial) of the visa application. This “denial” must then be disclosed on future visa applications and on any request for an ESTA clearance under the Visa Waiver Program. With regard to ESTA processing, officials stated that this disclosure of the “refusal” would result in the ESTA application being sent for review, but if the review determined that the sole basis for refusal was due to the visa outage, the ESTA clearance would be issued. The Department of State will update the public on the outage through its website, travel.state.gov, and through the websites for the individual posts. Of course, we will also keep our readers informed through continued email alerts and blog posts. As always, please contact us with any questions. The U.S. State Department has announced that it is experiencing technical problems with the primary computer system used to print and issue U.S. visas and other critical documents.
The problems related to the Consular Consolidated Database (CCD) has resulted in delays in printing visas, emergency U.S. passports, Consular Reports of Birth Abroad, and other documents. The issues are widespread and are not limited to any particular country or visa type. With regard to visa processing, a hardware failure has prevented consular posts from receiving biometrics and other security clearances required for visa issuance since June 9. Any person who submits a visa application or attends a visa interview on or after June 9 should expect a delay while posts are unable to print visas. The Department experienced similar but unrelated issues with the CCD last summer that affected visa issuance for several weeks, and visa applicants should expect the same now while the Department works to resolve the problem and clear out the backlog of visas to be processed. As always, please contact us with any questions. USCIS has imposed a new obligation on H-1B employers who relocate their H-1B workers to new worksites, and has imposed a filing deadline to update H-1B petitions for relocations that have already occurred.
In a recent decision, the USCIS Administrative Appeals Office (AAO) held that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition. While this is a departure from long-standing, albeit unofficial, agency policy that a change in work location was not a “material change” requiring an amendment, USCIS had been hinting in recent years that this policy was in the crosshairs. Despite the existence of that generally accepted guidance, we began routinely advising clients to file amendments in this situation long before this recent AAO decision. Critically, USCIS has announced that it will apply this new obligation retroactively. This means that employers who have already assigned H-1B workers to new worksites will have to file a petition to amend the workers’ H-1B status to reflect the change in work location, even if the change occurred several months ago. According to recently published USCIS guidance, employers must file amended petitions for workers who changed work locations prior to May 21, 2015, no later than August 19, 2015. Failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States. We strongly suggest that employers carefully review the current work locations for their H-1B workers and immediately seek to resolve any discrepancies between the work location listed on the LCA and the actual work location. As always, please contact us with any questions. |
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