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Current Issue
U.S. Immigration News Update December 2002 Headlines
INS ONLINE CASE STATUS CHECK SYSTEM
The Immigration and Naturalization Service ("INS") has launched a system for checking the status of a case pending at a INS Service Center via the internet. It can be found at https://egov.immigration.gov/graphics/cris/jsps/caseStat.jsp. The information provided is the same as can be obtained by calling the “INS Direct” inquiry lines at the Service Centers, but this system provides an alternative means to make an inquiry without worrying about busy signals.
CITIZENS OF IRAN, IRAQ, LYBYA, SUDAN, AND SYRIA MUST REGISTER WITH INS UPON U.S. ENTRY
Special Registration is the first phase of a new system that will let the government keep track of the arrival and departure of nonimmigrants that come to the U.S. every year. Some of the approximately 35 million nonimmigrants who enter the U.S. every year will be required to register with the INS in accordance with the special registration procedures. These special procedures will require that certain nonimmigrants be fingerprinted and photographed when arriving in the U.S. If the nonimmigrant stays in the U.S. for 30 days or more, they will have to appear in person at an INS office and will have to notify the INS when they change address, employment, school, etc. Nonimmigrants who must follow these special procedures will also have to notify INS when they leave the country. They must do so ONLY by reporting in person to an INS officer at a specially designated port of departure. NOTE: Not all ports of entry are also ports through which a nonimmigrant subject to special registration may depart.
Who Must Register?
1. Nonimmigrants who are nationals or citizens of Iran, Iraq, Libya, Sudan and Syria
2. Nonimmigrants who have been designated by the State Department at American embassies or consulates
3. Any other nonimmigrant identified by INS officers at airports, seaports and land ports of entry in accordance with 8 CFR 264.1(f)(2).
How to Register?
An INS officer at the arrival port of entry will refer nonimmigrants subject to registration to the area where they will be photographed, fingerprinted, and interviewed.
Initial Registration
An INS officer will register nonimmigrants subject to the special procedures when they arrive at a U.S. airport, seaport, or land port of entry.
After 30 Days or More in the U.S.
Registered nonimmigrants who remain in the U.S. for 30 days or longer must report for an in-person interview at a designated INS interviewing office for special registration between 30 and 40 days after their arrival date. NOTE: Not all INS offices are designated as interviewing offices for special registration. Registered nonimmigrants who remain in the U.S. for one year or longer must report in person to the nearest designated INS interviewing office each and every year, no later than 10 days from the anniversary of initial arrival date into the U.S.
A list of designated INS interviewing offices for special registration will be given to nonimmigrants upon their initial registration. The location of the designated INS district offices or sub-offices may also be found by calling the INS National Customer Service Center at 1-800-375-5283.
When Leaving the U.S.
Registered nonimmigrants are required to notify an INS officer when they leave or travel from the U.S. When a nonimmigrant is initially registered, they will be given a list of airports, seaports, or land ports to use to leave the U.S. Please note: All special registrants MUST depart ONLY though one of these designated ports of departure.
How to Report a Change of Address, Employment, or Educational Institution
The law already requires that nonimmigrants subject to special registration who remain in the U.S. for 30 days or more must report in writing any change of address, employment, or educational institution to the INS. (NOTE: Changes of address within the first 29 days after arrival in the U.S. do NOT have to be reported to INS. And, any changes of employer or educational institution made within the first 29 days after arrival should be reported to the INS through pre-existing channels and procedures. Any such changes made after 29 days must also be reported on form AR-11SR.). These changes must be reported on the Form AR-11SR within 10 days of occurrence. Form AR-11SR is available on the INS website at: http://www.ins.usdoj.gov/graphics/formsfee/forms/ar-11sr.htm.
SPECIAL REGISTRATION FOR CERTAIN FOREIGNERS ALREADY IN THE U.S.
1. Citizens or Nationals of Iran, Iraq, Libya, Sudan, or Syria
[Update (January 16, 2003) Registration Extension! - Citizens or nationals of the above 5 countries who were required to register with the INS, but failed to comply by the original deadline are given a second opportunity to register at an INS office between January 27, 2003 and February 7, 2003.]
You must register with INS, (1) if you are a citizen or national of one of the above five countries and were inspected by the INS and last admitted to the United States as a nonimmigrant on or before September 10, 2002; (2) if you are a male, born on or before November 15, 1986; and (3) if you will be in the United States at least until December 16, 2002.
You must come to a designated INS office to be registered (photographed, fingerprinted, and interviewed under oath) between November 15 and December 16, 2002. If you remain in the United States for more than 1 additional year, you must report back to a designated INS office within 10 days of the anniversary of the date on which you first registered. For example, if you were registered November 20, 2002, you would report back between November 10 and November 30, 2003. If you change your address, employment, or educational institution, you must notify the INS in writing within 10 days of the change, using Form AR-11 SR. If you leave the United States, you must appear in person before an INS inspecting officer at one of the designated ports and leave the United States from that port on the same day.
2. Citizens or Nationals of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen
[Update (January 16, 2003) Registration Extension! - Citizens or nationals of the above 13 countries who were required to register with the INS, but failed to comply by the original deadline are given a second opportunity to register at an INS office between January 27, 2003 and February 7, 2003.]
You must register with INS, (1) if you are a citizen or national of one of the above 13 countries and were inspected by the INS and last admitted to the United States as a nonimmigrant on or before September 30, 2002; (2) if you are a male, born on or before December 2, 1986; and (3) if you will be in the United States at least until January 10, 2003.
You must come to a designated INS office to be registered (photographed, fingerprinted, and interviewed under oath) between December 2, 2002 and January 10, 2003. If you remain in the United States for more than 1 additional year, you must report back to a designated INS office within 10 days of the anniversary of the date on which you first registered. For example, if you were registered December 12, 2002, you would report back between December 2 and December 22, 2003. If you change your address, employment, or educational institution, you must notify the INS in writing within 10 days of the change, using Form AR-11 SR. If you leave the United States, you must appear in person before an INS inspecting officer at one of the designated ports and leave the United States from that port on the same day.
3. Citizens or Nationals of Saudi Arabia and Pakistan
[Update (February 14, 2003) Registration Extension! - Citizens or nationals of the above 2 countries who are required to register with the INS are given an additional 4 weeks to register until March 21, 2003.]
You must register with INS, (1) if you are a citizen or national of one of the above two countries and were inspected by the INS and last admitted to the United States as a nonimmigrant on or before September 30, 2002; (2) if you are a male, born on or before December 2, 1986; and (3) if you will be in the United States at least until February 21, 2003.
You must come to a designated INS office to be registered (photographed, fingerprinted, and interviewed under oath) between January 13, 2003 and February 21, 2003. If you remain in the United States for more than 1 additional year, you must report back to a designated INS office within 10 days of the anniversary of the date on which you first registered. For example, if you were registered January 23, 2003, you would report back between January 13 and February 2, 2004. If you change your address, employment, or educational institution, you must notify the INS in writing within 10 days of the change, using Form AR-11 SR. If you leave the United States, you must appear in person before an INS inspecting officer at one of the designated ports and leave the United States from that port on the same day.
4. Citizens or Nationals of Bangladesh, Egypt, Indonesia, Jordan, or Kuwait
[Update (January 16, 2003) - The above 5 countries have been added to the Call-In registration requirement. See below for details.]
[Update (February 14, 2003) Registration Extension! - Citizens or nationals of the above 5 countries who are required to register with the INS are given an additional 4 weeks to register. The registration period for this group will now be effective from February 24, 2003 until April 25, 2003.]
You must register with INS, (1) if you are a citizen or national of one of the above five countries and were inspected by the INS and last admitted to the United States as a nonimmigrant on or before September 30, 2002; (2) if you are a male, born on or before February 24, 1987; and (3) if you will remain in the United States after March 28, 2003.
You must come to a designated INS office to be registered (photographed, fingerprinted, and interviewed under oath) between February 24, 2003 and March 28, 2003. If you remain in the United States for more than 1 additional year, you must report back to a designated INS office within 10 days of the anniversary of the date on which you first registered. For example, if you were registered March 10, 2003, you would report back between March 1 and March 20, 2004. If you change your address, employment, or educational institution, you must notify the INS in writing within 10 days of the change, using Form AR-11 SR. If you leave the United States, you must appear in person before an INS inspecting officer at one of the designated ports and leave the United States from that port on the same day.
If you do not follow these procedures, you may be considered to be out of status and deportable. You may be subject to arrest, detention, fines and/or removal from the United States. Any future application for an immigration benefit from the United States may be adversely impacted. If you do not properly exit through a designated port, any future attempts to reenter the United States may be impacted. Decisions will be made on an individual basis, depending on the circumstances of each case.
VISA APPLICATION FEE INCREASE EFFECTIVE 11/01/2002
The U.S. Department of State (“DOS”) has increased the Machine Readable Visa (“MRV”) application fee for nonimmigrant visa applicants to $100. The new fee went into effect on November 1, 2002. The fee is being increased because the volume of applications had decreased by 20 percent in the last fiscal year, resulting in a decrease in fee revenues, while workload increased due to increased security checks and more interviews being conducted.
PRESIDENT BUSH SIGNS BORDER STUDENT COMMUTER BILL INTO LAW
President George W. Bush, on November 2, 2002, signed the "Border Student Commuter Act of 2002" (H.R. 4967, P.L. 107-274). The new law creates a border commuter nonimmigrant classification under the F and M student visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full- or part-time study.
INS ADJUDICATIONS DELAY OR FREEZE
[Update (January 13, 2003) - The temporary freeze on adjustment and naturalization adjudications has been lifted according to the INS. INS Headquarters has advised the American Immigration Lawyers Association ("AILA") that the problems with the FBI checks have been resolved, and that approvals of adjustment of status and naturalization applications are proceeding.]
A November 13, 2002 INS memorandum instructs all INS offices to cease same-day adjudications of benefits when there is a temporary A-file. The instructions are part of an overall memo requiring all INS offices to undergo certain procedures to “ensure that benefits are not granted to ineligible applicants.” Based on reports from several INS spokespersons, the following is a summary of what the memo requires.
The memo holds individual adjudicators fully accountable “to obtain and review any and all information” provided in national or local background checks, and to review the full contents of the A-file or petition for any disqualifying information or evidence that such information may exist. Specifically, adjudications officers reviewing the results of IBIS name checks must determine whether the file contains any aliases, and if so, must initiate additional checks of IBIS. Furthermore, if in response to a name check, the FBI indicates to the INS that a record may exist, the adjudicator may not decide the application until he or she receives a definitive response from the FBI indicating that the information triggered by the name check does not pertain to the applicant in question. The adjudicator must then document the FBI’s disposition in the applicant’s file.
The memo also stresses that Service personnel must use extra care in adjudicating applications and petitions from a temporary A-file. Namely, applications that are adjudicated from a temporary A-file must undergo all the normally required background checks and must undergo the following additional steps. First, adjudicators must review the Central Index System ("CIS") printout to determine if records on the applicant exist in other INS systems. If so, the adjudicator must obtain and review such information and include it in the applicant’s file prior to adjudicating the application. If background checks on the applicant come back negative (i.e., no records are found), the adjudicator must note this fact on the processing sheet and must note the various data checks that were made. A supervisory adjudications officer must review and approve the adjudication of that application on the temporary A-file.
If background checks are positive (i.e., a record or a possible record exists), the adjudicator must obtain the information in question, resolve it, and make it a part of the record. Furthermore, the adjudication cannot be completed until the Assistant District Director for Adjudications, or the Assistant Service Center Director, or the Officer in Charge having jurisdiction over the adjudication has reviewed and approved the decision, and no delegation of this authority may occur.
The memo adds that, in light of the above special precautions that must be taken in connection with adjudicating applications on a temporary A-file, and in order to permit supervisory personnel sufficient time to review records, no same-day oath ceremony may take place if the adjudication involves a temporary A-file. However, the Assistant District Director for Adjudications, or the Assistant Service Center Director, or the Officer in Charge can waive this requirement in certain cases. Again, such waivers must be in writing and placed in the applicant’s file.
In response to the memo, some INS District Offices that previously processed employment authorizations and advance paroles on a same-day basis have apparently discontinued the practice, either on a blanket basis or for cases for which they do not have the A-file. For example, there are reports that the Boston INS office has ceased doing same-day Employment Authorization Documents (“EAD”) and advance paroles on a same-day basis where it doesn't have the A-file (which is most cases); the Minneapolis INS office has ceased doing same-day advance paroles and EADs; and the Harlingen INS office had announced that EADs and advance paroles would not be issued until further notice, but then announced that that policy had been rescinded. It is not clear what Harlingen is or is not doing now.
A spokesman from INS Headquarters stressed that the INS is continuing to process applications for immigration benefits as usual, noting that the memo simply instructs adjudicators that cases may not be approved without completion of all required security checks. He added that adjudicators have also been informed that EADs and advance paroles are subject to IBIS checks and may be processed as in the past.
PRESIDENT BUSH SIGNS HOMELAND SECURITY ACT OF 2002
President George W. Bush signed the "Homeland Security Act of 2002" on November 25, 2002. The Department of Homeland Security ("DHS") Reorganization Plan (located on the White House website) specifies the steps that will be taken to organize the new Department along with a timetable for each. For additional information on the new DHS, please visit the White House website at:
http://www.whitehouse.gov/homeland.
NEW BIOMETRIC BORDER CROSSING CARDS REQUIRED BEGINNING 10/01/2002
In a September 16, 2002 News Release, the INS reminds Mexican border crossers that beginning on October 1, 2002, holders of the old non-biometric Mexican Border Crossing Card (“BCC”) will be required to present the new biometric BCC at all U.S. ports of entry along the U.S./Mexico border.
INS ADMINISTRATIVE APPEALS OFFICE PROCESSING TIME
Update on processing times at the INS Administrative Appeals Office (“AAO”) by case type from the date of receipt at the AAO as of October 17, 2002:
H1B .....................................7 months
L1 ......................................16 months
EB1 Extraordinary Ability ...............5 months
EB1 Outstanding Professor & Researcher ..4 months
EB1 Multinational Manager ...............1 year
EB2 Advance Degree Professionals ........20 months
EB3 Skilled Workers & Professionals .....7 months
I360 Religious Workers ..................8 months
Others ..................................3-4 months
U.S. CONSULATE IN CIUDAD JUAREZ, MEXICO TO CEASE THIRD COUNTRY VISA PROCESSING
The U.S. Department of State Visa Office has confirmed that the U.S. Consulate in Ciudad Juarez (“CJ”) will cease taking appointments for third country national (“TCN”) nonimmigrant visa processing effective November 1, 2002. The National Visa Appointment Reservation System (“NVARS”) shows no more appointments available in CJ after that date.
The stated reasons are two-fold. First, CJ, under pressure to process some 250,000 V visa applications, has found the process far slower going than anticipated, especially with the perceived need for personal interviews. Second, CJ has had tremendous difficulty recruiting for civil service visa officer positions, and reports that 15 of its 38 civil service visa specialist positions are vacant. Visa Office is unaware of plans to allocate resources to the other border posts.
CJ will continue to accept applications from all residents of its district, principally Chihuahua, plus the states of Durango and Coahuila. CJ will also continue to accept applications from any TCN who is a resident (i.e., holds an FM-3 Mexican Visa) and from TCNs who live in the general El Paso area (southern New Mexico/west Texas) and work in Ciudad Juarez, on presentation of their FM-3 visa as proof of residence.
The U.S. consulate in Ciudad Juarez announced on its website two narrow exceptions to its new policy of not accepting nonimmigrant visa applications from third country nationals: certain F-1 students and residents of the consular district.
PRESIDENT BUSH SIGNS DOJ AUTHORIZATION ACT INTO LAW
President George W. Bush, on November 2, 2002, signed into law the "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). The new law contains immigration provisions impacting, among other things, H1B Specialty Occupation Visa, J1 Physician Waivers, and Immigrant Investors.
1. Extension of H1B Status for Aliens with Lengthy Adjudications: This provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H1B status ends at that point.
2. J1 physician waivers: This provision extends the "Conrad State 20" program to 2004, which allows states to request waivers of the two-year home residence requirement of INA Section 212(e) for certain J1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30.
3. Conditional Permanent Residence for Certain Immigrant Investors: This provision applies to individuals who filed an Immigrant Petition by an Alien Entrepreneur (Form I-526) that was approved by the INS between January 1, 1995 and August 31, 1998, and who timely filed an adjustment of status application or applied for an immigrant visa overseas, but who never became conditional residents because they remained overseas or because the INS never acted on their adjustment application. The provision provides that if the INS revoked the Petition by an Alien Entrepreneur (Form I-526) on the ground that the investor failed to meet the capital investment requirement, that revocation is to be disregarded for purposes of this bill, and the adjustment or immigrant visa application overseas is to be treated as reopened. Once the investors become conditional residents, they must file a Petition by Entrepreneur to Remove Conditions (Form I-829) within two years.
4. Amendments to Pilot Immigration Program for Regional Centers to Promote Economic Growth: Amends section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 to refine the description of an EB5 regional center and clarify that the regional centers can promote increased export sales, improve regional productivity, job creation or increase domestic capital investment. The section also indicates that the INS should approve applications for EB5 regional center status where the application is based on a general prediction concerning the kinds of commercial enterprises that will receive capital from investors, the jobs that will be increased directly or indirectly as a result of the investment, and the positive economic impacts that will result from the investment.
EEOC UPDATES GUIDANCE ON NATIONAL ORIGIN DISCRIMINATION
The U.S. Equal Employment Opportunity Commission (“EEOC”) has announced the issuance of updated guidance, in the form of a new Compliance Manual, on the prohibition against national origin discrimination under Title VII of the Civil Rights Act of 1964. The new guidance also includes a new web page and a Questions and Answers fact sheet addressing national origin discrimination in the workplace. To view these documents, visit: http://www.eeoc.gov/docs/national-origin.html and http://www.eeoc.gov/docs/qanda-nationalorigin.html
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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