THE OH LAW FIRM

Dedicated Professionals in Immigration Law for 24 Years

Reported by Matthew Oh, Esquire.

(03/01/03 - 07/31/03)

The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

The posting in the Breaking News requires visitors' some level of knowledge of immigration issues. Reading one posting without closely following previous postings will result in reading it out of context. The laws, policies, and practices of agencies are constantly changing and people should be careful in reading old postings. People should not take the news in this page as a legal advice. The purpose of Breaking News is to feed into the immigrant communities up to the minute news, especially inside information of agencies' decision making. Just like any other news reporting, the life span of the news can be very short. This is not a text book or a law book. It is a "news report." This site will welcome "only" those visitors who follow the news reports everyday just like the subscribers of daily newspapers. The sole purpose of this site is to serve the immigrant communities and not immigration law professionals...

Current Page[03/01/2008 - Present]/Archive XVI[08/01/2007 - 02/29/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05/Archive X [09/15/04 - 02/28/05 /Archive IX [03/01/04-09/14/04]/Archive VIII [08/01/03 - 02/29/04]/Archive VII [03/01/03 - 07/31/03]/Archive VI [11/01/02 - 02/28/03]/ Archive V [07/01/02-10/31/02]/Archive IV [03/01/02 - 06/30/02]/Archive III [07/01/01 - 02/28/02]/Archive II [000 - 06/30/01]/Archive I [through 02/29/00]

07/31/2003: Frustrating News of I-485 Processing Times at Nebraska Service Center

• According to the AILA, the EB-485 processing will experience further slow-down until the end of FY 2003 (09/30/2003) because of the shift of resources to the Religious Worker Special Immigration expedites and refugee 485 cases. Probably, this slow-down may apply in other Service Centers as well as we approach the end of the FY. People should remember that the immigration agency has been undertaking the annual file audit, during which the entire files are frozen. The employment-based I-485 cases have already been moving literally in snail-pace or at standstill. When it comes to I-485 processing, there does not seem to be any sign of light at the end of tunnel.

07/31/2003: Full Text of Sen. McCain "The Border Security and Immigration Improvement Act of 2003"

• On July 25, 2003, Sen. John McCain introduced this bill in the Senate. The same day, Rep. Jim Kolbe from the same state of Arizona also introduced the identical bill in the House (H.R. 2899).

07/31/2003: State Department Pumps Up Media Campaign on New Nonimmigrant Visa Procedure Effective 08/01/2003

• As visa posts throughout the world are about to implement a new nonimmigrant visa procedure requiring interviews effective tomorrow, the State Department is engaging in a campaign to publicize the changed procedure. As we reported earlier, the interview procedure will be in place with the three notable variations: (1) certain age group of people and certain class of people are exempt from the interview; (2) student and exchange visitor applicants will receive a prioritized treatment; (3) other than the foregoing two variations, visa posts are not authorized to consider waiver of interview and all of such deviation decision can only be made by the State Department HQ in Washington, D.C.

07/31/2003: How Do I Apply for Healthcare Worker Certification?

• BCIS site has posted a very comprehensive guide to this question. Those allied healthcare workers, including nurses, who are interested in applying for nonimmigrant or immigrant visa or status should visit the site.

07/30/2003: BCIS to Issue Newly Designed Reentry Permit & Refugee Travel Document Before 09/30/2003

• In June, this reporter reported from New Orleans that BCIS was planning to redesign the Reentry Permit in order to reduce the processing times which takes more than a year at this time. Today BCIS announced that during fiscal year 2003 the Bureau of Citizenship and Immigration Services (BCIS) will begin issuing a new single passport-style travel document that, depending on the circumstances, will either contain the Form I-327, Permit to Reenter the United States, or Form I-571, Refugee Travel Document. Development of the redesigned travel document is intended to reduce production time, improve customer service and strengthen the booklet's security features. Enhanced technologies, similar to those used in the production of the United States Passport, will be employed in printing the BCIS travel document to prevent counterfeiting, tampering and other fraudulent schemes. What Will the New Travel Document Look Like? Other than a new light green cover, the redesigned travel document will look similar to a United States Passport. The title, ``Travel Document Issued by the U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services,'' will appear on the front cover. The type of travel document issued will appear on the inside page of the front cover, showing either Form I-327, Permit to Reenter the United States, or Form I-571, Refugee Travel Document. Biographical information and a photograph related to the approved applicant that appears on the current Forms I-327 or I-571 will also be shown in the new travel document. The remaining pages will look similar to the current Forms I-327 and I-571. Will Those Who Possess Unexpired Forms I-327 or I-571 Be Required To Apply for a New Travel Document When BCIS Starts Producing the Newly Designed Document? No. Authorized users may continue to travel on their previously issued Form I-327 or Form I-571 until its expiration date. If an applicant applies thereafter for a travel document, he or she will be issued the newly designed document. For the full text of the announcement, please click here.
• It is expected that this measure will give some relief to the permanent residents who have been suffering from the delay of issuance of reentry permit which takes more than a year. They had to return to the country within six months or a year in order not to lose permanent resident status even if they had filed the Reentry Permit application.
  
  

07/29/2003: List of SEVIS Approved Schools as of 07/29/03

• The list is very long posted in PDF format, requiring patience in downloading.

07/29/2003: Q&A on Allied Healthcare Worker Certification Implementation Prepared by BCIS

• BCIS answers some of questions relating to the newly released regulation on allied healthcare worker certification requirement for immigrant/nonimmigration visa/status applications. Please click here for the BCIS Visa Screen Q&A

07/28/2003: BCIS HQ Orders Expedite Handling of Special Immigrant Religious Worker Cases Before 10/01/2003

• The BCIS has released a memorandum instructing field offices to expedite I-360 Special Immigrant Religious Worker Petitions and the related I-485 applications so that these cases be adjudicated before the law sunsets on September 30, 2003. This is a very welcome decision, and this site sends salute to William Yates, the Deputy Director of BCIS for operations. For the full text, please click here.

07/28/2003: U.S. Jobs Protection Act of 2003 in the House and the Senate

• Here we go! These bills have been introduced to restrict the L and H visas very severely. For the House bill (H.R. 2849) and the Senate bill (S. 1452), please click here.

07/27/2003: Full Text of Sen. Cornyn's Bill "Border Security and Immgration Reform Act of 2003

07/27/2003: Sen. McCain Introduced "Border Security and Immigration Improvement Act" on July 25, 2003

• On July 11, 2003, we reported that Sen. John Cornyn of Texas introduced "Border Security and Immigration Reform Act of 2003." The nick name of the bill is "Guest Worker bill." The Senator McCain's bill which was introduced last Friday, July 25, 2003, appears to be a similar bill to resolve the problem of shortage of workers in certain fields and provide a relief for certain illegal aliens. Both of these bills are targeting at the Hispanic community and illegal aliens.
• Report indicates that under the McCain bill, aliens who entered the U.S. illegally by Aug. 1 could pay a fine and then be issued a 3-year temporary work visa, with an option to reapply at the end of that time. The bill also provides a so-called guest worker program for a second group of people who are still seeking to enter the country. These people would be issued a renewable 3-year temporary worker visa. Unlike Sen. Cornyn bill, the McCain bill requires proof of unavailability of U.S. workers in that the employers who seek the employment of these guest would be required to post notice of job availability electronically for 14 days during when the employers must make the job made available to U.S. citizens.
• According to Sen. John McCain's press release, the bill will incorporate the following provisions:
  • “The Border Security and Immigration Improvement Act establishes two new visa programs. One addresses individuals wishing to enter the United States to work on a short-term basis while the other will be available for the undocumented immigrants currently residing in the U.S.
  • (1) “Fully cognizant of the failures and abuses of previous temporary worker programs, I am committed to ensuring that this new program prevents abuse and protects the rights of workers. Important protections are built into the new visa program. Complete portability across all sectors will allow workers the freedom to leave abusive employers and seek work elsewhere. This program would allow employers to immediately apply for permanent resident status on behalf of the employee, but unlike previous programs, this bill would allow workers self-petition after three years so that no employer could use residency status to manipulate and abuse any worker. Additionally, all U.S. labor laws are applicable to ensure full worker protection.
  • “In another departure from previous visa programs, this legislation does not put a finite number on the available visas, rather it is designed to allow the market to dictate the need for workers. Through the establishment of a job registry system, U.S. employers in need of workers can post available jobs on this registry. To ensure that U.S. workers do not lose out on valuable job opportunities, each job posted on the registry must be available to U.S. workers for a minimum of 14 days before it is open to a foreign worker. Additionally, to ensure that we do not incentivize employers to look abroad for labor that is less expensive than the domestic workforce, all employers will be charged a fee for the worker’s visa.
  • (2) “The second visa program included in this bill addresses the estimated 6 to 10 million people currently residing in the United States. Today, undocumented immigrants live in constant fear, in a shadowy underground that affords them limited opportunities and frequently leads to both exploitation and abuse. Establishing a process by which this population can voluntarily come forward and seek legal status is a necessary component to comprehensive immigration reform and ensuring the safety of our nation. “Under this bill, every undocumented individual currently residing in the U.S. will have the opportunity to obtain a visa authorizing them to remain in the United States and work for three years, after which time they may apply for the temporary worker visa program which has a built in path to permanent legal residency.
• Please stay tuned to this web site for further development of this legislative bill. This site will post the full text of the bill as soon as it is made available.
  

07/25/2003: Visa Screen Certificate Requirement for Nonimmigrant Allied Healthcare Workers: Final Rule

• BCIS today released the final rule on the certification requirement for allied healthcare workers applying for nonimmigrant visa. The rule takes effect on September 23, 2003, but for the nonimmigrant visa applicants, there will have one-year window of grace period to meet the requirement. Until this final rule goes into effect, the visa screen certificate has been required only for immigrant visa applicant. This final rule of the allied healthcare workers will affect the allied healthcare workers' application for a nonimmigrant visa or change of nonimmigrant status within the U.S. For the full text of the rule, please click here.

07/23/2003: Launch of Nonimmigrant Visa Applicant Interviews From 08/01/2003 and Related Policies

• News report indicates that Maura Harty, the Assistant Secretary of State for Consular Affairs announced that most of nonimmigrant visa applicants would be interviewed before they would decide to issue a nonimmigrant visa throughout visa posts beginning from August 1, 2003. Earlier, the State Department also issued a cable to the visa posts giving guidance on the visa interviews and the class of people who are waived from the visa interviews. In a related news, the AILA has reported that the State Department issued another cable today to the visa posts that in scheduling visa interviews, the visa posts should give priority to the foreign students and exchange visitors considering the hardship the visa processing has already created even before the interview policy is adopted. Reportedly, these students and exchange visitors are experiencing more than four months delay in visa processing at some visa posts at this time. Prioritization always produces winners and victims. It is a good news for the students and exchange visitors and a somewhat bad news other types of nonimmigrant visa applicants.

07/21/2003: Advisory for 27 Visa Waiver Country Visitors

• As the deadline approaches for Machine Readable Passport requirement beginning from October 1, 2003, the State Department sends out visa posts to engage in educational campaign to inform future travellers from these countries of the critical change for their visit to the United States. If you are the nationals of those 27 visa waiver program countries, you should read this special campaign material. It contains answers to all the questions you might have with reference to the upcoming procedural change. Please click here.

07/21/2003: Local Communities Shun U.S. Patriot Act

• News report indicates that about 165 communities nationwide have passed resolutions condemning the USA Patriot Act and one little city in northern California has taken its opposition a step further, making it a misdemeanor for city employees to cooperate in enforcing the federal antiterrorism measure. Huh?! Read on.
  

07/21/2003: Somalia TPS Designation Extension

• The extension of Somalia's TPS designation is effective September 17, 2003, and will remain in effect until September 17, 2004. The 60-day re-registration period begins July 21, 2003 and will remain in effect until September 19, 2003.
• Re-registration is limited to persons who registered under the initial designation (which was announced on September 16, 1991) and also timely re-registered under each subsequent extension of the designation, or who registered under the re-designation (which was announced on September 4, 2001) and also timely re-registered under the extension of the re-designation. Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions. For the Federal Register announcement, please click here.
  
  

07/21/2003: Iraq Travel Restrictions with U.S. Passport Removed

• Effective July 14, 2003, restriction on the use of United States passports for travel To, In, or Through Iraq has been removed. For the State Department Federal Register notice, please click here.
  

07/17/2003: Notice of Cancellation of Re-Fingerprinting Appointments - Any Good News?

• The fingerprint is valid for 15 months, but beginning sometime back, the Service Centers started sending out re-fingerprint notices to the I-485 waiters even if they took the print only a few months back. A large number of people complied with the refingerprint notices and took another fingerprint, because people assumed that it was not errors but probably related to security clearance needs.
• Now, all of sudden, people start receiving one or two sentence notice from the BCIS that the fingerprint was taken in their cases less than 13 months and BCIS was cancelling the refingerprint notices. Until the motive of such change of practice is made available, one can only guess its implication. One implication can be that the BCIS may adjudicate such 485 cases before the fingerprint expires in 15 months. Readers, this is just a wild guess of this reporter with no reliable sources of information. Let's cross our fingers, and wait and see!

07/17/2003: House Passed Bill to Restrict Consular ID Cards

• Report indicates that the House yesterday passed a bill that seeks to restrict use of consular I.D. cards, such as the ones Mexico issues. The bill does not specifically prohibit or restrict such consular ID cards, but by imposing a sanction that if such country fails to comply with or violate the conditions which are set forth in this bill, the U.S. government will not issue any immigrant or nonimmigrant visas to the nationals of such countries, the bill de facto restricts the use of such consular I.D. cards. The conditions reporetedly include the requirement that Mexico and any other nation that issues cards to its citizens living in the United States should make sure that applicants are bona fide citizens of the country, record information on every card issued and make the information on recipients, including name and current address, available to U.S. officials. Thus, it can, in effect, force other nations to stop issuing the cards because no country could take the risk that if the country fails to comply with these onerous provisions, the U.S. will stop issuing immigrant and non-immigrant visas. Mexico is reportedly the most prolific issuer of consular cards in the United States, with more than 1.5 million issued.
• The opposition to this bill is mounting and it is reportedly unclear whether the Senate will pass the bill.
  
  

07/16/2003: EOIR Roster of Recognition and Accredited Representatives of Organizations to Practice Immigration

• EOIR has just released list of organizations and their individual representatives that are accredited for immigration representation. Please click here for the roster.

07/16/2003: Continuing Congressional Attack on L-1 Intra-Company Transfer Visas

• In the House, another bill has been introduced by legislators including Democrats. This bill is not any better than the previous bill introduced by a Congressman in Florida. For the full text of the bill, please click here. As soon as we summarize the text, we will post the summary.

07/16/2003: Salvadoran TPS Designation Extension and EAD Automatic Extension

• According to the Federal Register notice which is released this morning, the extension of El Salvador's TPS designation is effective September 9, 2003, and will remain in effect until March 9, 2005. The 60-day re-registration period begins July 16, 2003 and will remain in effect until September 15, 2003.
• Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions.
• Given the large number of Salvadorans affected by this notice, the Department of Homeland Security (DHS) recognizes that many re-registrants will not receive their new Employment Authorization Documents (EADs) until after their current EADs expire on September 9, 2003. Accordingly, this notice automatically extends, until March 9,
  2004, the validity of EADs issued pursuant to the El Salvador TPS program, and explains how TPS beneficiaries or their employers may determine which EADs are automatically extended.
  

07/14/2003: AILA's Washington Update of 07/14/2003

07/13/2003: Do You Need to Have Your Number Before You Start Working?

• Social Security Administration Advice: While you wait for your Social Security number, SSAdoes not require you to have a Social Security number before you start to work, but the Internal Revenue Service requires employers to report wages using the Social Security number. While you wait for your Social Security number, your employer can use a letter from us stating that you applied for a number.

07/11/2003: Guest Worker Legislative Bill Introduced in U.S. Senate

• Senator John Cornyn of Texas introduced a legislative bill "Border Security and Immigration Reform Act of 2003." The nick name of this bill is "Guest Worker Bill." This bill permits certain guest workers from designated countries to come to the U.S. and work either for 9 months (seasonal workers) at a time or 12 months (nonseasonal workers) at a time upto a total of 36 months. After 36 months, these workers will be eligible for application for permanent resident status from their home countries. The Guest Worker Program under this bill opens a door for the current illegal aliens from the designated countries to legalize for the purpose of the Guest Worker employment. Such illegal aliens must apply for the Guest Worker Program within 12 months after the date of enactment of this legislation. These illegal aliens are practically given a chance to immigrate to the U.S. through the application for permanent residence after 3-years of participation in the program even though the application must be sought at their home countries. For the summary of this legislative bill, please click here.

07/11/2003: New Personal Appearance Rules Set For U.S. Visa Applicants in India Effective 07/14/03

• The changes will come into effect in India on Monday, July 14, 2003. In order to comply with new worldwide procedures for processing U.S. visas, applicants for nonimmigrant (temporary) visas to the United States must, effective July 14, 2003, make an appointment to appear for a personal interview with a consular officer unless they meet one of the criteria listed below. Persons who meet one or more of the criteria listed below may continue to submit applications through the U.S. Embassy or Consulate General "drop box".
  • Persons renewing or replacing a visa of the same category which is still valid or which expired less than twelve months ago.
  • Persons sixty years of age or older, provided they have not previously been refused a visa.
  • Children under fourteen years of age where both parents can demonstrate that they already have U.S. visas and that both are physically present in India.
  • Government officials on official travel for the central government, regardless of the type of passport they carry (applications should be accompanied by a diplomatic note).
• Some applicants from southern India may experience difficulty in making a timely appointment due to increased demand for visas from our Consulate General in Chennai. As the new personal appearance requirement goes into effect, all consular sections will make additional appointments to accommodate the increased demand. Those with an urgent need to travel who cannot make a timely appointment in Chennai and who have not previously been refused a visa may, until further notice, make an appointment to apply in New Delhi or Calcutta.
• Persons who have submitted an application before July 14 under the existing drop box guidelines will have their application reviewed under the rules in force at the time they applied. For the full text of press release, please click here.

07/11/2003: Personal Appearance Rules for U.S. Visa Applicants in China

• American consulates in China follows the following rules for now:
  • All private passport holders who are applying for a U.S. visa for the first time are required to call (10) 6532-5305 to make an interview appointment.
  • Applicants seeking to renew a B-1 (business), B-2 (tourist/visitor), F (student), J (exchange visitor) and H (temporary worker) visa may drop off their visa application at participating branches of CITIC Industrial Bank so long as their previous visa is currently valid or has been expired for less than twelve months, and they are applying for the same type of visa. Applicants seeking to renew F, J and H visas must be returning to the same school, institution or workplace as was indicated on their previous visa application. Additionally, the applicant must be applying for the visa at the U.S. consular post where he or she is normally resident.

07/11/2003: Operating Policies and Procedures Memorandum (OPPM) Nos. 03-03 and 03-04 for Immigration Court Practitioners

• The Office of Chief Immigration Judge released the following two memorandums to give guidance to the immigration court practitioners.
  • OPPM, No.03-03: Definitions and Use of Adjournment, Call-Up and Case Identification Codes, released on July 8, 2003.
  • OPPM, No.03-04: Use of Federal Express Delivery Services.

07/11/2003: Naturalization Procedures for Handicapped Applicants

• The BCIS released a memorandum on June 30, 2003 specifying the special procedures for aliens with certain handicaps, including test and oath waivers. For the full text of the memorandum, please click here.

07/11/2003: TPS Program Extension for El Salvador

• The BCIS has announced that it will public the federal register next week to extend the El Salvador TPS. Temporary Protected Status (TPS) for El Salvador will be extended for an additional 18-months until March 9, 2005. This TPS extension, which covers approximately 290,000 Salvadoran registrants, will take effect September 9, 2003 until March 9, 2005. The BCIS will provide additional information and answers to frequently asked questions upon publication of the notice in the Federal Register next week. Re-registration applications will not be accepted before the registration period officially begins.
• For the announcement, please click here.

07/10/2003: Immigration Benefits Statistics of May 2003 as Prepared by BCIS in June 2003

• Total immigration application pending cases reached 5,202,982, a 37 percent increase when compared to May 2002. Applications and petitions for immigration benefits in May 2003 decreased 7 percent compared to the number received in May 2002. May approvals were down 17 percent, while denials increased by 17 percent when compared to May 2002.
• For other details, please visit the following BCIS reports:
  • Inspections
    Southwest Border Apprehensions
    Immigration Benefits
    Naturalization Benefits
    Removals
    Investigations
    Asylum
    

07/10/2003: AC 21 H-1B Portability, Delay of H-1B Processing, and Employment Authorization

• It is a well known fact by now in the immigration lawyers community and among the BCIS offices that the Receipt Notice people receive do not reflect correct processing times. It appears though that the problem does not end with the receipt notices. Yesterday, NCSC official told this reporter that despite the CSC processing times report and receipt notices for H-1B which specifically stated that H-1B extension takes only from 30 to 60 days, current processing time for H-1B processing was eight months for certain H-1B cases.
• This raises a serious issue for some filers. For the extension filers with the same employer, employment authorization is automatically extended for 240 days pending adjudication of the H-1B extension petition. Should the Service Center fail to adjudicate within 240 days and his/her current H-1B status run out, he/she will have no employment authorization to continue the H-1B employment until the extension petition is granted. What about change of employer using H-1B portability law? The H-1B alien is allowed to work with the new employer who filed a new H-1B petition in the portability situation only for the period of validity of current I-94, pending adjudication of the new petition. Current delay of processing of H-1B petitions can produce a number of people who have jumped to a new employer and I-94 runs out when he/she has yet to receive approval of the new H-1B petition. Growing number of issuance of RFE in H-1B processing aggravates processing delays for one's case.
• Recently, the AILA addressed to the President and the Secretary of DHS the problem of unacceptable backlogs of the BCIS and demanded them to correct the problem. Until the system returns to "normal," though, people should learn to take care of their problem, well planning ahead of time their "status" management. Under the current hostile immigration environment, one cannot afford taking "out of status" lightly.

07/09/2003: AC 21 180-Day Rule and Effect of Revocation of Approved I-140 by Employer

• Under the AC 21, 485 waiters are allowed to take new employment 180 days after filing I-485 inasmuch as it is a same or similar occupation. One question which remained a puzzle was what would happen if the employer should revoke the underlying approved I-140 petition. In fact, there have been a number of reports by the immigration lawyers that the Service Centers denied I-485 when underlying I-140 had been revoked by the employer in several instances.
• This question has yet to be answered by the yet-to-be-enaced AC 21 regulation, but AILA has reported a letter written by a responsible BCIS official in response to an attorney's inquiry that revocation of the approved I-140 petition by the employer should not affect the pending I-485 application "inasmuch as the revocation took effect after 180 days from the filing of I-485." He opined that the underlying approved I-140 petition and the approved labor certification application would remain valid despite such revocation if it happened after 180 days.
• The opinion was expressed in the form of a letter and not even an official memorandum. Accordingly, strictly speaking, the letter does not carry any legally binding force. However, in view of the fact that the officer is in charge of the business division, it should carry some weight for the Service Center adjudicators. Question remains: (1) Would the Service Center reverse their prior denial if people file a motion to reopen or motion to reconsider based on this letter? (2) Since one certified labor certification application can support only one I-140 petition, what happens if the employer files a new I-140 petition to substitute the employee and the new employee applies for I-485 based on the newly approved I-140 petition? The letter still begs a host of questions and it will remain so until the AC 21 regulation is officially enacted.

07/09/2003: DOL Seeks Comment on Proposed Labor Certification Application Form by 09/08/03

• As an apparent continuing effort to launch the PERM program, today DOL published a notice seeking comment on collection of information for the proposed foreign labor certification form, ETA 750 Part A and B. The details are not published but may be obtained from the new Chief of Foreign Labor Certification Division, ETA, William Carlson. For the notice, please click here.

07/07/2003: Minnesota State Labor Certification Processing Times as of 07/01/03

• RIR=05/01/03, Regular=04/10/03, Faculty Special Handling=C, Temporary labor application=C

07/07/2003: Visa Application Interview and Waiver Rule Effective 08/01/2003

• The State Department and visa posts will implement the new procedures for issuance of nonimmigrant visas effective August 1, 2003. Under the rule, other than the following aliens, all other aliens will be issued a nonimmigrant visa only after the interviews. The six visa waiver categories are as follows:
  • (1) Children age 16 and under;
  • (2) persons age 60 years or older;
  • (3) most of the applicants within a class of nonimmigrants classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the exception of attendants, servants and personal employees);
  • (4) aliens applying for diplomatic or official visas, as defined in 22 CFR 41.26 and 41.27, respectively;
  • (5) applicants who within twelve months of the expiration of their previous visa are seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of any noncompliance with U.S. immigration laws and regulations, and
  • (6) aliens for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.
• In certain circumstances, the State Department may determine certain other aliens may receive a waiver of interview, but it will remain the central office decision and visa posts will have no such authority. For the full text of the rule, please click here.
  

07/03/2003: 7th Circuit Court of Appeals Overturns Federal Judge Decision on Long-Time Resident Alien's Right to Return to U.S.

• On March 26. 2003, we reported that a federa judge in Chicago ruled that a 16-year resident with the revoked Advance Parole could not be barred from returning to the U.S. The Chicago Tribune reported today that this decision was overturned by the Seventh Circuit Court of Appeals yesterday.

07/03/2003: Foreign Student Tracking System (SEVIS) and Nightmare Academic Institutions Are Going Through

• Schools are required to complete the SEVIS system operational in each school by August 1, 2003. Reportedly, schools are indeed experiencing nightmares at this time. Read on for the stories.

07/02/2003: Minnesota SWA=Minnesota Department of Employment and Economic Development (MDEED)

• The SWA in Minnesota used to be called MDES (Minnesota Department of Employment Security). However, as of July 1, 2003, MDES and Minnesota Trade and Economic Development merged into a new department with the new name of MDEED. The alien labor certification unit is now part of MDEED. Sources indicate that the merger will not affect the alien labor certification resources and funding. Minnesota SWA is one of the best state agencies in the nation when it comes to alien labor certification processing.

07/02/2003: BICE Responds to GAO Criticism on DHS Failure in Revoked Visa Terrorism Suspects

• This web site reported the GAO report on this issue. In defense of the DHS, a BICE testified before the Congressional committee to disagree with the GAO report. For the testimony, please click here.

07/01/2003: BIA Narrows Removal Waiver Effect of Presidential/Gubernatorial Pardon

• Today, the Board of Immigration Appeals handed down a decision which severely limits the law of automatic waiver of removal when the President or a Governor grants a pardon for criminal conviction. Matter of Suh, Interim Decision #3494, decided July 1, 2003, 23 I&N Dec. 626 (BIA 2003). The board ruled that a Predential or Gubernatorial pardon waives only (i) crimes of moral turpitude, (ii) multiple criminal convictions, (iii) aggravated felonies, and (iv) certain high speed flight convictions, and convictions for all other offenses that render an alien removable are not waivable by such pardon. The Board specifically ruled that domestic violence, child abuse, controlled substance violations, firearms offenses are not waiverable even if the President or a Governor grants a pardon.
• Such narrow interpretation of the statutes severely limits the power of a Presidential or Gubernatorial pardon in the immigration law area. For the decision, please click here.

07/01/2003: TPS Designation Extension for Montserrat

• Today, the BCIS announced this extension. The extension of Montserrat's TPS designation is effective August 27, 2003, and will remain in effect until August 27, 2004. The 60-day re-registration period begins July 1, 2003, and will remain in effect until September 2, 2003. For the full text, please click here.

06/30/2003: BCIS Advice for Adoptive Parents Concerning the Changed Procedure

• With reference to the announcement of change of procedure, BCIS is giving an advice to the adoptive parents concerning the changed procedure and the steps which they should follow. For this advice, please click here.

06/29/2003: BCIS/DOS Change of Orphan Adoption Procedure

• Adjudicate Orphan Status First Pilot Program: U.S. immigration law allows a child to immigrate to the United States only when that child meets the legal definition of “orphan.” Under this law, an orphan is defined as a foreign child who does not have any parents because of the death or disappearance of, abandonment or desertion by, separation from or loss of, both parents. An orphan can also be a foreign-born child with a sole or surviving parent who is unable to provide for the child’s basic needs, and who has, in writing, irrevocably released the child for emigration and adoption. Currently, the determination of whether or not a child meets the definition of orphan is not made until after the adoptive parent(s) has a legal obligation to the child. BCIS, in conjunction with the Department of State (DOS), is introducing a pilot program that will allow BCIS or DOS to determine whether or not a child meets the definition of orphan prior to the adoptive parents completing adoption proceedings. It is hoped that this program will prevent situations where U.S. citizens find that they have adopted a child from abroad but are not able to immigrate the child to the United States because the child does not meet the orphan definition.This pilot program will be offered only to families adopting children from: Haiti/Honduras/Philippines/Poland/ Sierra Leone. For the details, please check the BCIS announcement.

06/28/2003: Government's Zero Tolerance Mentality and Immigration Processing Backlogs

• Bush's 5-year backlog reduction plan was announced before the 9/11 incident, and even though no one within the Administration at this time admits it, it is obvious that the commitment to 6-month processing times under the so-called five year reduction plan is either practically gone or logistically impossible to achieve it. Current IBIS Check and SEVIS check and Special Registration check and on and on are stumbling block for the improvement of the processing times. There are more to the story. When the Congress passed the DHS Act, the relevant government employees' Civil Service Merit System and Union Rights were compromised and the employees have been vulnerable to disciplinary actions. Before the INS Commissioner retired last year, he had issued a so-called Zero Tolerance Policy Memorandum to the INS employees. The zero tolerance implied two things: Zero tolerance for immigration violations and zero tolerance for the INS officials's failure to handle matters in strict compliance with such policy. Even before this memo, the INS officials had developed a mentality of fear for mistakes and liability that could lead to disciplinary actions, but the memo appeared to have aggravated such mentality. Growing number of issuance of RFEs, denials, and delays of adjudications are undeniably related to the nervousness and fear the officials are currently obsessed with.
• We urge that the government leaders take an action to change such mentality within the agencies so that the officials perform normally without any fears. Making a mistake once in a while is part of our lives. Without doubt the officials should continue to do the right job in the IBIS and SEVIS checks to assure homeland security, but they should somehow feel at ease in performing their duties and services so that their effectiveness and efficiency are not unnecessarily negatively affected. Probably, the GAO should also look into this issue to correct problem, if any.

06/26/2003: Machine-Readable Passport Required from 10/01/2003 for Visa Waiver Country Travellers

• The State Department has released a cable to the visa posts that beginning from October 1, 2003, people from the visa waiver countries should carry with them the machine readable passport to enter the U.S. visa free. The cable informs that:
  • Beginning October 1, 2003, all citizens of countries participating in the Visa Waiver Program (VWP) who wish to enter the U.S. visa-free must present a machine-readable
    passport (MRP).
  • -- VWP nationals who do not have MRPs must obtain a U.S. non-immigrant visa.
  • -- This change affects only visa waiver travel. Applicants for visas at U.S. consular sections are not required to obtain MRPs, regardless of the category of visa being sought.
  • -- Non-machine-readable passports will remain valid for Transit Without Visa (TWOV) purposes. TWOV and VWP are separate, distinct statuses. TWOV travelers are not
    admitted into the U.S. for B-visa purposes, as under the VWP, and therefore will not require an MRP.
  • -- This change includes all categories of passports--tourist, diplomatic, and official. Bearers of diplomatic and official passports that are not machine-readable will need visas beginning October 1, 2003.
  • -- Families and groups should obtain an individual passport for each traveler, including infants. MRPs typically have biodata for only one traveler in the machine-readable zone (MRZ), and families may be denied visa-free entry into the U.S. if the biodata for only one traveler is machine-readable.
  • -- 27 countries participate in VWP: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
• Please click here for the cable.

06/26/2003: State Department Advisory for Foreign Journalists

• The State Department released a cable to visa posts to publicize the following for the foreign journals:
  • CA has become aware of an increasing number of cases of journalists denied entry at POE after attempting to enter either on a B visa or under the Visa Waiver Program(VWP). As posts are aware, aliens coming to practice journalism are not eligible to come on VWP or a B visa.VWP provides for the visa-free entry of nationals of designated countries coming to the United States for tourism or business (B visa purposes) for a period not to exceed 90 days. INA 101(a)(15)(B) states that a B status is not appropriate for representatives of foreign press, radio, film, or other foreign information media coming to engage in such vocation. Therefore, as a matter of law, journalists cannot use the Visa Waiver Program or a B visa to enter for the purpose of pursuing their profession. Journalists who attempt to do so, rather than apply for entry with an I visa, will be subject to removal. For the cable, please click here.

06/26/2003: Documentation of T-Visas: Victims of Severe Forms of Trafficking in Persons

• The State Department has released Interim Rule to provide the documentation requirements for T-visa applications. This rule takes effect on August 25, 2003. Please click here.

06/25/2003: Results of DV-2004 Immigration Lottery

• The State Department has completed selection and notification of DV-2004 winners. If you have not received the notification, it is clear that you have not been selected. For the announcement, please click here.

06/25/2003: FY 2002 Nonimmigrant Admission Statistics by Visa Type, Occupation, Nationality, and Destinations in the U.S.

• This BCIS statistics reflects changes in the nonimmigrant admissions to the U.S. in FY 2002 (10/01/2003 - 09/30/2002). Readers may find the H-1B statistics particularly interesting. Please click here for the statistics.

06/24/2003: Ohio and Kentucky Immigration Court Case Files Moving to New Sites July 1, 2003

• It is important to note that after June 30, 2003, case filings for Kentucky should be mailed to:
  • Immigration Court
    Clifford B. Davis Federal Building
    167 North Main Street, Room 460
    Memphis, Tennessee 38103
  • Telephone inquiries should be made to the Memphis Immigration Court on: (901) 544-3818.
• After June 30, 2003, case filings for Ohio should be mailed to:
  • Immigration Court
    901 North Stuart Street, Suite 1300
    Arlington, Virginia 22203
  • Telephone inquiries should be made to the Arlington Immigration Court on: (703) 235-2307.
• For the EOIR announcement, please click here.

06/24/2003: New FOIA Request Form for Proyecto San Pablo v. INS Claimants

• BCIS today announced a new FOIA request form to meet the settlement agreement under the litigation. Please click here for the announcement.

06/22/2003 (Report from New Orleans): Visa Delays and Travel Concern for Nonimmigrant Residents in the U.S.

• Unlike the visa applicants living abroad, the nonimmigrants living in the U.S. traditionally had three means to extend their visas. One is of course applying for the visas at the home country, the second is applying for the visas at the border countries (Canada and Mexico), and the third is "visa revalidation or reissuance" through the U.S. Department of State in the U.S. Growing visa issuance problems at the American visa posts in their home countries forced a large number of people to look into possibility of getting renewal of their visas in Canada or Mexico as TCN (Third Country National) applicants. However, the switch of TCN processing by visa posts in Canada and Mexico has been turned on and off frequently lately. Additionally these visa posts have imposed additional restrictions for eligibility of TCN application. On top of it, the DOJ/INS rule change on suspension of automatic revalidation of nonimmigrant visas for certain nationals or certain nonimmigrants applying for a visa at the border visa posts when the visa issuance is denied indeed narrowed hair-thin the chances of geting visas at these border posts. As people know, automatic revalidation of visa means that most of the nonimmigrants in the U.S. can travel over to Canada and Mexico and return to the U.S. without a visa inasmuch as they carry a valid I-94 and return within 30 days. Recent changes in the automatic visa revalidation scared people to apply for the visas in the border visa posts, not to mention the unpredictable practice of these visa posts on TCN visa applications.
• Except certain nationals from a list of countries including, but not limited to, the so-called seven sponsors of terrorism (Iran, Iraq, Libya, Sudan, Syria, North Korea, and Cuba) the visa revalidation through the U.S. Department of State indeed has given a relief. "Visa Revalidation" became a shining star. However, the U.S. Department of State has recently changed their nonimmigrant visa policy either abandoning or tremendously restricting issuance of nonimmigrant visas without interview. The visa posts have already started this new procedure, which is causing another delays in the visa issuance. The U.S. Department of State has been taking a position that the visa revalidation will be rejected when interview is necessary. Accordingly, the people from the listed countries of "interest" have been automatically shut out for visa revalidation. Now, when the new Department policy requires, as a standard procedure, interviews for nonimmigrant visas, a question has risen lately how long the visa revalidation program will be able to survive even for all other nonimmigrants in the U.S. Due to this issue and other sources of information, the rumor has been flying around like a wild forest fire that the U.S. Department of State may terminate the visa revalidation practice soon. The responsible U.S. Department of State official responded to this rumor here in New Orleans. Guess what. He confirmed the visa revalidation was alive "at this time." Yeah, yeah, everyone knew that much. Didn't any know that he was a diplomatic official? The officer did not despel the truth of the rumor. The mills of the rumor keep grinding even more fiercely. Should the rumor become a reality, the nonimmigrants in this country will experience a serious challenge for international travel and may have to remain "hostages" being separated from their loved relatives and friends back home. This reporter just crosses the fingers for these nonimmigrants that such termination of visa revalidation does not take place, for god sake!

06/21/2003 (Report from New Orleans): Premium Processing of I-140 Not in Sight

• There are people in certain occupations who desperately need premium processing of I-140. Most of them are in health care industry such as physicians, nurses, physical therapists, occupational therapists or some other allied hearth care workers. The nurses are particularly affected by this decision as the nurses are usually coming to the U.S. as an immigrant using so-called Schedule A labor certification waiver rule. Recent delay of I-140 processing at the Service Centers are particularly painful to these health care workers.
• One time the INS was almost ready to launch the premium processing services for I-140 petitions, but this was stricken by a lightening from the sky that originated from the report of Inspector General of the U.S. Department of Justice that premium processing services had caused substantial delays in most of the immigration and non-immigrant processings. The INS immediately defended that the delay was caused not by the premium processing services but by the security clearance procedures.
• Well, at this point, viability of such defense is very much in doubt at best and the BCIS cannot afford making situation worse. The BCIS estimates that in order to launch premium processing services for I-140, it needs a substantial number of adjudicators exclusively for the I-140 PPS. They are afraid that it may indeed affect the processing times of other cases unless additional funding becomes available for the expansion of PPS. It appears that there is no such sources of additional funding and the BCIS may have to shelve the I-140 PPS idea at least for a while. Sorry to the health care professionals!!

06/21/2003 (Report from New Orleans): Backlog Reduction Plan for RIR-Ailing States

• There are a small number of states that experience particularly serious backlog. If you want to find out the names of these states, just check the latest report of DOL labor certification processing times. It appears that the DOL has been working on certain reduction plan targetting at relieving the problem and may release a regulation in the near future to change procedure. Again, no details are known about, but this may include some changes with the state vs. regional offices distribution of job for these cases. Please remember that these cases will be continurously processed under the existing labor certification regulation and not under the PERM regulation and the DOL will have to deal with the two-tier processing system under the current regulation. Again, the people in those states will have no choice but holding their breath. Please stay tuned to this website for the development of this news.

06/21/2003 (Report from New Orleans): Good News and Bad News About PERM Labor Certification Program

• The DOL officials here in the conference are tight-lipped about the dates of final rule release and starting of this program. They just confirm that the rule will be released in the "late Fall" with the 45-day window. Does any one know when the Fall starts and when it ends? One thing which is obvious is that the release date of the regulation and the actual launch date appear to be further pushed off. Everybody here is guessing that the earliest date could be December 2003 or January 2004 or soon after that. Accordingly, their previous prediction of July or September 2003 release of the final rule with the 30-day window (meaning October 2003) turns out to be a history at this point. In fact, the DOL officials warns people out there that they should not waste their money to initiate any expensive recruitment campaign with fixed prediction date of release of the rule and starting date of the program as the released final rule can also be challenged by some politically powerful employers and the effective date can be delayed. This is a bad news if any of you are waiting for the PERM program.
• Now good news is that there is a hint that the final rule will be different from the Proposed PERM rule which contained many poisonous elements. Obviously they softened the requirements reflecting the comments which they had received after they had released the Proposed Rule. No details are known at this time, but all information indicates that the final regulation will look really different from the Proposed Rule. This is a good news. Just hold your breath for a while.
• By the way, we now have a new Chief of Foreign Labor Certification Division in the DOL, who is well informed and an expert when it comes to a foreign labor certification. His name is William Carlson. We welcome his boarding as the captain of this ship and encourage everyone out there to join this reporter to extend contratulations to the Chief. He seems to be a perfect choice for the job. Wonderful!

06/21/2003 (Report from New Orleans): Types of Clearances Required for Issuance of Visas

• Currently, a large number of nonimmigrant visa applicants remain hostage for months for not being able to obtain nonimmigrant visas outside of the U.S. Most typically, these applicants' eligibility for the applied visas was accepted by the visa posts but pending clearance of law enforcement and intellence authorities, issuance of the visas have remained on hold. People should, however, understand what clearances their cases are going through. Here are the list:
  • Visa Condor: These are the security clearance that holds issuance of visas in most cases nowadays. The aliens who are subject to this category requires security clearance related to international terrorism and crimes, particularly relating to 9/11 incidents. Naturally, the natives, citizens, and residents or travellers in certain parts of world are primary subjects for this clearance.
  • Visa Mantis: These are the clearance related to protection of American technology and information for its national defense and national security. Most commonly, this is regulated by the export control law administered by the U.S. Department of Commerce. Currently, a large number of scientists and engineers who are clitically needed for academic and nonacademic research institutions in this country are held up abroad pending this clearance. The academic community in the country, particularly East Coast, has been suffering from this clearance tremendously.
  • Visa Donkey: These are the clearance not related to one of the foregoing subject, but related to the former Eastern bloc natives, residents and travellers. Nowadays, Russians are experiencing a tremendous delay in getting nonimmigrant visas because of this clearance. Reportedly, the clearance has been tightened up for the Russians because of report of increased incidents of frauds involved in employment-based nonimmigrant visas such as H-1B.
• Hew................................

06/21/2003 (Report from New Orleans): List of Suspended and Expelled Immigration Practitioners

• EOIR released yesterday the list of immigration practitioners who have been either suspended or expelled from the immigration law practice. As of June 18, 2003, the EOIR took action against 10 practitioners in 2003. For the full list, please click here.

06/20/2003 (Report from New Orleans): Shut-Down of J-1 Waiver Online Status Check Line - Price of Abuse of the System

• The U.S. Department of State started not too long ago the online J-1 waiver status system. The purpose was to reduce the inquiry phone calls so that the staff in the Waiver Review Board could focus more on the processing and adjudication. However, the State Department official today disclosed that ever since they had started the online status system, they were receiving increased number of phone calls from those who had made online status check, negatively affecting the processing times for the waiver adjudication. This has forced the Department to shut down the current online status check system. How sad it is! This reporter had to make a similar decision one time when our web site visitors abused our "informal processing time" report by calling the Service Centers protesting that their cases had much earlier filing date and they were discriminated by the Service Centers. Some people allegedly even verbally threatened the Service Center Information Officer that they would sue the INS! How pity it was! We had to terminate the informal processing report and all other visitors to this website had since suffered from the irresponsible behaviors of a few people.

06/20/2003 (Report from New Orleans): No Noticeable EB-485 Processing Time Change in Sight

• The BCIS has adopted a policy of reduction of processing times through the following means:
  • Acceleration of automation of processing
  • Reengineering of the process
  • Priority of processing
• When it comes to the priority, it will focus on certain forms which the statute mandates to complete in a fixed period of time such as EAD and Green Card Replacement. With reference to the automation, they have already selected the forms which they will focus in the future. None of the new policy standards fit into the EB-485 applications. The BCIS is considering automation of name check. Once the name check automation is in place, it may help when it comes to processing times, because the name check is causing a tremendous delay. But nothing is solid at this point. It is thus obvious, unfortunately indeed, that EB-485 cases will continue to experience delays and frustrations.

06/20/2003 (Report from New Orleans): Frustrating Re-Entry Permit Applications Backlog and NSC Move for Change

• Currently, the Re-entry Permit takes approximately one year, presenting hardship to the permanent residents who need to stay abroad for a prolong period of time for a good reason. This is particularly difficult for those permanent residents such as refugees who have to use the Re-Entry Permit as travel document in lieu of a passport. The responsible BCIS official disclosed here in New Orleans that the Nebraska Service Center is under consideration of abandoning the current Re-Entry Permit Document which requires a substantial amount of time to process manually. They may rather issue a booklet with the digital photo image, which will allow substantially reduction of processing times. Please stay tuned.

06/20/2003 (Report from New Orleans): Merger of EAD and Advance Parole Under Consideration

• The leaders of the BCIS have been pushing on the idea of issuing multiple-year EAD, but the officials indicate that this idea faces difficulties at this time. Rather, the BCIS is considering abandoning of the current Advance Parole document and allow the people to use EAD card as Advance Parole. That isn't a bad idea, is it?

06/20/2003 (Report from New Orleans): Online Filing Expansion Schedule on Track

• BCIS has launched online filing system on May 29, 2003 for EAD (I-765) and Green Card Replacement (I-90). The BCIS Director, Eduardo Aquirre, reports that since then the BCIS has received approximately 8,000 applications online, out of which 2000 applicants have been scheduled for ASC fingerprinting and photographing.
• The BCIS also announced at the time that the 05/29/03 online launch would be followed by expansion of online filing to other forms in the near future. According to the BCIS official, either before the end of 09/30/03 or soon after 09/30/03, the following forms will also be accepted onlin: I-140, I-129, I-131, I-539, I-821, I-907.
• However, online filing system needs further improvement for reduction of processing times. Thus far, there is no solid evidence that online filing makes any drastic difference in terms of adjudication of the online filed cases. Unless the online filing cases are processed and adjudicated separately from mail filing cases and other cases in queue, people will keep experiencing frustrations from the delay of these applications.
• There appears to be one good news. The BCIS has adopted these online filing cases as "priority" cases and will continuously improve the processing time. Please stay tuned.

06/19/2003 (Report from New Orleans): Texas Service Center EAD and Green Card Reproduction Improvement

• Lately the Texas Service Center filers have been experiencing difficulty because of the backlog in I-765 (EAD) and I-90 processing. We have a good news. The EAD processing times will become "current" by July and I-90 processing time may also become current by September.

06/19/2003 (Report from New Orleans): National Benefits Center I-130/485/765/131 Launch Schedule

• As some people in the West Coast know, the National Benefits Center has started taking direct filing the family-based one-step package in the West Coast. The plan was to start from the West Coastal states and move onto the Midwest, then to East Coast, and lastly Southern states. When they start direct filing with the NBC, the local district offices will stop accepting such filing.
• The responsible BCIS official today indicated that the BCIS would be ready in approximately two weeks or so to launch the program nation-wide. The BCIS HQ has yet to decide which types of cases they would complete without sending them to the local offices after initial processing by the NBC, but the official indicated that more likely the NBC might follow the similar practice of the current local district practice. Currently, most of the local district offices waive interview in certain family cases which are less fraud prone such as GC application for the parent or child of a U.S. citizen. Marriage-based applications are most fraud prone cases and are normally adjudicated after the interview.

06/19/2003 (Report from New Orleans): Service Centers Processing Times BCIS Online Reporting Due Next Month

• As we reported earlier, the BCIS was working on publishing the Service Centers processing times on its website. Currently, the information is published through the AILA. The BCIS sources indicated today that it would start probably next month. Once this is published online, people should rely on the online processing time reports rather than the processing times which they receive on the Receipt Notices. The processing times printed on the Receipt Notices turned out to be incorrect in most cases. Stay tuned!

06/19/2003: 38.8 Million Hispanic Population in the U.S., 9.8% Jump Since 2000 Census

• The statistics released by the Census Bureau yesterday indicates that the growth of the Hispanic population is exploding in the U.S. Without doubt, this statistics will play out increasing muscle in the American politics and we want to watch its impact on such important immigration policies as 245(i) extension, amnesty etc. Please stay tuned!

06/19/2003: DOL Draft 2003-2008 Strategic Plan

• DOL has just released its 5-year stratetic plan for the period of 2003-2008. It does not go into the details for the foreign labor certification, but it gives some perspectives on the DOL's views on the foreign work forces. As soon as we analyze it, the summary will be posted at this site. For the full text, please click here.

06/18/2003: GAO Says New Policies and Procedures in Border Security Are Needed to Fill Gaps in the Visa Revocation Process

• GAO finds fault with the State Department, INS, and FBI for their failure to take a follow-up action to prevent those whose visas have been revoked from entering the country. For the full report of GAO, please click here. For the summary, please click here.

06/18/2003: U.S. Court of Appeals in DC Rules Non-American Detainees' Names May Be Withheld

• Attorney General John Ashcroft won big in the decision. Click here for the details.
• Please read the decision, Center for National Security Studies, et al., v. USDOJ, No. 02-5254 & No. 02-5300, decided June 17, 2003, U.S. Court of Appeals in District of Columbia Circuit.

06/18/2003: State Department Cable Changing Clearance Procedure for Certain Visa Applicants

• The U.S. Department of State issued a cable to visa posts to change the standard operating procedure relating to the applicants of any nationality, coming to the U.S. at the invitation of a USG entity to engage in activity involving any of the sensitive technologies on the Technology Alert List. For the full text, please click here.

06/17/2003: AILA's Washington Update 06/17/03

06/14/2003: AILA Annual Conference and Attoneys Absence

• The AILA will hold its annual conference in New Orleans from June 18 through June 22, 2003, inviting a large number of government officials who are involved in the visa/immigration policy-making process. Because of the organizational change and the downturn immigration environment, it is expected that a large number of immigration attorneys and their paralegals will attend the meetings. Some people will leave their offices as early as June 16, next Monday. During next week, people may not be able to communicate with some of their legal counsels. They will certainly return to work in their offices on the following Monday after the conference.
• This reporter will also head for New Orleans and will not return to the office until June 23, 2003. This reporter hopes to bring some news updates to our readers.

06/13/2003: BIA Status Query Line and Citation Guidelines

• BIA has just added two new Appdendix to BIA Practice Manual. Immigration court practitioners should keep these materials in their electronic library. Now the following information is available:
  • Status Query Line of 800-898-7180
  • BIA Appeal FAQ Line of 703-605-1007
  • Citation Guidelines

06/12/2003: HHS Announces Availability of J-1 Waiver Applications for Physicians (IMGs)

• Today, the HHS Exchange Visitor Program announces the availability of applications to request waiver of the two-year foreign residency requirement for physicians with J-1 visas who agree to deliver health care services for three years in primary care or mental health Professional Shortage Areas (HPSAs) or medically underserved areas or populations (MUA/Ps).
  • The criteria for a waiver recommendation by HHS acting as an IGA are as follows:
    1. Eligibility to apply for HHS waiver requests is limited to primary care physicians, and general psychiatrists who have completed their primary care or psychiatric residency training programs. Primary care physicians are defined as: physicians practicing general internal medicine, pediatrics, family practice or obstetrics/gynecology and who are willing to work in a primary care HPSA or MUA/P; and general psychiatrists willing to work in a Mental Health HPSA.
  • (Note: The regulations restrict eligibility to primary care physicians, and general psychiatrists who have completed their primary care or psychiatric residency training programs no more than 12 months before the date of commencement of employment under the contract described below. 45 CFR 50.5(b). For applications submitted prior to October 1, 2003, HHS will ease this12-month eligibility condition to enable physicians who completed their training programs in June 2002 to be eligible to apply for a waiver. Without this modification, physicians who completed their training programs in June 2002 would be unable to begin employment by the required date, July 2003, and thus would be ineligible to seek waivers. Accordingly, for applications received prior to October 1, 2003, the physician seeking a waiver must have completed a primary care or general psychiatric residency no earlier than June 1, 2002.
  • 2. The petitioning health care facility must establish that it has recruited actively and in good faith for U.S. physicians in the recent past, but has been unable to recruit a qualified U.S. physician.
    3. The head of a petitioning health care facility must execute a statement to confirm that the facility is located in a specific, designated HPSA or MUA/P, and that it provides medical care to Medicaid and Medicare eligible patients and the uninsured indigent.
    4. The Exchange Visitor must execute a statement that he or she does not have pending, and will not submit, other IGA waiver requests while HHS processes the waiver request.
    5. The employment contract must require the Exchange Visitor to practice a specific primary care discipline or general psychiatry for a minimum of three years, 40 hours per week in a specified HPSA or MUA/P. It may not include a non-compete clause that limits the Exchange Visitor's ability to continue to practice in any HHS-designated primary care or mental health HPSA or MUA/P after the period of obligation. The contract must be terminable only for cause and not terminable by mutual agreement until completion of the three-year commitment, except that the contract may be assigned to another eligible employer, subject to approval by HHS and consistent with all applicable INS and Department of Labor requirements.
• For the full text of the announcement, please click here.
  
  

06/12/2003: Nonimmigrant Visa Interview Policy, Visa Processing Delays, and State Department Advisory

• We have advised that most of visa posts are now scheduling interview for nonimmigrant visa applications and warned the readers of its impact on the visa processing times. As some of people may already know it, the U.S. Department of State posted a special notice on its website to advise visa applicants potential delays in visa processing as follows:
  • Visa applications are now subject to a greater degree of scrutiny than in the past. For many applicants, a personal appearance interview is required as a standard part of visa processing. Additionally, applicants affected by these procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict. For travelers, the need for an interview will mean additional coordination with the embassy or consulate is needed to schedule an interview appointment. We recommend that individuals build in ample time before their planned travel date when seeking to obtain a visa.
• We are getting reports from nonimmigrant visa applicants on the difficulties which they are experiencing because of these delays abroad. Travellers are advised to plan their trips ahead of time very carefully in order not to encounter unexpected frustration from visa processing delays abroad.

06/11/2003: Quashed Criminal Conviction for Controlled Substance Possession in Canada No Help for Immigration Purposes

• The BIA handed down a decision that a quashed criminal conviction by Canadian criminal court for possession of controlled substance does not remove the immigration charge for "criminal conviction" for the purpose of immigration proceeding. In re Pickering, Interim Dec. #3493 (BIA June 11, 2003), 23 I&N Dec. 621 (BIA 2003)

06/10/2003: BCIS Presents Itself for First 100 Days

• June 10, 2003 is the 100th day of the newly born baby BCIS' operation. The BCIS presents fact sheets summarizing its achievement and plan ahead. One of the achievement and the plan the fact sheet highlighted is electronic filing. It states that "by 2005, 90% of all immigrations forms will be available for online filing. Also, over 30,000 customers are taking advantage of “Case Status on Line” daily. This web-based service allows customers to check on status of petitions filed at BCIS Service Centers nationwide. We recently expanded the functionality of this service by offering case status online to customers calling our 1-800 number." For the full text, please click here.
  

06/10/2003: End of Missouri Service Center and Birth of National Benefits Center

• We reported earlier that the BCIS had a plan to terminate family-based I-130/I-485 filings at the local district offices and to centralize the processing of these cases at the Missouri Service Center beginning from June 2003. As part of the change, the name of the Service Center was scheduled to change to National Benefits Center. Officially, there is no announcement that the family-based I-130/I-485 should be filed only by mail to the National Benefits Center, but people must have noticed that its processing time report of May 31, 2003 changed the name of the agency from Missouri Service Center to National Benefits Center.
• This may be an indication that the new era of mail filing of family-based I-130/I-485 with the National Benefits Center may be imminent. People should be prepared for such change.

06/10/2003: EB-485 Processing in Snail Pace

• The EB-485 filers are continuously experiencing frustration from the backlog of their applications. The exact reasons are not known from any sources, but at least one sources indicate that EB-485 cases will not move any better at least until the new fiscal year, October 1, 2003. Ya, ya, ya......

06/10/2003: Termination of Service Center Telephone Inquiry Numbers

• The four Service Centers terminated their phone status inquiry lines as of today. All the phone inquiries are accepted only by the National Consumer Service Center line of 800-375-5283.
  • BCIS Notice: Case Status via the NCSC 800 Number
  • The BCIS recently opened Case Status online letting customers with applications at a BCIS Service Center conveniently check the status of their case over the internet. As a next step in improving service customers can also call 1-800-375-5283 toll-free for automated case status assistance on Service Center filed cases. This new number replaces the toll numbers previously used on receipt notices (Service Center numbers). This system is an automated replacement of the Service Center automated case status system. Just follow the telephone menu directions.
  • Even if you use our website to get case status, we recommend that you call if you move while your application is pending at one of our Service Centers, or if you don’t hear from BCIS within the processing time we projected on your receipt notice, or if you have other questions about case processing.
• For the full text, please click here.
• Not too long ago, INS started online status check system, but apparently the online status check system is not being updated adequately and has started advising people to call the 800 number for the inquiries. It is too bad that the online status check system is fading away.

06/10/2003: July 2003 Visa Bulletin

• OVERSUBSCRIPTION OF THE INDIA CHARGEABILITY
• Continued heavy applicant demand for Family preference numbers has required the oversubscription of the INDIA chargeability for July, to hold issuances within the annual numerical limitation. The result has been the establishment of a cut-off date in the Family Fourth (F4) category that is earlier than the Worldwide date. The oversubscription will only impact applicants in the INDIA Family Fourth preference category.
• The oversubscription of the INDIA chargeability will have no impact on visa availability in the India Employment categories, which will remain “Current”.
• RETROGRESSION OF THE PHILIPPINES FAMILY FIRST, THIRD, AND FOURTH PREFERENCE CUT-OFF DATES
• Continued heavy applicant demand has required a retrogression of the PHILIPPINES Family First, Third, and Fourth preference cut-off dates for July. This has been done in an effort to keep the issuance level within the annual numerical limits. Further retrogressions, or “unavailability”, prior the end of the fiscal year cannot be ruled out.
  

06/09/2003: BCIS Makes Designated Physicians List Accessible On-Line

• BCIS has been providing the information on designated BCIS physicians for medical examination via 800 number. However, such physician list in your area is easily accessible via on-line locator. Accordingly, 485 filers can get such information very easily through the online locator. For the entire list of designated physicians in your state, please do not search by zip code or city. Search by your State name.

06/09/2003: GAO Report Criticizes Entry-Exit System

• GAO today released its report to the Congress dated June 2003 which reviewed in details Entry-Exit System (currently named U.S. VISIT and formerly named NSEERS) and criticized the program. For the 57-page report, please click here.

06/09/2003: Eduado Aguirre, an Immigrant from Cuba, as Reflected in his Congressional Confirmation Hearing 06/06/03

• Last Friday, June 6, 2003, the Director of BCIS, Eduardo Aguirre, appeared and testified at his confirmation hearing of Judiciary Committee, U.S. Senate. Readers, please get to know him and his background. It is indeed a heart-warming story. Please click here.

06/08/2003: Rep. John Mica's L-1 Limitation Bill - Mimic of H-1B LCA Concept

• On May 19, 2003, Rep. John Mica of Florida introduced H.R. 2154 in the House to restrict the use of L-1 visas only to actual employers and to prohibit placing L-1 visa holders at the employer's client sites. This bill is stirring a substantial controversy and people want to know what this bill is about. Here it is:
  • LIMITATION ON PLACEMENT OF INTRACOMPANY TRANSFEREES.
  • (i) No alien may be admitted or provided status as a nonimmigrant described in section 101(a)(15)(L) unless the importing employer has filed with the Secretary of Labor an application stating that the employer will not place the nonimmigrant with another employer where--
    • `(I) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and
    • `(II) there are indicia of an employment relationship between the nonimmigrant and such other employer.
  • `(ii) The employer shall make available for public examination, within one working day after the date on which an application under this subparagraph is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary). The Secretary shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subparagraph. The Secretary shall make such list available for public examination in Washington, DC. The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that an application is incomplete or obviously inaccurate, the Secretary of Labor shall certify to the Secretary of Homeland Security, within 7 days of the date of the filing of the application, that the requirements of this clause have been satisfied. The application form shall include a clear statement explaining the liability under this subparagraph of an employer who places a nonimmigrant with another employer in violation of clause (i).
  • `(iii) The provisions of section 212(n)(2) shall apply to a failure to meet a condition of clause (i) in the same manner as such provisions apply to a failure to meet a condition of section 212(n)(1)(F).'.
• For the full text of the bill, please check H.R. 2154.
  

06/06/2003: Complicated EAD Processing Rules and Increasing Instances of Failure of Obtaining EAD Renewal Timely

• Those who file concurrent I-140/I-485 submission should familiarize themselves with the BCIS practice on issuance of EAD pending adjudication of I-485 applications. Basically, they should remember three rules of the current BCIS policy:
  • Rule 1: Pending I-485, the applicant is eligible to apply for EAD. If the EAD is not issued by the Service Centers within 90 days, the applicant should obtain Interim EAD at the local district offices, which the local offices should not deny.
  • Rule 2: Running of 90 days stops when the Service Centers issue RFE for initial evidence with reference to the underlying I-140. When the requested initial evidence is received by the Service Centers, the 90-day clock starts to run all over again. The previously suspended time does not count in counting the new 90 days.
  • Rule 3: EAD is issued "valid from the date of decision," and does not retroactively go back to the expiration date of the current EAD in the case of EAD renewal. If there is a gap between the two EADS and he/she works during the period of gap, it should constitute an unauthorized employment.
• The foregoing rules should tell the readers how much time they should have in filing EAD application to continue their employment authorization without any interruption. This reporter finds it indeed deplorable that there are still some EB-485 filers who refuse to apply for EAD on the theory that he/she has a valid H-1B or L-1 or other employment authorized nonimmigrant status and he/she does not need EAD based on I-485 filing. Dead wrong! Wise people should always look ahead for unpredictable future or potential change in his/her nonimmigrant status. What happens if he/she is laid off and a new employment is lined up to take advantage of AC 21 180 day rule but the new employer is unwilling to file a new H-1B petition? What happens if he/she reaches 6-year limit of H-1B? Apparently, there are still some people out there who misunderstand that possession of EAD itself would affect their H-1B or other nonimmigrant status. It is not the application and obtaining of EAD but use of EAD that affects the nonimmigrant status of the alien. Granted that such is the rule, this reporter sometimes does not understand why some people refuse to apply for EAD. Something to think about.

06/06/2003: Disturbing Statistics of BCIS Immigration Benefits Petitions/Applications Adjudications

• The BCIS has just released the Monthly Statistics Report which was prepared at the end of May 2003 and reflected the statistics as of April 2003. This statistics are disturbing and disappointing.
  • Total Initial Receipts remain fairly constant, showing no noticeable change.
  • However, approval of the benefit cases dropped 23% while denied cases increased 45% from the FY 2002.
  • At the end of April 2003, pending cases reached startling 5,113,058, which showed increase of 35% as compared to the same time in FY 2002. Of the total, I-485 amounts 1,143,354 and I-130 reached 1,790,885. No wonder why these cases have not been moving at the BCIS.
• For the full text of the report, please visit the following BCIS sites:
  • Immigration Benefits
  • Naturalization Benefits
  • Asylums
  • Inspections
  • Investigations
  • Removals
  • Southwest Border Apprehensions

06/05/2003: Merger of Minnesota Two Departments and Uncertain Impact on Alien Labor Certification Unit

• Currently, the Alien Labor Certification Unit in Minnesota State government is a part of the Department of Economic Security. As of July 1, 2003, this Minnesota Department of Economic Security (MDES) will merge with the Minnesota Department of Trade and Economic Development, creating a new department named Minnesota Department of Employment and Economic Development. The Governor intends to eliminate some jobs after the merger.
• Lately, the labor certification processing in the State of Minnesota has marked one of the best in the nation when it comes to processing times and professional handling of complex issues. It is hoped that the state of labor certification services be not affected negatively in one way or another. The Unit has been struggling with the limited funding and resources.

06/04/2003: e-Filing vs. Paper Filing of EAD Application

• Currently, certain eligible aliens can apply for Employment Authorization Document (I-765) in one of two ways: Online filing or paper filing by mail. People are wondering whether online filing will give the benefit of prompt adjudication of the applications.
• It appears, however, that the BCIS e-filing is drastically different from DOL online filing of Labor Condition Application for H-1B or PERM labor certification application. Online filing of LCA instantly gives the decision of the application for the H-1B filers. At least under the proposed PERM labor certification rule, the eligible PERM application is promised to be decided in less than 21 days, meaning "expeditious" decision. The e-filing of EAD application is different. According to the BCIS information sources, there is practically no difference between the e-filing and the paper-filing of I-765 when it comes to the processing of the EAD application. The sources indicate that the application will be adjudicated in the order of receipt. Assuming that the EAD application is filed by overnight delivery services, when it comes to the processing time of one's application, one may make only one-day difference from the online filing. Considering the fact that the online filing requires additional trip to ASC for photographing and fingerprinting plus submission of required documentation by mail post online filing, one wonders how much incentive the online filing of I-765 application will give the applicants. It appears that for the online filing system to be effective, the BCIS should give some level of additional benefit over the paper filing.

06/02/2003: CGFNS Reopens Exam Center in Mexico City

• CGFNS has announced that it will reopen the Mexico City exam enter to conduct its Qualifying Exam for nurses in Mexico City, Mexico, beginning from the November 12, 2003 exam. Applicants wishing to sit for the November 12, 2003 exam in Mexico City or any exam thereafter should designate the exam center number 927 on their Certification Program application.

06/02/2003: Secretary of State Says U.S. Wants Movement on Immigration Issues with Mexico

• Powell has recently started sending out messages to the reporters that the U.S. wants to move ahead the regularization of Mexican immigration, which obviously refers to guest worker program from Mexico and amnesty of illegal aliens who are already living here. Can we take this as an overture of the Administration's real plan to move ahead or just political bluff? You'd be the judge of it. Read on.

06/02/2003: Mistreatment of 9/11 Detainees Blamed for Poor Information Sharing Among Law Enforcement Agencies

• The Inspector General of the U.S. Department of Justice wrote a report in April 2003 blaming federal law enforcement agencies, including INS, for mistreatment of 9/11 detainees. This 239-page reports the details of such failures. Those who do not have time to read the whole text may just read the news report.

06/01/2003: Hi-Tech Foreign Worker Services: Off-Shore Outsourcing vs. Professional Worker Visas

• The on-going attack against professional foreign worker visas such as L-1 and H-1B is throwing a very difficult choice for the U.S. businesses between the off-shore outsourcing and the employment of such professional foreign workers in the U.S. For the U.S. businesses, particularly hi-tech industry, to stay in competition in the international market, the U.S. businesses will contrinuously have to rely on professional foreign workers. Recent high unemployment rate in the country and attack on foreign workers ignore the reality of the businesses. Should the country continue to restrict the opportunity of employing and bringing in professional foreign workers for the U.S. businesses, the businesses would have no choice but taking the businesses to foreign countries with the resultant negative impace on the already high unemployment rate and poor economy in the country. We, the people of this country, should ask outselves a question as to whether this is what we want. We cannot fool outselves.
• Employment of hi-tech foreign workers not only meets the hi-tech service needs for the U.S. businesses, but also contributes to the economy by paying taxes and creating consumptions and investment within the country. Off-shore outsourcing deprives the country of such economic benefits. Accordingly, the answer appears to be crystal clear: Employment of the foreign professional worker services in the country over taking the businesses out to foreign countries, hiring workers in the foreign countries who would not contribute to this country's employment and economy.
• Despite the foregoing truth and reality, the attack against the professional foreign worker visas is heating up. We reported earlier the San Francisco Chronicle news on L-1 visa controversity in the West Coast. Now the New York Times is picking up identical news covering the story in the East Coast. Please read the news report. Without doubt, L-1 visa program is facing a serious challenge.
• What options do the U.S. employers have, should the country restrict L-1 visa program? The H-1B visa program will shrink from the current limit of 195,000/year to 65,000/year beginning from October 1, 2003. Report indicates that the use of new H-1B visas for the fiscal year of 2003 dropped to less than 80,000. The drop of H-1B visas was obviously affected not only by the high unemployment rate and the increasing unwillingness for the U.S. businesses to hire foreign workers but also by the U.S. employers' redirection of employment of foreign professional workers from H-1B workers to L-1 workers, assuming that the news reports are correct. Restriction of L-1 visas will force the U.S. employers to switch back from L-1 visa options to H-1B visa options. This will add tremendous pressure on the H-1B numbers. Unless the Congress enacts a legislation to again increase the H-1B visa numbers, the U.S. businesses will experience running out of H-1B visa numbers before the end of fiscal year of 2004. We do not have to remind the people of the terrible experience years back when the H-1B annual cap reached in March and the U.S. employers were unable to hire new H-1B workers until October 1. When this happens, difficulty is experienced mostly by small businesses rather than large businesses. The small businesses usually survive on the business opportunties that are developed in a short period of time and are unable to predict a long-term need of foreign workers.
• The sad reality is that at this time no one is campaigning to induce the Congress to introduce a legislation to increase the H-1B numbers. Apparently everyone is intimidated by the country's mood against the immigration and the country's unbending high unemployment rate. Unless the country acts quickly, though, more businesses will be taken out to foreign countries and the competitive edge of the country's hi-tech industry in the international market will suffer in the long haul.

05/31/2003: New Border Security Program "U.S. VISIT" Faces Critical Review

• The U.S. VISIT program is looked at negatively by several sources including the former INS Commissioner. The news report also cites a rivalry developing between BICE and BCBP as to jurisdiction of this function between the two Bureaus. For the news, please click here.

05/30/2003: Collection of State Department Cables on Child Status Protection Act (CSPA)

• The State Department has been issuing a series of cables to visa posts to give a guidance on interpretation of the CSPA and its policy on various issues relating to the implementation of the statute. We will post all of these cables in one place so that people have a complete access to the entire text of the State Department cables.
  • Cable Series #1 (08/26/02)
  • Cable Series #2 (01/17/03)
  • Cable Series #3 (05/29/03)
  • Cable Series #4 (05/17/03)

05/29/2003: BCIS Special Notice to Iraqi and Syrian Asylees

• BCIS has issued the following special notice to Iraqi and Syrian Asylees:
  Special provisions in immigration law authorize the BCIS to process the adjustment of status applications of certain eligible Iraqi and Syrian asylees without regard to the 10,000 numerical limitation. For further information, see: Syrian Adjustment Act (P.L. 106-378) Fact Sheet, May 17, 2001 and Iraqi Exemption to Asylee Adjustment Cap
• Asylees who are eligible for their applications to be processed under these special provisions and believe the BCIS may be inadvertently subjecting their applications to the 10,000 cap should contact the BCIS by writing to the following address:
• Nebraska Service Center
  Attn: 485 SYRIAN SUPERVISOR
  P.O. Box 87333
  Lincoln NE 68501-7333
• When writing, please include your name, date of birth, country of birth, A-file number, filing receipt/tracking number, and your current address.
  

05/29/2003: Certain Asylum Applicants Awaiting I-485 Decision Need Address Change Report

• The Bureau of Citizenship and Immigration Services (BCIS) announced that asylees who filed adjustment of status applications on or before February 1, 1999, and have not received a decision regarding their adjustment application, should contact the National Customer Service Center (NCSC) at 1-800-375-5283 to ensure that the agency has a record of their current address. Applicants can also contact the NCSC to check on the status of their case. For additional information, please click here.

05/29/2003: BCIS Notice to Asylee 485 Waiters

• The BCIS is currently adjudicating applications for asylee adjustment filed on or before February 1, 1999. An asylee, who filed an adjustment of status application on or before February 1, 1999, and has not received a decision regarding the adjustment application, should contact the NCSC at 1-800-375-5283 (see NOTE above) Monday through Friday between the hours of 8:00 am and 6:00 pm.
  

05/29/2003: State Department Cable to Supplement its Previous Cables on CSPA

• The cable is sent to visa posts to advise that: The following supplements the guidance in Refs A and B on the Child Status Protection Act (CSPA):
  -- A mandatory advisory opinion is no longer required in cases where the alien applied for the immigrant visa before the effective date of CSPA (August 6, 2002) and was refused
  on a ground other than 221(g).
  -- In such cases, if the alien's visa application was refused between August 6, 2001 and August 5, 2002, the refusal will not be considered a "final determination" and the CSPA may be applied to the case.
  -- If the refusal occurred prior to August 6, 2001, then the refusal will/will be considered a "final determination", unless either the refusal was under 221(g) or the alien applied for a waiver and the waiver application was pending on August 6, 2002.
  -- If the refusal occurred prior to August 6, 2001 and a waiver application was either decided before August 6, 2002 or filed after August 6, 2002, the case should be submitted to CA/VO/L/A for an advisory opinion. For the full text of the cable of May 2003, please click here.

05/29/2003: BCIS e-Filing Forms and Instructions

• BCIS starts e-filing of I-765 and I-90 from today. For filing of these types of cases, people should use the following on-line links and follow the specific instructions and guidelines as follows:
  • BCIS Introduction and Guidance of e-Filing
  • Q & A
  • E-filing Instructions and Eligibility Requirements
    • I-765 EAD e-Application
    • I-90 Green Card Replacement e-Application
  • Forms
    • I-765 e-Filing Form and On-Line Filing
    • I-90 e-Filing Form and On-Line Filing

05/28/2003: Online EAD Filing Launch Tomorrow Which Begs Questions

• The AILA has reported that BCIS will have the online filing kick-off ceremony at 12:30 p.m. tomorrow. However, at this point, there are so many questions which have yet to be answered by the BCIS. The first and foremost important question is whether electronic filing of EAD application will help the applicants to get the EAD plastic card quicker than what it takes now. The BCIS has to answer this question. Secondly, electronic filing may not help too much for certain I-485 filers. For instance, currently the BCIS policy indicates that when one files a concurrent I-140/I-485 package, the BCIS will not adjudicate EAD applications until either I-140 prima facie eligibility is affirmed or the petition is approved. It is thus unclear how the electronic filing of EAD will fit into the concurrent filing cases. Without doubt, some applicants may receive benefits from the electronic filing, such as OPT F-1, renewal of EAD for all types of cases including family-based, employment-based, asylum applicant, etc.
• Understandably, the electronic filing system itself cannot be turned on until tomorrow, May 29, 2003, the first day of the new procedure. However, the BCIS could have released guidelines and instructions on the e-filing system ahead of time such that people could have information as to who will be eligible or who will be the best candidates for e-filing system. Since there is no such information available at this time, e-filing of EAD is expected to experience a slow start for some types of EAD applicants. This web site will post the details as soon as it becomes available tomorrow. Please stay tuned!

05/28/2003: DHS is Sued for Delay of Issuing Permanent Resident Proof After Immigration Court Granted the LPR Status

• The lawsuit, filed today in federal court in McAllen, Texas, claims that the DHS has consistently rejected lawful permanent residents' requests for processing and documentation of their lawful status. The DHS has told lawful permanent residents represented in this lawsuit that they would be advised by mail of a return date to complete processing. DHS' delay in processing, which has lasted for months and years in some cases, has created hardships for these and other lawful permanent residents. Without proof of their legal status, lawful permanent residents cannot legally secure employment, enroll in school, or travel abroad. They also live in fear of not being able to demonstrate that they are lawfully in the U.S. if they are stopped and questioned by state or federal officials. For the details, please click here.
  

05/28/2003: SEVIS Outreach Material of NAFSA Convention

• NAFSA released the outreach material on the SEVIS program which is being distributed in the ongoing Convention in Utah. The BCIS posted this material. For the material, please click here.

05/27/2003: U.S. Supreme Court Declines Creppy Memo Unconstitutional

• As we reported earlier, the U.S. Supreme Court was scheduled to decide today the challenge to the government's closed deportation hearings. The Court, by declining to hear the appeal, supported the government's position on the closed hearing in cases involving suspects of interest. For the full details, please click here.

05/27/2003: State Department Cable on Waiver of Personal Appearance for Nonimmigrant Visa Application

• As we reported earlier, the U.S. Department of State had changed its policy on nonimmigrant visa application procedures, requiring appearance of the applicant for the interview in most cases. For the full text of this policy cable to visa posts, please click here.

05/27/2003: BCIS Scheduled Release of Proposed Regulation During Next Six Months

• The following are the schedules of release of proposed new regulations during the next six months. The schedules can be released earlier or later or even cancelled. But these schedules reflect the agency's current direction on certain important issues. We will just post selected important regulations.
  • Mexican TN Regulation: (Release 06/00/03, Commont End 07/00/03): BCIS will propose to remove annual quota for TN visas and, consistent with the Canadian TN visas, will remove requirement of filing I-129 petition approval prior to application for admission to the U.S. on TN visa. Once this new rule is enacted, the qualified Mexican TN applicant can apply for the visa at the consulate without the INS petition approval.
  • Termination of D/S for F, J, I Visas: (Release 09/00/03, Comment End 11/03/03) : Just like any other nonimmigrant visas, these aliens are proposed to be admitted for a fixed period of stay with availability of extension. This change will have a substantial impact on these aliens authtorized stay in the U.S. in that as soon as the fixed period plus grace period expires, their authorized presence in the U.S. will start running and they will be subject to 3-year or 10-year bar once they leave the U.S.
  • Termination of One-Year Absence Permanent Residence Before Returning to the U.S.: (Release 09/00/03, Comment End 11/00/03): BCIS will propoAsse to have authority to terminate permanent resident status for those who failed to return to the U.S. for one year and the BCIS agent thinks they abandoned LPR status. Currently, the BCIS cannot terminate the resident status unless they arrive at the port of entry after absence for one year or longer.
  • AC 21 Regulation: (Release 09/00/03, Comment End 11/00/03): Enactment of this regulation has been long overdue. This proposed regulation will clarify all those controversial interpretation issues, including 180-day rule, portability eligibility, etc. etc.
  • 245(K) Regulation: (Release 10/00/03, Comment End 12/00/03): 245(K) provision an alien to file EB-485 unless they stayed out of status or engaged in unauthorized employment less than 180 days immediately preceding filing of EB-485 application. However, BCIS is expected to interprete the law narrowly in the upcoming regulation.
  • H-2B Temporary Worker Petition Regulation: (Release 10/00/03, 12/00/03): This proposed regulation will tighten eligibility and narrowly interprete the law such that the American labor forces are protected.
  • 2-Year Valid EAD for I-485 Applicants: (Release 12/00/03, Comment End 02/00/04): EAD for green card applicants has generated a tremendous workloads for the BCIS as its recent announcement of online filing initiation beginning from May 29, 2003, and again this regulation has been long ovedue considering the fact this concept had been conceived by the leaders of the INS for quite a while.

05/27/2003: Compliance Office/BICE, Monitor and Watcher of Immigration Violators

• Under the defunct INS system, the immigration violations were investigated by the investigators in the local field offices. BICE still retains the investigator system. However, the HQ of BICE created a new office, called Compliance Office. The new office will monitor compliance with the visa process and refer violations to border enforcement agents for investigation. Employees of this new office will review foreign visitors’ visa documents, working closely with immigration inspectors and Border Patrol agents in the field to apprehend violators, Hutchinson said. The office will be supplemented by agents in the field and will need an intelligence and analytical component. Border Patrol agents, immigration inspectors and consular officers will have access to information on visa violators compiled by the new office. Law enforcement officials will also have access to the information.
• The creation of the new office comes at a time when the Homeland Security Department is reorganizing its border and transportation security directorate and launch of the new Entry-Exit System, called U.S. VISIT. This new U.S. VISIT will collect information on the arrival and departure of most foreign visitors, including their nationality, classification as an immigrant or nonimmigrant, name, date of birth, country of residence and complete address while in the United States. Immigration inspectors will scan visitors’ travel documents, which will include a biometric identifier, checking their information against a database to determine whether they should be detained or questioned.
• However, the exact role of the Compliance Office has yet to be defined and disclosed and will remain unknown terrority in the immigration enforcement process until the details are revealed. It is hoped that the office will not turned into an office of witch-hunt. For the news, please click here.
  

05/27/2003: Michael J. Petrucelli, Deputy Director & Chief of Staff, BCIS

• Michael J. Petrucelli joined the BCIS on May 23, 2003 as the second rank leader of the BCIS.

05/26/2003: Countries With Limited or No Visa Services

• The U.S. Department of State provides this information on its site to help the international travellers. Please check it out from time to time.

05/25/2003: L-1 (Intra-Company Transferee) Visa in Center of Storm

• Report indicates that angry unemployed American hi-tech and anti-immigration groups are shifting their fights against foreign workers from H-1B visa to L-1 visas. They are up in the arm to block any legislation to increase the H-1B annual quota which will roll back to 65,000/year on October 1, 2003 and at the same time, they started attacking IT firms on the ground that these firms are abusing the L-1 visa for the purpose of outsourcing American businesses in foreign countries taking away American workers' jobs. Recently, some firms started using L-1 visa options heavily to avoid the expensive and time-consuming H-1B visa petitions and the legal hurdles imbedded in the H-1B law that heavily relied on foreign workers. H-1B petition requires $1,000 fee payment and H-1B dependent employers are subject to the recruitment attestation and no layoff attestation, which practically forced the foreign worker depending businesses to abandon the H-1B visas to bring in foreign workers. L-1 visa does not require $1,000 fee and there are no attestation requirements and the conditions of the visa are flexible in terms of the restrictions to the wage, location of work, etc. Reportedly, the Congressman in Florida introduced a legislative bill in the past week to prohibit use of L-1 visa for outsourcing. Growing outsourcing of businesses is receiving certain level of thunderstorm in the pro-labor community as well as the anti-immigration groups. For the details, please click here.

05/24/2003: U.S. VISIT Program, NIV Interview Policy, and Visitors to the U.S.

• Under the US VISIT Program, the biometric identifiers are collected at the American consulates for people who need visas to enter the U.S. According to the DHS, initially the U.S. will use two biometric identifiers which are fingerprints and phtographs, but later, additional forms such as facial recognition or iris scans technology will also be adopted.
• Since the policy, including the DOS' new procedure requiring interviews for issuance of nonimmigrant visas, applies only to those that need a visa to enter the U.S., those from 27 visa waiver countries will not be subject to such procedure at least for now when it comes to visit to the U.S. on a visitor status. Eventually, they will also be subject to such procedure "indirectly" in the future in that the visa waiver countries are required to use biometrics in issuing passports by October 26, 2004. Until that time, the new policy will not affect citizens of Canada and these 27 countries, mostly European countries, because they are not required to obtain U.S. visitor's visas. Report indicates that they make up about half of the 35 million people who visit the U.S. each year. For those who need a visa to visit the U.S., the new policy of interview as a requirement for processing of nonimmigrant visas is expected to add further hurdle and cause delay in issuing a visitor's visa.

05/23/2003: U.S. Supreme Court to Decide on 05/27/03 Whether to Review Constitutionality of Creppy Memo on Closed Hearing

• Creppy Memo is the memorandum of the Chief Immigration Judge that ordered the immigration judges to close immigration court hearing involving those the U.S. Attorney General had designated "of interest" in the ongoing investigation of terrorism in the U.S. This Memo raised a serious issue of constitutional right to public access vs. national security. North Jersey Media Group v. Ashcroft, case no. (02-1289) demands the U.S. Supreme Court to review this issue. The Supreme Court is expected to decided whether or not it will take the case next Tuesday, May 27, 2003. If it decides to take the case, the hearing may be held in the fall this year. For the history of this case and the news report, please click here.
  

05/23/2003: Conflict (?) Between DOS F,M,J Visa Application Window Period and Immigration Inspector's Admission Criteria? Nope!

• Currently, the immigration inspectors at the port of entry does not allow F and M students and J exchange visitors to enter the U.S. 30 days before the start date of school or program. However, DOS instructs visa posts to take applications for these visas 90 days before the start date of school or program. Unless the people understand the policy background of the DOS practice, these international students may hastily make a travel plan and arrive at the port of entry 30 days before the school start date and denied by the immigration inspectors for admission to the U.S.
• The reason why the visa posts accept applications 90 days before the school start date and DHS admission requirement rather than 30 days lies with the delay of visa processings at the visa posts. Thus, when such visa is issued 30 days before the school start date, the student should wait until it reaches 30 days before the school start date for his/her journey. Otherwise, they will experience a denial of entry when they arrive at the airport. For the details, please read DOS Cable on this issue.

05/23/2003: Back Wage Liability for H-1B Employers for Rehired H-1B Employee after Being Lay-Off or Termination

• On May 22, 2003, the DOL Administrative Law Judge in NJ v. Pegasus Consulting Group, Inc., 2001-LCA-00029 (Nov. 13, 2002) awarded backwage liability order to the H-1B employer for the H-1B employees who had been laid off or terminated but later rehired. The backwage award was recognized for the period during the H-1B employee was laid off or terminated.
• This decision is based on the BCIS and DOL regulations that provide that the wage obligation ends when a bona fide termination occurs, 8 U.S.C.1182(n) and a bona fide termination is not recognized where the employer rehires the "terminated" or "laid off" employee, 20 CFR Part 655 unless the employer meets one of the three exceptions the DOL regulation Preamble provides. It is thus critically important to learn the three exceptions to the employer's liability backwage claim when it terminates and rehires an H-1B employee. The relevant Preamble provides that under no circumstances would the Department (DOL) consider it to be a bona fide termination if the employer rehires the worker if or when work later becomes available "unless (1) the H-1B worker has been working under an H-1B petition with another employer, or (2) the H-1B petition has been canceled by the employer's notification of termination of employment to the BCIS and the worker has returned to the home country and been rehired by the employer, or (3) the nonimmigrant is validly in the United States pursuant to a change of status." Recently, the DOL Administrative Law Judges have been awarding backwage determination when the employers terminated and rehired the employees in violation of this Preamble to the DOL LCA regulation. The Preamble to the regulation should not have a binding force, but apparently the Administrative Law Judges take it a guiding principle in interpreting "bona fides terminationa." Something to keep in mind!
  

05/23/2003: Matter of Y-T-L, Interim Decision #3492 (BIA May 22, 2003)

• The Board of Immigration Appeals decided yesterday that when an alien has established past persecution based on the forced sterilization of his spouse pusuant to a policy of coercive family planning, the fact that, owing to such sterilization, the alien and his spouse face no further threat of forced sterilization or abortion does not constitute a "fundamental change" in circumstances sufficient to meet the standards for a discretionary denial of asylum. For the full text of the decision, see In re Y-T-L, 23 I&N Dec. 601 (BIA 2003).
• The Board has been handing down some favorable decisions recently.

05/23/2003: Mandatory SEVIS Check and Fee Collection for F,M,J Visa Issuance

• Today, the U.S. Department of State released its Interim Rule to require that consular officials verify the provenance of SEVIS-generated Forms I-20 or DS-2019 against SEVIS data in the CCD. It also requires that consular officials verify the payment of any applicable SEVIS fee, and makes Border Commuter Students (F-3 and M-3) subject to SEVIS requirements. No F-1, F-2, F-3, M-1, M-2, M-3, J-1 or J-2 visa may be issued unless an authorized consular official has verified the provenance of the student or exchange visitor acceptance documentation against SEVIS data in the CCD, or via direct access to SEVIS. This rule takes effect on May 23, 2003. For the text of the rule, please click here.

05/22/2003: State Department Nonimmigrant Visa Interview Guidelines

• AILA has reported a State Department cable dated 05/21/2003 concerning increased interviews of nonimmigrant visa applicants. According to this guidelines, certain narrowly defined and designated nonimmigrant visa applicants may still receive waiver of interviews, but most of the applicants will have to go through the visa interview to obtain a nonimmigrant visa.
• This new policy will be released in the form of regulation soon, but the cable advises visa posts to implement the new policy as soon as possible and not later than August 1, 2003. Under the guidelines, those who may be waived the interviews unless the consular officer finds otherwise are as follows:
  • The requirement for personal appearance for nonimmigrant visa applicants can in general be waived by a consular officer only for a person who the consular officer concludes presents no national security concerns requiring an interview and who:
    • (1) Is a child 16 years of age or under;
      (2) Is a person 60 years of age or older;
      (3) Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such classification;
      (4) Is an applicant for a diplomatic or official visa as described in sections 41.26 and 41.27, respectively;
      (5) Is an applicant who within twelve months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations.
      (6) Is an alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.
  • The standards for interviews before this new policy included the following:
    • Requires personal appearance in all cases where applicants meet one of the following criteria:
    • -- Do not reside in the consular district where they are making application;
      -- Were previously refused visas (unless the refusal was overcome);
      -- Are the subject of a CLASS hit, or require a security advisory opinion or other Department clearance; (exceptions can be made for A and G visas); and
      -- Are identified by post as belonging to a group or sector of its visa clientele representing a high fraud risk, high refusal rate, or a security threat.
• Even though the new policy would not require every nonimmigrant visa applicant to appear for interview as reported in the recent Wall Street Journal, the policy anticipates to restrict waiver cases very narrowly and only limited number of nonimmigrant visa applicants are explected to obtain nonimmigrant visas without interview in the next several months.
• Apparently, the State Department is initiating the new policy and procedure as a preparation for implementation of the DHS' newly announced "U.S. VISIT" program. Under the program, the visa posts are required to prepare biometric feature of the visa issuance, which include photographing and fingerprinting of the nonimmigrant visa applicants. This biometric information at the visa posts will then be varified at the port of entry in the U.S. by the immigration inspectors. In order to implement the U.S. VISIT program, the visa posts will need to see the visa applicants to develop the biometric element of visa issuance.
• For the to-be-released regulation, please stay tuned to this web site.
  
  

05/22/2003: Immigration Benefits Application Approval Rate in Reverse Proportion to Number of Pending Cases

• The BCIS statistics which were just released for the month of April 2003 reflect that the approval of immigration benefit applications dropped 26% in March 2003 as opposed to March 2002, while the number of pending cases increased 36%, reflecting the drastic halt or slow-down of adjudication of cases during last one year. For the details, please click here.

05/22/2003: CGFNS Postpones Opening Beijing Exam Center Until November

• This new test center was scheduled to open in July, 2003, but because of the SARS situation in China, the CGFNS has decided to delay opening of this new test center until November 2003.

05/22/2003: New CGFNS Exam Center for Nurses in Delhi, India

• The new center in Delhi administer the first exam in November 12, 2003. In India, there are two other test centers that currently provide the Qualifying Exam: One in Bangalore and the other in Cochin. For the details, please visit CGFNS website.

05/22/2003: AILA's Washington Update 05/19/2003

05/21/2003: Readers, We are Currently Experiencing Technical Difficulties. Thank You for Your Patience.

05/18/2003: 09/30/03 Sunset of Special Immigration Laws for Non-Minister Religious Workers and Pending Cases

• Currently, the qualified religious workers other than Minister occupation are allowed to file a special immigrant petition (I-360) and once the petition is approved, they file I-485 to get a green card. Except the occupation of Minister, though, the law on the special immigration for these religious workers lasts only for three years and unless the Congress extends or reenact the law, the law is expected to sunset at the end of September 30, 2003. Under the current law, the people who started this green card process should obtain "approval of I-485" before the law sunsets. Since September 30 is only approximately four months away, the people who have filed either I-360 or the subsequent I-485 are nervous about the situation.
• For some reasons, the Congress has been passing law to extend this law for three years at the last minute during last several years, driving the religious organizations and their religious workers into a breath-taking situation. It is expected that soon, the Christian religious organizations, particularly Catholics, will pump up their lobbying efforts, pressuring the Congress to introduce and pass the extension bill.
• However, there is no guarantee that the Congress will indeed pass such law again, or even if they do, whether they will pass a law giving the special immigrant benefits to all the religious workers on identical conditions and terms as they did it in the past. People should thus live with the current situation of sunset of the law at the end of September. It has been the immigration agency practice for the past several years that as the date of sunset of this law approaches, they expedited the pending I-360 or Special Immigrant I-485 cases so that these cases be adjudicated before the end of September. Thus far, though, there is no official announcement by the BCIS instructing the Service Centers to handle these pipeline cases on "expedite basis."
• Thank God, we have some good news for these waiters. All the four Service Centers have indicated that they were aware of this sunset problem, and intend to adjudicate the pending cases as much as possible before the end of September! Additionally, the AILA is working with the BCIS to induce the agency to announce "expedite policy" for these cases. It appears that the reaction of the BCIS is somewhat positive and the BCIS may soon release such announcement.
• The people in the pipeline should also not neglect their own duties to assist the agency, assuming that the agency will adopt such expedite policy. Four months is a very short period of time. Unless the people collect all the evidence ahead of time against the upcoming potential RFE (Request for Evidence), even if the Service Centers wants to assist them, they may not have enough time to complete their cases before the midnight of September 30, 2003. Law does not, and should not, help those who sleep on their obligations and duties!! Remember that once the agency starts expediting of these cases, some of your colleagues in I-485 quieu will suffer, even though negligible, as additional resources within the agency should be shifted to adjudication of these cases. You should be thankful to your colleagues!

05/17/2003: Change in Leadership in Foreign Labor Certification Division of DOL

• This web site reported earlier the unconfirmed news that the current chief of foreign labor certification division in the U.S. Department of Labor may be replaced by a new chief, and potentially it may affect the specific schedule of release of the PERM regulation and the launch of the PERM labor certification procedure. People will recall that the DOL initially scheduled to release the PERM regulation in April, 2003, which apparently was pushed off to June or July, 2003, and according to the latest information, again pushed off to September 2003. Thus far, there is no indication that the starting date of the PERM program has been affected by the schedule changes in release of the regulation. Accordinly, the new labor certification procedure may take effect beginning from October 1, 2003.
• Sources indicate that we now have the name of the new chief of the foreign labor certification division who will take over the foreign labor certification leadership. It is hoped that this leadership change would not affect the on-going labor certification system reengineering schedules any further.

05/17/2003: End of Drop-Box Nonimmigrant Visa Application/Issuance?

• AILA has reported that according the Wall Street Journal, the U.S. Department of State is planning on changes in the nonimmigrant visa issuance practice and procedure throughout the world. Currently, visa posts take certain nonimmigrant visa applications either by mail or drop box and issue such nonimmigrant visas without interview. The report indicates that the visa posts may cease such practice and issue nonimmigrant visas only after scheduling interviews.
• Currently, no information is available about the details of such policy change including specific time table. However, once such change takes place, it is expected that nonimmigrant visa applications will take a longer time and require additional preparation for visa applications. Those whose visas are expected to expire in the near future will have to plan ahead sufficiently in advance the visa renewal, including the option of visa revalidation or advance parole.
• Recently, the I-485 applicants are increasingly considering the option of travelling with advance parole rather than extending nonimmigrant visas. These people must keep in mind that advance parole does not guarantee their return to the U.S. in the event that they are subject to the 3-year bar or 10-year bar because of their prior unauthorized presence in the U.S. for 180 days or one year.
• Please stay tuned to this web site for the development of this news.

05/16/2003: GAO Reports Congress Loopholes in Border Crossing Inspections

• According to the testimony of Special Investigation Office of GAO before the House Subcommittee on Immigration, Border Security, and Claims on May 13, 2003, the immigration inspections for aliens from the border countries and Caribbean countries revealed a loose end raising security concerns. For the purpose of the investigation, the GAO reportedly created counterfeit IDs in order to establish fictitious identities for its agens by using off-the-shelf computer geographic software. The GAO agents then entered the U.S. from Jamaica, Barbados, Mexico, and Canada using fictitious names, counterfeit driver licenses and birth certificates. BCBP staff reportedly never questioned the authensity of the documents, and they encountered no difficulty entering the country using the documents. For the full report, please click here.

05/16/2003: 5-Year Illegal Residents Legalization Bill, H.R. 440

• On January 29, 2003, the Congressman Luis V. Gutierrez and 14 other members of the House of Representatives introduced a legislative bill ("U.S.A. Family Act") that proposed to legalize certain illegal aliens who had been physically present in the U.S. continuously for 5 years before January 29, 2003 and continues to remain in the U.S. until the law passes and the implementing regulation is enacted. This bill was referred to the House Judiciary Committee and currently pending before the Subcommitte on Immigration, Border Security, and Claims, since March 2003.
• This important bill has remained a backburner due to the War in Iraq. Now, the war is behind us and it is time for the immigrant community to mobilize forces and push this bill in the Congress. For the full text of the bill, please click here.

05/16/2003: BICE/DHS Reorganization Go Into Effect 06/09/03

• Today, the Bureau of Immigration and Customs Enforcement unveiled its reorganization plan which will take effect on June 9, 2003. The Bureau will be reorganized into five divisions, whose heads will report to the Assistant Secretary Michael Garcia. The new five divisions are:
  • Investigations
  • Intelligence
  • Detension and Removal
  • Air & Marine Interdiction
  • Federal Protective Services
• For the BICE announcement, please click here. For additional news report on the reorganization, please click here.

05/12/2003: Release of PERM Regulation Not Likely Until September 2003

• AILA has reported that a responsible DOL official disclosed that the PERM labor certification application regulation might not be released until September, 2003. Shocks!

05/11/2003: How Immigration Inspectors Prevent Aliens from Entering Illegally at the Ports of Entry

• On May 7, 2003, the Commissioner of BCBP/DHS testified on the subject before the House Appropriation Committee Subcommittee of Homeland Security with respect to preventing individuals from entering the country illegally at the ports of entry. This testimony allows people to have a little bit of glimps of how the job is done at the airports.
• BCBP works with the Department of State to ensure BCBP inspectors have the tools they need to verify the identity of visa holders and the authenticity of visas issued by the Department of State. Data on holders of immigrant visas is transferred electronically to ports of entry. When the electronic record is updated to reflect an immigrant's admission at a port of entry, that data is transferred electronically to the BCIS for production of a permanent resident card and creation of the immigrant file.
• More importantly, beginning in 2002, immigration inspectors - now in BCBP - have had access to photographs and data transmitted electronically by the Department of State relating to holders of nonimmigrant visas. This permits inspectors to review visa application data and verify the identity of the holder.
  

05/11/2003: Special Handling College Teachers Labor Certification: What Happens if 18 Month Passed from Selection

• The alien labor certification for tenure-track college teachers is handled completely different from the labor certification applications for other occupations in that the employer (higher learning institution) is allowed to use the past record of the school's selection of the alien teacher in the school's normal competitive selection process, no matter how many applications the school received inasmuch as the alien was the best qualified for the position. Obviously, in every case, a school would not have selected and offered the alien candidate unless he/she was "best" qualified for the school's need, right? In the labor certification for all other occupations, the standard for the qualification is not the qualification of the alien him/herself but the description of duties and qualification requirement which the employer stipulated in the labor certification application. Consequently, even if the alien is the best qualifed, inasmuch as there is one single U.S. worker who meets the minimum requirement in the application, the employer is not allowed to offer the permanent employment to the better qualified alien worker. In this regard, the certification of labor certification for a tenure-track college teacher is almost always assured inasmuch as the application is filed within 18 months of selection of the alien teacher.
• What happens if the threshold 18-month has passed? The employer does not have to go through RIR or Limited Review Processing or Regular Application, which other occupations are mandated except Schedule A occupations and labor certification waiver cases. The school can reinstitute its normal competitive selection process just as it did previously and file the special handling labor certification application within 18 months from the date of this new selection process. Of course, the school is not precluded from filing one of those applications which other occupations go through even for a teaching position, but special handling application is advantageous over all of these standard applications. One of such advantages, among others, is processing times. The special handling cases are considered "priority" cases at both state and federal offices and adjudicated in a very short period of time. Those teachers who missed the 18-month filing deadline should consider working with the school to initiate the selection process anew within the school and quickly file a special handling labor certification.

05/10/2003: Some Thoughts on BCIS Management Improvements for Reduction of Workloads and Backlogs

• The defunct INS and the current BCIS have been working hard to improve efficiency and effectiveness of its management of petitions/applications processing, including electronization and centralization of processing or adjudications. As we noted earlier, these reengineerings would without doubt contribute to achievement of reduction of processing times as well as fairness in the proceedings by eliminating discrepancy in local practices and potential room for the arbitrary handling of cases as influenced by the influence peddlers rather than strictly adhering to the "legal standards and procedures" in every case. The benefits of electronization and centralization are exactly twofolds, particularly the latter one that eliminates any room for arbitrary decision as affected by personal relationship of the adjudicators with the filers. The same sets of facts will be decided with the same outcome, no matter who and where the cases were filed.
• There are, however, some additional improvements the BCIS may want to consider in connection with the recent experience of delays in the processing times. Of course, these suggestions will become moot, if the President Bush's commitment to reduction of processing times to 6 months in the near future. Otherwise, the following options may further improve the BCIS caseloads:
  • Fingerprint Scheduling: Recent decision of the California Service Center not to schedule fingerprinting for the first 9 months of filing of EB-485 is one good example of improvement. Since fingerprint is valid only for 15 months and large number of cases take longer than 15 months as affected by the agency restructuring and security checks, the agency will have to go through refingerprinting scheduling and resecurity-clearance processes, adding tremendous additional workloads, if the fingerpring is scheduled early on.
  • EAD and Advance Parole Valid Dates: INS was initially scheduled to adopt 2-year EAD for EB-485 filers within this fiscal year which has not materialized for whatever reasons. However, again considering the current processing times delays, the BCIS may want to think about another options. Currently, the BCIS issues EAD and Advance Parole valid from the date of approval. The same is true with the extension/renewal of these documents. Since I-485 takes longer than 12 months and people initially file EAD/AP at the time of initial I-485 filing, most of these applicants are forced to apply for extension/renewal of these ancillary applications. Unfortunately, the processing times of EAD and Advance Parole are extremely unpredictable and people are forced to file such extension/renewal applications several months in advance of expiration of the current EAD and Advance Parole. Fortunately or unfortunately, some of these applications are approved sooner than the expected processing times and the newly issued EAD and AP are issued a way before the date of expiration of the current EAD/AP. What this means is that the extended/renewed EAD/AP will again expire sooner than 2 years from the date of filing, forcing some people to apply for another EAD/AP second time before I-485 is finally adjudicated. If the EAD/AP extension/renewal is issued with the valid date of expiration of the current EAD/AP, the BCIS will be able to eliminate the unnecessary workloads that flow from the current practice.
  • Response to Telephone Inquiries: Centralization of telephone inquiry system beginning from June 1, 2003 apparently entails a bifurcated concept in that NCSC may not be able provide answers in most individual cases and eventually each Service Center will have to send a written response to the inquiries. It is submitted that it will add tremendous workloads rather than reduce workloads. Preparating responses in writing will require a tremendous amount of man/hour including processing of mails and preparing and recording the answers. Let's assume that the BCIS NCSC will get the same number of phone inquiries as the number the four Service Centers receive. The new system will add the man/hour required for "written" responses by each Service Center "completely unnessarily." From the point of view of efficiency and effectiveness, it does not make any sense at all. Unless the NCSC is prepared to get a full access to the four Service Center records and fully informed of the processing situation in each Service Center, probably the launch of centralization of telephone inquiry system is "premature" at least at this point of time. It will serve no "public interest" in that it would rather bring inconvenience to its customers and at the same time aggravate its efficiency and effectiveness in the management. We strongly suggest that this change be pushed off at least until the electronic system is improved to allow NCSC access to the Service Centers and their records in full.

05/10/2003: Pending Student Adjustment Act Bill (H.R. 1684) Could Have Saved This Tragic Boy

• A sad story of an illegal alien high school student who is scheduled to be deported coming Wednesday, 22 days before graduation, who was brought to this country not by his will but by parents 13 years ago in his childhood. The Student Adjustment Act bill which is still stuck in a subcommittee of the House of Representative is intended to save such student, but it will come too late for this boy. Very heartbreaking story. Read on.

05/09/2003: GAO Reports to Congress INS Interview Plan of Post 9-11

• On April 11, 2003, the GAO reported to Congressional Committees the details of the INS plan and implementation of selection of certain aliens and conducted interviews after 9/11 incidents. This 37-page report goes into some interesting background information, which people may want to read as a weekend reading material. For the full report, please click here.
• For the reaction of the Congress, please click here.

05/09/2003: June 2003, Starting Point for New Imigration Benefits Processing Procedures

• June 2003 will mark the starting point for centralization and electronization of immigration benefits applications processing by BCIS. For instance,
  • Family-based immigration applications will be filed with the National Benefits Center;
  • Starting from EAD application and plastic green card replacement application by electronic filing on May 29, 2003, the BCIS will gradually expand electronic filing of other petitions and applications; and
  • Current telephone information system of the four Service Centers will be cut off and telephone inquiry will be accepted, beginning from June 1, 2003, only by National Consumers Service Center 800 number.
• Between now and the end of May, it is anticipated that the telephone inquiry lines of the four Service Centers are expected to experience a heavy traffic because everyone wants to make a live inquiry with the information officers at these offices before the phone lines are cut off. From June 1, the NCSC will continue to take inquiries but will not be able to give answers to individual case questions. They will pass it onto the relevant Service Center, which will then respond to such inquiry "by mail." People know what this means. It can take days or even months! That is why people want to make the phone inquiry before June 1 just even to hear the breath of live officer on the phone line talking about his/her case. This is the downside of on-going change.

05/09/2003: Rift Between African-Americans and Immigrant Blacks Getting Attention

• Report indicates that between 1970 and 2000, the share of black immigrants among the nation's black population grew from 1.3 percent to 7.8 percent. Two-thirds of all African immigrants currently in the United States arrived after 1980. However, the black immigrants do not consider themselves as part of American minority "blacks" and do not share the issues that African-Americans face. The same is true with the African-Americans when it comes to the issues involving black immigration, which they are ignorant or insensitive. They do not share the immigration issues involving these new immigrants. Belatedly, the African-American community has started to looking into the problem. For the details, please click here.
  

05/09/2003: BCIS Requests Emergency Review of Form I-130 for Electronic Filing

• BCIS has just published its request to OMB for emergency review of proposed I-130 revision for the purpose of electronic filing of the form I-130 Relative Immigrant Petition. Apparently, it is related to its move to centralize I-130/I-485/I-765/I-131 filing and processing procedure at NBC. For the federal register request, please click here.

05/08/2003: BIA Rules That 2 Petty Offenses Not a Bar to Cancellation of Removal

• The Board of Immigration Appeals also handed down another decision today, May 8, 2003, that: (1) Convision of a petty offense crime involving moral turpitude is not an offense for removal ground; (2) Petty offense does not bar the offender from establishing good moral character; (3) More than one petty offense is not ineligible for the petty offense exception to removal ground when only one crime is a crime of moral turpitue. See In re GARCIA-HERNANDEZ, Interim Decision #3490 (BIA May 8, 2003), 23 I&D Dec 590.

05/08/2003: BIA Rules That 2 Moral Turpitude Petty Misdemeanor Crimes Are Not a Bar to 7-Year Continuous Residence for Cancellation of Removal

• Today, May 8, 2003, the Board of Immigration Appeals handed down a decision that an alien with two misdemeanor crimes of moral turpitude is not precluded from establishing the requisite 7-year of continuous residence for cancellation of removal where the first crime was a petty offense and did not render him inadmissible. See In re DEANDA-ROMO, Interim Decision #3491 (BIA May 8, 2003), 23 I&N Dec 597.

05/08/2003: New "SP Immigrant Visa" Category for the Relatives of 9/11 Victims

• The State Department has published an interim regulation, effective 05/08/2003, granting special immigrant visas to the following relatives of 9/11 victims, as authorized under the USA Patriot Act:
  • Principal Alien: An alien is entitled to classification as an ``SP'' special immigrant if the alien can demonstrate to the Attorney General that
    (1) He or she is the beneficiary of a petition, filed on or before September 11, 2001, for classification as an immigrant under INA 203(a) or (b) or as a nonimmigrant under INA 101(a)(15)(K); or
    (2) He or she is the beneficiary of a labor certification application filed on or before September 11, 2001.
    Additionally, the alien must present evidence that the petition or labor certification application was revoked, terminated or rendered null, either before or after its approval, due directly to the attack of September 11, 2001, that resulted in the death or disability of the petitioner, beneficiary, or applicant; or caused loss of employment due to physical damage to, or destruction of, the business of the petitioner or the applicant.
  • Spouse or Child: The spouse or child of an alien who meets the description of a ``principal alien'' (whether the principal alien is living or deceased) may be classified as an ``SP'' if the familial relationship existed on September 10, 2001; and if the spouse or child is
    (1) Accompanying the principal alien; or
    (2) Following-to-join the principal alien no later than September 11, 2003. In the case of a deceased principal alien, the requirement for accompanying or following to join is disregarded.
  • Grandparent of an Orphan: The grandparent of a child may be classified as an ``SP'', if the child is left with no parents as a direct result of a terrorist attack on September 11, 2001, if either parent was a U.S. citizen, a U.S. national, or a lawful U.S. permanent resident on September 10, 2001. The grandparent must also demonstrate that he or she is coming to the U.S. to assume legal custody of the child.
• For the details, please click here.
  

05/06/2003: New Chapter of Green Card Application Processing: Centralization

• Currently, I-485 application with the ancillary applications such as I-765 EAD application and I-131 advance parole for employment-based immigration is regionalized into the four Service Centers (California, Nebraska, Texas, and Vermont) and no in-person filing is available. Accordingly, there is no direct human interaction between the government agency and the applicants. Everything is handled by mail.
• Until now, the family-based I-485 application with the ancillary applications (I-765 and I-131) is filed with the BCIS district offices in the local areas. In most cases, the applications are filed in person rather than by mail. The current system allows the human interaction between the agency and the applicants. Soon this system will disappear.
• BCIS will eliminate the direct in-person filing system and require the family-based green card applications to be filed by mail only. These applications will be filed not with the local district offices but with the Missouri Service Center which will soon be renamed as National Benefits Center (NBC).
• One benefit of centralization of family-based green card applications and ancillary applications is realization of uniformity in the processing times and removal of inconsistent local practices, leading to achievement of some level of fairness and consistency among the applicants living in 50 different states. As people know, currently there is a huge discrepancy in the local district practices and processing times. Along with this benefit will come disappearance of long waiting line of people in the local district offices. Currently people have to wait in the freezing cold outside the building in some areas. Even if they are successful in getting into the building, they are required to sit and wait for hours to file applications.
• One drawback of centralization is unavailability of immediate issuance of EAD and Advance Parole at the time of filing at the local district offices. Without doubt, BCIS may arrange issuance of such documents at local district offices in "emergency" cases, but generally the same day issuance of EAD and Advance Parole will disappear and these applications will take time to be processed and adjudicated by the NBC.
• The new procedure will also bring a substantial change in immigration law practice for the immigration lawyers. Along with the centralization of the family-based green card applications will come nationalization of such immigration law practice just like employment-based immigration law practice. In the employment-based immigration law practice, launch of PERM program will gradually remove involvement of the state agencies and processing of the labor certification will be completely centralized removing the current local or regional variations and differences. Since there will no longer be the need for understanding of the local practice in the labor certification proceedings, the location of the legal counsel will become totally irrelevant. Even though there will be some difference in the family-based immigration, the centralization of the family-based green card application processing will tear down the local and regional barriers in the immigration law practice and the location of the legal counsel will become not relevant. Consequently, the local practice will be narrowed to the legal proceedings related to immigration enforcement proceedings, such as problem that arises from immigration inspection process, criminal investigation of immigration violators, illegal alien removal proceedings, immigration court proceedings, etc.
• The timeline of the new procedure is known to be around June 2003. The new chapter of immigration law practice in immigration history is about to open and we look forward to the new challenge ahead.

05/06/2003: Signs of Thaws in I-485 Processing

• I-485 processing has witnessed either a complete freeze or de facto freeze for quite a while. As we reported earlier, this was affected by the security measure and the call-in special registration. Now the war is over and the call-in special registration ended on April 25, 2003. Additionally, DHS has announced that there will be no more special registration which will be replaced by U.S. VISIT program.
• We see a sign of thaw in I-485 adjudications, and even if the BCIS online status check is not quite promptly updated, people will see in the mail approval notices. It will be a pleasant surprise. Stay tuned.

05/06/2003: UC Berkley Terminates Admission of Foreign Students from SARS-Hit Asian Countries For Summer Session

• The University of California at Berkley has decided to turn away foreign students during the summer session who travelled over the SARS-hit countries, China, Taiwan, Hong Kong, and Singapore. These countries are suffering from the epidemic SARS not only economically, but also in international education. The American consulates in these countries do not admit that SARS affect issuance of nonimmigrant visas to applicants in these countries, but there have been numerous reports that visa processing has been experiencing delays. For the news, please click here.

05/05/2003: BCIS Clarifies Eligibility for Waiver of Joint Petition To Remove Conditions While Divorce Proceedings Are Pending

• BCIS has released a memorandum to answer the question on whether or not a conditional resident spouse can file I-751 application for waiver of joint petition to remove the condition when the divorce proceeding is commenced but still pending. The answer is "no." The memorandum states that such alien should wait until divorce proceeding is completed and only people whose marriage has been "terminated" can file such a waiver based on a good faith marriage ground.
• What happens if the divoce proceeding is not completed before the 2-year conditional status runs out? The memorandum states that the DHS should commence removal proceeding, and pending the completion of the divorce proceedings, the alien should seek a continuance before the immigration court pending the divorce proceeding. While the alien goes through such proceedings, BCIS will issue a temporary I-551 (green card) until the divorce proceedings is completed. As soon as the divorce proceeding completed, the alien should seek a waiver of joint petition (I-751). For the full memorandum, please click here.

05/05/2003: BCIS Regulation Extending TPS for Nicaraguans

05/05/2003: BCIS Regulation Extending TPS for Hondurans

05/04/2003: Aftermath of Immigration Official Visa Fraud Indictment in Detroit

• On April 22, 2003, this web site reported that a visa fraud scheme involving immigration officer in Detroit area were detected and they were rounded up and indicted. Reportedly, the official issued fake Advance Parole documents and ADIT stamps in the passport taking from $3,000 to $9,000 a person. The official reportedly conspired with certain immigration consultant. For our previous report, please go back to our posting on April 22, 2003.
• Obviously, the other side of this ephisode involves the aliens who have entered the U.S. using such fake documents. The report indicates that at least 130 immigrants from Lebanon and Yemen entered the country using such documents and the government attempted to deport them. The deportation of these aliens was however blocked by a federal judge in Detroit on Friday, May 3, 2003, pending the court hearing. Apparently, the involved aliens argued that they were innocent victims of the corrupt official and consultant's visa fraud scheme. It is an interesting development. For the details, please click here.

05/03/2003: TCN H-1B Visa Applications in Toronto/Canada

• When it comes to the Third Country National nonimmigrant visa applications at the Northern and Southern border countries, the American consulates most frequently used by the Third Country Nationals were those in Toronto, Canada, and Ciudad Juarez, Mexico. Now the consulate in Ciudad Juarez, Mexico reopended its door to the Third Country Nationals, and let's take a look at the situation in Toronto.
• Toronto processes TCN applications for most of employment-based nonimmigrant visa categories including E visas. Obviously, substantial number of TCNs who want to apply for nonimmigrant visas will be H-1B professionals. The information reflects that Toronto is not a good border post for certain nationals when it comes to the H-1B visa applications by TCN for the reasons that the consulate in Toronto is reluctant to issue a H-1B visa to those who apply with the educational degree awarded by higher learning institutions in the non-Western nations "unless" the applicant has already obtained extension of the H-1B visa previously (for instance, through visa revalidation by the DOS) or the visa posts in their home countries previously issued such a H-1B visa. Considering the fact that most of the TCN H-1B visa applicants are either Indians or Chinese or Pakistanis, these Third Country Nationals should not just make an appointment with the Toronto for TCN processing without first seeking counsel from the experts who frequently represent such TCNs at the Toronto post.

05/03/2003: BCIS Service Center Processing Times Report Online Access on the Horizon

• Those who have been following closely the periodic processing times reports released by the BCIS (formerly INS) must have noticed a few changes. In the past, each Service Center released its report in a completely different format and at a completely different interval in time. There was no consistency in the reports among the four Service Centers, creating confusion in the immigrant community. Lately, they started changing the reporting format and period in an uniform format and period of time: By-weekly. When it comes to the format, there still remains lack of uniformity in reports of some types of cases such as I-130, I-140, etc. among the Service Centers, but it is expected that it will change into an uniform format. The BCIS has yet to announce the exact time when it will launch online centralized reporting system on the BCIS web site, but it has been working on within the agency.
• The upcoming centralized online access to the Service Centers processing times reports will achieve consistency in reports in terms of format and timing just as the people see in the current labor department monthly report of the federal and state offices processing times of foreign labor certification applications "uniformly." It is hoped that the BCIS launches online reporting system as soon as possible.

05/03/2003: State Department Nonimmigrant Visa Revalidation Processing Times

• The Visa Office usually takes approximately from 6 to 8 weeks, but as of mid-April, 2003, it takes somewhat longer, from 10 to 12 weeks, according to the DOS announcement. Since there is no expedite procedure in place, everything being processed First In First Out (FIFO) basis, those who need an international travel in a short period of time should plan on applying for visa renewal or reissuance at the visa posts overseas.

05/03/2003: What is "IBIS Check?"

• Readers know by now that no application or petition can be adjudicated without the IBIS check and clearance. This procedure has burdened the immigration processing tremendously in terms of human and capital resources and processing times. The current processing delays after 9/11 have been mostly caused by this new procedure. What is IBIS? It represents Interagency Border Inspection System which is shared by various enforcement agencies. Here is the fact sheet of IBIS.

05/02/2003: BCIS Opinion of "Foreign Equivalent Degree"

• On January 7, 2003, Efren Hernandez III, Director, Business and Trade Services, BCIS, wrote a letter in response to an attorney's written inquiry, in which he stated such requirement in the labor certification application can be satisfied by the proper credential evaluations service evaluations that the foreign degree or degrees are the equivalent of the required U.S. degree and it does not have to be a single foreign degree. In the context of the substitution of the employee for the approved labor certification, this opinion can help the substituting employee who does not have a degree in the required field but have multiple educational credentials that are evaluated by the foreign credential evaluation services as equivalent to the required U.S. degree. In the past, some adjudicators in the Service Centers denied I-140 petition when the alien failed to prove by a single degree that he/she had the required degree in the exact field of study.
• However, people should be cautioned that the opinion appears to limit equivalency basis to "educational credential" only and does not encompass combination of education and experience which people often see in the H-1B petition. In other words, unless one proves by educational credentials such as diplomas, degrees, or credits earned at the educational institutions,which are evaluated to be equivalent to the U.S. degree in a given specific field of study, one cannot use his/her experience to meet the educational degree requirement. Apparently there are some misunderstandings on this point in the immigrant community and people call lawyers' offices to argue that Mr. Hernandez opinion allowed equivalency based on combination of education and experience.

05/02/2003: Another Arrests/Indictments of Corrupt Former Visa Post Officials for Visa Frauds

• The U. S. Department of Justice announced that a federal grand jury in Sacramento returned an 18-count indictment charging nine persons, including two former State Department employees, in connection with an alleged corrupt scheme, operating out of the U.S. Embassy in Sri Lanka, to sell entry visas to the United States on payment of hundreds of thousands of dollars by persons in Sacramento and elsewhere to two married State Department employees between 2000 and 2003, in exchange for the issuance of visas to various foreign nationals, primarily from Vietnam and India. For the full news release, please click here.
  
  

05/02/2003: TCN Nonimmigrant Visa Processing Reinstated at Ciudad Juarez/Mexico

• The American Consulate has announced that it accepts application for nonimmigrant visas by Third Country Nationals as follows:
  • IMPORTANT NOTICE CONCERNING NON-MEXICAN (TCN) APPLICANTS:
  • Non-Mexican B1/B2 visa holders seeking a new visa after obtaining approval from The Department of Homeland Security (formerly INS) of a change of status will NOT be accepted unless their B visa includes a “prospective student” annotation.
  • Renewals: Non-Mexican visa renewals will be considered providing the initial visa category was issued in the applicant’s home country.
  • Change of status: Non-Mexican applicants who changed status in the U.S. (EXCEPT those outlined above) will be accepted, for example, F1 to H1B, F1 to J1, etc. We will also accept applicants with an annotated B2 “prospective student” visa from their country of origin. ALL change of status cases MUST provide the original DHS change of status approval notice at the time of interview.
  • E1/E2: Juarez does NOT accept non-Mexican E1/E2 applicants. Mexican E1/E2 applicants should contact the Consulate directly at: (656)611-3000 ext. 2384 (from the U.S. please dial 011-52 before the number) between 2pm-4pm, except for US and Mexican holidays.
  • IMPORTANT NOTICE REGARDING ALL APPLICANTS
  • All applicants are required to make an appointment
  • Due to an April 1, 2002 change in regulations, applicants will only be able to reenter the United States if they are found eligible for a new visa and actually have the visa stamped in their passport. I-94 forms (even if valid), accompanied by previous expired visas, will no longer be valid for the automatic re-entry of persons traveling from Canada or Mexico if during their visit they applied for a new visa that has not, in fact, been issued.
  • Applicants should be aware that any kind of problem/encounter with a law enforcement agency in the United States could result in an FBI record. A visa cannot be issued until mandatory processing requirements are completed, which can take several weeks. This would leave the applicant outside the U.S. for a lengthy period of time and without a valid visa to return to the U.S.
  • TO ALL APPLICANTS OF AN F, M, OR J STUDENT OR EXCHANGE VISITOR VISA
  • Please be advised that SEVIS confirmation may take as long as ten working days AFTER your data is entered by your sponsoring institution. No visa can be issued until this information can be confirmed by the Consulate’s system. You should take this into account when requesting your appointment date.
  • Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the U.S. until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). Please consider that date carefully when making your travel plans to the United States.
  • Due to an April 1, 2002 change in regulations, applicants will only be able to reenter the United States if they are found eligible for a new visa and actually have the visa stamped in their passport. I-94 forms (even if valid), accompanied by previous expired visas, will no longer be valid for the automatic re-entry of persons traveling from Canada or Mexico if during their visit they applied for a new visa that has not, in fact, been issued.
• For the details, please click here for the Consulate web site announcement.
  

05/01/2003: BCIS Local District Offices Processing Times of 04/2003

05/01/2003: Availability of 7th Year H-Visa Status Extension for the H-1B Spouse

• In a number of cases, the spouse of the H-1B alien also carries a H-1B visa status and reaches the 6-year limit at the same time when the principal H-1B alien who filed for labor certification application reaches the 6-year limit. The question remains whether the accompanying H-1B spouse can extend her/his own H-1B status beyond 6 year limit in the event that the principal alien labor certification H-1B alien becomes eligible for the 7th year extension of H-1B status based on the 365-day rule under DOJ Authorization Act of 2002 and AC 21. According to the BCIS, the answer is "no." However, the spouse can file I-539 to apply for change of status from H-1B to H-4 along with the principal spouse's 7th year extension petition and BCIS will approve such application for change of status to H-4 even beyond the H-visa status limit of 6 years. Simply put, the H-1B accompanying spouse cannot extend his/her own H-1B status beyond 6 years but can change the status to H-4 and remain in the country beyond six years until the green card is adjudicated. In all these cases, the aliens should maintain valid H-visa status without violations.

05/01/2003: Substitution of Labor Certification Employees and Availability of 7th Year H-1B Extension for Substituting Employee

• According to the BCIS Memorandum of April 24, 2003, an alien employee substituting the original alien beneficiary of the "approved" alien labor certification application can file his/her 7th-year H-1B extension inasmuch as 365 days have passed since the filing of the labor certification for the original substituted employee and the labor certification application has not been denied or revoked. Additionally, in order to prove that the employer decided to substitute the employees, before the substituting employee can apply for 7th year H-1B extension, the employer should have filed I-140 petition for him/her using the certified labor certification application. In all these cases, the alien should maintain a valid H-1B status without violation.

05/01/2003: PERM Labor Certification Schedule and Planning Problem

• The latest news indicate that the DOL will more likely start the new labor certification system, PERM, on October 1, 2003 and is currently finishing up technological and administrative arrangement. The sources of information also indicate that the earliest date the either interim or final PERM regulation will be published is July 2003 but legally inasmuch as it is published by September 1, 2003, DOL will be able to go ahead starting the new system on October 1, 2003.
• This regulation publishing schedule and PERM start date present a problem to the employers who wish to initiate the recruitment process before October 1 to target filing a new labor certification application or convert existing application under the new PERM labor certification system, because apparently the new system will demand a different type of advertisements and recruitment process than the current RIR or conventional labor certification system. DOL official hinted that once the PERM program launches, the employers may have to "upgrade" recruitment process, implying that additional advertisement campaign may be necessary after October 1, 2003. The only information available at this point is the already-published "proposed PERM regulation," which reflects a different type of advertisement required for the new system. No one knows, however, whether the final regulation will keep the proposed regulation on this issue or there will be further changes.
• The foregoing information suggests that too premature recruitment campaign spending tons of expenses may end up wasting money for no purpose unless the employer is targeting at filing both RIR application before October 1 and PERM application after October 1 since the only ads which they can use are those which are less than 6-month old at the time of each filing.
• Another issue which is relevant to the transition is DOL policy on conversion from existing RIR or conventional regulation application to PERM application after October 1, 2003. Conversion is extremely important for those who need the 7th-year extension of H-1B or 245(i) filers as withdrawal of existing application in order to file a new PERM application may kill the eligibility for 7th year H-1B extension under so-called DOJ Authorization Act of 2002. For these aliens, keeping the priority date is extremely important not because of the potential regrogression of priority dates in the Visa Bulletin in the future but because of the need for keeping the benefit of 7th year H-1B extension or 245(i) benefit. The problem is that DOL hints that the conversion may require "upgrade" and upgrade may require a new filing. There is some indication that the PERM regulation may still allow keeping the priority date when existing case is converted by upgrading recruitment process and filing a new application with the request for retaining the priority date, unless the additional upgrading recruitment campaign include certain material changes that can be construed as a different occupational classification. We really hope that the PERM regulation incorporates such safety valve for the candidates of 7th-year extension or 245(i) applicants.
• Please stay tuned to this web site for the development of PERM program.

05/01/2003: Temporary Protected Status for Honduras and Nicaragua Extended/EAD Extended To 12/05/03

• BCIS announced on 04/30/03 that the TPS would be extended for 18 months for these nationals who had been in TPS status as follows:
• (1) Re-registration is required: The 60-day TPS re-registration period will start to run on May 5, 2003.
• (2) Effective date of TPS extension period: July 5, 2003 - January 5, 2005
• (3) Automatic EAD extension until December 5, 2003, pending the re-registration.
• For other details, please read the following sites:
  • Announcement
    

04/30/2003: Who Are Targets of Additional Security Check in Immigration Inspection at Airports?

• Unconfirmed sources of information indicate that the immigration inspectors may perform additional security checks for the following nationalities at the port of entry: Afghanistan Algeria Angola Argentina Armenia Bahrain Bhutan Brazil Congo Cyprus Congo Egypt Eritrea Ethiopia Georgia India Indonesia Iran Iraq Israel Jordan Kazakhstan Kenya Kuwait Kyrgyzstan Lebanon Liberia Malaysia Mongolia Morocco Myanmar Nepal Oman Pakistan Panama Paraguay Philippines Qatar Yemen Saudi Arabia Somalia Sri Lanka Sudan Syria Tajikistan Tunisia Turkey Turkmenistan UAE Uruguay Uzbekistan Venezuela.
  

04/29/2003: U. S. Supreme Court Supports Government's Authority to Detain Criminal Permanent Residents After Serving Criminal Terms and Without Bond Hearing

• In the today's decision in Demore v. Kim, No. 01-1491, April 29, 2003, the U.S. Supreme Court reversed a lower court decision that upheld the permanent resident's right to bond determination hearing and release after serving the criminal sentence and held that such aliens can be detained without bond hearing until the authorities determination of deportation of the alien. Report indicates that a large number of criminal permanent residents may be affected by this decision.
• This decision, together with the Ashcroft decision reversing the decision of the Board of Immigration Appeals and ruling that the alien can be detained indefinitely without bond hearing pending deportation, is a serious defeat for the aliens' rights in this country.

04/29/2003: DHS Reports the First 100-Day Progress of DHS Security and Services

• Today, the DHS has released its progress report for its first 100-day in security and services business. The following is the excerps from the report that are related to the immigration functions:
  • BCBP: All front-line Bureau of Customs and Border Protection (CBP) inspectors across the country have received radiation pagers that alert them to the presence of radioactive material. CBP acquired and deployed additional "A-STAR" and "HUEY" helicopters to bolster enforcement efforts along the U.S. Southern border.
  • BICE: The BICE launched a special operation to identify and remove persons with unknown or questionable identities with access to restricted areas of military
    installations. The effort called Operation Joint Venture, resulted in 37 arrests, of which 28 were removed from the United States. Operation "Green Quest," a multi-agency task force led by ICE, continued its efforts to dismantle the financial infrastructure of al Qaeda and other terrorist organizations. Another ICE initiative,
    Project Shield America, also continued. This effort prevents sensitive U.S. technology and munitions from falling into the hands of terrorists and other U.S. adversaries. Under this initiative, ICE agents partner with U.S. manufacturers and exporters to guard against illegal arms exports. The ICE Office of Air and Marine Interdiction (OAMI) provided 24-7 airspace security coverage over Washington, D.C. During Operation Liberty Shield, OAMI expanded this mission to include airspace security coverage over New York City as well.
  • BCIS: The BCIS has now developed the technology to accept electronic filing as an option for two of the most commonly submitted immigration forms - the application for replacement "green card" (Form I-90) and the application for Employment Authorization (Form I-765). These forms were selected in part because filings of these applications represent over 30 percent of the total number of applications filed with BCIS annually. The system will go online shortly. Approximately 165,000 new citizens have been processed in the months of January, February, March and April. In May alone, BCIS plans to conduct over 290 ceremonies and the naturalization of approximately 50,000 citizens. BCIS also processed approximately 6,500 requests for expedited citizenship for military applicants since July 2002. In the last 30 days, eight requests have been processed for posthumous citizenship, which is granted to non-citizens whose death resulted from injury or disease incurred while on active duty with U.S. Armed Forces during specified periods of military hostilities. BCIS launched a pilot project to standardize the English, government, and United States history tests administered to citizenship applicants. The first phase of the two-stage pilot focused on the English language test. Five cities participated in this first phase of the naturalization pilot: Newark, Los Angeles, Sacramento, San Antonio and Atlanta.
    

04/29/2003: Good-Bye to NSEERS and Birth of New "U.S. VISIT" System By End of 2003

• DHS today announced that it would cease the current NSEERS as the Entry-Exit Control system to be replaced by the new system, called "U.S. VISIT" (U.S. Visitor and Immigrant Status Indication Technology) system. The new systems is designed to make entering the U.S. easier for legitimate tourists, students and business travelers, while making it more difficult to enter the U.S. illegally through the implementation of biometrically authenticated documents. Drawing heavily on developing technologies and scientific capabilities, the system will utilize a minimum of two biometric identifiers, such as photographs, fingerprints or iris scans, to build an electronic check in/check out system for people coming to the U.S. to work, study or visit. The system will be in its first phase of operation at international air and sea ports of entry by the end of 2003. For the details of this new system, please stay tuned to this web site. For the news report, please click here.
  
  

04/29/2003: DHS Rule Released: Electronic Signature on Applications and Petitions for Immigration and Naturalization Benefits

• As we predicted earlier, the DHS (BCIS) released this morning this interim rule on electronic filing of certain immigration and naturalization forms as early as May 29, 2003. For the full text of the rule, please click here.

04/28/2003: AILA's Washington Update of 04/28/03

04/27/2003: BCIS Online Filng Launch and Schedules

• On April 25, 2003, BCIS announced that it would launch online immigration form filing systems step by step. According to the AILA, the following is the current schedule of implementation of online filing system:
  • 04/29/2003: Publish the online filing regulation
  • 05/29/2003: Start online filing of EAD application (I-765) and Replacement Green Card Application (I-90)
  • By 09/30/2003: Start online filing of I-129 Temporary Worker Petition, I-140 Immigrant Petition, I-131 Advance Parole/Reentry Permit, I-539 Application for Change/Extension of Nonimmigrant Status, and I-821
  • Addtional Online Filing Forms Without Any Fixed Date of Launch: I-485 Application for Adjustment of Status to Permanent Residence, I-751 Petition to Remove Condition to Permanent Residence Status, N-400 Naturalization Application, and N600/N643.
• The first phase of I-765 and I-90 online filing will require appearance of the applicants at Application Support Center for photograph and fingerprinting.
• For the full text of DHS Announcement, please click here.
• For the Fact Sheet, please click here.
• It is hoped that the online filing system will help in reducing processing times for immigration benefits applications/petitions.

04/25/2003: Today is the Dealine for Group IV Call-In Special Registration!

04/25/2003: Immigrant Visa Application Guidance: Two Groups of Countries with Different Procedures

• This information is posted to give a preliminary information for those who have to make a decision of choosing between I-485 application with BCIS and consular processing or who chose to go through the consular processing in filing I-140 petition. The list of countries in each group may change from time to time as the U.S. Department of State moves towards the centralization of immigrant visa applications. People are advised to follow the actual instructions which they will receive from the National Visa Center rather than relying on this posting and take this posting just as a preliminary information on distinction of the two different procedures depending on which nationality he/she is.
• Group I: Visa Applicants in Visa Posts Other Than Canada, Albania, and Continent of Africa: Most of the immigrant visa applicants will go through this process. Here, the visa application procedure adopts the conventional mode wherein the visa posts play the key roles and the function of the National Visa Center is limited to processing of step 1 procedure and collecting fees for visa application and affidavit of support processing. All the supporting documents for visa applications are not submitted to the National Visa Center but brought to the visa interviews at the visa posts. Click here for the details of the procedure.
• Group II: Visa Applicants in Visa Posts in Canada, Albania, and Continent of Africa: The immigrant visa application is currently centralized at the National Visa Center which processes and handles both step 1 and step 2 documentation and scheduling of interview appointments. Applicants submit all the required documents to the National Visa Center and the visa posts focus on conducting interviews. Click here for the details of the procedure.

04/24/2003: Ashcroft Expands Concept of National Security and Right to Detain Seekers of Illegal Entry Indefinitely

• On April 17, 2003, the Attorney General overruled the decision of Board of Immigration Appeals that ordered release of Haitian illegal entrant "on bond" in In re D-J-, 23 I&N Dec. 572 (A.G.2003). The decison was based on his assertion that release of seekers of illegal entry would encourage a massive illegal entrants to the country and this would threaten "national security," and that the Attorney General had a broad authority and power to detain such aliens indefinitely on national security grounds.
• This decision has stretched out the notion of nation security beyond conventional perception and seriously intruded into the constitutional right to civil liberty and due process of aliens, attempting to grant the Attorney General unrestaint power to limit the alien's constitutional rights, calling a strong negative reaction among immigration advocates and civil right advocates. Read on.

04/24/2003: Important Notice for Conrad 30 Program IMG Applicant in Michigan

• The Michigan State Conrad 30 Program web site has posted that for the state of Michigan, application must be received between June 9 and June 13, 2003. For this notice, please click here.

04/24/2003: Increasing Municipalities Stand Up Against Patriot Act Enforcement Participation

• This web site reported a few days ago that the Minneapolis city council passed a resolution not to fund local officers' participation in the fed's Patriot Act enforcement in the city on the assertion that the law is unconstitutional. Report indicates that more municipalities are taking a similar stance. Read on.

04/23/2003: DOL/State Labor Certification Processing Times 04/2003

04/22/2003: Immigration Official in Detroit Indicted for Fraud Activities

• Report indicates that an immigration official in Detroit District Office is indicted on immigration fraud scheme. The official allegedly conspired with a local immigration consultant in Detroit area to smuggle aliens illegal using two fraudulent papers: (1) Issuing Advance Parole to the inadmissible aliens. Advance parole is available only for aliens legally residing in the United States who have filed for permanent residence. It allows aliens to leave and legally re-enter the United States. (2) Issuing "ADIT stamps," which are placed in the passports of legal permanent-resident aliens, or green-card holders, who have lost their cards. An ADIT stamp permits permanent resident aliens to leave and legally re-enter the country. The indictment said Mrs. Halstead placed fraudulent ADIT stamps into illegally obtained foreign passports for individuals who were neither permanent-resident aliens nor yet admitted into the United States. Reportedly, some people paid even $10,000. Hew...........
  

04/22/2003: HRIFA Statistics

• The U.S. General Accounting Office is mandated to report every six month on the number of Haitian nationals who have applied and been approved to adjust their status to legal permanent residence under the Haitian Refugee Immigration Fairness Act (HRIFA). On April 21, 2003, the GAO submitted such report to the House of Represenatatives and the Senate. The report indicates that the BCIS had received, through March 31, 2003, a total of 37,295 HRIFA applications and had approved 9,555 of these applications. The EOIR had 665 applications filed and had approved 183 of them. Further details and breakdowns on the categories of the applicants and approvals are provided in this report. Please click here for the report.

04/22/2003: BCIS Get Tough on Stop-Gap Measure Multiple Filings of EOS/COS Applications

• BCIS indicates that BCIS has been receiving multiple filings of extension of status or change of status by the same nonimmigrant alien, most likely for the purpose of the stop-gap measures, and in order to seal the loophole in its conventional policy and practice allowing such filings issued an memorandum on March 27, 2003 practically blocking such multiple filings after the I-94 expires. Until this memorandum was released, the immigration practitioners had been recommending the nonimmigrants whose I-94 was about to expire to file an application for change of status to certain nonimmigrant classification such as a visitor (B-2) before I-94 expired as a stop-gap measure for filing another application for change of status to another nonimmigrant classification such as H-1B, L-1, etc when such employment opportunities came along. The Service Centers have been accepting and approving such subsequent filings inasmuch as the first filing was made "timely" (before expiration of I-94) and even if the subsequent filing was filed after expiration of I-94 but while the first filing was pending. The Memorandum of March 27, 2003 says "no more." It says no matter whether the timely filed application is pending or not, any application for change of status or extension of status subsequently filed after expiration of I-94 but pending the first filing will not extend the "status" of the alien and such subsequent filing will be considered as "untimely" filing and denied for the reason of the alien being out of status if the first filing is denied.
• The Memorandum also stipultes that once the first timely-filed EOS/COS application is denied after the I-94 had expired while waiting for the decision, such alien's unlawful presence for the purpose of determination of 3-year or 10-year bar will start running from the date of denial of such application, no matter whether the second untimely filed another EOS/COS application by the same alien is pending or not.
• This memorandum presents a serious roadblock to nonimmigrants who need a time to find a sponsor for their nonimmigrant status and maintain status until they are ready to file an application for extension of status or change of status. Those who face such situation should seek legal counsel to discuss the impact of this memorandum on their situation.

04/21/2003: Texas Service Center Processing Times 04/15/03

04/21/2003: Missouri Service Center Bi-Monthly Processing Times Report as of 04/15/2003

04/21/2003: BCIS Memo on Effect of Grandparents' Death on Naturalization

• The Nationality Act provides for the expedited naturalization of the alien child of a U.S. citizen, if the alien child is "residing outside of the U.S." and the U.S. citizen parent were physically present in the U.S. for a period or periods totaling not less than 5 years and the two of the 5 years were after attaining the age of 14 years. The law further provides, should the parent fail to meet this retention requirement, then the grandparent (the U.S. citizen parent of the U.S. citizen parent) who meets such retention requirement can substitute the U.S. citizen parent for the purpose of the alien child's expedited naturalization eligibility.
• What happens if the grandparent has died? The BCIS Memorandum which was released on April 17, 2003 states that such alien child remains eligible after the death of the citizen parent's own citizen parent (grandparent), so long as the citizen parent's own citizen parent (grandparent) met the physical presence requirement above described at the time of death. For the Memorandum, please click here.

04/20/2003: SEVIS Rule Allows More Than One Optional Practical Training

• Little noticed in the so-called SEVIS rule which was released on December 11, 2002 and took effect on January 1, 2003 is a change in the rule on Optional Practical Training. Until this rule took effect, F-1 student had been allowed only one 12-month Optional Practical Training. The new rule, however, provides that "A student may be authorized 12 months of practical training, and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level." Accordingly, a student will be able to take more than one Optional Practical Trainings by completing a lower level educational program and changing to a higher level of educational program, for instance, from a bachelor's degree program to a master's degree program, and from a master's degree program to a Ph.D. program. If one started from a bachelor's degree program and completes a Ph.D. program, he/she will be able to take three Optional Practical Trainings by taking one OPT each time he/she completes the degree program. For details, people should seek advice from their DSO.

04/19/2003: Beijing American Embassy Announcement for New Form DS-156

• Effective Monday, April 21, all applicants for nonimmigrant visas applying at the U.S. Embassy in Beijing must use the most recent version of the English and Chinese nonimmigrant visa application form (DS-156).

04/19/2003: Reminder: Group IV Call-In Special Registration Deadline, Next Friday, April 25, 2003

• Certain nonimmigrant males from Bangladesh, Egypt, Indonesia, Jordan, and Kuwait are required to complete the call-in special registration on or before April 25, 2003, Next Friday. Failure to complete the special registration nowadays may affect their future in this country beyond the much publicized consequences of being out of status or potential deportation or in worst cases, civil and criminal prosecution. The agencies currently require the record or proof of completion of the special registration before they adjudicate any nonimmigrant and immigrant applications. Those who do not wish to comply with the special registration and has no plan to stay in this country beyond April 25, 2003 do not have to go through the special registration, but they will have to depart from this country before April 25, 2003, according to the BCIS notice.
• We do not know whether we should call it a good news, but as of yet, there is no known DHS plan to start a similar call-in special registration for another groups. It is a good news in that it will at least release the BCIS adjudicators from this tremendously burdensome workload so that they can concentrate on their legally mandated normal duties of adjudication of immigration benefits applications and petitions.

04/19/2003: TSC I-485 Fingerprint Schedules

• TSC has advised the AILA that as of February 2003, it had completed scheduling of all the fingerprinting appointments for those cases with a receipt date of 2001 or earlier. However, no information is available about how long it will take to adjudicate the I-485 cases from the date of FBI fingerprint clearance. As people know, I-485 cases processing time is still lingering on with November 2000 cases at TSC. It is hoped that the long-waiters receive resolution of their cases in the next few months.
• People have been complaining about some later cases being adjudicated. However, when it comes to adjudication of I-485 cases, people should understand that there are so many factors that affect the processing time of individual cases that people should not try to compare an orange with an apple. For instance, some cases are processed on an expedite basis, while some cases require an extensive investigation or security checks. Some cases have been issued RFE which delays the processing substantially. The cases are not necessarily moving like goods on the mechanical production belt in the manufacturing plant.The Service Centers' processing times report just reflects a general picture of handling of a given type of cases at certain point of time. This message is not intended to defend the agencies, but sometimes people misunderstand the process and lose patience in his/her individual case.

04/19/2003: TSC Plastic Green Card Production Follow-Up Inquiry System

• When I-485 is approved, it moves into the phase of production of the plastic card. Sometimes, people learn that his/her plastic card has been produced and mailed out but he/she never received. In order to help the plastic card waiters to follow up the plastic card delivery problem inquiry, the TSC has assigned a special e-mail address which people can use for such an inquiry. The address is: card.push.tsc@usdoj.gov. Please make a note of it. Remember that this e-mail inquiry is available only for the TSC cases.

04/19/2003: CSC Fingerprint Scheduling Practice Change

• According to the AILA, the California Service Center will not schedule fingerprint appointments until 9 months after receipt of I-485. The decision is to reduce the backlogs in the current environment. Once one takes a fingerprint, such fingerprint is valid only for 15 months. If the fingerprint is scheduled early on and the actual adjudication of I-485 takes more than 15 months from the date of fingerprinting, the Service Center is required to schedule of "refingerprinting" before it can adjudicate the pending I-485, delaying the whole adjudication process. The CSC decision is a good move from the perspective of reducing the processing times of I-485.

04/18/2003: Naturalization & Family Protection for Military Members Act of 2003 Bill in Congress

• On April 11, 2003, the House and the Senate introduced an identical legislative bill above-entitled to extend the benefits of immigration and naturalization to military members. Once this bill is enacted, it will take effect "retroactively" on September 11, 2001. This bill includes two components: One is to change the naturalization law such that military members can get naturalization without inconvenience of travelling and without fees after a reduced period in a lawful permanent resident status. The other is to protect and extend immigration benefits to the spouse, children, and parent of the U.S. citizen or lawful permanent resident military members who died in active duties.
• Naturalization Procedure of Immigrant Military Members:
  • Reduction of eligibility from 3 years to 2 years in a lawful permanent resident status
  • Waiver of filing fees, court fees, and other government fees
  • Interviews, filings, oaths, ceremonies, or other proceedings be made available through U.S. embassies, consulates, and as practicable, U.S. military installations overseas so that they do not have to make a trip back to the U.S. to follow the procedures in the U.S.
• Survival of Immigration Benefits to Surviving Spouses, Children, and Parents of U.S. Citizen or Immigrant Military Members After Their Death in Active Duty ("Posthumous Benefits")
  • Spouse, Children, and Parents of U.S. Citizen Military Members Died on Active Duty: The surviving spouse, children, and parent can file a self-petition within 2 years of the death of the deceased military members. This benefit disappears if the spouse remarries. For the parent, the benefit applies even if the military member son/daughter was younger than 21 years of age.
  • Spouse and Children of immigrant Military Members Died on Active Duty: If the immigrant military members had already filed 2nd preference immigrant petitions before the death, the surviving spouse and children will be allowed to complete immigration process as "immediate relative" who is not subject to immigrant quota. If the immigrant military members died before filing of 2nd preference petitions for his/her spouse and/or children, the surviving spouse and children can file a self-petition, provided that it must be filed within 2 years of the death.
  • Parent of Immigrant Military Members Died on Active Duty: Parent can file a self-petition as an immediate relative, provided that it must be filed within 2 years of the death.
  • The bill also provides waiver of certain grounds of inadmissibility and 245(i) type of waiver of ineligibility of adjustment of status (I-485) for the surviving spouses, children, and parents of the military members died on active duty.
• These bills were introduced in the both Houses in a bi-partisan support and expect to pass it fairly shiftly. For the full text of the bills, please click here.

04/18/2003: FBI Ends Iraqi Interviews

• As we reported, the FBI has been interviewing the current and former citizens of Iraq residing in the U.S. during the war. The report indicates that the interviews have helped the country more in gathering intelligence on the war in Iraq rather than terrorism in the homeland or their potential threats to the national security of this country. Apparently, the FBI has completed interviews of approximately 10,000 Iraqis in the country. As the Iraq war is winding down, the FBI has also decided to end the Iraqi interviews. For the full story, please click here.

04/17/2003: Improved Address Change Report System in Place in Texas Service Center

• When one moves from one address to another address, people need to file not only AR-11 or AR-11SR, but also address change notice to the Service Center where his/her application is pending to make it sure that the communication from the Service Center is not returned for "undeliverable." Sometimes, failure to report change of address can result in serious consequences when the Service Center attempt to deliver important requests or notice to the applicants in vain.
• In the past, people faced another problem. Even if they wrote to the Service Centers address chance notice, the record in the Service Centers were not properly corrected and frustratingly, the Service Centers kept delivering communication to the old address.
• In order to deal with such problem, the Texas Service Center has reportedly opened and assigned a new mail box address such that people can send in the notice of either change of address or change of legal counsel to the Texas Service Center through this special mail box. The mail box address is: Texas Service Center, P.O. Box 850891, Mesquite, Texas 75185-0891. Please make a note of it. One should keep in mind that if one wants to file such address change notice through this notice via overnight delivery services, he/she should use U.S. Express Mail since commercial delivery cannot be accepted at the P.O. Box address.

04/17/2003: DOS Explains Visa Issuance Delay Issues

• Maura Harty, Assistant Secretary of State for Consular Affairs, explained in a speech on April 16, 2003 the recent controversial issue of delay in visa issuance. Here are some of the interesting statistics which were revealed by her:
  • International students contribute some $12 billion annually to this nation's economy in the form of tuition, living expenses and related costs. Nearly 75% of student funding comes from personal and family sources outside the United States.
  • Visa demand rose from 7 million in 1993 to 9.5 million in 2000. Since 9/11 that trend has gone into reverse and overall demand has declined dramatically DOS projects 6 million applications for the current fiscal year.
  • There are new name check procedures in some cases, but fewer than 2.5% of visa applicants worldwide are subject to additional background and security checks. The other 97.5%, if otherwise eligible and approved for issuance, generally receive their visas in one or two days.
  • During the latter part of 2002, visa posts experienced real glitches in interagency communications, resulting in significant delays for those travelers whose visas required referral to Washington. At this point, more than 80 percent of such cases are cleared within two weeks of application.
  • One area in which visa posts are still experiencing longer delays involves vetting of applicants whose travel raises concerns of possible harmful transfer of high technology,affecting scholars and exchange students.
  • Regarding the impact that the implementation of the DHS's SEVIS (Student and Exchange Visitor Information System) database has had on its ability to issue visas to students, exchange visitors and their dependents in a timely manner, at this time, over 400,000 SEVIS records have been posted to consular consolidated database. This data is made available to consular officers around the world for adjudication, record keeping and reporting. Admittedly, some SEVIS records are still not being made available to the embassies and consulates, due to technical glitches. For the full text of the speech, please click here.
• The speech appears to be clearly intended to defend the government from fierce controversy raised by the higher learning institutions on the defects in student tracking system. Unfortunately, she fails to elaborate how these problems can be resolved in the near future. Obviously accessibility to only 400,000 SEVIS records is gravely insufficient for the visa posts to clear the security issues and to issue nonimmigrant visas because of lack of SEVIS records for the visa applicants.
  .
  

04/17/2003: CSC Processing Times of 04/15/2003

04/17/2003: BCIS Priority of Security Over Adjudications of Immigration Benefits Applications

• Since September 2002, the defunct INS and the current BCIS have placed the highest priority on security issues and adjudication of benefit applications have remained a backburner. As the immigration statistics and the field offices, including Service Centers, processing times reports reflect, the victims who have been suffering most from such priority are the green card (I-485) applicants. Until November 2002, I-485 adjudications had been completely on hold pending IBIS and security clearance policy determination and the call-in special registration of certain nationals of Middle Eastern and Arab countries. Along with the expansion of call-in Special Registration program to increased number of countries, adjudication resources have been exhausted for the so-called NSEERS task. Besides, the defunct INS adopted a new procedure that all the nonimmigrant and immigrant benefit applications will not be adjudicated unless they get the proof of applicant's completion of special registration. Unconfirmed sources indicate that the same policy and procedure are currently in place for I-485 adjudications at the Service Centers and that pending expiration of the on-going call-in special registration for Group IV on April 25, 2003, the practical freeze on I-485 adjudications may continue at the Service Centers.
• Now it appears that wind is shifting to a slightly different direction in that the war in Iraq has been winding down and the terrorism alert has just been lowered one level. Additionally, the call-in special registration will end on April 25, 2003, at least for a while, and Service Centers will have a complete access to the special registration information on all the applicants. There is some indication that the I-485 adjudications may start picking up the speed beginning from next month, May 2003. It indeed has been painful and frustrating six months for the I-485 filers, especially EB-485 filers, and we ask all of these filers to cross their fingers for the upcoming changes!

04/17/2003: American Consulate in Ciudad Juarez/Mexico Soon to Resume TCN Nonimmigrant Visa Processing

• As people know, the American Consulate in Ciudad Juarez, Mexico, which is located right across the bridge of El Paso, Texas ceased accepting nonimmigrant visa applications from Third Country Nationals except a few exceptions. Now, AILA reports that the Consulare will soon resume TCN visa application processing and as early as next week, the Consulate may start taking visa application appointments. The TCN processing is expect to cover all types of nonimmigrant visa renewals for those who obtained their initial visas in the home country, and those who obtained a change of status in the U.S. from one nonimmigrant status to another status. According to the sources, Ciudad Juarez will process those who arrived in the U.S. with a B1/B2 visa with a "prospective student" annotation, but will NOT process those who seek to change to another nonimmigrant status from an un-annotated B or who arrived in the U.S. with a B visa with no annotation and later obtained a change to another nonimmigrant status. Additionally, Ciudad Juarez may not process E applications. The Consulate will also not accept applications from those who are subject to special processing requirements.
• Caveat: TCN visa application at the border visa posts accompany risks for those whose visa has expired as they will not be able to return to the U.S. in the event the visa is denied, even if they carry with them a valid I-94. For the visa applicants, automatic revidalition is not available. Additionally, those from the countries of designated sponsors of terrorism and others that are subject to the special registration may not be processed at the border posts. The Consulate also advises that those who fell out of status in the U.S. will not be eligible for the TCN visa applications. Consequently, the TCN visa application candidates are practically limited to those who apply for the visa when they (1) carry a valid visa with (2) no status violation record in the U.S. and are (3) not nationals of special processing requirement.

04/16/2003: Scheduled DV-2004 Immigration Lottery Winner Notice Beginning Next Month

• Those selected for DV-2004 are scheduled to be notified by mail between May and July 2003. DV-2004 visas will be issued between October 1, 2003 and September 30, 2004. Processing of entries and issuance of diversity visas or I-485 approval to successful applicants and their eligible family members MUST occur by midnight on September 30, 2004. Under no circumstances can diversity visas be issued or adjustments approved after this date, nor can family members obtain diversity visas to follow to join the applicant in the U.S. after this date. The DOS warns that the special processing requirements and procedures for natives of some countries listed in the lottery list which have been in place since 9/11 may significantly increase the level of scrutiny required and time necessary for processing of these applicants, particularly countries identified as state sponsors of terrorism may take longer than those experienced in the previous years. Since only 50,000 out of 100,000 selected can eventually attain the permanent resident status, prudent winners residing in the U.S. may want to assess carefully advantages and disadvantages of the option of applying for an immigrant visa through the American Consulates in their home countries and the option of applying for green card (I-485) through the BCIS in the United States. Additionally, they may start collecting the required evidence and documentation in advance so that as soon as they are ready to file on or before October 1, 2003, they have in their possessions all the documents required for filing. Good luck, everyone!

04/16/2003: Immigration Benefits - Backburner in DHS FY 2003 Supplemental Spending Bill

• The President signed today FY 2003 Supplemental Spending Bill of $6,710,000,000 for counter-terrorism. This bill reflects the Congress' and the Administration's sense of immigration benefits and services as a backburner in the environment of obsession with terrorism. The immigration-related allocations are as follows:

  • DHS Bureaus	Allocations
    BICE(Immigration & Customs Enforce)	$170,000,000
    BCBP(Customs & Border Protection)	$333,000,000
    BCIS(Citizenship & Imm. Services)	$3,000,000

• For the details, please click here.

04/16/2003: NSC Processing Times of 04/15/2003

04/16/03: Lift of Travel Ban in Iraq for Certain U.S. Citizens

• Effective today, restriction on the use of U.S. passports for travel to, in, or through Iraq is amended to exempt from its coverage certain persons providing humanitarian and other critical services in support of the Iraqi people. Accordingly, the United States passports shall continue to be invalid for travel to, in, or through Iraq except the U.S. passports held by (1) persons resident in Iraq since February 1, 1991; (2) professional reporters and journalists on assignment there; (3) persons conducting humanitarian activities through nongovernmental organizations registered with the U.S. Department of the Treasury Office of Foreign Assets Control (OFAC); (4) persons conducting
  humanitarian activities subject to a specific license issued by OFAC; (5) persons conducting humanitarian activities funded by the U.S. Government; (6) personnel of the United Nations and its agencies; or (7) U.S. States Government personnel and contractors on official U.S. Government assignment in Iraq. Please click here for the DOS rule.

04/15/03: Full Text of H.R. 1684

04/13/03: What Does Student Adjustment Act of 2003 (H.R. 1684) Mean to Youngsters Under 21 Years of Age?

• A similar legislative bill was introduced in the last Congress (107th) but failed to pass. On April 9, 2003, this bill was reintroduced in the U.S. House of Representatives. This bill will provide the two benefits to the eligible youngster: One is eligibility for a green card, and the other is potential in-state tuition rate benefit by defining such students as "residents."
• Threshold Requirements:
  • The student must be under 21 years of age; and
  • The student must be attending school in 7th grade or above; and
  • The student must have lived in the United States at least 5 years, whether legal or illegal; and
  • The student must be a person of good moral character.
• Once enacted, this legislation will open a door to pursue education and career without the fear of deportation or departure from the U.S. This website will post the full text of the bill as soon as it becomes available.

04/13/03: AR-11 DHS Filing Requirement Waiver for Students Attending SEVIS Schools Except Those Who Are Subject to Special Registration

• Effective January 1, 2003, there are three groups of students when it comes to the procedures for reporting their name and address change within 10 days:
  • Group A: Students of SEVIS Schools Except Those in Group C: A student enrolled at a SEVIS school is required to prove a notice of a change of address within 10 days to the Designated School Official of the school and the DSO is then required to enter the information in SEVIS within 21 days of notification by the student. This satisfies the law that requires filing of AR-11 and these students do not have to file AR-11.
  • Group B: Students of Non-SEVIS Schools Except Those in Group C: A nonimmigrant student enrolled at a non-SEVIS institution must submit a notice of change of address (AR-11) to the DHS within 10 days of the change. These students are also required to do the same with the school's DSO.
  • Group C: Students Who Are Subject to NSEERS Special Registration: Regardless of SEVIS or Non-SEVIS schools, the students who are subject to the special registration are required to file AR-11SR within 10 days of the change.
  • What Address to Report: Except in the case of a student who cannot receive mail where he or she resides, the address provided by the student must be the actual
    physical location where the student resides rather than a mailing address. In cases where a student provides a mailing address, the school must maintain a record of, and must provide upon request from the Service, the actual physical location where the student resides.
• People should seek further guidance from their DSOs.
  

04/11/03: Advisory for F-2 Spouse and Children Attending School

• The SEVIS rule which took effect on January 1, 2003 changed the lives of the spouses and children of F-1 students in this country. Before this change, the F-2 spouse and children had been allowed to engaged in full time study, but the new rule states that an F-2 spouse or F-2 child violates his or her nonimmigrant status if he/she engages in full time study unless the rule provides exeptions. Let's find out this rule and the exceptions:
• Rule: (1) Spouse: The F-2 spouse of an F-1 student is not permitted to engage in full time study in F-2 status any more. (2) Child: The F-2 child may only engage in full time study if the study is in an elementary or secondary school (kindergarten through twelfth grade).
• Exceptions: The F-2 spouse and child may engage in study that is avocational or recreational in nature.
• Transition Provision for Those F-2 Spouse/Children Who Were Enrolled on a Full Time Study Before January 1, 2003: They were allowed to continue the full time study but must file for a change of status to F-1, J-1, or M-1 status on or before March 11, 2003. Accordingly, if the F-2 spouse or child did not file the application for change of status from F-2 to F-1 or M-1 or J-1 on or before March 11, 2003, they have been violating their nonimmigrant status for one month as of today, April 11, 2003.
• F-2 Spouse and Child Who Enrolled After January 1, 2003: They have violated nonimmigrant status and no savings clause which is permitted to those F-2 who started enrollment before January 1, 2003 is available. In other words, filing application for change of status to F-1, or J-1, or M-1 on or before March 11, 2003 will be denied as untimely application for change of status.
• Violation of nonimmigrant status constitutes a ground for removal (deportation) and the foreign student(F-1) families should immediately review the legal status of their loving spouse and children's legal status and seek legal counsel if they violated this new rule.
  

04/11/03: AILA's Washington Update of 04/10/03

• Best sources of summary of events that have evolved in the Beltway that affect the lives of millions of immigrants and their relatives. This latest version is particularly resourcesful.

04/11/03: War, Alien Armed Services, and Citizenship

• As an incentive to serve in the armed services, this nation has offered a special privilege in the immigration law and policy which is not available to other aliens, one of which is a short-cut citizenship. The immigration statute all along required only three years to apply for citizenship for those aliens who are in the armed services. Apparently as a prepration for the war against Iraq, the President Bush issued an executive order waiving such period for certain aliens who have served in the armed services post 9/11. However, both the statute and the Bush's Executive Order retained the procedures that the qualified aliens must return and appear at the BCIS and the court for the legal proceedings and also pay somewhat expensive filing fees.
• As the war in Iraq gradually moves into a phase of conclusion, the Congress is in a full mood to add privileges to existing citizenship requirement and procedures for the alien immigrants serving in the armed services. Reportedly, the ladies and gentlemen in the Congress have introduced a number of bills relating to the changes in application procedures, including waiver of the requirement for appearance in the U.S. for the legal proceedings and application fees. For the news, please click here.

04/10/03: Pedicted Family-Based Immigrant Priority Dates Retogression Ahead

• The U.S. Department of States alarms the Filippino immigrant community that the 1st, 3rd, and 4th family categories of priority dates for the Philippines will move backward in the months ahead. The May 2003 Visa Bulletin was overall a welcome package for other people in that the family catories had moved ahead fairly far ahead, but the DOS prediction for the Philippines is a bad news for the community.

04/10/03: May 2003 Visa Bulletin

04/09/03: Advisory for Service Center I-485/I-765/I-131 Filers Relating to Receipt Notices Problem

• Lately, people have been experiencing some difficulty relating to proof of applications because of delays or failure to receive Receipt Notices. The confusion was added by the changes in filing fee schedules, not one time but two times in less than three months early this year. During this period, people received the small machine-generated white sheet money receipts without sufficient information on the applicants and other details. There are plenty of incidents where people are waiting for the receipts months after filing the above-named applications. The Receipt Notice for I-485 is not only a proof of "in status pending the application," but also an evidence to apply for I-131 (Advance Parole) and I-765 (EAD) at local offices in emergency. I-765 Receipt Notice is an absolute document to apply for Interim EAD after 90 days of filing I-765.
• In this unusual environment, please should take precautionary measures to deal with the Receipt Notice problems. People should remember that the Service Center writes in on the rear side of the filing fee checks the case number and receipt date. We have seen some people who filed applications using money orders or certified checks or personal checks with no arrangement with their banks for return of the cancelled checks. Additionally, some people write one check for several different applications, even adding all the filing fees into one check for entire family members. This is a big mistake. For the purpose of dealing with Receipt Notice problems, people should write one check separately for each application and separately for each applicant with the type of case and applicant's name in the memo part of the personal check so that one can match that check with the BCIS online receipt printouts. In I-485/I-765/I-131 filing, one may want to write three separate checks.
• Once one gets the case number through the cancelled checks, he/she will be able to get access to his/her case through the BCIS online case status check and print it out as the BCIS Receipt Notices. We understand that the Service Centers and local district offices usually accept these online receipt notices in lieu of the hard copy receipt notices. Never, never, never pay the filing fees with an instrument that does not give you evidence of filing and case number!

04/09/03: Centralization of Live Phone Inquiry Systems for Service Centers Individual Cases

• About the end of the Fiscal Year 2002, the then-Commissioner of INS announced that the INS would start certain consumer user-friendly services, which included on-line individual case status check system, centralization of telephone status inquiry system into the National Customer Service Center (800 Number) eliminating telephone inquiry services from each Service Center, and as a long-term plan, online case filing system.
• As promised, the defunct INS started on-line status check system which is extremely user-friendly using e-Gov system. Now, according to the AILA, the BCIS/DHS is scheduled to remove the current information officer phone inquiry system in each Service Center and the National Consumer Service Center will take over, hopefully by June 1, 2003, telephone inquiry assistance services. It appears, though, that since the NCSC would not have access to each Service Center's files and adjudicators, people will not get the answers to their inquiries right away and it would rather take time for NCSC to call back to give answers. Without doubt, such centralized system will limit the consumers' direct access to the sources of adjudication of their cases, not to mention the expected lapse of time for answers. Originally, the INS was planning to adopt a sort of two-tier system: All calls were to be made through the NCSC but for certain unanswered questions or special questions, the consumers would be allowed to get access to each Service Center by phone. Unless the BCIS keeps this backup arrangement, the consumers are expected to experience inconvenience due to their further removal in access to the adjudication agency. People should remember that as more layers are added to the access to the government agency or service providers, the bureacratic system and red tape tend to creep in, hampering responsive services for the consumers of the services. Shielding and secluding the agencies by adding additional layers of access, no matter whether these additonal layers are private or public entities, usually create added bureacratic block to the consumers' access to the decision makers. Accordingly, unless the additional backup system for direct access by the consumers is established, even if new layer can save the cost for the agencies, it can also be abused as a mechanism to shield the decision-makers from the direct access by the consumers, allowing the agencies to use such system as an excuse to practically block direct services for the consumers.

04/08/03: How SEVIS is Viewed by Involved Parties?

• On April 3, 2003, we reported a news report that there was a discord on visa delays and SEVIS problems between the higher learning institution community and DHS/BICE. We thought that the readers should be given an opportunity to review themselves the Congressional testimonies of the representatives of the three involved parties on the issue on April 2, 2003. Here they are:
  • DHS/BICE Testimony
  • DOJ Inspector General Testimony
  • American Council on Education Testimony

04/08/03: BCIS Monthly Statistics for February 2003

• Immigration Benefits Petitions/Applications
• Naturalization Applications
• Immigration Inspections
• Removals/Deportations
• Investigations
• Asylum
• Apprehensions (Southwest Border)

04/07/03: BCIS Announces Figures for H-1B Petition Receipts and Approvals

• The agency received a total of 215,190 H-1B petitions in FY 2002(10/01/01 - 09/30/02). That number includes petitions for both initial and continuing employment. INS approved 197,537 petitions in FY 2002. Of the approved applications, a total of 103,584 were for initial employment. This includes 79,100 individuals who were subject to the Congressionally-mandated cap, which in FY 2002 totaled 195,000. This announcement also gives statistics for previous years.
• The H-1B cap will return to 65,000 per year in less than 6 months, October 1, 2003, unless the Congress acts differently.
  

04/07/03: Florida Bill to Bar Student Aids to Students from Terrorism Sponsoring Countries

• CNN reports that a legislative bill has been drawn up to prevent designated terrorism sponsoring countries students from getting state financial aids. The bill would bar only university students from 6 of the 7 countries on the State Department list: Iran, Iraq, Syria, Sudan, Libya and North Korea. Cuba is also on the list but was amended out of the bill. Florida, of course, has a large Cuban population. Click here for the full report.

04/07/03: A Story of Immigrant Soldiers Seeking Citizenship Easy Way Faced Death in Iraq

• The Washington Post reports a story of immigrants seeking life but facing death in the battle field in Iraq. According to the news, more than 37,000 members of the active-duty military -- nearly 3 percent of 1.4 million -- are noncitizens, one-third of them Latino, according to Defense Department figures. Compared with their U.S.-born counterparts, noncitizen military personnel are significantly more likely to be on active duty, rather than in the reserves. The military's allure to some immigrants has been accentuated by a change in federal rules. Since the early 1900s, members of the military have been allowed to apply for citizenship after three years as a legal U.S. resident, two years less than the wait for civilians. In July, President Bush, using the war on terrorism to invoke a special rule for periods of military conflict, issued an executive order that waived the waiting period altogether. In the eight months since, the government has handled nearly 5,500 citizenship applications from military personnel under that rule -- a 60 percent increase over the eight months before the rule took effect. Some have already died or are missing in the fierce battle fields in Iraq. For this heart-breaking story, please click here.

04/05/03: Latest Information on Third Country National (TCN) Nonimmigration Visa Applications in Canada/Mexico

• The U.S. Department of State has advised the AILA that the nonimmigrant visa applications by U.S.-based TCN are available as of now as follows:

Posts in Canada:

Calgary: All visa categories (except E, K and V).

Halifax:: B, F, and G categories only.

Montreal: B, F, H, J, L, O, P, and R categories only.

Ottawa: All categories (except E and V).

Quebec: B, F, J, M, and R categories only.

Toronto: All categories (except K and V).

Vancouver: All categories (except E, K, and V).

Posts in Mexico:

Matamoros: All categories (except B,E,K, and V)

Nogales: All categories (except B,E,K,and V)

Nuevo Laredo: Currently suspended, but plan to reopen soon for all categories (except B, E, K, and V).

Ciudad Juarez: Only those in F-1 category for continuing students in a full-time degree program who can demonstrate that their initial F-1 or B-2 Prospective Student visa was issued in their home country.

Tijuana: All categories (except E visas).

 

• Caveat:
  • TCN applications are not available for people from 7 State Sponsors of Terrorism (Cuba, Iran, Iraq, Sudan, North Korea, Libya) or those subject to any of the other Special Processing Requirements imposed after 9/11.
  • TCN applications are not available if he/she is out of status.
  • Automatic visa revalidation is not available for return to the U.S. if the TCN applications were denied by the consulates. Accordingly, unless he/she has a valid visa, he/she will not be able to return to the U.S. just using a valid I-94. The guarantee of return to the U.S. within 30 days from the trip to Mexicoa/Canada is not available. Consequently, those who do not have a valid visa to return to the U.S. will take a risk by applying for a visa as a TCN in Canada/Mexico.
  • Availability of TCN visa applications at the border posts constantly changes. People should check with each consulate for the up-to-date information before planning on a TCN application.

04/05/03: Minneapolis City Council Stood Up Against USA Patriot Act

• The Star Tribune reports today that the Minneapolis City Council overwhelmingly (11:2) agreed Friday not to use city resources to enforce some homeland security measures, contending that the USA Patriot Act threatens constitutionally guaranteed rights and liberties by giving the FBI broad access to sensitive medical, mental health, financial and library records. City resources, personnel and administrative or law enforcement funds cannot be used "to advance such unconstitutional activities," the resolution said. The Mayor is expected to sign the resolution, according to the news. Please click here for the news.
  

04/04/03: Advisory on Family-Based Immigration and 2003 Poverty Guidelines

• Both the BCIS and the U.S. Department of State require I-864, Affidavit of Support, for the Immigrant Visa applicants at visa posts or I-485 application at the BCIS/DHS. In order to file I-864, the affiant must meet the Poverty Guidelines income which is annually published by the HHS. For 2003, the new Poverty Guidelines has been published earlier, and the BCIS advises that beginning from April 1, 2003, only the new 2003 Poverty Guidelines are acceptable and affiants must establish financial ability using this new Guidelines. Otherwise, I-864 will be rejected. The visa posts have also been implementing this new Powerty Guidelines as well. For the visa posts instruction, please click here.

04/03/03: Delay of EAD Processing and BCIS Policy

• People who have applied for EAD renewal must have noticed that they typically received a RFE asking to submit the government issued photo IDs. This plus other factors have caused a substantial delay in processing of EADs lately.
• According to the AILA, it will be the BCIS policy not to back date the EAD validity date when they issue a renewal EAD card. This policy presents a serious problem for a large number of aliens who are working on EAD, such as the family-based I-485 filers, and the employment-based EB-485 filers who are not working on employment-visa status such as H, L, E, O, TN, etc. Legally, should the Service Center fail to issue a new card within 90 days from the date of EAD application filing, people are allowed to go the local field offices for issuance of Interim EAD cards. However, the reality does not always work like that. Some district offices take time to process such interim EAD cards.
• Since the gap between the old and new cards creates a period of lack of employment authorization, any employment during this period can be considered an unauthorized employment. Such violation of immigration laws pending I-485 can make such alien ineligible for adjustment of status to a lawful permanent resident.
• It is thus imperative that people start filing EAD renewal a way in advance, something like four (4) months, so that they do not face such risk in the green card track.

04/03/03: Minnesota State Office Labor Certification Processing Times as of 04/04/2003

• RIR=02/01/03, Regular=11/12/02, Special Handling=C

04/03/03: Chicago ETA Region V Officers' New Telephone Numbers

• Chicago Region has recently changed each officer's telephone number. For the new telephone numbers of the officers of the Certifying Officer's Office for foreign labor certification, please look at the names followed by OWS/FLC and their telephone numbers in the list.

04/03/03: Visa Delays, SEVIS, and Discord Between BICE and Academic Community

• News sources indicate that Johnny Williams of BICE/DHS told reporters that 300,000 foreigners attending schools and universities in this country have already been registered in the computerized Student and Exchange Visitor Information System (SEVIS) since it was started in January. He estimated that 1.2 million more remain to be signed up by Congress's Aug. 1 deadline.
• David Ward, president of the American Council on Education, said he did not understand how that could be done. He said SEVIS is technologically flawed, saddled with a complicated set of new rules and regulations that are not working well "at the present time," and unable to provide real-time access to data. "Some [U.S.] embassies and consulates find that it takes a week or longer for them to access data entered in SEVIS," Ward said. "This means that students arrive at an embassy -- sometimes after traveling a great distance -- only to be told, incorrectly, that their data have not been entered into SEVIS and that they may not apply for a visa. . . . These delays cause confusion and frustration for embassies, students and schools." Using a more conservative estimate of 1 million names yet to be entered in the system -- at least 250,000 a month -- Ward said: "[W]e do not believe there is any chance that SEVIS will be able to accommodate this huge surge of information, and are deeply concerned it will play havoc with students, colleges, universities and consular and immigration offices alike." For the news, click here.

03/31/03: EOIR Announces Reorganization of Title 8 Regulations Due to Transfer of Functions

03/29/03: H.R. 1416 to Amend Immigration-Related Provisions of Homeland Security Act of 2002

• On Tuesday, H.R. 1416 was introduced in the House Homeland Security Committee, which will affect the power of Bureau of Citizenship and Immigration Services and Directorate of Border and Transportation Security (BICE + BCPC). This bill was discussed yesterday in the Committee, and the Chairman of the Committee scheduled a vote on this bill on Monday, March 31, 2003. Reportedly, this bill is not opposed by the Department of Homeland Security..
• The news report indicates that most sections of the legislation correct typographical errors, but the administration likely will seek changes on the section that deals with immigration-related powers and the department's duties regarding border and transportation security. Rep. Barney Frank, D-Mass., queried how that section of the bill would affect the Bureau of Citizenship and other immigration issues. "That is the area where we have some concerns," Dorsey, the DHS Administration spokesperson, said. The Committee Chairman, Cox, explained that the legislation seeks to ensure the smooth transition of immigration services from the Immigration and Naturalization Service (INS) to the Homeland Security Department. Cox noted that that section of the bill has more substantive than purely technical changes because the structure of the new department "does not mimic the structure at INS." For the news, please click here.

03/28/03: INS Deputy General Counsel's Legal Opinion on Asylee Employment Authorization

• The defunct INS Deputy General Counsel, Dea Carpenter, Esq., wrote an important legal opinion on June 17, 2002 as to whether the asylee is not allowed to work without the employment authorization document (EAD). The opinion states that asylee is automatically authorized to work under the law and the EAD just represents an evidence to show such employment authorization. Accordingly, an asylee who has worked without EAD should not be considered an alien who engaged in unauthorized employment even if he/she did not obtain or renew the EAD, according to the legal opinion.
• Even though the legal opinion suggests that asylees may obtain the plastic EAD card for the purpose of proving his/her identity and legal status, the I-94 issued by the Service with a note of asylum granted should be sufficient, according to the legal opinion. For the full text of the Opinion, please click here.

03/27/03: Investor Immigrant Petition Held Hostage Pending Enactment of Regulation

• Investor immigrant petitions are processed by the California Service Center for the Western half of the U.S. and the Texas Service Center for the Eastern half of the U.S. The Congress passed DOJ Authorization Bill before the 107th Congress closed the curtain. This bill is publicized extensively because of the H-1B 7th year extension provision and International Medical Graduates' CONRAD 30 program. Less publicized was the part of the bill which changed quite extensively the benefit of Investor Immigration. This change is supposedly benefit the Investor Immigrants. The reality is, though, that the INS was dragging enactment of regulation to implement this new law and reportedly pending enactment of the regulation, the INS and current BCIS ordered the Service Centers to hold adjudication of the investment immigrant petition until the regulation is enacted. Question is "when will they enact the regulation?" This freeze has already placed a large number of people on the edge after investing a large amount of capital in this country. People must have noticed that one of the Service Centers even stopped reporting the processing times for I-526 in their bi-weekly processing times report. It is hoped that the BCIS look into the problem as soon as possible.

03/27/03: House Science Committee Calls for Review of Visa Policy Change

• We reported earlier that the leading higher learning institutions had been suffering from delays in research owing to delay of visa issuance of their foreign scientists and researchers. Being pressured by the science community, the House today called the GAO to investigate the visa policy change and called for change in visa policy. The Committee took this matter very seriously, preparing an extensive report relating to the problem. Please click here for the DOS news.

03/27/03: PERM Labor Certification, ETA Reorganization, and DOL Leadership

• The U.S. Department of Labor Employment and Training Administration is currently undergoing reorganization, and unconfirmed sources indicate that the Chief of Foreign Labor Certification Division at the DOL HQ, Dale Ziegler, may be reassigned to a different post. Considering the fact that he has been a primary force behind recent development of foreign labor certfication policies and reengineering, it is uncertain how it will affect the launch and operation of the new PERM labor certification program. There is no official confirmation of the specific schedule of the launch of the PERM, but the available information indicates that the target date is set at October 1, 2003. It is hoped that more details be disclosed at the AILA conference in Washington, D.C. tomorrow. Please stay tuned to this web site.

03/26/03: Bush Report to Congress on State of Implementation of Enhanced Border Security and Visa Entry Reform Act of 2002

• According to the statement that accompanied the report on March 25, 2003, the Federal Government is working to improve data-sharing capabilities between agencies. To support this effort, the Department of Homeland Security will create an inventory of essential information needed to secure our Nation; determine horizontal and vertical integration requirements; define target architecture for information integration; and, determine the resources necessary to integrate information. In the short term, DHS will work to virtually consolidate or link watch lists from multiple agencies and create a homeland security portal for users at all levels of government. Additionally, consular officers and immigration inspectors have access to more complete intelligence and criminal history information through the Interagency Border Inspection System (IBIS) and the Consular Lookout and Support System (CLASS). Since September 11, more than seven million names of persons with Federal Bureau of Investigation (FBI) records were added to CLASS so that now it contains approximately 13 million name records from DOS, DHS, the Drug Enforcement Administration, and intelligence resources. The U.S. Customs Service has also provided 20,000 name records of serious violators to CLASS. The CLASS now has over 78,000 records of suspected terrorists, up 40 percent in the past year. Since September 11, 2001, approximately 20,000 new terrorist lookouts have been entered into the DOS's TIPOFF system.
• Furthermore, an Entry-Exit System (EES) project team is building an integrated, automated information EES to enable existing/ emerging entry exit processes. This core EES will integrate electronic arrival and departure manifests, electronic visa data, Federal agency lookouts, traveler information, Student and Exchange Visitor Information System (SEVIS) data, Immigration Benefit information, overstay information as well as perform risk assessment analysis and lookout queries, and incorporate biometric technology. For the full text of the statement, please click here.

03/26/03: Federal Judge Ruled That Long-Time Residence in the U.S. Had a Right to Due Process and Cannot Be Barred From Returning to U.S. on Advance Parole Pending I-485

• A 15-year resident of the U.S. who had filed I-485 and left the country to visit the ailing mother in Jordan and attempted to return to home in the U.S. using Advance Parole. Reportedly, he is a Muslin leader in the U.S. and the government revoked the Advance Parole to block his return to the U.S. No details are known about on what grounds the government revoked the Advance Parole. James Moran, federal judge, ruled that the government could not stop him from returning to the U.S. because the long-time residence in the U.S. entitled him to the constitional right to due process and he would be entitled to a hearing. This decision is important in that the constitutional right to due process for aliens who are located outside the territory of the U.S. and such alien's right to return to the U.S. without a valid visa is recognized by the court. For the news, please read Chicago Tribune, 03/26/03, http://www.chicagotribune.com/news/local/.

03/26/03: Proposed Social Security Number Issuance Rule for Non-Work Reasons for Aliens

• The Social Security Administration is proposing to restrict issuance of a Social Security Number to an alien for "non-work reasons" only for the purpose of federal, state, and local benefits. The rule proposes to change the valid ``nonwork reason'' for assigning an SSN to an alien who does not have evidence of authority permitting him or
  her to work. This proposal defines the only valid nonwork reasons for assigning an SSN to such an alien as:
  [l] To satisfy a Federal statute or regulation that requires the alien to have an SSN in order to receive a Federally-funded benefit (such as Temporary Assistance to Needy Families) to which the alien has established entitlement; or
  [2] To satisfy a State or local law that requires an alien who is legally in the U.S. to have an SSN in order to receive general public assistance benefits (such as state-funded General Assistance) to which the alien has established entitlement.
  Thus, State and local entities would be able to continue to require individuals to disclose their already assigned SSNs for purposes of receiving benefits or services. However, SSA would no longer assign an SSN to an alien for any nonwork purpose other than to receive Federal, State or local benefits as described in the proposed changes. Please click here for the text.

03/25/03: Homeland Security and Heightened Need for Maintaining Legal Status

• We reported that nonimmigrant travellers had been experiencing unexpected difficulty because of the delays in visa processing at visa posts. However, as the country faces increased need for homeland security, the Department of Homeland Security intends to reinforce its immigration enforcement activities. According to the BCIS, the applicants of nonimmigrant and immigrant benefits are expected to see increased number of Notice To Appear (NTA) being issued by the BCIS. NTA is a legal document that initiates a removal (deportation) proceeding. Accordingly, the immigration courts and the immigration enforcement agency will experience a mounting workload. Without doubt, this changing environment will create increased businesses for immigration practitioners who specialize in immigration enforcement and court proceedings.
• According to the DHS, it will bring more "secondary" inspections of immigrants and visitors at ports of entry. Some people may not understand the meaning of secondary inspections unless they had an experience. When an alien stays in the line and approaches the immigration inspector's window at the port of entry, the inspection is completed right there and the alien is admitted without additional process. However, for some aliens, the inspection is not completed by the inspector but referred to another inspectors at a separate room or office. This is called a secondary inspection. Sometimes, the secondary inspection is intimidating and freightening as some of them go through a process which is similar to interrogation. Besides, it usually takes a long time to complete the secondary inspection. Even if one is admitted into the country after passing the secondary inspection, the traveller finds him/herself exhausted both emotionally and physically. Worse yet, some of them are turned back to his/her point of origin.
• The government tends to be less tolerant for any violation of status, no matter how minor the violation is. People should be more conscious of maintaining a status in this kind of environment.

03/24/03: FBI Reportedly Interviewed 5,000 Out of 11,000 Iraqis in the U.S. After the Combat Had Started

• According to the CNN report, there are about 11,000 Iraqis in the U.S. and FBI has interviewed about 5,000 Iraqis after the combat started. FBI continues to locate the missing Iraqis. Those who were out of status after the interview have been turned over to the BICE of DHS for enforcement proceedings.

03/24/03: State Department Standard Operating Procedure: Student & Exchange Visitor Visa Processing

• The U.S. Department of State sent out a cable to the visa posts to update the standard student and exchange visitor visa processing guidelines. For the full text, please click here.

03/23/03: Visa Backlog Delays Research in the U.S.

• News reports that according to the State Department spokesman, visa applications involving scientific research considered sensitive to U.S. security interests are taking two to three months. But scientists say delays have stretched as long as 11 months. The visa processing delays reportedly affect the research in the nation's leading higher learning institutions and a U.S. House of Respresentatives committee is expected to discuss the problem. Without doubt, the ongoing war in Iraq and potential international terrorism against the American establishments will make it worse than better. The scientists need to travel not only for personal pleasure but for international conferences and meetings, which are critically important for the nation's lead in scientific research in the international community. Foreign scientists should keep their visas "current" all the time and seek the option of visa revalidation through the U.S. Department of State within the country rather than attempting to travel with the expired visas in the false hope that they would be able to get a visa in a short period of time. We realize that the visa revalidation or third country national visa application in Canada and Mexico are not available for certain scientist from certain countries in the world and they will be forced to venture such a risk in some situations. People should also keep in mind that there are so many American visa posts that are currently closed for the security reasons and they may not want to travel outside unless they have a valid visa in the passport. For the full report, please click here.
  

03/23/03: Virginia Joins 27 States Requiring Citizenship or Residency for Driver License

• The Governor of the state of Virginia reportedly signed legislation today prohibiting illegal immigrants from obtaining Virginia driver's licenses. The driver license applicant will be required to prove a citizenship or a permanent resident status for a driver license and those in a valid nonimmigrant status will be given only a temporary license. For the report, please click here.

03/22/03: BCIS Applications/Petitions Processing Reduction Planning Underway

• According to the information released by the BCIS to the AILA on March 13, 2003, the DHS has been working on the 3-Year Backlog Reduction Plan (FY 2003 - FY 2005) which is scheduled to be completed around mid-April, 2003. It appears that the DHS intends to achieve the goal through a few measures, which include, among others:
  • Increased Funding Resources for Immigration Benefits: Under the INS system, the immigration fee accounts were redirected from the immigration benefit services to immigration enforcement function in the budget appropriation process by the Congress. However, the Homeland Security Act of 2002 which created the DHS drew a clear line such that such fund cannot be easily diverted to the law enforcement function. Immigration fees had been one of the key sources of the INS budget and critics had blamed the Congress for playing politics to demanding the agency to divert the fee funds to enforcement function so that the Congress could show the constituents that they were tough on illegal immigrants and immigration/border enforcement without additional tax buden on the tax payers. Once the fee accounts are not diverted, even the budget which is smaller than the INS budget wll be able to achieve reduction of immigration benefits processing times.
  • Reduced Functions and Workloads of BCIS: Under the INS system, the INS field offices included the immigration benefits function, the immigration inspection function, and immigration enforcement function including immigration investigation function. Even if the internal budget separated these functions in appropriations, the adjudication of immigration benefits was heavily involved in other functions as well. Now, the INS has been broken up into the three different Bureaus, each of which operates under a separate line of command. The situation got worse ever since the INS started implementing the so-called Call-In Special Registration as the immigration benefits officers had to take care of the registration function for the political and other reasons. However, the DHS has made it clear that the Call-In Special Registration should be a part of immigration enforcement functions which should be handled by the BICE. Since the BICE was not prepared and equipped to take over this new role, the BCIS field offices have been burdened to keep undertaking this huge workload under a sort of contract with the BICE. Thus BCIS is paid by the BICE for this interim arrangement with the BCIS. However, as we reported earlier, the call-in special registration processing has taken away most of the adjudication officials, creating a huge vacuum in the processing of applications and petitions, such as naturalization and I-485 interviews. This nightmare is expected to change soon, though. Apparently, the DHS is scheduled to conclude the call-in special registration by April 25, 2003, when the Group IV special registration period will expire. Unfortunately, BCIS is forced to finish up the special registration processing until April 25, 2003 in the way they have been handling until now. But small consolation for immigration benefits aliens is that BCIS will phase out of the call-in special registration after the period and the BICE is scheduled to undertake the function on their own. This will relieve the immigration benefits officials from a tremendous workload which have tied up their hands.
  • Reform of Field Offices and Immigration Services Procedures: It appears that the DHS is turning the local district offices into primarily immigration enforcement function and most of immigration benefits functions are scheduled to be either regionalized or nationalized. Accordingly, the administration of the local field offices seem to be taken over by the BICE. Under the INS system, it was undertaken by the immigration services function. Soon, this is expected to change. The INS had announced before it defuncted that the I-485 application processing would be taken away from the local district offices and centralized in the Missouri Service Center. The DHS currently keeps this reform plan and is scheduled to commence the new filing procedure beginning from the summer of 2003. What this means is that there will be no more in-person filing of I-485 applications at the local BCIS district offices. All the I-485 applications that have been filed at the local district offices should be filed by mail to the Missouri Center. However, unlike the employment-based I-485 applications, the 485 function will not be completely centralized in that it will be bifurcated. The processing will be undertaken by the Missouri Center, but interview will be conducted at the local BCIS offices and the fingerprint will be handled by the ASC at each local district. This new procedure of filing by mail-only will substantially remove the burden and problems related to the in-person filing at the local district offices. Assuming that the Missouri Center will continue the current practice of local district offices that waive interviews for non-marriage cases such as I-485 for parents and childrens of U.S. citizens, a substantial number of cases are anticipated to be completed by the Missouri Center alone. Additionally, just like the U.S. Department of Labor, the DHS has been working on electronic filing of petitions and applications some point in the future. This electronc filing plan is indeed a backbone of this procedural reform and changes in processing agencies. The DHS will release the offical plan in the near future, but at this time it is unclear whether the function will be transferred to the existing Missouri Service Center (MSC) or a new facility. There may be three options: One is to transfer the function to the existing Missouri Service Center (MSC) in the current facility. The second is to transfer the function to the Missouri Service Center but relocate to another facility under a new name of Missouri Field Processing Center (MFPC). The third is to open a new Center in a new location under the name of Missouri Field Processing Center (MFPC).
• The immigration benefits applicants/petitioners have been suffering from horrible delays as affected by the measures related to the homeland security including IBIS check and Special Registration on top of the agency reorganization. It is hoped that the immigration benefits should not be sidelined as an illegimate offspring to the security function and the on-going reform including the foregoing planning be materialized as soon as possible so that not only the aliens but also related businesses and U.S. citizens or permanent resident relatives get a relief from the current nightmares.

03/21/03: Impact of H-1B Labor Condition Application Violations on Employer

• Employer commonly understands that the consequences of violation of the labor condition application for H-1B includes civil and criminal penalties. However, there are other serious consequences that flow from such violation. The immigration law provides that if the U.S. department of labor notifies the BCIS of the employer's violation of labor condition application by one of three, such as (1) willful failure to meet the labor condition application or (2) willful misrepresentation of material fact in the application or (3) violation of anti-discrimination or retaliation for employee's assisting with the investigation, during the one year period of employment, the BCIS is mandated under the law to bar such employer from filing any employment-based immigrant petition as well as such nonimmigrant petitions as H, L, O, P visa categories for two(2) years.
• This provision has rarely been enforced, but on March 13, 2003, the BCIS released a list of employers who are barred from filing any such immigrant or nonimmigrant petitions for the period of two years. Such punishment means that the employers will not be allowed to file any employment-based nonimmigrant petitions or to sponsor employment-based immigrant petitions for two years. Depending on the nature and type of the business, the employer's business can be completely ruined in some cases. March 13, 2003 list is rather short but the business community should take it as a signal that the feds will go after the bad faith employers to enforce the law.
• To read the BCIS memorandum listing the sanctioned employers, please click here.

03/21/03: All Non-Citizens Permanent Residents of Canada/Bermuda Required to Complete I-94 and Pay Fees

• The DHS explains the recently published regulation of INS which requires certain permanent residents of Canada/Bermuda an entry visa and passport to enter the U.S. The DHS states that when it comes to entering the U.S., "all" noncitizen residents will be required to complete and get I-94 after paying fees, no matter whether they are required to carry a visa or passport. Accordingly, those noncitizen residents of Canada from certain European countries may not need to carry a visa or passport, but must carry with them an I-94 issued by the immigration inspectors at the port of entry. For the details, please read the DHS statement.

03/20/03: State Department Final Rule on Definition of Immediate Relatives Involving 9/11 Family Members

• On January 11, 2002, the State Department published an interim rule to implement a provision of ``USA Patriot Act'' which provided for immediate relative status for spouses of U.S. citizens widowed as a direct result of the terrorist acts of September 11, 2001, regardless of the length of the marriage, and provided that the spouse was not legally separated at the time of the citizens death and files a petition within two years of the death, having not remarried in the interim. Children of a U.S. citizen killed in one of the terrorist acts of September 11, 2001 may also file a petition for status as an immediate relative, provided the petition is filed within two years of the death of the parent, and regardless of the age of the child or marital status. Please click here for the final rule.
  

03/20/03: State Department Eliminates Extension of Validity of Immigrant Visa for Hong Kong Applicants

• The Statement Department published a notice today that it eliminates the extended visa validity benefit for certain aliens who qualified under section 154 of the Immigration Act of 1990, (IMMACT 90). Section 154 of IMMACT 90 permitted certain aliens resident in Hong Kong to extend the validity of their immigrant visa up to January 1, 2002. Since this extension can no longer be granted, the Department is removing this provision from the regulations. Please click here for the notice.
  

03/20/03: EOIR Notice of Class Action Judgment in Barahona-Gomez v. Ashcroft

• This litigation on the suspension of deportation was settled on December 18, 2002, but apparently it has not been sufficiently publicized enough to reach all the parties who may be eligible for the relief under the settlement agreement. Accordingly, the Executive Office for Immigration Review published today this note for advisory statement to inform the details of this settlement. Please click here for the notice.

03/19/03: FBI Now Empowered to Enforce Immigration Law

• According to the CNN, on February 28, the last day the now-defunct INS was under the umbrella of the Justice Department, Attorney General John Ashcroft quietly broadened the FBI authority to hold those suspected of having overstayed their visas, or otherwise being "out of status." A Justice Department official stressed the broadened authority does not allow the FBI to open immigration investigations. It is limited to detaining immigration violators during the normal course of antiterrorism investigations, and to instances where immediate action is required.

03/19/03: BCIS Changes Policy on Waiver of Photograph for Green Card Replacement Applications

• BCIS has released a memorandum that changed its policy of waiver of photograph for I-90 application for green card replacement for "religious" reasons. Until now, the agency has granted a waiver when such applicant claims that his/her religions conflicts with photograph for the green card ID. The memorandum restricts such practice for the security reasons.

03/18/03: President Directs That Asylum Applicants from Certain Countries be Detained Pending Determination of Validity of Claim

• White House Announcement: Asylum Modifications: Asylum applicants from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated will be detained for the duration of their processing period. This reasonable and prudent temporary action allows authorities to maintain contact with asylum seekers while we determine the validity of their claim. DHS and the Department of State will coordinate exceptions to this policy. Please click here for the announcement. See also news report. For civil rights group protest report, click here.

03/18/03: Confusing State of Local District Offices of the DHS

• DHS has split the prior INS local district office into the three (3) district management systems: BCBP for Immigration Inspection and External Enforcement, BICE for Internal Immigration Enforcement, and BCIS for Adjudication of Applications and Petitions. Accordingly, when it comes to the NSEERS Special Registration business, obviously, the incoming aliens' special registration is expected to be handled by the immigration inspectors at the port-of-entry under the line of command of BCBP. However, when it comes to the call-in special registration of the resident nonimmigrants in the country, it is unclear whether it is within the jurisdiction of BCIS or BICE. The web site of BICE, however, claims the special registration as one of its functions, despite the seemingly obvious sources of answers in the internal budgetary appropriation allocations for these agencies on special registration management.
• Clarification of this question is very important for both the immigration application/petition filers and the call-in special registration nonimmigrants. Should it fall under the BCIS jurisdiction, the people who process and wait for adjudication of various immigration applications and petitions will suffer tremendously in terms of the processing times and delays. People will recall that under the INS system, the first tier of special registration was handled by the local immigration adjudicators, which tied up the hands of most of the local adjudicators, resulting in the stand-still stage of processing times of applications and petitions at the local district offices throughout the country. There is an indication that despite the BICE web site claim of its jurisdiction over special registration (apparently meaning call-in special registration as the incoming nonimmigration special registration is the business of the immigration inspectors of BCBP), when it comes to the local practice, the agency appears to take the same path that its predecessor, INS, had taken. At least, one local BCIS authority has started sending out messages that the local BCIS office will be totally tied up with the call-in special registration and there will be no adjudicator available to handle immigration applications and petitions at least until May this year, and depending on the call-in special registration program expansion, the local cell of BCIS will not be able to handle immigration benefit applications and petitions even beyond May 2003!
• Currently, BCIS and BICE operate under two separate lines of command and this confusion should eventually be resolved at the level of Deputy Secretary or Secretary of DHS. Should the current practice continue, BCIS promise and the Congress/White House promise to reduce backlogs of immigration benefit applications processing times will be critically damaged, at least at the local levels.

03/18/03: Homeland Security Merger Raises Chain-of-Command Issues

• One of Homeland Security Secretary Tom Ridge's top priorities is to merge the cultures of his 22 adopted agencies into one gigantic, seamless department. But according to the news report, already rumblings are being heard that, in Ridge's attempt to create more direct lines of authority, some key underlings will be too far down the chain of command to be heard. For instance, Eduardo Aguirre Jr., who's been nominated to be director of the Bureau of Citizenship and Immigration Services, reporting to the Deputy Secretary. Demetrios G. Papademetriou, a Labor Department official in the first Bush administration, worries that immigration policy will be lost in the security-focused shuffle, so he's counseling Aguirre on the ways of bureaucracy. "I want him to become an effective voice within the administration, and he's not going to be able to do that within the department," Papademetriou contends. "He's going to have to look to the White House," which—unlike Ridge—has reason to care about the Hispanic vote. If the heads of Homeland Security agencies do begin trying to bypass Ridge, the situation could get further confused.
• Creation of the mammoth organization with the design to establish a clear line of command has resulted in steeper layer of line of command. Consequently, as the layer moves further and further down to the local cells, they will be far removed from the decision-making process in Washington, D.C.
  

03/17/03: Inspector General of DOJ Says Foreign Student Tracking System (SEVIS) Inadequate

• SEVIS has been receiving a growing challenge from its consumers as well as the government oversight authorities. The Inspector General of the U.S. Department of Justice is critical of this system, according to the news.

03/17/03: SEVIS System Flaws Cause Delay of Entry to the U.S. for Foreign Students/Exchange Visitors

• The Chicago Tribune (www.chicagotribune.com, March 17, 2003 "Glitches riddle database to track foreign students") reports that the computer system intended to track international students as part of the nation's stepped-up security routinely loses sensitive information about foreign students and faculty, according to university officials throughout the country. Gaffes in the approximately $36 million Student and Exchange Visitor Information System--or SEVIS-- also have left schools unable to print documents that international students and visiting scholars need to obtain visas, delaying their entry into the country. It also reports host of other problems the universities are currently experiencing. For the full report, please read the newspaper web report.
  

03/15/03: Reminder of Invalidity of Current N-400 Naturalization Application Form Effective 03/31/03

• People filing N-400 Naturalization Application that effective 03/31/03, the BCIS will accept only the new version of N-400 and any filing using the current version of the form will be rejected. The best policy is to always use the BCIS online form rather than paper-copy of the forms which they previously obtained or some commercial form services.

03/15/03: Reminder of March 21, Friday, Deadline for Call-In Special Registration for Pakistanis/Saudi Arabians

• Next Friday is the deadline. Considering the fact that completition of the call-in special registration appears to be a pre-condition for application for change/extension of nonimmigrant status at this time, those who have maintained a legal status may want to complete the registration as soon as possible, certainly before the deadline. Those who are out of status should seek legal counsel on the special registration issues.

03/15/03: PERM Launch Date Expected to be Pushed Off to Fall This Year

• Various local DOL sources and AILA previously indicated that the PERM final or interim regulation would be published in April, 2003 with the effective date of July 2003. However, the latest news as released through the AILA-DOL teleconference indicates that there may be some adjustment of timing for both of these dates. The sources indicate that the regulation is expected between April and July of 2003 rather than April and the actual launch of PERM labor certification process will not start probably until the fall of this year rather than the summer. It is unknown at this time what changes we will see in the final or interim regulation. The proposed regulation includes a number of controversial provisions and has faced a massive number of comments, which eventualy resulted in the delay of finalization of the new PERM launching schedule. The new lanunching schedule also coincides with the DOL FY 2004 budget that will increase the labor certification backlog funding from $5 million to $55 million as we reported earlier. The budget noted that the backlog reduction funding will focus on the launch of PERM labor certification program and funding of state agencies (mostly 10 big states) for clearance of pending backlog cases at the state agencies which the state agencies would have received before the starting date of the new PERM labor certification process. As people know, once the PERM program starts, the state agencies will be phased out of the "permanent" labor certification process other than the wage determination, "except" that they will finish up the pending cases within the FY 2004. The state agencies will also continue their work for "temporary" labor certification application for H-2A and H-2B nonimmigrant visas without being affected by the PERM program.

03/15/03: Chennai Consulate Announcement: Old Form DS-156 and Old Photo Standards Not Acceptable from Monday, 3/17/03

• The Consular Affairs Section, U.S. Embassy, New Delhi, announces the following changes for persons applying for Non-immigrant visas to the United States:
• Effective Monday, March 17, 2003 the U.S. Embassy New Delhi and the U.S. Consulates in Chennai, Kolkota and Mumbai will be accepting only the new version of the DS-156 Visa Application Form. Up through close of business on Friday, March 14, either the old or new versions will be accepted. Concurrently, new photo specifications associated with the new DS-156 Visa Application Form will be required starting on Monday, March 17. Up until close of business on Friday, March 14, the previous DS-156 with the old photo specifications will be accepted, as will the new DS-156 with its new enlarged photo specifications. For more information on the new DS-156 and the new photo specifications, log onto the U.S. Embassy website at http://newdelhi.usembassy.gov or the website of the U.S. consulate nearest you: Chennai - http://chennai.usconsulate.gov; Kolkota - http://calcutta.usconsulate.gov; Mumbai - http://mumbai.usconsulate.gov.
• We reported this on 02/28/03 for the revised DS-156 form and on 03/03/03 for the new visa photo standards. The visa photo standards apply only to the visa applicants and those who file applications/petitions with the DHS/BCIS or other relevant DHS agencies should follow the BCIS photo instructions.

03/15/03: U.S. Department of State Launches New Web Site on Visa Policy

• The U.S. Department of State has launched a new web site for the information on U.S. Visa Policy and Procedures. As the new Department of Homeland Security takes over part of visa policy-making functions, the new site attemps to incorporate border crossing and inspection issues, particularly NSEERS, in addition to the DOS visa processing information. Please click here for the announcement, and link to the new DOS Visa Policy Web Site.

03/15/03: New Legal Orientation Program Underway for Detained Aliens by EOIR

• The Executive Office for Immigration Review of DOJ is the agency that operates the immigration tribunals for immigration enforcement, including immigration courts and immigration judges. Recently, the Attorney General undertook a reform of the EOIR reducing the number of panel members for the Board of Immigration Appeals for the purpose of efficiency of case management and backlog removal. Civil right advocates have criticized this move for fear of the potential compromise of the alien's civil rights and due process.
• The EOIR is launching another program to reduce detention times of the detained aliens, whereby the government manages detention facility more efficiently. Through certain designated nonprofit organizations, the EOIR intends to offer orientation program on legal procedures and access to legal assistance for the detained aliens who face the removal proceedings. According to the EOIR, it will benefit over 23,000 detained aliens for the first year and this figure represents about 20% of the total average detained aliens. If this reporter's calculation is correct, annually approximately 115,000 aliens are detained on average! For the details of the announcement, please click here.

03/14/03: Did You Know How 440 Million People Entered the U.S. in FY 2002? Airport? Nope!!

• The following statistics on U.S. inspections at various ports of entry in the U.S. as revealed in a Congressional Testimony on March 12, 2003 show how ignorant we are on the border inspection problem and issues. Only a fraction of people enter the U.S. through the airports!!

• In FY 2002, there were about 440 million border crossings into the U.S. at over 300 designated ports of entry. Of the more than 359 million border crossers who entered through land ports of entry, almost 50 million entered as pedestrians. (Huh!?) The rest entered in more than 131 million vehicles, including cars, trucks, buses, and trucks. Huh, huh....!?) Further, the State Department processed about 8.4 million nonimmigrant visa applications and issued about 7 million passports. It is so surprising that most of the human traffics come into this country through the Northern and Southern land borders, IN A BIG WAY! For the testimony, please click here.

03/13/03: BCIS Announced Launch of Standardized Citizenship Test Pilot Program

• Currently, citizenship applicants are quizzed on English, U.S history and government topics as part of the naturalization examination interview. The test questions are generally culled from a lengthy pre-approved list, but there is no standardized testing format or method for administering the questions. As a result, the test content and process can vary from officer to officer and from office to office. Today, the Bureau of Citizenship and Immigration Services (BCIS) announced the launch of a pilot project to standardized the English, government, and United States history tests administered to citizenship applicants. The first phase of the two-stage pilot focuses on the English language portion of the test. The BCIS is working with a professional test development company on the effort. As part of the English language pilot, consenting citizenship applicants will be asked to answer one test question at the end of their regularly scheduled naturalization interview. The pilot will include questions designed to gauge reading, writing, and speaking skills. The applicant’s response will not affect the outcome of the interview.
• Five cities are slated to participate in this first phase of the naturalization test pilot - Los Angeles, Sacramento, San Antonio, Atlanta, and Newark. A BCIS team arrived in Newark today in order to train the officers who will administer the pilot and brief community-based organizations on the test redesign effort. Over the next three weeks, the team will travel to the other designated cities to implement the pilot in those locations. For the BCIS announcement, please click here.
  

03/13/03: U.S. - Pakistani Governments Cooperate to Return 500 Pakistanis to Pakistan

• The Bureau of Immigration and Customs Enforcement (ICE), in cooperation with the Government of Pakistan, this week successfully repatriated 103 Pakistani nationals who were illegally present in the United States. The Pakistanis, who had exhausted their legal avenues of appeal, were flown by chartered aircraft from the United States to Islamabad yesterday. Yesterday’s repatriations represent the fourth in a series of collaborations between Pakistan and the U.S. within the last year, leading to the successful repatriation of about 500 Pakistani nationals. For the BICE announcement, please click here.
  

03/13/03: AILA's Washington Update 03/13/2003

03/13/03: Call-In Special Registration and Change/Extension of Status

• People from those countries who are subject to the call-in special registration keep getting RFE from the Service Centers asking to submit the proof of completion of special registration. Apparently the Service Centers are under the instruction not to adjudicate such alien's application for change of status or extension of status without such a proof. Unconfirmed sources indicate that such RFE are being issued to those nationals who belong to Group III and Group IV and whose call-in special registration will not expire until certain future date.
• This confirms our previous suggestion that those who need application for change or extension of status may complete the call-in special registration early on in order not to experience delays in the change/extension of status proceedings. Reportely, some people filed Premium Processing with the expection that the case would be adjudicated in 15 days but are currently experiencing such RFE, and pending such RFE response, his/her nonimmigrant status or work permit expires. Please stay tuned to this web site for the development of this news.

03/12/03: DHS To Meet the Mandated NSEERS Deadline

• Current law requires that DHS to implement a fully automated system for collecting data on foreign visitors at the 50 largest land ports-of-entry by the end of 2004 and all land ports by the end of 2005. According to Asa Hutchinson, Under Secretary of Border and Transportation Security of DHS, meeting these deadlines will pose a challenge to the agency, but the agency is expected to meet the deadline as mandated by the relevant legislation. For the news, please click here.

03/12/03: DOJ Inspector General Reports Flaws in Immigration Inspection Process

• According to the Audit Report which was prepared and released in February 2003, the immigration inspection process had a flaw which raised a concern with the security. The Report cited various reasons, one of which was the problem related to lack of training for the increased newly hired inspectors. In FY 2002 approximately 26 percent of all inspectors at air, land, and sea POEs were newly hired but these inspectors had been provided insufficient training due to the lack of resources. The 2003 DHS budget includes funding to hire more than 1,700 new inspectors at our ports of entry -- air, land and sea -- and 600 more border patrol agents, making this issue serious in nature.
• The report focused on the security concerns related to this problem, but it also raises the issue of potential arbitrary denials or mishandling in inspection process owing to insufficient training of the newly hired inspectors with the laws and practices of the agency.
• People who are interested in this subject may read Executive Summary.

03/11/03: President Intends to Nominate Joe D. Whitley as General Counsel of DHS

• The President intends to nominate Joe D. Whitley of Georgia, to be General Counsel of the Department of Homeland Security. He currently serves as an Equity Partner with Alston & Bird in Atlanta, Georgia. He previously served as U.S. Attorney for both the Northern and Middle Districts of Georgia. Mr. Whitley earned his bachelor's degree and his law degree from the University of Georgia. For the photo and profile, please click here.
• During the era of INS, the General Counsel played an important role in immigration policy and implementation by interpreting the laws and regulations. The same is expected under the new agency, DHS.

03/11/03: President Announces his Intent to Appoint Michael Garcia As Assistant Secretary of BICE

• Michael Garcia is currently named as Acting Assistant Secretary of BICE. Today, the President announced his intent to appoint him as Assistant Secretary of BICE, a permanent position.

03/11/03: Nomination of Eduardo Aguirre, Jr., for Director of BCIS Sent to the Senate

• The President send nomination of Mr. Eduardo Aguirre, Jr. to the U.S. Senate today. Upon the consent of the U.S. Senate, he will become not Acting Director but Director of BCIS, a permanent position.

03/11/03: Standard Operating Procedures: Department of State SEVIS Processing Update

• The U.S. Department of State has issued a cable to the visa posts regarding changes and update of SEVIS processing and operating procedures. Please click here for the text.
  

03/11/03: DV-2004 Lottery and Definition of "Native Language" Signature for a Valid Lottery Registration

• Final selection of DV-2004 lottery winners is fast approaching and the DOS issued a cable to visa posts to define "native language" signature requirement for a valid registration. According this cable, the native language includes one of the followings:
  • --If the alien was raised or educated in English, or normally uses English at home or in business dealings, then in Department's view, the Roman alphabet can be considered the alien's "native" alphabet, even if the English language and the Roman alphabet may be not be predominant in the alien's country of birth or residence.
  • --If it is customary in the alien's culture or country of birth or residence to use a Roman alphabet signature for official documents, such as passports, contracts, etc.,
    then the Roman alphabet can be considered the alien's "native" alphabet for DV lottery purposes, even if the Roman alphabet is not the predominant alphabet in the
    alien's country of birth or residence and even if the alien does not normally communicate in English.
  • --If, however, the Roman alphabet is not the predominant alphabet in the alien's country of birth or residence, and if the alien was not raised or educated in English and does not normally use English at home or in business, and if signing official documents in Roman alphabet is not customary in the alien's culture or country of birth or residence, then the English/Roman alphabet would not be considered the alien's "native" alphabet for DV lottery entry purposes.
  • In applying the above rules, posts should keep in mind that the "native alphabet" and other signature requirements were intended to combat fraud, with the principal goals being to identify possible imposters and to deter multiple, slightly different lottery entries submitted by the same alien. Posts should apply these rules with these underlying purposes in mind, and if post is confident that the applicant is not an imposter and if there are no signs of multiple entries through submission of slightly varied entries, and if it was reasonable in the context of the particular case for the alien to have used the alphabet he/she used on the lottery signature, then disqualification of the case on the ground that the signature was not in the alien's "native" alphabet generally would not be necessary.
• For the full text of the cable, please click here.

03/10/03: Congress in Struggle to Deal with the Link between Immigration and Terrorism

• News report indicates that there are more than 90 immigration-related bills introduced in the Congress ranging from the restrictionist bills at one end to proimmigration bills at the other end of the spectrum. Some of these bills are struggling to probe the link between immigration and terrorism. Considering the fact that the term "immigration" has disappeared from the media and the political arena for quite a while, it gives a little hope that the Congress will eventually look through the dark smoke and sort out which one is which and pass some positive immigration bills in the future. Read on.

03/08/03: RFE Demanding Employment Authorization Pending EB-485 and Misconception of 245(i) Filers

• Lately, we see the Service Centers issuing RFE asking to submit the proof of employment authorization pending I-485. As adjudication of I-485 nowadays take more than a year, the EAD for some of the 245(i) filers can expire while waiting for the adjudication of I-485. Another problem is the EAD processing times. More and more local district offices have ceased to accept EAD applications for the EB-485 filers and the Service Centers take a longer and longer time to process EAD. This can create a gap in employment authorization.
• There are some 245(i) filers who gravely misunderstand the meaning of 245(i) and act on a false understanding that payment of $1,000 and I-485A Supplement under 245(i) also forgive unauthorized employment after the initial filing of I-485. Wrong! 245(i) forgives unauthorized employment prior to the filing of I-485 and not post to the filing of I-485.
• It is thus important that 245(i) filers file and obtain EAD extension "timely," and in the event that EAD extension is not approved at the time of expiration of the current EAD, they may have to temporarily stop employment until the EAD is issued. The agency, "on and off," back-dated EAD approval once the EAD application was filed "timely," but it has been a "practice issue" rather than a law and the practice has been unreliable.
• What happens if there was a lapse in employment authorization after the filing of I-485 and I-485A? Assuming that the agency proves that there was a period of unauthorized employment after the filing of I-485, there is still a room for relief and such finding does not necessarily lead to the "life and death" situation. Theoretically, they are still eligible for filing of application for adjustment of status (I-485) and can resubmit I-485 and I-485A with the same Service Center, unless the agency commenced a removal proceeding, in which event the relief of adjustment of status ought to be sought in the immigration court using 245(i) provision. Readers know what this means: Expensive and time-consuming!
• Best policy is to maintain employment authorization throughout the I-485 decision waiting period. People should file EAD application at least 100 days ahead of expiration of current EAD so that in the event that they do not get the new EAD in time, they go to the local district offices to obtain an "interim" EAD. Under the law, the agency must issue an interim EAD if the Service Centers fail to adjudicate EAD application in 90 days from the date of receipt.

03/07/03: News Report on Background of B-Visa Proposed Regulation Withdrawal

03/07/03: Visa Waiver Pilot Program Status for Belgium, Italy, Portugal, and Uruguay Revisited by DOJ

• The abolished INS enacted a number of regulation on its last date of February 28, 2003. This is one of those which are published today after the INS was gone. The regulation is intended to revisit the status of visa waiver pilot program for nationals of these four countries. The result is the negative decisions for Belgium and Uruguay.
• The Visa Waiver Program (VWP) permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as visitors for business or pleasure without first obtaining a nonimmigrant visa. The U. S. Department of Justice has determined that:
  • (1) Belgium will be allowed to continue participating in the VWP on a provisional basis for one year, with another evaluation to be conducted at that time to determine whether Belgium's continued participation in the VWP is in the law enforcement and security interests of the United States. In addition, after May 15, 2003, citizens of Belgium who wish to travel to the United States under the VWP must present a machine-readable passport issued by the Government of Belgium.
    (2) Italy will continue to be designated as a VWP country without change.
  • (3) Portugal will continue to be designated as a VWP country, with the Department of State taking appropriate action.
    (4) Uruguay will be be terminated from the VWP because Uruguay's participation in the VWP is inconsistent with U.S. interest in enforcing the immigration laws of the United States because there are high intercept and overstay rates for Uruguayans. Nationals of Uruguay who intend to travel to the United States after April 15, 2003, for legitimate business or pleasure must acquire a nonimmigrant visa at a U.S. consulate or embassy prior to their arrival in the United States.
• This rule takes effect on April 15, 2003.
  

03/07/03: St. Paul Local District Directors of BCIS, BICE, and BCBP

• The local district office has disclosed that the following interim directors will be in charge of these three local district offices:
  • BCIS: Curtis Aljets (former INS St. Paul District Director): Adjudications and information function to cover Minnesota, North Dakota, South Dakota, and much of western Wisconsin.
  • BICE: Mark Cangemi (former Associate Director of INS St. Paul District): Investigations, records, detention, removal, intelligence functions to cover Minnesota, North Dakota, and South Dakota.
  • BCBP: Interim Port Director: John Klow (former Deputy Director of INS St. Paul District): Inspection function to cover airports of Minneapolis-St. Paul, Sioux Falls, and Rochester, MN.
  • BCBP: Interim Border Director: Mary Delaquis: Inspection function to cover all the land border ports in Minnesota and North Dakota, and airpots/seapot in Duluth.

03/06/03: Child Status Protection Act ("Aging-Out Act") and Availability of Age-Out Expedite of I-130, I-140, and I-485

• Before the enactment of Aging-Out Act, it had been the agency practice to expedite immigrant petition and 485 applications for the family that included a child who approached 21 years of age. In some cases, the whole case took only three months.
• However, considering the fact that the Aging-Out Act legislatively protected the aging-out children from separation from the parents and other siblings by allowing them to apply for an immigrant status even after they reach 21 years of age, a question was raised whether the traditional agency practice of expedite in aging-out cases is justified in terms of fairness to other 140 or I-485 applicants.
• Now the agency answered this question. The current policy states that the field offices should not expedite aging-out cases if the involved child is eligible for Aging-Out Act benefits. The field offices are, however, instructed to continue their practice of expedite if the involved child is not eligible for the legislative benefits. It sounds somewhat ironic that the child and the family that the Congress did not find deserve special protection can receive a better benefit and protection by the agency than those the Congress intended to protect, but considering the fact that the besic underlying principle is to prevent separate of family, the agency policy of age-out expedite for this group of children and their families is fully justified.

03/06/03: BCIS Policy to Block Abuse of I-140/I-485 Filing

• The concurrent I-140/I-485 filing is supposed to permit the alien a number of benefits, including toll of unlawful presence, resuming a legal status pending adjudication of I-485, availability of work permit card and advance parole for international travel, and similar benefits to the accompanying family members. Additionally, there was an unanswered question as to whether or not 180-day rule of AC 21 would be attached to such alien no matter whether the underlying I-140 petition is approved within 180 days.
• The agency initially answered this question by adopting a policy that I-140 petition would be adjudicated in 60 days and pending adjudication of I-140, the agency would not grant EAD and Advance Parole. However, this policy left another question unanswered regarding the impact of I-140 denial on the pending I-485. Under the law, I-485 remains intact unless it is denied as separate from the denial of I-140. Traditionally, the agency followed a practice of denying I-140 petition and acting on the pending I-485 separately which usually took time. In order to prevent the abuse of such practice, the agency recently instructed the field offices to deny all the accompanying applications including I-485, I-485A, I-765, and I-131 "simultaneously" when the field offices deny the underlying I-140. Accordingly, unless the I-140 petition is prima facie eligible, the concurrent filing of I-140/I-485 could bring damages to the aliens, including waste of a large amount of filing fees and in the case of 245(i) filing, exposure of illegal status and adverse evidence to the agency. Concurrent filing is not a panacea for everyone!
• Reportedly the agency has been receiving concurrent filing from aliens who failed to meet the prima facie eligibility and I-140/I-485 filing was particularly abused by labor certification waiver cases such as National Interest Waiver. Without doubt, this new policy will reduce the number of frivolous filing or eligibility-suspect case filings.

03/06/03: INS Memorandum 2 Clarifies Additional Issues of Child Status Protection Act

• For the Memorandum 1 of September 2002, please click here.

03/05/03: INS January 2003 Statistics of Immigration Benefit Application Processing

• According to the BCIS (formerly INS) statistics, between January 2002 and January 2003, pending cases increased almost 1 million applications or 23%, while the number of applications received during the period remained steady. Additionally the rate of approval of cases dropped 28%.
• Total immigration application pending cases reached 4,882,647 in January 2003. Major volumes in January 2003 receipts include: 154,304 I-765 employment authorizations; 61,892 I-130 relative petitions; 61,689 I-90 Green Card renewals/replacements; and 56,275 I-485 permanent resident adjustments. Major volumes of pending cases at the end of January 2003 include: 1,712,665 I-130 relative petitions; 1,078,956 I-485 permanent resident adjustments; 658,770 I-90 Green Card renewals/replacements; and 464,831 I-765 employment authorizations. Hew!! Read on.

03/05/03: BCIS Retains the Team of Leadership and Brains to Lead Service Centers Operations and Policy Making

• It is extremely fortunate that William Yates, former Executive Deputy Associate Commissioner of the INS, has been named Associate Director, the number two position of the BCIS. Mr. Yates is a highly respected veteran in immigration servces and policy and has been the key leader during the recent INS who forged most of the immigration services policies. Before he was appointed the Executive Deputy Associate Commissioner, he had served as Director of Vermont Service Center, formerly Eastern Service Center, and left a legacy of turning the Service Center into a most efficient and effective field office in the INS history. During his leadership of VSC, the Service Center far exceeded other Service Centers in terms of applications/petitions processing times. He also brought into the Service Center many innovative ideas of management of adjudication functions.
• Another good news is the leader who will lead the Service Center Operations in HQ of BCIS under the direct supervision of Mr. Yates. Fujie O'Hata has been in charge of the same function during the INS and is very knowledgeable of the issues and problems of the Service Center operation and management. Naming her as the Chief of Service Center Operations Division reflects the Bush Adminsitration's confidence in her ability to bring a reform in the Service Center operations.
• We wholeheartedly welcome continuing leadership of this expert team!

03/05/03: DHS Organizational Chart

03/05/03: Technical Amendments to Reorganized 8 C.F.R. Published on 02/28/03 by DOJ

• On February 28, 2003, the Department of Justice published a regulation to reorganize its immigration-related functions after transfer of immigration businesses to DHS into a new chapter V. The remaining regulation is related to EOIR immigration tribunal regulations and employment discrimination enforcement functions. Today, DOJ released technical amendments to the reorganized 8 C.F.R. Read on.

03/05/03: Sources of Service Centers' Processing Backlogs: IBIS Checks or Premium Processing

• The Inspector General of the U.S. Department of Justice released its Audit report in February 2003 which faulted the Premium Processing for the growing backlog of the Service Centers processing delays ever since the Service Centers started the Premium Processing Program. For instance, the Report indicates that the percentage between the non-Premium Processing cases vs. Premium Processing cases had steadly changed from 2% of total cases in June 2001 to 28% in September 2002. (Click here for the detailed statistics month-by-month) The INS disputed this finding in that the backlog had been caused by the IBIS check and not by Premium Processing Program. It is unclear how this IG Audit Report will affect the DHS future policy on the Premium Processing Program. Readers, please read the full Audit Report and you be the judge of it!

03/05/03: Premium Processing Receipts by Service Center

• The record of receipts of Premium Processing filing by each Service Center shows somewhat unusual pattern for FY 2002 (Oct 2001 - Sep 2002) in that the size of Service Centers runs in the order of CSC-VSC-TSC-NSC, but the receipts of Premium Processing Requests ran in the order of VSC=40,765, TSC=29,946, CSC=25,475, and NSC=18,848. For the detailed statistics month-by-month, please click here.

03/04/03: BCIS District Directors Named

• We reported the new District Directors of BICE (Internal enforcement bureau) and the new Interim Directors of Ports of Entry of BCBP (external enforcement bureau) at the local level. Today, BCIS released through the AILA the Directors of each local district of BCIS. As we reported earlier, most of the former District Directors of the INS local offices have been named as the BCIS local district directors. Therefore, these new District Directors of BCIS are restricted to the duties of immigration benefits applications/petitions adjudication and lost their prior management authority over the inspectors, investigator, and deportation officers under the INS. The list of the new BCIS local district directors are as follows:

03/04/03: State Department Predicts No EB-Priority Date Retrogression Until 09/30/2004

• Charles Oppenheim of the DOS predicts that based on visa number use during the past two years he expects the Employment-based categories to remain "Current" (with the possible exception of the Other Workers category) through at least the end of FY-2004. Changes in demand from the immigration and Naturalization Service could impact this estimate and require the AC21 "pool" to be used up earlier, resulting in some Employment categories becoming oversubscribed. One such factor can be the launch of PERM labor certification application system and the INS pace of 485 processding time reduction implementation.

03/04/03: INS Proposed Regulation to Restrict Visitor's (B-Visa) Staty in the U.S. Withdrawn

• AILA reports that John Ashcroft's controversial proposed regulation to restrict a visitor's admission to the U.S. to 30 days and maximum stay only upto six month has been withdrawn. This proposed regulation stirred rage in so many industries, especially hospitality industry, and it was expected that this proposed regulation would evaporate.

03/04/03: Call-In Special Registration and Nonimmigrant Status Extension/Change of Status

• We reported earlier that California Service Center issued a RFE in a nonimmigrant status extension application case involving an Iraqi national requiring proof of completion of the call-in special registration, including I-94 with FPN on it. AILA has reported that the same is done by the Nebraska Service Center. It appears that this is going to be a standard practice throughout the Service Centers. Currently this is limited to the Group I and Group II as the period for the call-in special registration for these nationals is over. The same will apply to Group III and Group IV nationas as soon as the period for the call-in special registration is over. It is unknown whether this policy and practice also apply to other proceedings such as I-485. Please stay tuned to this web site for the latest development of this news.
• In the meantime, as we reported earlier, it may be advantageous for the affected nationals in these legal proceedings to complete the special registration early on to overcome this new hurdle.

03/04/03: INS Regulation Extending Enrollment Period of AIS Program

• Automated Inspection Services (AIS) programs, also known as PORTPASS, such as the INS Passenger Accelerated Service System (INSPASS) and the Secure Electronic Network for Travelers Rapid Inspection (SENTRI), are automated systems designed to identify pre-registered, low-risk travelers and permit them to enter the United States within a predictable wait time by reducing the interaction of the traveler with the inspector at the time of entry. Currently the regulation limits the period of approval to the program to 1 year, thereby requiring applicants to resubmit a new application and fee each year. This is a very burdensome process for both the traveling public and the Federal agencies administering the programs. This rule amends the Service's regulations to extend the current enrollment period for the AIS programs from 1 year to 2 years.
• What is INPASS? INSPASS is an AIS Program currently operational at international airports at: Los Angeles, Miami, Newark, New York (JFK), San Francisco, Washington-Dulles, and the U.S. preclearance sites at Vancouver, and Toronto in Canada. Citizens of the United States, Canada, Bermuda, and Visa Waiver Pilot Program (VWPP) countries who travel to the U.S. on business three or more times a year, or who are diplomats, representatives of international organizations, or airline crews from the VWPP nations may voluntarily enroll in the INSPASS Program.
• What is SENTRI? SENTRI is an AIS Program that enables enrolled travelers to rapidly enter the United States through a dedicated commuter lane (DCL) at specific Land Border Ports-of-Entry. The Service currently operates SENTRI dedicated commuter lanes along the southern border. In order words, current, INPASS is operated at certain international airports and SENTRI is operated in the sourthern land port of entry. For the regulation, please click here.
• Is the INS still in charge of inspections? Nope! The INS is long gone by now. The regulation was effective on 02/28/03 and was released just late.

03/03/03: State Department Cable on Final SEVIS Verification/Reporting Instructions

03/03/03: State Department Changes Nonimmigrant Visa Photo Standards

• The photograph of each visa applicant must be an unmounted full face photo, taken within the past six months. A "full face" photo is one in which the applicant is facing the camera directly. The applicant should not be looking down or to either side, and the face should cover about 50 percent of the area of the photo. Although variations in hair
  styles and in head coverings make it difficult to rigorously define the term "face," in general, the head of the applicant, including both face and hair, should be shown from the crown of the head to the tip of the chin on top and bottom, and from hair line side-to-side. It is preferable that the ears be exposed. The key requirement is that the
  photograph clearly identify the applicant. The photograph should measure 2 inches square (roughly 50 mm square) with the head centered in the frame. The head (measured from the top of the hair to the bottom of the chin) should measure between 1 inch to 1 3/8 inches (25 mm to 35 mm) with the eye level between 1 1/8 inch to 1 3/8 inches (28 mm and 35 mm) from the bottom of the photo. Photos may be either in color or black and white and must be taken against a white or off-white background. Photos should be printed without borders. Photos should be stapled or glued to Form DS-156, Nonimmigrant Visa Application. If the photograph is stapled, the staples should be placed as far away as possible from the applicant's face. Photos taken in front of busy, patterned, or dark backgrounds will not be accepted.
• For the cable notice to the visa posts, please click here.
  

03/03/03: INS Extended the Enrollment Period for SENTRI Registration Effective 02/28/03

• In a move that will benefit thousands of dedicated commuter lane users along the U.S.- Mexico border, the INS extended the enrollment period for SENTRI (Secure Electronic Network for Travelers Rapid Inspection) participants from one to two years, effective 02/28/03. SENTRI is an automated system that enables enrolled motorists at selected land border ports to complete the inspections process and enter the United States more expediently using dedicated commuter lanes. As part of the enrollment process, SENTRI participants undergo an extensive screening that includes law enforcement and criminal background checks. By encouraging low-risk travelers to participate in programs like SENTRI, authorities can focus more attention and resources on unknown or higher-risk travelers. While today’s action will eliminate the need for participants to reapply every year, the INS will continue to perform regular law enforcement queries on SENTRI participants to ensure the integrity of the program. Currently, there are more than 42,000 travelers participating in the SENTRI program along the U.S.-Mexico border. For current SENTRI users the enrollment period will be valid for two years from the date of the last enrollment. For the full text of the announcement, please click here.

03/03/03: A.G. Terminates TPS for Angola

• The Department of Justice today announced the termination of Temporary Protected Status (TPS) for nationals of Angola. As of March 29, 2003, individuals who are nationals of Angola (and others having no nationality who last habitually resided in Angola) and have had TPS under the Angola program will no longer have such status. Approximately 316 individuals who currently receive benefits under the Angola TPS designation will be affected. Read on.
  

03/02/03: Change in Local District Office Structure and Operation and Management

• When people visit the BCIS local district offices Monday, the first day of DHS in charge of immigrtion functions, they will not notice any changes since the offices will be located and operated in the same building. However, when it comes to the structure and management, there will be a big change. Each of the new immigration-related Bureaus now operates their own distict offices separately. In most local district offices, they will have at least two Directors, one for BCIS and one for BICE, each operating under a completely separate line of command. In international airports, sea and border ports of entry, people will also see another Director who will manage immigration/custom inspections, border patrols, etc. Until February 28, 2003, each local District office was represented by one set of leadership, one District Director and one Deputy District Director, and under their supervision, associate/assistant Directors managed the three immigration functions. Not any more! The local District Directors of BCIS, BICE, and BCBP will just share the same office building, but there will be two or three District Offices in each locality from now on. It appears that the former District Directors and Deputy Directors have been removed and some of them have been renamed as Director or Deputy Director of BCIS. Considering the fact that each local District operation of BCBP consolidated three inspection Directors (customs, immigration, agricultural product) and at least the two former District Directors at each Port of Entry have lost the Director positions, a large number of local district managers and leaders lost the managerial positions on March 1, 2003, resulting in a substantial shake-up of leadership at the local district level. We wish them well.

03/02/03: Interim Field Operations(Regional)/Port-of-Entry Directors of BCBP Named

• With about 30,000 employees, the Bureau of Customs and Border Protection is the third- largest entity with the Homeland Security Department, trailing only the Transportation Security Administration and Coast Guard in size. It includes 9,000 former Customs Service inspectors, 6,000 former INS inspectors, 3,000 former Agriculture Department inspectors and 10,000 personnel from the former Border Patrol. BCBP is engaging in hiring campaign to add 2000 more employees, mostly inspectors. The new hires, which include 570 Border Patrol agents, 615 additional inspectors at airports and 460 inspectors at key land ports such as the Ambassador Bridge/Detroit Tunnel port-of-entry along the U.S.-Canada border. Funds in the fiscal 2003 appropriations law will pay for the new staff.

03/02/03: Interim Regional/District Directors of BICE Named

03/02/03: New Immigration Agencies and Call-In Special Registration

• Under the structure of the DHS, immigration functions are managed in the following fashion:
  • BCIS: Adjudication of immigration benefit applications and petitions
  • Directorate of Border & Transportation Security: Internal/External Immigration Law Enforcement
    • BCBP: Immigration inspections at the ports of entry and border patrol/control
    • BICE: Investigation, detention, and removal (deportation) of aliens "within"
• Special registration includes two functions: One is special registration of incoming aliens and the other is so-called call-in special registration for those aliens who reside in the U.S. Obviously, the duty of special registration of incoming aliens is the function of immigration inspectors at the port of entry and there will be no change with this arrangement. Accordingly, this incoming alien special registration will fall under the jurisdiction of the BCBP in the DHS structure. However, it is expected that there will be changes in the call-in special registration. Until February 28, 2003, the INS local offices had assigned the initial call-in special registration interviews with the adjudicators (non-enforcement officers), and the special registration was completed at the non-enforcement unit level unless the adjudicators detected the information of violation of status, criminal law violation, or other deportable issues. Once such problem is detected, the adjudicators who conducted the initial interview was required to turn the alien over to the enforcement officers who then completed the special registration or initiated deportation proceedings. However, the information which is made available on the BICE web site indicates that the special registration may fall under the jurisdiction of the BICE.

For Pre-March 1, 2003 News, Please Click Here.