Dedicated Professionals in Immigration Law

Reported by Matthew Oh, Esquire.

(07/01/2001 - 02/28/2002)

 

 

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[02/01/2008 - Present]/Archive XVI[08/01/2007 - 01/31/2007/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]

Updated 02/28/2002: E/L Visa Spouse EAD Application Procedure

• The INS HQ has issued a processing guidance memorandum, which is fairly consistent with our prior posting in this web site, except two points: (1) the code for E spouse is "A-17" and the code for L spouse is "A-18," but the memorandums asks the applicants to write in either "Spouse of E Nonimmigrant" or "Spouse of L Nonimmigrant" rather than the code numbers; (2) the application must be submitted with the form I-765 and fees, plus two proofs: Proof of "spouse" and proof of "valid" nonimmigrant E or L status. Obviously, for the proof of spouse, the applicant may have to submit a marriage certificate. For the proof of valid nonimmigrant E/L status, the memorandum requires that the applicant submit I-94 of both spouses and/or new I-94, which is part of the approval notice of change of status to E or L or extension of E or L visa status. EAD is granted only for the period of valid current nonimmigrant status without exceeding two years.
• Once it is filed, just like any other EAD applications, the applicant can obtain a temporary EAD at local district offices if he/she does not get decision for a period exceeding 90 days.
• Lately, there were incidents where the Service Centers rejected such application since they were not too familiar with the new law and the INS policy, and this HQ memorandum directs the Service Centers not to reject such application.
• Jursidictions: If the spouse files the EAD concurrently with his/her principal spouse, the EAD can be filed "only" with the CSC or TSC depending on the E/L jursidiction for the principal alien's case. If it is filed alone, it is filed with one of the four Service Centers which has jurisdiction over his/her location. Good luck, spouses! Back to Top

Updated 02/28/2002: Attorney General Emphasizes 6-Month Processing Times

• This web site analyzed FY 2003 DOJ budget proposal and reported that it highlighted the processing time reduction plan. On 02/26/2002, AG Ashcroft appeared before the Senate CJS Subcommittee to testify for the budget proposal. The prepared remarks of AG again reassures our report. "We are committed to building and strengthening an immigration services system that is effective, ensures integrity, and promotes a culture of respect. We currently are making good progress toward achieving President Bush's goal of a 6-month average processing time for all applications. To help ensure additional progress, our budget request seeks $40 million to begin implementation of the Administration's comprehensive restructuring of the Immigration and Naturalization Service."
• Hmmm......... Let's wait and see. For the full text, please click here. Back to Top

Updated 02/27/2002: Family Sponsor Immigration Act of 2001

• The House of Representatives reportedly agreed to the Senate amendment to the H.R. 1892 yesterday, and this legislative bill will soon become law.
• Currently, the beneficiary of I-130 family-based petition is unable to apply for an immigrant visa or adjustment of status to a lawful permanent resident unless the petitioning relative files the affidavit of support, I-864. In the event that the petitioning relative is financially unable to prove eligibility under the Poverty Guidelines, a joint sponsor or co-sponsor can file affidavit of support along with the petitioner. However, a joint sponsor or co-sponsor cannot file affidavit alone without the accompanying petitioner affidavit of support. This has presented a humanitarian situation under certain circumstances, should the petitioner die and be not available to executive such affidavit. Deceased person cannot write affidavit, right?
• This law will allow certain relatives, instead of the deceased petitioner, to write such affidavit of support on two conditions that the petitioner died after the I-130 petition is approved and the Attorney General is satisfied that there are certain humanitarian reasons to justify either not to revoke the approved immigrant petition or if aleady revoked by the force of the law, to reinstate the revoked immigrant petition. For the entire text of the bill, please click here.
• These relatives of the alien beneficiary are called "alternative sponsor" of the affidavit of support and include the followings:
  • Spouse
  • Parent
  • Mother-in-law, father-in-law
  • sibling
  • child (if at least 18 years of age)
  • son, daughter
  • son-in-law, daughter-in-law
  • sinster-in-law, brother-in-law
  • grandparent
  • grandchild
  • legal guardian
• These relatives must also prove that he/she:
  • (1) is a citizen or national of the United States or an alien who is lawfully admitted to the United States for permanent residence;
  • (2) is at least 18 years of age;
  • (3) is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States;
  • (4) demonstrates the means to maintain an annual income equal to at least 125 percent of the Federal poverty line.
    
• This law will become effective upon the President's signature, but the benefit of the law will attach upon the deaths of the petitioner before or on or after the effective date of the legislation. Unfortunately, the petitioner must die to trigger this benefit!
• As soon as it becomes a law, the AILA is expected to release the summary and analysis of this legislation, and people should not rely on the summary of this web site herein. Please wait! Back to Top

Updated 02/26/2002: DOS Cables Consulates Revised ECFMG Requirement

• The U.S. Department of State has sent a cable to the visa posts to inform them of a recent change in ECFMG procedures and requirements for foreign medical graduates to enter the U.S. to take the Clinical Skills Assessment (CSA) as follows:
• Formerly, ECFMG had required that applicants pass both the USMLE Step 1 and Step 2 examinations as well as the TOEFL examination before they were eligible to take CSA. However, those prerequisites were adjusted approximately two years ago. Currently, ECFMG requires that candidates must have passed USMLE Step 1 (or its equivalent) and the TOEFL (or equivalent) prior to taking CSA. Candidates no longer must pass USMLE Step 2 prior to taking the CSA exam.
• Since CSA is offered only in Philadelphia, candidates must travel to the U.S. in order to take the examination. However, the U.S. Department of State had a report that some FMGs had been denied travel visas by some consulates to come to the U.S. to take CSA for the reasons that they had not passed USMLE Step 2. This cable is issued to prevent such consular errors. Under the revised procedures, the FMG who passed USMLE Step 1 and TOEFL should be allowed to travel to the U.S. for the CSA.
• As a rule, for all graduates of international medical schools, ECFMG certification is required as a prerequisite for entry into accredited advanced medical training programs in the United States . In addition to verification of their medical education, applicants must pass four different examinations. These are the United States Medical Licensure Examination (USMLE) Step 1 and Step 2, the Test of English as a Foreign Language (TOEFL) and the Clinical Skills Assessment.Back to Top

Updated 02/26/2002: Chennai Web-Based NIV Appointment "Mandatory!"

• The American Consulate in Chennai notifies us that beginning from Monday, March 4, the new web-based appointment system becomes mandatory for all qualified non-immigrant visa applicants. When the web-based appointment system was announced on February 13, 2002, use of the web-based system was voluntary. NIV visa applicants, please use www.ttsvisas.com to schedule appointment. Back to Top

Updated 02/26/2002: DOL Proposed Electronic SWA Monitoring System

• Today, U.S. Department of Labor Employment and Training Administration issued a notice to solicit comment on converting the traditional manual paper reporting sytem to some sorts of automated reports by SWAs on the record of their Alien Labor Certification Applications processing. Under the system, such automated reports will be collected by the DOL from the SWAs semi-annually. This is expected to provide the DOL to accurately monotor state agencies' processing records and processing times at least two times a year.
• Alien labor certification programs administered by the Employment and Training Administration (ETA) of the Department of Labor (DOL or Department) require State Employment Security Agencies (SESAs) to initially process applications for permanent and temporary labor certifications filed by U.S. employers on behalf of alien workers seeking to be employed in the U.S. SESAs are also responsible for issuing prevailing wage determinations, reviewing employer-provided wage surveys or other source data, conducting housing inspections of facilities offered to migrant and seasonal workers, and conducting and
  monitoring recruitment activities seeking qualified U.S. workers for the jobs employers are attempting to fill with foreign workers. The SESAs perform these functions under a reimbursable grant that is awarded annually. The information pertaining to these functions is
  collected on the Form ETA 9037 and will be used by Departmental staff to manage alien labor certification programs in the SESAs. The Department will be able to monitor the number of applications that the State has received, processed, and forwarded to ETA Regional offices,
  and the number of prevailing wage determinations issued to employers under the permanent and temporary labor certification programs, as well as the H-1B program for nonimmigrant professionals in specialty occupations. The information on workload will be used for formulating budget estimates for both state and Federal workloads, and for monitoring a State's performance against the Grant Statement of Work and Work Plan. Without such information, the budget workload figures will be estimates and the allocation of funding to the SESAs will not reflect the true workload in a State. Please click for the DOL Notice. Back to Top

Updated 02/25/2002: DOS New Criminimal Record Check/Fingerprint Requirement

• Effective February 25, 2002, the U.S. Department of State will start using the FBI database record checks (name-check query) for all visa applicants (both immigrants and nonimmigrants) before a visa is issued and the applicant with negative record will be required to take and submit fingerprint. The U.S. Department of State is enacting this Interim Rule to implement the USA Patriot Act. For the full text of this rule, please click here.
• Until now, most of the American consulates waived finger-print requirement as a part of the immigrant visa processing. After this regulation, the fingerprint waiver will be no longer a rule unless the name-check inquiry indicates clean record. The name-check inquiry system and finger-print requirement for some NONIMMIGRANT visa applicants may further delay the visa issuing process for some applicants. Please be aware of this change. Back to Top

Updated 02/25/2002: U.S. Passports Remain Invalid for Trip To,Through,From Iraq

• The U.S. Department of State released a notice to remind the travellers that the U.S. passports will continuously remain "invalid" to travel to or through or from Iraq, except the professional journalists and the residents in Iraq since 1991. This is particularly important for those Iraqi-back ground U.S. citizens who have been naturalized to a citizen of the United States and travel using the U.S. passports. Please read on.

Updated 02/23/2002: Processing Times Report and Readers' Misunderstanding

• The agencies have been releasing processing times report and this website, in the sprit of serving the readers, has been reporting the informal news for various proceedings from time to time. However, this reporter should note here how astonishing it is that some readers take it as a merchandise coming out of the automated production beltline. It ain't so!! There are many cases that remain in the pipeline for a number of reasons. Consequently, some cases are adjudicated earlier than the reported date, while some cases are either still in the process of being adjudicated or waiting for additional inquiry process. This office gets emails from the readers asking why his/her cases are still not heard when we report the informal news. Readers should understand that the agencies and this website are reporting the processing times to give the public an idea of timeline that certain types of cases are currently being processed. Even though it is understandable that people are anxious to learn his/her case status, this kind of behaviour discourages this reporter from reporting some upto-the-minute news, damaging the interest of other visitors. Back to Top

Updated 02/21/2002: Termination of Argentina Visa Waiver Program in Effect

• Today, the INS has released interim regulation terminating the Visa Waiver Program for Argentinaians. Now they cannot enter the U.S. from today without a visa. Back to Top

Updated 02/20/2002: Confusion Amidst Transition of Immigrant Visa Application Procedure

• The U.S. Department of State has been undertaking a change of immigrant visa application procedures into two directions: One is to require gradually all the immigrant visa applicants to pay immigrant visa application fees and affidavit of support (I-864) fees at the time immigrant visa application is submitted. The second is to centralize visa application forms and documentation processing and interview scheduling duties into NVC. In light of a huge number of visa posts worldwide, the DOS has been designating posts step by step, creating three different groups of visa posts in the interim. AILA has learned that at this time, immigrant visa applicants are going through three different application procedures:
• Group I (alpha plus posts): The visa posts in this group have completed the reengineering of the procedures. Thus visa applicants in this group follow the following procedures: (1) Applicant submits the completed DS 230 and affidavit of support to NVC and "not" to visa posts. (2) Additionally, in returning these completed forms to NVC, the applicant must pay $260 of Immigrant Visa Applicant fees and $50 affidavit of support fees to NVC via the St. Louis address. (3) It is NVC and "not" visa posts that schedule interview. Thus applicant receives interview appointment letter not from the visa posts but from NVC. (4) NVC also collects all the original civil documents and police certificates from the applicant. These documents are then forwarded to the posts where visa interview is scheduled. Applicant then travels to the visa posts, completes medicals, and appears at the interview. The original documents are returned to the applicant after the interview. This procedure reduces the workloads at each visa post tremendously. The number of visa posts in this group will grow gradually, but currently only folloing visa posts adopt this procedure: Montreal, Tirana, and all posts on the continent of Africa.
• Group II (alpha posts): The visa applicants at the visa posts in this group follow (1) and (2), but for the procedures (3) and (4), they follow the traditional visa application procedures in that it is the visa posts that schedule visa appontment and not NVC and all the original civil documents and police certificates are brought to the consulates at the interview. Some of these posts are expected to move into the Group I in the future, but currently the following visa posts adopt this procedure: New Delhi, Mumbai, Chennai, Guangzhou, Manila, Santo Domingo, Georgetown, Port au Prince, Bogota, Ho Chi Minh City.
• Group II I (Beta posts): The visa posts in this group follow the traditional visa application procedures. NVC's role is limited to sending out the Instruction Package for Immigrant Visa Applicants, and from there on, the visa applicants interacts with the visa posts, including visa interview scheduling. In this group, the fees are also paid at the visa interview. Currently, all the visa posts not listed in Group I and Group II follow this procedure. It is anticipated that a number of visa posts in the Group III will move into Group II or Group I in the future.
• During the transition, people may experience confusions. Here is what people need to do: (1) Do not listen to other people's experience. It can be wrong because of the changes. (2) Just carefully and meticulously follow the instructions which people receive from NVC in each individual case. Should one have any question, it has to be addressed to NVC or his/her own legal counsel. The foregoing information can change constantly and people should not rely on this information. Take this message as a general guidance and when it comes individual applicant, he/she should follow the NVC procedure for the individual case which is valid during the time. Back to Top

Updated 02/20/2002: Argentina Removed From Visa Waiver Program

• U.S. Department of Justice announced today that Argentina will be removed from the Visa Waiver Program. Consequently, after the regulation is released, Argentina nationals will not be able to enter the U.S. unless they first obtain a visa from the American visa posts. Those Argentina nationals who are currently in the U.S. on a 90-day Visa Waiver Program will be allowed to complete the 90-day journey. For the DOJ announcement, please click here. Back to Top

Updated 02/19/2002: Controvertial Immigration Appeal Reform Proposal Released

• Today, the U.S. Department of Justice released the proposed rule for reform of Executive Office for Immigration Review, EOIR, downsizing the Board of Immigration Appeals, expanding single member tribunals, and slicing off the review process and power.
• The immigration lawyers community, immigrant community, and community organizations strongly oppose this reform proposal and are up in arms to fight against the proposal that can affect the due process rights of aliens and their relatives and employers.
• One of the efforts of these groups was to extend the comment period to 90 days so that the interest groups and community will have sufficient time to study and submit comments. However, the U.S. Department of Justice did not budge and has fixed the comment period to March 21, 2002, only 30 days. This web site joins these groups and strongly opposes the reform proposal because the proposal is not justified by any overriding national interest of homeland security or fight against terrorism. When an individual's root of life is at stake, a careful and thorough review and examination of the agencies' decisions should be taken as the backbone of the democratic justice system against the abuse of authority and fair process of appeal. Indeed, somewhat proctracted process of a tribunal is an inherent mechanism for fairness and justice in appeal process, including judicial process. Analogy may be the review of death sentence in criminal process. The civilized system should by no means attempt to slice off appeal process to excelerate execution of the prisoners in the death row at the sacrifice of one's life and due process! For the full text of the Proposed Rule, please read on. Back to Top

Updated 02/19/2002: Executive Order Against Human Trafficking

• The Executive Order 13257 is issued today creating President's Interagency Task Force to monitor and combat international trafficking in persons to be chaired by the Secretary of State. Please click here for the Order.

Updated 02/17/2002: H-1B Change of Employer: Portability vs. Premium Processing

• Under AC 21, qualified H-1B is permitted to start employment with a new employer "upon filing" of a new H-1B petition by the new employer. Why would anyone then spend extra $1000 to file Premium Processing when one can jump the employment just upon filing of a new petition by the new employer? Oh, yes, there are some instances that require Premium Processing. For instance, there may be some H-1Bs whose current H-1B will expire soon. The INS' view reflects that when a H-1B jump employment using the H-1B portability provision, the employment authorization is limited to the valid period of current H-1B status. Consequently, unless the H-1B is willing to stop employment should he/she fail to obtain the approval of new H-1B petition before the current status expires, he/she should file Premium Processing. Currently, even though the Premium Processing guidance provides for 15 days, in practice the Service Centers have been adjudicating PPS cases in less than 10 days. Some cases were adjudicated in less than 3 days. One other situation will include those whose employment was terminated for a prolonged period of time which approaches 3 months or longer. Should the Service Centers refuse to exercise the discretion and deny the new petition after the period reaches 6 months or longer, he/she may be subject to 3-year bar and will not be able to return to the U.S. once he/she voluntarily departs from the the U.S. The risk increases depending on the cause of termination of employment. If he/she was discharged for a misconduct or the alien left the employment voluntarily, the risk will be higher, as opposed to the situation where the alien was laid-off or terminated for reasons which were beyond his/her control (for instance, company shut-down). For this group, it may be better off that he/she files PPS petition, and should the petition be denied, go through the consular processing at his/her home country. The U.S. Department of State rules indicate that the American consulates should not deny a visa application for overstays in the U.S. unless it reached 6 months or longer. It is also the INS practice that in most cases of denial of the alien's H-1B status with the new employer, they still approve the employer's petition and request the alien to apply for the visa outside the U.S.
• There is an ongoing debate relating to the impact of H-1B unemployment and its consequences. As this web site previously reported, the issue is controlled by each Service Center's practice at this time. However, once the AC 21 regulation is released and implemented, it is likely that the alien has a 60-day or longer period of window between the two jobs. In this reporter's view, the consequences before and after the release of the AC 21 regulation may be critical in that once such new regulation is released, the INS "may" also take a view that such untimely filing may toll running of 6-month of unlawful presence inasmuch as it is not a frivolous filing.
• Pending release of AC 21 regulation, there are many areas of rules which are up in the air. People are cautioned not to rely on the foregoing information to resolve his/her own individual situation. He/she should seek legal counsel. People are also cautioned that there is conflicting information in various web sites and should take such information as views of the web sites rather than a law or rule. People should seek the legal advice from his/her own legal counsel. Very important. Back to Top
  

Updated 02/16/2002: H-1B: Employment vs. Independent Contractor

• When one works for someone else, the relationship is most likely one of two. One is employee and the other independent contractor. For income tax purposes, people call the first W-2 worker, and the second 1099 worker. The relationship between the company and the worker is "employment" in W-2 case, and for the second case, self-employment for the worker and there is no employment relationship between the company and the worker. In the first situation, the company exercises full control over the worker's work providing tools for work and in the second situation, there is no such control. One other difference is that the employee is provided benefits including medical, pensions, or other so-called fringe benefits including paid vacation time, while in the second situation, the worker gets no such benefits from the company.
• Sometimes, a married worker prefers 1099 relationship over a W-2 relationship when both spouses are employed and one spouse gets a full benefits from his/her employer, because the medical/dental can be covered through such spouse. The 1099 hourly rate is usually quite higher than salaried employees, because the company does not have to provide quite expensive fringe benefits. Additionally, the company is free from any legal tangles involved in employment, including labor disputes, various labor, employment law, immigration law, tax laws and other law compliance problem plus potential lawsuit of unlawful discharge when the relationship is terminated.
• In immigration context, these two relationships have a quite different implication between H-1B eligibility and I-9 compliance. It is critically important to remember that for the I-9 compliance, some independent contractor relationship requires I-9 compliance and the company can be subject to civil or criminal penalty. While for the H-1B purpose, independent contractor is not considered "employee" and an alien who is offered such job is not, repeat not, eligible for H-1B petition. Any independent contractor who works for a company on 1099 and obtained H-1B status is violating the immigration law and is considered out of status.
• Sometimes, creative aliens attempt to circumvent the law by starting a business of his/her own and let the business sign an independent contractor agreement with a company for his services and charge a high services fees. He/she then works for the company as an employee of his own business. His own business, of course, files a H-1 petition for him/her as his/her employer. Sounds very smart, isn't it? Not always. Running a business is considered "employment," and it is also true with the self-employment. Nonimmigrants are not authorized to engage in employment without the employment authorization, either in the form of H-1B or otherwise. Sometimes, something which looks a loophole in the law may not be a loophole at all. People should consult with a lawyer before he/she jumps into water without a life jacket, if he/she does not know how to swim. Amen.....Back to Top

Updated 02/14/2002: 2003 Proposed DOL Budget Focusing on Backlog Reduction

• The U.S. Department of Labor's proposed 2003 budget reflects that the DOL will heavily focus on reduction of backlog of permanent labor certification applications. The budget does not earmark for user charges as the sources of the fund. The sources of the fund will come from H-1B fee account. The increase of $138 million in Employment Services in FY 2003 which include foreign labor certification function results from a legislative proposal redirecting H-1B fees from ineffective training programs in the Training and Employment Services account to ES National Activities to eliminate the backlog in the permanent foreign labor certification program. It is an encouraging news. Back to Top
  

Updated 02/14/2002: Chennai Web-Based NIV Appointment System

• Chennai informs that they started a web-based appointment system for non-immigrant visa applicants on February 13, 2002. Qualified non-immigrant visa applicants are able to schedule appointments for visa interviews via the Internet, at www.ttsvisas.com. For applicants not eligible to use the "Drop-Box" or "Business Express" programs, advance appointments will become mandatory starting on March 4, 2002. No additional fee will be levied for the appointment. This system is already in use at the American Embassy in New Delhi and at the American Consulate in Mumbai. Back to Top
  

Updated 02/14/2002: New 2002 Poverty Income Guidelines in Effect

• Today, U.S. Department of Health and Human Services published 2002 Poverty Income Guidelines. The Poverty Income Guidelines is very important in immigration proceedings other than employment-based proceeding as the immigration petitioner cannot file immigrant petition unless he/she meets the poverty income guidelines income (125% of the listed income in the Guidelines) or at least locate co-sponsor or joint-sponsor of the affidavit of support, I-864, who meets the poverty guidelines income (125% of the listed income in the Guidelines).
• This new income guidelines are in effect upon publication of the federal register. It is published today and the people who submit affidavit of support in the INS district offices and American consulates should follow the guidelines to ensure not to experience delays relating to the incomplete and insufficient documentation for affidavit of support. For the Guidelines, please click here.(pdf) (text version) Back to Top

Updated 02/13/2002: INS Commissioner Commitment to Refugee Admissions

• Today, the INS Commissioner Ziglar made a testimony that he will do everything within his power to speed up the refugee admission s (70,000 for this fiscal year) which have been held up as affected by the war on terrorism. Please click here to read the full statement. Back to Top

Updated 02/12/2002: TSC Strives to Reduce I-140 Processing Times

• I wonder people have noticed the change in TSC I-140 processing times. TSC was experiencing unusual backlog in the I-140 processing times. AILA Liaison Meeting Minutes of 12/10/2001 indicates that several thousands of I-140 are being transferred to NSC and VSC in an effort to bring I-140 adjudication current by May 2002! Good! I-140 current means 90 days under the INS HQ priority guidelines. Back to Top

Updated 02/12/2002: INS Special Handling Guidance of I-751 for Spouse in Current Military Mission

• INS HQ has released a memorandum on special processing of I-751 for the spouses in certain current military mission. Please read the memorandum (pdf).

Updated 02/12/2002: VSC Amends E/L Spouse EAD Application Procedure

• AILA reports that VSC has amended its prior policy on this issue. The change includes those E-visa spouses within its jurisdiction who file such EAD independently from the principal E-visa holders. In such situation, VSC will accept the EAD application rather than rejection. However, if such EAD is filed with the principal E-visa holders "concurrently," VSC will require to file with the Texas Service Center.
• Section Code for E spouse EAD will be (a)(17), while the Code for L spouse will be (a)(18). However, until the CLAIMS is modified, people should use (co)(5) according to the AILA. Back to Top

Updated 02/12/2002: Unemployed H-1B: Issues of Enforcement vs. H-1B Transfer

• This web site has repeatedly reported that under the current laws and regulations, the laid-off H-1Bs and L-1s, etc., do not even have a single day of grace period once the employment is terminated before the given H-1B period of stay with the given employer. We also reported that when it comes to a new H-1B petition after being laid off, the INS AC 21 memorandum indicated that when the AC 21 regulation was released, it would consider a reasonable period of time such as 60 days and would adjudicate such untimely filed new I-129H petition. However, the memorandum specifically warned that such consideration would not be in effect until the AC 21 regulation is released. This web site also reported that even though officially the INS does not recognize in the form of legislation or regulation, in practice different Service Centers recognize a different period of laid-off employees in "adjudicating" a new "untimely filed" H-1B petition., considering the extraordinary circumstances. We also emphasized that this is a matter of "exercise of disretion" and not, repeat not, a matter of "right!"
• It is extremely important that people do not get confused between the two issues: It is one thing that "for the purpose of a H-1B transfer" the INS exercises a discretion and approves certain H-1B petitions for laid-off H-1B employees, and it is the other, repeat it is the other, whether the INS will not enforce the law against an alien who is "out-of-status," and no new H-1B transfer petition is pending. This office has received a number of calls from laid-off H-1B people who went to the government offices to claim unemployment benefit or medical assistance and later arrested by the INS District enforcement officers to start a removal (deportation) proceeding, not because they attempt to claim such government benefits, but because of the INS learning that they were out of status. There is no known INS policy at this time on the "enfocement function" that instructed the INS enforcement officers not to arrest the laid-off H-1B people when such people come to their attention. In somewhat different context, we see an analogy in 245(i) situation. The INS memo indicates that the INS would not start enforcement function based on the information what has been diverged in the labor certification application or immigrant petition, but once the INS enforcement officers obtain the information through a normal enforcement channel, the INS would taken an enforcement action against such "illegal" aliens.
• It is very unfortunate that the laid off employees are misled by some employers, lawyers, and other sources as though they are "legal" when they are laid off. Such misleading information will jeopardize the laid off employees' status. This reporter was shocked to learn that some of the Enron employees went public on CNN News on Sunday, 02/10/02, disclosing their lay-off and out-of-status "in public." Back to Top

Updated 02/11/2002: Missouri Service Center Inquiry

• This reporter has been receiving an increased number of inquiries by the visitors on the telephone inquiry number and processing times report. Unfortunately, the MSC does not have a direct phone number. The MSC, unlike the other Service Centers, does not have any telephone number for the general public to call to check on the status of their cases. Instead, the receipt notices issued by the MSC have the National Customer Service Center (NCSC) phone number indicated (1-800-375-5283). If an individual calls the NCSC and there is a problem, the NCSC will notify the MSC.
• The MSC also does not release a regular processing time report unlike other Service Centers. It is hoped that the MSC also releases processing time reports to serve its customers' needs.Back to Top

Updated 02/10/2002: INS Filing Fees - Old and New Compared

• New INS filing fees will take effect on February 19, 2002. Wrong amount of fee payment check will face "rejection" and it cannot be overemphasized how important it is to keep the following rules:
• The INS notes that applications and petitions mailed, postmarked or filed in person on or after February 19, 2002, must include the new fees, otherwise INS will reject and return them without processing. Failure to file the correct fee will delay filing and processing of the application. (Applicants should note that February 18, 2002 is a federal holiday. INS offices are closed and mail will not be delivered.)
• It is equally important to remember that applications and petitions which are received by the INS before February 19, 2002 with the increased fees may also face rejection, unless the INS decides to hold the filing until February 19 or thereafter. Payment of correct fee is one of the key requirements for "filing." It is not clear at this time whether the INS will adopt such stop-gap measure.
• Fingerprint fee is doubled, being increased from the current fee of $25.00 to $50.00.
• February 19 is "Tuesday" the following week. Back to Top

Updated 02/10/2002: List/Profiles of Victims of 09/11/2001

• In Memoriam, we report the list and profiles of victims of terroristic attacks on 09/11/2001 in Pentagon and NY World Trade Center as reported by the Associated Press and Washington Post. The list covers most of the identifiable victims who perished in ashes.
  • NY World Trade Center Victims List
  • Pentagon Victims List
• We ask readers a Moment of Silence for the senseless and innocent victims after reading the list. Watching photos of the victims is like scratching a deep wound and moisten eyes again. Back to Top

Updated 02/09/2002: Alien Fugitives and DOJ Search Priority

• This web site reported the INS Commissioner's speech which included the alien fugitive issues. Yesterday, the U.S. Department of Justice announced that as part of that mission, the Justice Department had begun a proactive initiative to locate and apprehend 314,000 absconders who have violated U.S. immigration laws, been ordered deported, and are criminal fugitives from deportation. The Department has prioritized this effort by focusing first on those individuals who are most likely to pose a risk to the public or may have information about terrorism. This initiative begins by "focusing on fewer than a thousand individuals "-- many of whom appear to be convicted felons --" from countries in which there has been an active al Qaeda presence or activity". "To that end, the Department will continue to focus investigative, intelligence-gathering and enforcement operations on individuals in the U.S. from countries with al Qaeda networks, according to the DOJ announcement.
• According to the Associated Press, the operation would focus first on about 6,000 immigrants from countries indentified as Al-Qaida strongholds. The arrests will begin next week with a group of few than 1,000 illegal immigrants, mostly from the Middle East and Pakistan, according to the Post. This operation is reportedly unrelated to the voluntary interviews with immigrants from the Middle East the federal government conductged recently. U.S. officials are forming special "apprehension teams" that include agents from the FBI, the U.S. Marshals Service and the INS, according to the AP. Back to Top

Updated 02/08/2002: Priority Dates and Impact of Forthcoming Changes

• Shortly, the U.S. Department of State will release the March 2002 Visa Bulletin. It is anticipated that the employment-based categories will remain all current, while the family-based categories will remain crawling.
• The Visa Office of the U.S. Department of State earlier predicted that the priority dates for employment-based categories may remain "current" up through the end of this Fiscal Year, which is September 30, 2002.
• Aside from the stagnation of government businesses as the aftermath of September 11 incident and the immigration businesses being turned into a back-burner, the news from the relevant agencies, particularly the INS, DOL, DOS, indicate that the Year 2002 may be recorded one of the years when no changes are anticipated either positively or negatively.
• Same may not be true with the Year 2003. Next year, so many dramatic and drastic changes are scheduled by the government agencies, which will affect one way or another the priority date movement. First, early next year, the U.S. Department of Labor is scheduled to launch a new permanent labor certification program which is named "PERM." The DOL promises that the processing of qualified labor certification will take only one week rather than months or years. Consequently, a massive number of approved labor certification will start flowing into the INS processing system. Second, the Bush Administration's newly released FY 2003 INS budget proposal predicts that the INS processing times of applications will be reduced to 6 months by the end of FY 2003, which is September 30, 2003. What it means is that more numbers of I-485 approvals will be produced in a given time, taking away the employment-based immigrant visa numbers fast. Third, the INS has been considering either Premium Processing Services for I-140 or concurrent filing of I-140 and I-485, which will also dramatically change the processing time. The INS has also actively pushing "on-line" filing system which may become reality either next year or following year. Remember that there is a legislative mandate to automate adjudication process by 2003. Additionally, by April 30, 2001, the DOL received close to 300,000 labor certification cases to take advantage of 245(i) benefit. These cases are currently crawling in a snail-pace at the level of the State labor offices, SWAs (formerly called SESAs). However, late next year, a huge number of these cases will start moving into the Service Centers' production lines.
• These upcoming changes will bring a mixed bag to different groups of employment-based immigration applicants. Early bird applicants may take advantage of a shorter processing time at all level of the proceedings. However, late starters may encounter priority date problems because of the massive number of immigrant visa numbers which will be taken out as affected by the reengineering of labor and immigration proceedings. It is interesting to learn how the Visa Office of the U.S. Department of State will predict for the priority date movements in the later part of the Year 2003.
• It is also a unknown factor how return of the H-1B annual quota to 65,000 (currently 195,000) on October 1, 2003 and conclusion of the ongoing negotiation of Mexican immigration program will play out in the pressumre on employment-based immigration quota system in the upcoming years.
• This web site will continue to monitor the reengineering process, its impact on immigration system, and related issues and development. Please stay tuned to this web site. Back to Top

Updated 02/06/2002: Immigration Appeal Reform Announced

• Attorney General has announced the reform of the Board of Immigration Appeals, stirring controversy and concern. Ashcroft said he's putting forth new rules for the operation of the appeals panel, which will speed the resolution of cases. The changes will allow a single judge to issue a ruling in an appeal case, rather than the three-judge panel currently required. The Attorney General said a panel will still beavailable to hear more difficult or contentious cases. In addition, Ashcroft said the new rules will establish deadlines for the resolution of cases, and reduce the size of the panel from 23 members to 11 members.
• The nation and people have thus far endured compromise and erosion of civil liberty and due process where the issues are related to the war on terrorism and homeland security. However, by any count, the immigration appeal system is related to either war on terrorism or homeland security. Behind the appeal process are involved not only the civil liberty and due process of aliens, but also the rights of U.S. citizen or permanent resident relatives or U.S. businesses and entities. The need for speedy deportation of aliens would not justify compromise of the fundamental constitutional principles of fair hearing and due process in civilized societies. The proposed reform will serve only one purpose: Irreparable erosion of due process. As the Supreme Court of the United States properly stated, the consequences of deportation could be harshier than criminal prosecution, depriving and uprooting the life of the alien and his/her loved ones who are U.S. citizens or permanent residents. The right to due process should thus be zealously guarded against any intrusion or erosion unless there is an overriding and compelling interest of the nation is involved. Convenience of law enforcement not related to homeland security or terrorism, when it is weighed against the erosion of the fundamental constitutional principle of a civilized nation in democratic system and rule of law, is a far cry from such overriding interest of the nation. Back to Top

Updated 02/05/2002: Six-Month Processing Time Proposed in FY 2003 Budget

• The Bush Administration sent to Congress FY 2003 Budget Proposal which has stirred controversy on the Hill. This proposal includes the INS budget proposal, which proposes to achieve the 6-month processing times for applications/petitions by the end of September 2003. The primary source of fund will without doubt come from the Premium Processing Fee revenues. This proposal constitutes the second-year budget of the Bush 5-year $500 million plan for reduction of processing times and efficiency of immigration. The proposal of six-month processing time by the end of FY 2003 appears somewhat too ambitious considering the total budget plan for the FY 2003. For the details, click INS site.
• Total INS budget is proposed at $1,238 million, out of which only $50,500,000 is allocated for the immigration (adjudication) services and most of budget is allocated for border security function, $711,700,000. The budget proposes a new hire of 2,216 positions, out of which 1,790 positions are allocated for Border Enforcement positions and none is proposed for immigration service functions. For the Executive Summary of INS Budget, please click INS site.
• The whole budget proposal is labelled as a war time budget and the INS budget is no exception. It is surprising that the war time budget needs to continue until the end of September 2003. Let's pray for the peace on earth! Back to Top

Updated 02/05/2002: EAD Application Procedure for E/L Spouses

• The new laws mandate the INS to authorize employment to the spouses of E or L visa spouses by either "endorsing" such or work permit document. The INS has yet to release either policy/procedure guidelines or regulation to implement these laws.
• However, at least one Service Center has released the procedure for its jurisdiction through the AILA. The Vermont Service Center adopts the following procedure:
  • L-visa spouse may now file the I-765 Application for Employment Authorization Document with the VSC along with the I-765 filing fee check. Remember that there will be a new fee schedule effective 02/19/2002.
  • E-visa spouse should submit the I-765 Application for Employment Authorization Document to Texas Service Center since E-visa petition for the aliens in the east half of the United States (VSC+TSC jurisdictions) is handled exclusively by Texas Service Center. Back to Top

Updated 02/01/2002: 314,000 INS Jump Bail Fugitive Aliens Into FBI Database

• INS Commissioner disclosed that the INS is entering into the FBI National Crime Information Center database the names of some 314,000 fugitive aliens or absconders who were given all the provilege of "due process" and immigration court trials but jumped bail to escape from deportation. What a number! Back to Top

Updated 02/01/2002: Angola TPS Designation Extension

• INS extends designation of Angola for Temporary Protected Status country for another year (03/29/02 - 03/29/03). Current designation expires on 03/29/02. The eligible Angolans should apply for extension pursuant to the INS regulation which is released today.

Updated 01/31/2002: INS Released T-Visa Regulation

• As signed and promised by the Attorney General last week, the INS published today T-Visa Interim Regulation. Effective Date of this regulation is March 4, 2002
• T nonimmigrant status is applicable to victims of severe forms of trafficking in persons who are physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto, on account of such trafficking in persons. Applicants for this status must demonstrate that they would suffer extreme hardship involving unusual and severe harm if they were removed from the United States and that they have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons. Principal aliens eligible for T nonimmigrant status may be granted T-1 status, which the TVPA limits to no more than 5,000 each fiscal year. In some circumstances, immediate family members of victims of severe forms of trafficking in persons also may receive a T nonimmigrant visa to accompany or to join the victim. When the Service approves a T nonimmigrant status application, it will provide a list of nongovernmental organizations to which the alien can refer regarding the alien's options while in the United States and resources available to the alien. T nonimmigrant status allows eligible aliens to remain in the United States and grants specific nonimmigrant benefits. Back to Top
  

Updated 01/30/2002: Only 08/30/01 Version of I-140 Form Acceptable

• For the last one month, this web site joined the campaign of INS to remind the immigrant community that beginning from February 1, 2002, any I-140 form of versions earlier than 08/30/2001 would be rejected by the INS. What it means is that if people send out tomorrow via overnight delivery services to the Service Center I-140 filing using old versions of the form will face a painful rejection!
• Those who have been using commercial immigration form software should make it sure that the software has been updated. Otherwise, people should use the Fillable Form I-140 on the INS web site until the software is updated. Very important. Back to Top

Updated 01/30/2002: Renaming of SESA to SWA

• SESA is a term which is very familiar to the immigrant community because the State Employment Security Agency (Labor Certification Unit) in each state has been playing a key role in employment-based nonimmigrant and immigrant process.
• Now, the U.S. Department of Labor is abandoning this name and adopting a new name, State Workforce Agency (SWA). When reading information on temporary or permanent labor certification, this is the name which people should remember from now on. The name, SESA, has been with us, the immigrant community, for so many years, and we now have to say good-bye to that term with a sense of nostalgia and remembrance of a history of ups and downs in American employment-based immigration history. Renaming of the state office from SESA to SWA will also mark a transition of permanent labor certification from two-tier labor certification system to one-tier labor certification system as the new labor certification program, PERM, comes into reality beginning early next year and phase-out of state agency in the permanent labor certification process other than wage survey /wage determination and wrapping up of pipeline cases. We will soon face a new chapter of American alien labor certification history. Back to Top

Updated 01/30/2002: E/L Visa Spouse Employment Authorization

• Both the U.S. Department of State and the INS are currently drafting guidance for such employment authorization processing procedures. As this web site previously reported, the new laws require the INS action to authorize such spouses to take employment. The new laws do not authorize the employment without the INS endorsement or work permit document.
• The spouses of E and L visas are cautioned not to start employment until such procedures are officially announced and the employment authorization is granted by the INS. Technically any employment before such INS authorization will be considered "unauthorized" employment. Watch out! Back to Top

Updated 01/30/2002: It is Official - OF 156 NIV Application Form Invalid

• The U.S. Department of Statement announces that OF-156 will be no longer accepted by any American consulates or Department of State itself. People should use new forms. This is particularly important for revalidation applicants. For the new forms, please click and download the following forms:
  • DS-156 Nonimmigrant Visa Application
  • DS-157 Supplemental Nonimmigrant Visa Application
  • DS-156E Nonimmigrant Treaty Trader/Investor Visa Application (E-Visas)
  • DS-156K Nonimmigrant Fiancee Visa Application (K-Visas)
  • DS-3052 Nonimmigrant V Visa Application (V-Visas)
• Nowadays, both the Department of State and the INS are changing forms very frequently, and people should double check the validity of the forms before they use and file it. Wrong form or wrong edition of forms will be rejected by the agencies with some serious consequences in some deadline situation. Back to Top

Updated 01/29/2002: DOL Region/State Labor Certification Processing Time Monthly Report

• As this web site reported earlier, the DOL launched labor certification processing times report at Regional as well as State levels. People may visit three sites in our website: DOL Processing Times site or Web Hub site or top of this page.
• DOL is scheduled to update this report "monthly." However, people should bear with the DOL until the reporting takes a full shape. The current report reflects a number of errors. It is expected that as time progresses, DOL site is expected to post "accurate" report. We welcome again the DOL's efforts to keep its customers informed of the processing times. Back to Top

Updated 01/29/2002: Reengineered PERM Labor Certification Schedule

• As this web site reported earlier, the DOL is scheduled to launch this new labor certification program before March 2003, which is the second Quarter of the federal fiscal year. This is again confirmed by the DOL HQ at the AILA-DOL teleconference. The DOL also confirmed that it will release the detailed regulation in June 2002.
• This DOL schedule conforms with the current federal government mandate to electronically automate the adjudication process by FY 2003. Back to Top
  

Updated 01/25/2002: New T-Visa Regulation Goes Into Effect in a Month

• Yesterday, Attorney General John Ashcroft signed T visas interim regulation and sent it to the Federal Register. T-visa was created by the Trafficking Victims Protection Act of 2000 (TVPA) to protect women, children and men who are the victims of human trafficking. The T visa will allow victims of severe forms of trafficking in persons to remain in the United States and assist federal authorities in the investigation and prosecution of human trafficking cases. According to U.S. government estimates, 45,000 to 50,000 women and children are trafficked into the United States annually, and are trapped in modern-day slavery-like situations such as forced prostitution. This regulation is scheduled to be published in the Federal Register next week and go into effect 3 weeks from that time. For the development, please stay tuned to this web site. For the announcement of DOJ, please click here. For T-visa application process, click INS site here. Back to Top
  

Updated 01/24/2002: Wonderland, Thy Name is Online LCA Certification!

• Many of our website visitors must have already experienced the wonderland of online H-1B LCA filing and certification. When the application is submitted online, the certification appears on monitor "in flash!" How wonderful the power of technology! Literally, the LCA certification takes only a few seconds after it is submitted online. Thank you, DOL, for making employers' lives hundreds of times easier!

Updated 01/24/2002: Eligibility Changes in Battered Spouse Self Immigrant Petition

• On October 28, 2000, the President signed into law the Battered Immigrant Women Protection Act. Before this law was enacted, a battered spouse of a U.S. citizen or permanent resident could file the I-360 self immigrant petition only if the battered spouse had remained in marriage at the time the petition was filed.
• The new law changed this requirement. Under the new law, the battered woman can file a self I-360 immigrant petition even if the marriage was termined before the filing of I-360 immigrant petition "inasmuch as" the marriage was terminated during the 2-year period immediately before the filing of the self-petition.
• This new law applies to all self-petitions pending on or filed on or after October 28, 2000.
• However, if a self petition was denied prior to October 28, 2000, she can still make a case if she proves that (1) termination of marriage before the filing of petition was "sole" ground for denial, and (2) the marriage was termnated within 2-year immediately preceding October 28, 2000. Such self petitioner may file a motion to reopen with the Vermont Service Center.
• Mr. Michael Pearson, executive Associate Commissioner, Office of Policy and Planning, INS issued a memorandumto all the INS field offices on January 2, 2002 reminding them of the change of legal requirement for I-360 self-petition. Important memorandum and law for the battered spouse of a U.S. citizen or permanent resident who seek a self immigrant petition.

Updated 01/23/2002: H-1B Lay-Offs and Rumors of 90-Day Grace Period

• This reporter is astonished by a number of people who believe that there is a INS policy giving a 90-day grace period to such laid-off aliens during when he/she can look for a job and the INS is required to approve a new H-1B (transfer) petition inasmuch as it is filed within 90 days. It appears that the source of this 90-day grace period mystery originated in a newpaper report in June 2001 involving INS spokeswoman's passing comment in the interview that the INS was considering such leniency when the INS implements the AC 21 Act by a regulation. It also appears that most people do not understand that her opinion did not represent the INS view and the INS HQ quickly corrected her statement by immediately and officially denying that there is such grace period. Despite the INS HQ denial, there is a lingering imprint in various website reports misguiding as if there is such INS rule or policy. Another sources of rumor is probably a statement by Mr. Bill Yates, Deputy Executive Commissioner of INS, which was made in immigration lawyers annual conference that the INS was considering such leniency once AC 21 regulation is released. Please remember that the AC 21 regulation has yet to be enacted and released!!
• People will remember that the INS HQ released the so-called AC 21 Memorandum, pending enactment of AC 21 regulation, which alluded to so-called 60-day leniency period in the context of AC 21 Act implementation. However, the Memorandum made it perfectly clear that such 60-day leniency was expected to be incorporated in the to-be-enaced AC 21 regulation and until such regulation is enacted and implemented, there will be no, repeat, no such period of leniency. This Memorandum has created a misunderstanding in some segment of immigrant community and employers that the Memorandum allowed a 60-day grace period. Wrong!
• At this time, there is neither 90-day nor 60-day grace period either as a policy or rule. In fact, the INS HQ keeps reiterating its position that the laid-off H-1B does not have any grace period. When it comes to the issue of eligibility of the laid-off H-1B aliens to apply for another H-1B with a new employer, there are only two practices of INS that give such H-1B aliens a relief, approval of the new H-1B petitions depending on the circumstances. One is each Service Center's "practice" of exercising "discretion" considering the "extraordinary" circumstances of falling out-of-status. Such practice is justified by the INS regulation which allows the INS to approve "untimely" filed application for change of status or extension of status if extraordinary circumstances are established by the applicant or petitioner. Even though there is no fixed rule or policy, the Service Centers have been approving a new untimely filed H-1B petition in most cases when the alien lost employment with no fault of his/her own, for instance, company shut-down, bankruptcy, lay-offs. Even in such situations, whether or not to approve such petition has been left to the discretion of each Service Center. It is not a matter of law or rule or policy or mandate! In exercising such discretion, currently each Service Center takes a different practice ranging from less than 30 days to even 90 days. For instance, NSC normally exercises such discretion if the period of out-of-status by layoff is less than 30 days and only in unusual situation, it goes beyond 30 days. VSC takes more lenient position expanding the period to 60 days or even beyond 60 days depending on unusual circumstances. The Second potential sources of leniency for the laid-off H-1B employees is H-1B portability provision. These provision has been interpreted by some immigration lawyers that this provision allows the laid-off H-1B aliens to port to the new employment inasmuch as he/she has not engaged in "unauthorized" employment. However, the INS has never officially announced such position and until the AC 21 regulation is enacted and released, this will remain unsettled. It is obvious that as a general rule, the INS may continuously exercise discretion considering the circumstances even in the context of H-1B portability, but unless the INS announces such rule or until such issue is resolved by the administrative or juridical tribual after litigations, the law on this point is up in the air.
• This message reflects merely the opinion of this reporter and should not be taken as law. People should seek advice of their legal counsel and this reporter will not be responsible for the consequences of reliance on the message herein. Back to Top

Updated 01/23/2002: E-2/L-2 Spouse Employment Authorization Procedure

• Ever since H.R. 2277 and H.R. 2278 became law, the potential eligible dependant spouses as well as the principal E-2/L-1 aliens have been anxious to learn when and how the spouses will be able to work. This reporter has been receiving e-mails from people asking whether they are permitted to take employment right now.
• Eventually, these questions will have to be answered by the INS. However, close reading of these statutes reflect that the INS action is required before anyone can start employment. Both statutes have a language that the Attorney General (INS) provide the spouse with an `employment authorized' endorsement or other appropriate work permit. Therefore, until the INS gives either an "employment authorized" endorsement stamp on I-94 or passport, or alternatively other form of work permit, it appears that the eligible spouses may not be able to engage in employment. Traditionally, the "employment authorized" endorsement stamp is applied and granted at the local district office level, including immigration inspectors at the port of entry, but it is not clear whether the INS district offices would give such stamp without a regulation to implement the new legislations.
• It is very important that the INS issues a policy guideline on the procedure as soon as possible as until the INS implements the legislations, the eligible spouses will not be able to work because until such endorcement or work permit is issued by the INS, the Social Security Administration will not be able to issue a Social Security Card. It is hoped that implementation of these legislations be not caught up in another snail-pace rule-making process as the AC 21 regulation. Back to Top

Updated 01/19/2002: L-1 Applicant Foreign Employment Period Reduction Law

• As this web site reported, the H.R. 2278 which has been signed into law by the President include the following changes to L-1 visa petition requirement:
• REDUCTION OF REQUIRED PERIOD OF PRIOR CONTINUOUS EMPLOYMENT FOR CERTAIN INTRACOMPANY TRANSFEREES."`In the case of an alien seeking admission under section 101(a)(15)(L), the 1-year period of continuous employment required under such section is deemed to be reduced to a 6-month period if the importing employer has filed a blanket petition under this subparagraph and met the requirements for expedited processing of aliens covered under such petition.'." PL 107-125 Back to Top

Updated 01/19/2002: E and L Spouse Employment Authorization Law Text

• As this web site reported, the President signed into law H.R. 2277 (E-visa Spouse) and H.R. 2278 (L-visa Spouse) employment authorization bill. H.R. 2277 is designated as Public Law 107-124 and the second bill became Public Law 107-125.
• E-Visa Spouse Employment Authorization Law: "In the case of an alien spouse admitted under section 101(a)(15)(E), who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an `employment authorized' endorsement or other appropriate work permit.'." PL 107-124
• L-Visa Spouse Employment Authorization Law: " In the case of an alien spouse admitted under section 101(a)(15)(L), who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an `employment authorized' endorsement or other appropriate work permit.'." PL 107-125 Back to Top

Updated 01/18/2002: Interesting INS Immigration Statistics in FY 2000

• A total of 849,807 immigration granted: 407,402 through consular processing and 442,405 through INS I-485.
• The major categories of immigrants: immediate relatives (parents, spouses, children under 21) of U.S. citizens (348,879), family preferences (235,280), employment preferences (107,024), diversity program (50,945) and, refugee/asylee adjustments (65,941).
• 6 states taking in 68%: California (217,753), New York (106,061), Florida (98,391), Texas (63,840), Illinois (40,013) and New Jersey (36,180).
• 5 countries (39%): Mexico (173,919), The People's Republic of China (45,652), Philippines (42,474), India (42,046), and Vietnam (26,747).
• For the full summary, please visit the INS web site. Back to Top

Updated 01/18/2002: Driver License Matching Valid Visa Status?

• As this website reported, the U.S. Department of Transportation is reportedly developing database sharing for 50-state driver license bureaus, creating de facto national IDs. Now there is a report that some governments at state and local level have a movement to issue a driver license which will expire at the time when his/her visa status will be expired. What you know!
• Please stay tuned to this web site for the development of this news. Back to Top

Updated 01/17/2002: Green Card (Plastic Card) Production Processing Times

• AILA teleconference with the NSC indicates that the INS has approximately 142,000 cards in the production queue nationwide. Currently, it takes approximately nine months from the date of I-485 approval. The NSC hopes to have the nine-month cut in half by the end of January 2002.

Updated 01/16/2002: Visa Categories Exempt From DS-157 Filing Requirement

• On January 11, 2002, this website reported that all the "male" nonimmigrants of certain ages are required to file this new form along with DS-156 when they apply for a nonimmigrant visa.
• DOS released a cable dated 01/12/2002 that the applicants of A, G, NATO visas are exempt from such requirement. Caveat: A-3, G-5, NATO-7 visa applicants are not, repeat not, exempt from the requirement and they must file DS-157.
• DS-157 form is developed and used as a temporary form to deal with the terrorism issues. Back to Top

Updated 01/15/2002: DOL Predicts Increased Backlogs in Large States

• At the DOL-AILA Liaison Meeting of 11/30/2001, DOL released that in fiscal year 2001, DOL received over 106,000 new regular permanent labor certifications nationally. In addition, over 235,000 245 (i) labor certifications were received prior to the April 30, 2001 deadline. The 245 (i) cases impacted heavily in New York, New Jersey, Texas, Illinois and California where 65-70% of the 245 (i) cases were filed. In these states, the current processing times do not factor in the 245 (i) cases because the SESAs have not reached these cases yet. In New York current processing for permanent cases is about 5 ½ years with RIR cases taking from 10 to 12 months. In Texas, regular cases are being processed in about 2 ½ years with RIR cases taking about 1 year. In California, regular cases are being processed in about 2 years with RIR cases taking 7 to 8 months. When the states with the most serious backlogs reach the 245 (i) bubble, the processing times will increase greatly. Some smaller states such as Vermont, West Virginia, Illinois, Oklahoma, Iowa, Nebraska, Montana, North Dakota, South Dakota, Wyoming and Hawaii have actually passed the 245 (i) bubble and consequently processing in these states will be quicker. Chronic staffing shortages at the SESAs and DOL regional offices will reportedly continue. Back to Top

Updated 01/11/2002: Bad News for Visa Revalidation Processing

• AILA reports that it has received the advice from the DOS Revalidation Unit that the BioChemical Working Group is working on the job of irradicating and decontaminating approximately 100,000 pieces of mail, which include revalidation cases. Since the majority of the revalidation applicants are Indians, the Visa Office has advised the Embassy of India of the situation and provided them with a list of affected applicants who, under these circumstances, may be applying for a new passport.
• This is particularly hurting as more and more people are applying for revalidation rather than applying for a renewal at the American Consulate at home country because of the reluctance of people to travel abroad as affected by the recent news of the government restrictions and enforcement actions. Back to Top

Updated 01/11/2002: Additional Form DS-157 Requirement for Nonimmigrant Visa Application

• Chennai advices that effective immediately, all male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must fill out and submit a DS-157 in addition to the usual Nonimmigrant Visa Application (DS-156). Please go to the top of this page to download the form.
• This new form is required in nonimmigrant visa applications in American visa posts throughout the world, not just Chennai! Back to Top

Updated 01/11/2002: Concurrent I-360/I-485 Filing/Adjudication

• VSC has released the following information at the AILA/VSC Liaison Meeting that the following cases are accepted as concurrent I-360/I-485 filing:
  • Special Immigrant Juveniles cases for the Baltimore District jurisdiction and a visa is available.
  • Military Special Immigrants cases for the Baltimore District jurisdiction and a visa is available.
  • Battered Spouses cases and a visa is available. (VSC has sole jurisdiction for Battered Spouse cases)
  • NATO Applicants and a visa is available. (VSC has sole jurisdiction for NATO employee cases)
  • Widow(er) of U.S. Citizen cases within VSC jurisdiction only. Back to Top

Updated 01/11/2002: Immigration Benefits to Spouses/Children of 9/11/01 Victims

• The U.S. Department of State amends its regulation to add the widows and children whose spouses/parents were the victims of the terrorist acts of September 11, 2001 to the definition of spouse/children who are eligible for immigration benefits even after death of the spouse/parents. For the details, please read the regulation.

Updated 01/11/2002: Rules for Issuance of New or Replacement Visas

• The U.S. Department of State follows the following rules to issue new or replacement visas:
• Replacement immigrant visa for an immediate relative or for an alien subject to numerical limitation.
  A consular officer may issue a replacement visa under the original number of a qualified alien entitled to status as an immediate relative (INA 201(b)(2)), a family or employment preference immigrant (INA 203(a) or (b)), or a diversity immigrant (INA 203(c)), if--
  (i) The alien is unable to use the visa during the period of its
  validity due to reasons beyond the alien's control;
  (ii) The visa is issued during the same fiscal year in which the
  original visa was issued, or in the following year, in the case of an
  immediate relative only, if the original number had been reported as
  recaptured;
  (iii) The number has not been returned to the Department as a
  ``recaptured visa number'' in the case of a preference or diversity
  immigrant;
  (iv) The alien pays anew the statutory application and issuance
  fees; and
  (v) The consular officer ascertains whether the original issuing
  office knows of any reason why a new visa should not be issued.
• For the details, please read 22 CFR 42.74(b)(2) Back to Top

Updated 01/10/2002: Development of National ID Card System Underway?

• Time website reports that the U.S. Department of Transportation has initiated a project linking all 50 states driver licence bureaus' databases electrically so that once it is completed, an individual's data can be accessed by the government anywhere. The news questions whether these sort-of-50-national-id cards would be better than one national id card system in the protection of privacy and civil liberty. In other words, is the DOT action de-facto national id card system, circumventing the controversial notion of national id card system? More striking is the cnn report that over 70% of the population of this country supports some sort of national ID card system. How shortsighted! Do we know its long-term consequences? It may be easy to set up such system, but it is going to be not that easy to srape off the damage in the future. What about the long term consequences on erosion of constitutional rights of individuals? Amen. Back to Top

Updated 01/09/2002: Follow-Up of Indian IV Application Procedure Change

• AILA today reports that all the American Consulates in India except Calcutta will implement the same procedural changes as Chennai requiring police certificate in certain circumstances beginning from 02/01/2002: Top

Updated 01/08/2002: Targeting 6000 Deportable Aliens From Middle East?

• CNN reports that the INS is chasing after 6000 deportable aliens from the Middle East. Reportedly, the INS may begin it by putting the names in the FBI's National Crime Information data base system, the most widely used tool for finding suspects, and then if anyone on the list applies for a driver's license, or gets stopped for speeding, their name could pop up and they'd be arrested. As a source, the CNN cites undisclosed official.
• It also reports that the overstayed or criminal aliens that belong to this group are numbered at 315,000, out of which 6,000 are reportedly of Middle Eastern or Arab backgrounds.
• Reportedly there are millions and millions of illegal aliens in this country, most of whom are illegal aliens who crossed the borders without inspection. If this report is true, apparently the INS is dividing so-called "illegals" into the two groups: one with "overstay or criminals" and the other with "illegal border crossers." The first group are those who entered the country legally but fell out of status either by overstay or violating the laws, including crime, while the second group are those who entered the country illegally. Report implies that the INS is targetting at 6,000 in the first group with the Mideastern backgrounds. Please stay tuned to this website for development of this news.
  Back to Top

Updated 01/03/2002: I-140 and EB-485 Reengineering News

• Unconfirmed sources indicate that the Premium Processing of I-140 and Concurrent One-Step filing of I-140/EB-485 processing may be launched in the Spring 2002 but not earlier. It is not officially confirmed by the INS HQ, but it is a good news. Let's cross our fingers! Back to Top

Updated 01/02/2002: Dept of State Visa Revalidation Processing News

• Holiday travel and disruption of mail service as a result of the anthrax incidents have lengthened processing time for revalidations to 10-12 weeks. Special processing requirements imposed as a result of the September 11 attacks result in additional delays for some applicants (Remember those twenty three countries, particularly in the Middle East?). In the wake of the anthrax crisis, all materials that were present in the State Department mailrooms when the anthrax crisis began are being scheduled for decontamination. Approximately 300 passports and visa applications that arrived at the State Department on October 25, 2001 from the St Louis bank facility are known to be either inaccessible or lost. These applicants are currently being contacted by the DOS to advise that they should apply for a new passport with their governments. Reports indicate that those whose passports are lost in this process will not be able to apply for revalidation even if they get a new passport. These applicants are reportedly advised to apply for the visa either at the American consulate in their home countries or in some incidents at the American Consulate in Ciudad Juarez, Mexico. Another victims of Anthrax Scare!! Back to Top

Updated 01/01/2002: Thank God, Year 2001 is Gone!

• The Year 2001 was a disastrous year for immigrants just like any other aspects of our lives, including economy and freedom. We are most delighted that we are finally able to put the Year 2001 behind us. Let's make the Year 2002 a Year of Hope and Recovery! May God Bring the Peace On Earth, the World, and the United States of America! Back to Top

Updated 12/31/01: Flight Passengers Information To Customs Before Landing

• The Customs Office has released a regulation requiring international flights to forward the certain detailed information of all the passengers and crews on board before the flights land. This regulation reflects the touchy balancing of privacy and flight security. For the details, please click here.

Updated 12/31/01: Chennai New Immigrant Visa Application Procedures Effective 02/01/2002

• The American Consulate in Chennai, India announces the new procedure as follows:
• NEW IMMIGRANT VISA PROCESSING PROCEDURES: All new Indian immigrant visa applicants whose appointments are scheduled after January 31, 2002 will require Indian police certificates as outlined below.
• INDIAN POLICE CLEARANCE CERTIFICATES SHOULD BE OBTAINED AS FOLLOWS:
  • -- All Indian IV applicants age 16 and above, residing in India, should obtain police certificates from the local passport office. Applicants whose Indian passport was issued within the past six months may present just the passport office police certificate, and need not obtain additional police clearances.
    -- Applicants over age 16 whose passports were issued more than six months previous to visa application must also obtain a police clearance from the district police office serving the applicant's place of residence.
    -- Indian passport holders applying for visas outside India should obtain a statement from their local embassy or consulate confirming they have no criminal record.
    -- Non-Indian IV applicants residing in India should obtain police certificates from the district police station serving their area of residence.
    -- Indian police certificates are not available for foreign (non-Indian) applicants applying outside India. Back to Top

Updated 12/28/01: Reminder of Expiring Forms in January 2002

• The Year 2001 is about to sunset in the next three days, and this website reminds people of the following immediate and important changes:
  • From January 1, 2002, only 5/31/2001 version form of the natualization application, N-400, will be acceptable. All prior version forms will be rejected.
  • From January 1, 2002, most American consulates will reject the old nonimmigrant visa application form OF-156. People will be required to use the new form DS-156.
  • From January 14, 2002, the new online H-1B Labor Condition Application, ETA 9035E, will be made available.
  • On February 19, 2002, the immigration filing fees will go up. People may want to file petitions/applications before February 19, 2002!
  • The Employment-Based Immigration Petition Form I-140: The INS has made it clear that they will accept the current form (9/26/2000 version) until the end of January 2002. From February 1, 2002, the 09/26/2000 version form will be rejected. People will be required to file only the new form of 08/31/2001 version. The new form I-140 incorporates certain features which people see in the current I-129W form. Back to Top

Updated 12/27/01: Justice Department Version of 5000 Interview Result Report

• DOJ released the report of 5000 Nonimmigrant Interview Results on 12/21/01. People may want to compare this report with our previous report on 12/22/01. For the report, please click here.

Updated 12/26/01: New Labor Certification Program (PERM) Skeleton

• The DOL has yet to announce exactly when this new labor certification program of directly filing with the Regions will commence. It has been delayed from 10/01/2000 to 04/01/2001, again to 10/1/2001, and again further extended indefinitely. The DOL has been quiet about the definite start date.
• However, DOL Region V (Chicago) released on December 20, 2001 the FY 2002 Plans for Alien Labor Certification, which gives the clues for federal funding for the SESAs and structure of alien labor certification program after the launch of PERM permanent labor certification procedure. The skeleton appears to be as follows:
  • PERM may not start until early Calendar Year 2003.
  • SESA will stop accepting the labor certification application beginning from the start date of PERM Program.
  • SESA will continuously finish up the permanent labor certification applications which are in the pipeline at the time the new PERM program starts.
  • SESA will be completedly phased out under the PERM Program, except the following three functions:
    • Prevailing Wage Survey and Determination
    • H-2B Temporary NonAgricultural Alien Worker Labor Certification
    • H-2A Temporary Agricultural Alien Worker Labor Certification.
• For the full text of the Region V Letter, please click here. Back to Top

Updated 12/21/01: Immigration Filing Fee Increase on 02/19/2002

• Today, the INS released a final rule increasing the immigration filing fees beginning from 02/19/2002. The proposed rule was initially published with a 60-day comment period, which closed on 10/09/01. Today's final rule implements the fee structure as outlined in the proposed rule and also in the file rule.

Updated 12/19/01: Forth-Coming Visa Application Procedure Changes

• Nonimmigrant Visa Application: As people know, the visa posts have started using the new nonimmigrant visa application form, DS-156 replacing the old form OF-156. The DOS has developed a new supplemental form to this new DS-156 and is expected to require the new supplemental application form DS-157 in the near future. Once this is approved, all the nonimmigrant visa applicants will be required to submit DS-156 and DS-157. Currently DOS is seeking OMB emergency review of the new form DS-157. For the announcement, please click here.
• Immigrant Visa Application: DOS has announced that it is abandoning the age-old Packet IV procedure in the immigrant visa applications. It is thus anticipated that the immigrant visa applicants will no longer receive the Packet IV and rather receive new notice, which has yet to be released. Please stay tuned to this website for the development. Back to Top

Updated 12/14/01: Important Notice to Immigrant Visa Applicants in India

• AILA has reported that beginning from January 1, 2002, all the immigrant visa applicants over 16 years of age must submit "two" Indian Certificates, one from the local police station, and the other from the Regional Passport Office of your jurisdiction. Very important.
• The certificates are required only in the consular processing and not required in the INS 485 adjustment of status proceeding. Back to Top

Updated 12/13/01: Immigrant Visa Applications Transfer From Cambodia To Thailand

• DOS announces that immigrant visa functions in the visa post in Cambodia are currently being transferred to the Post in Bangkok, Thailand. Existing adoption immigration applications will be continuously processed in Cambodia in December and January, but all other immigrant visa applications will be processed only at the post in Bangkok beginning from February 2002. For other details, please click here. Back to Top

Updated 12/08/01: Important International Travelling Advisory for Nonimmigrants/Immigrants

• The INS is tightening inspection process at the port of entry and restricts admission of aliens in possession of defective documents or without possession of proper documents. Until now, the INS inspectors have been temporarily paroling into the U.S. certain aliens arriving at the international airport for deferred inspection at the District Offices later or otherwise. They even admitted certain aliens without passport or visa.
• On November 28 2001, the INS HQ instructed all the field immigration officers and inspectors that no aliens be paroled into the U.S. for whatever purposes without first obtaining express approval of higher-up Directors at the District Offices or International Inspection Post. Therefore, people arriving at the international airports in the U.S. without travelling documents or defective documents are expected to encounter unpleasant and difficult experience, even facing detention and forced removal from the airport.
• AILA has reported that the INS is already taking enforcement actions at the port of entry against such arrivals. According to the news, aliens without the requisite documents are first offerred to withdraw their applications for entry, and when they refuse such offers, they are taken into custody and placed in expedited removal proceedings. Reportedly, an alien with a valid visa, but attempst to enter the U.S. in another visa status, for instance, a business visitor whose status has been changed to H-1B but failed to obtain an H-1B visa in the passport and attempts to enter the U.S. using B-1 visa in the passport, will be subject to expedited removal. Already numerous aliens otherwise entitled to E, H, L and P status have been reportedly placed in custody and subjected to expedite removal on this basis.
• Watch out!! This is the holiday seasons and most of aliens are planning to travel back home. Caution, caution, caution! Back to Top

Updated 12/07/01: President Determination of Refugee Quota for FY 2002

• Today the President Order which was issued on November 21, 2001 and reported by this website is published in the Federal Register. For the President Document of 12/07/01, please click here. Back to Top

Updated 12/06/01: Canada/Mexico Visa Posts Resume TCN NIV Appointments

• Today, the DOS revised its previous announcement that imposed suspension of TCN appointments for the visa posts in Canada and Mexico. DOS has now lifted that moratorium as people notice in the DOS website announcement change for TCN Applicants.
• Please note, though, that special 20-day clearance procedure for certain designated nationals (mostly Arabs and Muslims) are still in place in visa posts throughout the world and most of these nationals are not likely to get TCN appointments for the visa posts in Canada and Mexico. People should contact with the DOS for TCN visa appointments through 900 number or online as usual.

Updated 12/05/01: Lost Passport and Reissuance of Visas and I-94

• Lately, we have been receiving reports from nonimmigrants who lost passport. When one loses passport, in most cases, he/she also loses "visa" and "I-94." When it happens, he/she must file applications for reissuance of three documents: Passport, Visa, and I-94. Keeping a photocopy of these documents and report of loss to the police are critically important for the reissuance.
• Reissuance of Visa by DOS: U.S. Department of State reissues certain visas if he/she meets the following requirements:
  • -- the previous visa was reissued in the Department within the last year (12 months),
    -- the Department has a record of the reissuance,
    -- the applicant includes a copy of police report or evidence substantiating loss, and
    -- the applicant submits all the necessary documentation and fees.
  • The applicant should then follow the rules and procedures of visa revalidation in order to send in application for reissuance of the lost visa in the new passport. For the details, please click here.
• Application for Replacement I-94: Proof of legal entry is most important for the aliens in this country. For nonimmigrants, legal entry is established by I-94 which is issued at the port of entry or admission stamp which is placed by the immigration inspector at the port of entry. When one loses passport and I-94, he/she also loses the most critical evidence of admission to the U.S. with inspection. The nonimmigrant has a burden of proof that he/she was admitted to the U.S. with inspection by the immigration inspectors at the port of entry, otherwise he/she is considered so-called EWI (Entered Without Inspection). In all the immigration applications and proceedings, admission with inspection is the first "threshold" to meet the eligibility and absence of such evidence for those who lost passport can face a serious challenge. Therefore, it is critically important that he/she immediately files I-102 form with the Service Center of his/her jurisdiction together with the some proof of legal entry to the U.S. and police report of loss in order to get a replacement I-94. For the detailed instructions, people should visit the INS website, Forms and Fees. Back to Top

Updated 12/05/01: India & Vietnam Added To IV Special Payment Procedure

• DOS adds India and Vietnam to the list of countries where the American visa posts will implement to collect immigrant visa application fees in advance of interview and charging special fees for review of Affidavit of Support, I-864. For the list of these countries and annoucement of addition of India and Vietnam, please click here. Back to Top

Updated 12/03/01: Address Change for Claims Under Walters v. Reno

• INS corrects the address for aliens seeking relief pursuant to the settlement agreement in Walters v. Reno. Address for class members to mail their requests for a refund for a previously paid civil money penalty for a section 274c violation. The correct mailing address for such requests is: INS Debt Management Center, 188 Harvest Lane, Williston, VT 05495-7554. For the INS announcement, please click here.
  

Updated 11/29/01: Nonimmigrant Visa Issuance Restrictions Affecting Visa Revalidation Caseload

• As the overseas visa posts intensify security procedures and issuance restrictions, increased number of people restrain from travelling outside of the country and apply for revalidation of visas through the U.S. Department of State in the U.S. DOS website announces that it currently takes minimum of 12 weeks. It is anticipated that the backlog will get worse.

Updated 11/29/01: Unemployment Benefit Claim and Immigration Consequences

• The current economic recess produces lay-offs and unemployment. Lately, we have been getting reports that certain nonimmigrants in employment visa status such as H-1B, L-1, O-1, TN, etc. file claim of unemployment benefits from the state government without the knowledge of its serious immigration consequences. A number of state unemployment offices, upon receiving such claims, contact the INS offices for enforcement actions. These people inadvertently claim such benefit without the knowledge that they are voluntarily reporting their out-of-status (illegal) to the authorities and invite the INS to initiate removal (deportation) proceedings. Probably all they know is that claim of unemployment benefit may not constitute a public charge which is a ground for deportation, but do not realize that they are exposing their out-of-status (illegal) to the government on their own initiative. These nonimmigrants should not file such claim, not because it is a ground for deportation but because they expose their out-of-status. Watch out!! Consequences of such conduct can be particularly painful for those who are in I-485 proceedings.

Updated 11/27/01: Obligation of Employment After Green Card

• One of the most frequently asked questions nowdays is the issue of work for the employer who sponsored the employment-based immigrant petition for him or her. There is no hard and fast rule as to how long he/she should work for the employer after obtaining the green card. The issues remain two folds: Whether there exists such job at the time of adjudication of 485 application, and more importantly whether both the employer and the alien employee intended to employ/work for the petitioned job and for the specific employer for a period of "indefinite" duration. Deviation from these requirements may face either a misrepresentation or a fraud charge if it is detected by the INS afterwards.
• Let's look at a few examples. First, if the fact reflects that there existed the petitioned job immediately on or after the I-485 approval and both employer and alien employee did not have any other intention but to keep the employmentm, but because of the recent economic recession, the alien had to be laid off not too long after the green card approval. In this situation, unless the employer had a clear knowledge of need for his/her lay-off and intention to lay him/her off before the green card is approved, the alien's green card will not be affected, no matter how soon he/she was terminated from the job by the employer. Why? Because neither employer nor employee had a preconceived intent not to keep the employment for a period of indefinite duration.
• Let's change the fact slightly. The facts are same but employer intended to keep him/her for a fix period of time such as six months at the time 485 is approved. Unless the employee had a knowledge of the employer's intention, the alien committed no wrongs, but the employer probably committed a misrepresentation or fraud. In all likelihood, the alien's green card may not be affected, but the employer can be charged for an offense of fraud or misrepresentation.
• Let's change the fact again. Both employer and employee had no intention but to keep the employment and "for a period of indefinite duration." However, the petitioned job did not exist and the alien was employed in a different occupational classification on and after the date of approval of I-485. Since both employer and employee knew that the petitioned job no longer existed, we have a problem of misrepresentation or fraud.
• Now let's look at the alien's state of mind and conduct. If the alien formed an intention not to work for the petitioned employer before the green card was approved, it is obvious that the alien committed a fraud. Most typical circumstantial evidence would be alien's application for employment with other employers or conditionally accepting the employment.
• Let's change the fact on the part of the alien employee. Let's assume that the petitioned job existed and employer's intent to keep the employment is solid clear. However, let's assume that there is no evidence as to what the employee's intent was on or after the green card approval. Alien now submits resignation and takes another job in one week or one month or two month or four months or six months or one year. The INS may try to use each of this period as circumstantial evidence to establish the state of mind of the alien at the time the INS approved his/her 485 applications. The shorter the period is, the more persuasive is the INS argument that at the time INS actually approved I-485, the alien had no intention to work for the petitioned employer. The shorter the period is, the more persuasively the INS will argue "presumption of misrepresentation or fraud." Some people often asked this reporter whether he/she could take another job rather than petitioned employer upon arrival at the U.S. The fraud is too obvious.
• Another common question which is quite often talked about is: Who cares and how would the authorities know? The same question may be raised in all types of violations of laws, including criminal laws. When one commits wrongdoing, one assumes that it would never be detected. However, as a lawyer, this reporter's job is to describe the consequences of violations once it is detected. In immigration context, the INS may initiate revocation proceeding before the immigration court to revoke the permanent residence on the theory that had the adjudicator known the true facts, the adjudicator would not and should not have approved the green card and based on the after-acquired facts, they want to revoke the green card approval. This revocation has to be commenced within five years, but the lapse of five years does not necessarily give a peace of mind to the alien. Why? The INS can turn around and commence removal (deporation) proceeding based on misrepresentation or fraud.
• Now let's look at the impact of AC 21 180-day Rule. Under the AC 21, 485 alien can take a new job of same or similar occupational classification once 180 days are elapsed from the date of receipt of 485 application by the INS. Close examination of the 180-day rule will reflect that it certainly changed the rule of keeping the original petitioned employer "pending 485 application." However, whether the alien's preconceived intent not to work for the new employer at the time of adjudication of 485 or whether the alien's commitment to employment with any employer is completely eradicated by the 180-day rule remain to be resolved by the AC 21 regulation. However, it is inconceivable that AC 21 is intended to allow the alien to depart from any employment in a new or similar occupational classification "upon" approval of 485 application. The impact of AC 21 on the traditional notion of employment-based immigration and related issues of preconceived intent or misrepresentation or fraud has yet to be clearly defined by enactment of regulations and court decisions. Until that time, the foregoing discussion will remain valid only in the context of an alien who either get 485 approval or obtain immigrant visa within 180 days or who did not change employer before 485 application is adjudicated.
• All of the foregoing discussion is an opinion of this reporter and not necessarily law. Consequently, people should not rely on this article to act on his/her case. People should seek legal counsel to review his/her situation. This reporter will not be responsible for the consequences of such reliance. Back to Top

Updated 11/27/01: H-1B Eligibility for Unlicensed Professionals in Licensed Occupations in the U.S.

• Under the H-1B regulation, certain unlicensed professionals in licensed occupations are eligible for H-1B petition inasmuch as the work is undertaken strictly under the supervision of a licensed professional. Most typical examples are architects during internship and pharmacist interns.
• However, in certain licensed occupations, a license is an absolute prerequite to H-1B petition. The typical example is a public school teacher. However, the licensing is again regulated by each state, and some state or local licensing authorities will not issue a professional license in these occupations unless the alien is in possession of a social security card. Consequently, a large number of aliens are unable to obtain a license because of lack of a social security card, and it in turn would make such alien ineligible to apply for H-1B status unless the INS takes a special step to relieve such aliens from the predicament.
• In the recent INS memoradum dated 11/20/2001, the INS adopted a rule that in the event that the sole obstacle to obtaining a license is lack of social security card and otherwise he/she would be perfectly eligible for H-1B petition, the INS will grant H-1B petition for one year. Such unlicensed would then obtain a social security card using the H-1B status and obtain a license within a year, or otherwise the INS will not extend the H-1B status.
• Caveat: In the states where a social security card is not prerequisite to the licensing of the occupation, the aliens are not eligible in these occupations for H-1B status unless the alien actually possesses a license! Back to Top

Updated 11/27/01: Overseas Professionals in Licensed Occupations and H-1B Eligibility

• Licensing of professional occupations are regulated by each state in this country. Accordingly, the licensing requirement differs among the states. In some states, the licensing board requires applicant's physical presence in the United States and those who are outside of the U.S. are not eligible to obtain a license.
• However, in the H-1B regulation, licensed occupations normally need a license to establish specialty occupation which is the essential element for H-1B eligibility.
• In order to resolve these predicaments, the INS has been adopting a policy that the INS would approve H-1B petition for such unlicensed professionals abroad for a period of one year, if the alien establishes that the only obstacle to obtaining the license is the alien's lack of physical presence in the U.S. and inability to obtain a license before the alien applies for H-1B visa. Within one year after entry to the U.S., the alien needs to obtain the required license or otherwise the alien will not be able to apply for extension of the H-1B status.
• This traditional policy and practice were reconfirmed by the INS in its recent memorandum of November 20, 2001. Back to Top

Updated 11/27/01: 5000 Nonimmigrants Interview Guidelines and Enfocement Actions

• The Detroit Free Press has released the U.S. Department of Justice internal memorandum concerning guidelines for interview of 5000 nonimmigrants. AILA also reports that the interviews by local and state law enforcement officers are linked to the INS enforcement actions. The local and state interviewing law enforcement officers are required to report to the INS investigators if the interviewers learn any of the interviewees are out of status. This enforcement action is somewhat different from the official INS annoucement which was released when this 5000 interview program was reported in the media. The announcement emphasized that the purpose was gathering of information that could help tracking down of terrorism networks.
• According to News Services, out of 5000 interviews, nearly 650 interviewees are located in Michigan and they are Middle Eastern men. The U.S. Attorney in Michigan were sending out letters to these interviewees located in the eastern half of the state, including about 200 interviewees in the Detroit suburb of Dearborn. Reportedly, Michigan has one of the nation's largest Arab-American communities, with a population of 350,000.
• For the follow-up CNN report of 11/29/01, please click here. Back to Top

Updated 11/21/01: Follow-Up of TCN Visa Application in Canada/Mexico: Official Notice

• DOS officially posted notice on its website on availability of visa application in these posts as follows:
  •  
  • "Special Notice: In the wake of the September 11 terrorist attacks against New York, Washington, DC and Pennsylvania, temporary special processing requirements have been imposed on non-immigrant visa applicants. These requirements may lead to a delay of several weeks in visa issuance. In order to avoid having third country national (TCN) visa applicants at our consular posts in Mexico and Canada marooned in those countries for lengthy periods of time, US visa processing posts in Mexico and Canada will not accept non-immigrant visa applications from non-residents of those countries while these special processing requirements are in effect. Non-resident TCN appointments in Canada with will be cancelled, but Mexican posts will continue to process previously scheduled appointments.
  • All visa applicants should apply well in advance of anticipated travel to the U.S. to avoid any inconvenience as a result of the special processing requirements."
  • This is the DOS official notice, which somewhat clears the confusion. For the DOS website notice, please click here and here. Back to Top
    

Updated 11/21/01: Urgent Notice to Some Honduran/Nicaraguan TPS Applicants by TSC

• AILA has just posted an urgent notice of TSC addressed to Honduran/Nicaraguan TPS applicants who filed TPS extension but failed to receive EAD extension that they should receive the EAD extension by 12/05/01 and in order to receive it by 12/05/01, they should resend I-821 and I-765 again along with two ADIT-style photographs and a copy of I-797 receipt notice. No fee payment is required. In order to expedite, they should write on the outside of the envelope or package in red ink "TPS Reconstruct." The same should be written on the top of the forms I-821 and I-765.
• This expedite refiling is available "only" to those filers who have received I-797 receipt notice but have not received EAD and have not received RFE. Those people whose original applications were not received by TSC by 08/06/01 will also be "not" qualified to refile it. Any request from people who do not meet these requirements will be ignored.
• The mailing address for this special refiling is: USINS TSC, PO Box 853062, Mesquire, TX 75185-3062. Back to Top

Updated 11/21/01: Small Good News for Thanksgiving

• CNN reports that the death toll of NY World Trade Center may turn out to be about 3,000, a half of initial estimation. It is good to know that at least these people are alive. May God Bless These People!

Updated 11/21/01: U.S. Effort to Enforce Child Support Obligation in Foreign Countries

• U.S. government intends to beef up international agreements with foreign countries to protect the women and children from those males who are ordered to pay child support for their children in foreign countries but escape from the court orders. These U.S. court orders are currently not enforceable in most countries in the world because of lack of international agreements. Currently only the following countries have such agreements with the U.S.: Australia, Canada(B.S., Manitoba, Nova Scotia), Czech Republic, Ireland, Poland, Portugal, and Slovac Republic. For the details of this announcement, please click here.
• There are hundreds and thousands of women and children who live in poverty and suffer from deprivation of sources of living ,on top of emotional devastation, when they are abandoned by their husbands and fathers living in a foreign country. It is a human right issue for women and children. DOS, job well done! Back to Top

Updated 11/21/01: U.S. Citizen Travel Restrictions in Libya Extended

• DOS has announced that it extend the current travel restrictions for those who carry U.S. passports to, in, or through Libya. For the details, please click here.

Updated 11/21/01: TCN Canada/Mexico Processing Still in Confusion

• Initially there was a report that DOS was cancelling all the existing TCN appointments and suspending new appointments in American Consulates in Canada and Mexico. However, as day wears on, the AILA were receiving more confusing messages from the DOS or posts or members. It is thus imperative that those TCN who already had a schedule or who plan for TCN consular visa application in Mexico and Canada should call the consular posts in those countries to check the status. This advisory is critical particularly for those who were born in or have resided in one of those countries which the government has selected for FBI security clearance. Some of the countries in the list have been informally reported, but it appears that most of these countries include Muslim or Arab areas and males of 18-33 years of age. Security clearance for these people is reportedly delaying the visa process at least 20 days or more. There are some reports that the American Consulates in Canada and Mexico may still honor the existing appointments for those who are not included in the security clearance list, but they should definitely and immediately call the consular posts to check the status of his/her individual appointment. Very important!! For the contact information, please visit the websites of these consulates. Back to Top

Updated 11/19/01: Review of Automatic Revalidation of NIV on the Horizon?

• There is no official report, but there is some indication that the INS may review the current practice of automatic revalidation of nonimmigrant visas for the nonimmigrants who visit Canada and Mexico and return within 30 days with a valid I-797 or I-94. Again, this review may be related to the border security measures. People should stay tuned to this website for the development. Back to Top

Updated 11/18/01: Reflect on INS Restructure Plans and 5-Year Strategic Plan (2001-2006)

• There are currently several INS restructure plans on the table, including the DOJ/INS proposal. The INS structure plan was incorporated as a part of Bush's 5-Year Strategic Plan. When the five-year plan was announced, this website noted that the plan for effective implementation of "service" part of the INS was founded on the sources of revenue to be generated by user fees, including Premium Processing Service charges. As everyone knows by now, the INS has already released regulation to raise the filing fees which may go into effect beginning from as early as January 1, 2002. If these revenues are appropriated as they are intended, the ailing problem of INS backlogs may disappear by FY 2006, which promises to reduce processing times for all the applications and petitions to six(6) months.
• The real problem has been, though, that these revenues have been diverted to the enforcement functions and despite the huge revenue it generated, the "service" function of the INS has been insuffiently funded as the revenue was diverted! The Congress loves to talk about "enforcement" to appease the public sentiment, but when it comes to funding, the Congress always hided behind the total appropriation figures of the INS. On the other hand, the Congress has been harsh in denouncing the "service" part of the INS, but the truth was that it was the Congress that forced INS to divert the fund away from the service function. Unless such hypocratic behavior of the policy makers is corrected first, no matter which restructure plan the government adopts, effective implementation of the "service" and reduction of processing delays will remain far from reality. This website wants to see that the restructure plan incorporates a mechanism that prevents diversion of funds from "service" function to "enforcement" function. This needs a strong political commitment from the Congress and the President. Back to Top

Updated 11/18/01: DOL RIR Conversion Directives (pdf)

• This website posted "Processig Order of RIR Conversion Cases" day before yesterday. This was part of the DOL RIR Conversion Directives to the SESAs nationwide which the DOL HQ had just issued on 11/13/2001. We are just posting DOL's directives of processing guidelines which are addressed in the form of Q&A. The SESAs have been awating these guidelines for a while. Back to Top

Updated 11/18/01: DOL Designation of SESA Centralized Locations for H-2A Processing

• On 11/13/2001, DOL HQ designated centralized locations within each state for the processing of H-2A applications. For the directive (GAL #1-02), please click here (pdf). For the addresses and telephone numbers of these centralized processing offices in each state, please click here(pdf).

Updated 11/16/01: Processing Order of RIR Conversion Cases

• DOL HQ has finally issued a guidance (GAL) to the SESAs on this issue. The RIR Conversion cases will be processed in the order of receipt of RIR applications, including RIR Conversion Request. The date of filing of RIR Conversion Request will control in determining the order of processing of such cases in the SESA's RIR processing queue. The date of filing of original regular application will just retain the priority date but have no effect on determining processing order in the RIR queue. Fair Enough!
• There is difference between the order of processing of regular labor certification and RIR application, according to this guidance. If the DOL(Certifying Officer) denies RIR application, such cases are remanded to the SESA for processing as a regular application. In such case, such remanded cases are processed in the order of the date of receipt of original application, which is the priority date.
• One more important rule: If RIR is denied by DOL Certifying Officer and remanded to the SESA, the employer will be allowed to file RIR request again, second time around, inasmuch as the deficiency has been removed and sufficient proof of RIR evidence are submitted. Of course, the original labor certification application should have been filed on or before August 3, 2001 and the SESA has not started recruitment process (by fixing job order number) at the time of such RIR Request second time around. Under this guidance, the DOL Certifying Officer should adjudicate such second request without being prejudiced by its denial of the first-time RIR application and determine the case strictly on the merit of the second RIR request evidence. Back to Top

Updated 11/15/01: Executive Order of Military Trials

• President Bush issued the Executive Order on 11/13/2001on military trials for certain aliens who are directly or indirectly related to terroristic activities. This order is published in the Federal Register. People may want to read this order by clicking the titile of this message above. Back to Top

Updated 11/15/01: Follow-up of Security Checks for Certain Nonimmigrant Visa Applicants

• This website reported the CNN report that certain Muslim and Arabs nonimmigrant visa applications would take a longer time since the government needed security clearance. Both DOS and INS refused to disclose the list of countries.
• Informed sources indicate that if people go on-line and try to set-up TCN visa appointment, DOS message would show the list, which include, among others, Afghanistan, Algeria, Bahrain, Dijbouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen. Reportedly it only covers males and 16-45 years of age. The nationality is determined not by the citizenship but by the place of birth. Accordingly, non-citizens of these countries can be subject to this security clearance procedure if they were born in one of these countries. The delay appears to be 20 days. This information and procedure can change. For the TCN visa appointment website URL, people may want to visit the DOS or National Visa Center website through our Web Hub. Back to Top

Updated 11/15/01: Immigration Practitioner Fraud Pilot Program Follow-Up

• On August 16, 2001, this website reported that the INS was launching a program to detect immigration practitioner fraud activities targetting at the undocumented aliens and the pilot program was to focus on immigration practitioners in Los Angeles area. Depending on the outcome of the program, the INS was planned to expand the program to other areas. Under the pilot program, the reporting undocumented aliens who meet the eligibility of this pilot program are protected from the enforcement actions.
• Today, the INS again released the proposed INS forms to implement this program and to seek OMB review.
  • G-1046 form: This form provides a standardized way of recording the number of individuals contacting the Community Based Organizations concerning the practitioner fraud pilot program. The INS will use the information collected on the form to determine how many persons are served by the program and if its public outreach efforts are successful.
  • I-908 and I-909 Biological Information/Program Eligibility Questionnaire and Practioner Fraud Pilot Interview form: These forms will help the INS to identify unscrupulous immigration practitioners who intentionally defraud undocumted alien victims.
• Please stay tuned to this website for the development of this program implementation. Readers may want to go back to our prior report on this program back in August, 2001. Back to Top
  

Updated 11/14/01: INS Own Reorganization Plan

• INS has released the details of its proposal to restructure the INS, splitting functions between the service and the enforcement but under the same command. Please read the announcement(pdf), the full text(pdf), or fact sheet, as posted at the INS website.

Updated 11/14/01: INS Changes Rule of Continued Detention of Aliens Subject to Final Removal Order

• Effective today, 11/14/01, INS changes the rules of continued detention, which will have a serious impact on the aliens' right to be released and immigration practitioners' practice in removal (deportation) proceedings. This 15-page regulation empowers the INS enforcement authorities increased power to determine the circumstances of "significant likelihood of removal in the reasonably foreseeable future." For the full text of this regulation, please click here. For DOJ announcement, please click here. Back to Top

Updated 11/13/01: Follow-Up of Investigatory Interview of 5000 Nonimmigrants in the U.S.

• On 11/10/01, this website reported the U.S. government's scheduled investigatory interviews of 5000 nonimmigrants in the U.S. to collect information on terrorism. Today, the CNN reports some details of these interviews. The people who will be interviewed are male nonimmigrants of 18 through 33 in age with known address in the U.S. and in nonimmigrant status. Most of them are in certain types of nonimmigrants such as a visitor who entered the U.S. after January 1, 2000 from certain countries, mostly Muslim and Arab countries. The lists complied by the DOS and INS have already been given to the Offices of United States Attorneys (prosecutors). The authorities who will actually conduct questioning are not federal officials but state and local police agencies. Reportedly, these lists of people are not suspect of terrorism but could give some helpful information to the authorities. For the details of the CNN report, please click here.

Updated 11/13/01: SESA Processing of RIR Conversion Requests in Limbo

• SESAs are stuck with the issue of "the order" of processing of RIR conversion request cases. As readers can imagine, most of these cases were filed as regular cases before 04/30/2001. In New York, New Jersey, and San Francisco, they were even filed in early 2000 and later requested RIR conversion after 09/04/2001. One sticky issue is whether these RIR cases should be processed in the order of the original date of filing of regular application or in the order of the date of receiving the conversion request. If they adopt the former policy, it can create unfairness to those RIR filers who submitted RIR applications a way before the RIR request was filed by other regular application filers since the RIR request cases have to be pulled out from the rear in the row and be processed ahead of other RIR cases which were filed after 04/30/2001. On the other hand, if the RIR request cases are handled in the order of receipt of the request, these cases will not be processed until all RIR cases which were filed before 09/04/2001 are completed. The RIR Conversion Regulation failed to address this issue, and not knowing what to do, SESAs are currently waiting for the DOL HQ guidelines on this issue. DOL is urged to issue guidance to SESAs as soon as possible. Back to Top

Updated 11/10/01: Muslim/Arab Nationals Visas at the Center of Fire

• According to the news report (Minneapolis Star Tribune 11/10/01), the U.S. will slow the visa process for men from more than 20 Arab and Muslim nations so it can search for evidence of terrorist activities. Reportedly, this action will include two components. One is: The FBI will check the names and advise the State Department adding about 3 weeks to the visa process. Until now, FBI clearance has been in place for the adjustment of status process by the INS. The second is: Reportedly, the Justice Department spokeswoman said that investigators also want to interview 5,000 people who entered the U.S. after 01/01/2000 from countries where terrorists are likely to plot future acts of violence.
• Please stay tuned to this website for further details, including the names of nations. Back to Top

Updated 11/05/01: Total Number of H-1B Approvals in FY 2001 (09/30/01)

• INS reports that total H-1B petition approvals against the FY 2001 cap (195,000) was 163,200. At the end of the FY (09/30/01), there were approximately 29,000 petitions pending, that if approved, would be recorded against the FY 2002 Cap of 195,000. Back to Top

Updated 11/02/01: EB Priority Dates Predicted "Current" Throughout FY 2002(10/1/01-9/30/02)

• The Visa Office of DOS predicts that the Employment-Based Immigrant Visa Numbers are expected to remain "current," just like now, throughout the FY 2002. The reasons are: The FY 2001 Employment annual limit was at an all-time high, which allowed sufficient numbers to be made available for all cases. Therefore, it was not necessary to use any of the numbers which were "recaptured under AC 21. Having these numbers available fro use during FY 2002 is the reason the VO believes that all Employment categories will remain current. What a relief!!
• However, the VO expresses concern for "Other Worker" category which is unskilled workers, which they expect to see a dramatic increase in demand for numbers. Therefore, the people in this category should watch the progress of priority dates movement. Back to Top

Updated 11/02/01: Family Based Categories Predicted "Slow" in Priority Dates Progress

• Unlike the Employment Based Immigrant Categories, the Visa Office predicts that priority dates for family based immigrant categories will move slow. It explains that the demand for numbers by the INS in these categories remains very high as the INS continues their efforts to reduce pending 485 cases. Demand for numbers was further exacerbated by the retrogression and unavailability of many Family Based categories at the end of FY 2001. Therefore, the VO predicts "little," if any, movement in most of the Family-based preference cut-off dates during the foreseeable future. Back to Top

Updated 11/01/01: Labor Certification Changes in DOL Region 5 (Chicago+Kansas City)!!!

• Effective October 29, 2001, all the permanent labor certification applications are handled by the Chicago Office, and Kansas City Office will process only H-2B and H-2A cases for Iowa, Nebraska, other states of its original jurisdiction. All the SESA offices are directed to forward all the pending permanent labor certification cases to the Chicago Office.
• It is a startling move and news. It is unclear whether this change reflects preparation of the PERM Program. Please stay tuned to this web site for this important changes!! For the full text of this decision, please click here. Back to Top

Updated 10/31/01: Today, DOS Announces DV-2003 Over

• DOS today officially announced that the registration period for the Diversity Visa Lottery (DV-2003) which ran from October 1, 2001 until October 31, 2001 is now over. Winners will be selected at random by computer from among all qualified entries received during the mail-in period.
• Successful registrants will be contacted by mail between May and June 2002. Only those selected will be notified by the Kentucky Consular Center. If people do not receive written notification by July 2002, then they were not selected for the DV-2003 lottery. Neither the Kentucky Consular Center nor U.S. embassies and consulates abroad will be able to provide a list of successful registrants.
• The dates for the next diversity visa lottery (DV-2004) have not yet been determined. People may wish to check DOS after August 2002 for updates on the DV-2004 visa lottery.
• Good luck everyone! Back to Top

Updated 10/31/01: NSC Fingerprint Notice Problem

• Informed sources indicate that EB-485 and their family members I-485 applicants whose cases are pending with the NSC and whose applications were filed in May through Sept. 2001 are reportedly receiving a duplicate fingerpint notice. This is reportedly a software system screw-up. INS in Wash. DC has implemented a new system for the Service Centers to use in issuing fingerprint notices, but the notices now being generated by the system overlap with notices that the NSC sent out over the course of late spring and the summer.
  Those whose prints clear ed the first time around may check with the ASC to make sure that the initial set of prints cleared. To date this only appears to be an issue with I-485 cases filed with Nebraska over the summer. The Service Center has been alerted to and is aware of the problem. In fact, at the NSC Conference for the AILA attorneys on October 17, 2001, NSC brought up this problem.
• Please stay tuned to this website for the development of this issue. Back to Top
  

Updated 10/31/01: Service Centers On-Line Case Status Checking System On the Horizon

• AILA reports that INS is pushing the on-line case status checking system, which may be in place as early as February next year. This will solve the nightmare people have been going through to check the status of his/her case by telephone, which is impossible during the office hours. We welcome the INS Website efforts to bring this convenient checking system into the reality in the near future. Back to Top

Updated 10/31/01: INS Congressional Testimony of Tracking Systems for International Students

• We have reported the President's Homeland Security Directive which included Student Visa tightening-up. The directive did not go into details, leaving it to the INS.
• Today, October 31, 2001, Michael Becroft, Acting Deputy Commissioner of the INS testified before the House Education Committee on the international students tracking sytems in the U.S. Please read the full details of this statement by clicking here (pdf).

Updated 10/31/01: Prisons Authorized to Monitor Inmate-Attorney Communication for Suspected Terrorist Inmates

• Today, the Department of Justice released a regulation granting this authority to the Bureau of Prisons and the DOJ. The current regulations of the Bureau of Prisons on institutional management authorize the Bureau to impose special administrative measures with respect to specified inmates, based on information provided by senior intelligence or law enforcement officials, where it has been determined to be necessary to prevent the dissemination either of classified information that could endanger the national security or of other information that could lead to acts of violence and terrorism. This rule extends the period of time for which such special administrative measures may be imposed from 120 days to up to one year, and modifies the standards for approving extensions of such special administrative measures. In addition, in those cases where the Attorney General has certified that reasonable suspicion exists to
  believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism, this rule amends the existing regulations to provide that the Bureau is authorized to monitor mail or communications with attorneys in order to deter such acts, subject to specific procedural safeguards, to the extent permitted under the Constitution and laws of the United States. Back to Top

Updated 10/31/01: EOIR Regulation Expands INS Custody Authority Pending Appeal of IJ Decision

• Effective 10/29/2001, this regulation expands the existing regulatory provision for a temporary automatic stay of an immigration judge's decision to order an alien's release in any case in which a district director has ordered that the alien be held without bond or has set a bond of $10,000 or more, to maintain the status quo while the INS seeks expedited review of the custody order by the Board of Immigration Appeals (Board) or by the Attorney General. Immigration practitioner practicing in removal proceeedings should be aware of this EOIR rule.
  

Updated 10/30/01: Boston DOL Region Changes RIR Requirements Filed as of 12/01/2001(This Memo has Been Withdrawn by the Boston DOL Region Afterwards. Readers should ignore this posting! 11/27/01)

• AILA reports that the Boston Region handle RIR Labor Certifications under the following guidelines:
  • Job Bank Web Advertisement: All jobs must be placed on the web on America's Job Bank (AJB) and either coordinated through DET to get a job order or provide a printout of all applicants received by AJB for the job.
  • 30-day waiting period: After the last advertisement is placed, applicants must wait for filing RIR. (This requirement will be waived for RIR Conversion Request cases, if such request is filed before 12/01/2001)
  • Nonavailable Positions: Only 2 ads are required. Nonavailable positions include Computer Science and Information Technology positions, not including Managers; Mechanical Engineers; Electrical and Electronic Engineers; Actuaries; Occupational Therapists; Chemists; Aeronautical Engineers; Physicians in Health & Human Services shortage areas; Professors; Specialty and Non-Specialty Cooks; Bakers and Baker's Assistants; and Live-in Domestics. For a Computer Manager position, if the position requires an MBA or related degree, it will be considered as an available position. If the person is managing a function and doing technical work, it is likely a nonavailable position. If the person is predominantly managing other people who do the technical work (even if the degree required is a technical degree), the person is most likely going to be considered to be in an available position
  • Available Positions: All occupations not listed in the foregoing list of nonavailable positions are considered "available" position and reuquire minimum of 4 ads.
• For the details, people should contact the Boston Region Certifying Officers' Office, before preparing and filing a case. Back to Top
  

Updated 10/30/01: "Closed Due to an Emergency" Uh?!#

• Sounds familiar? Yes, the phone messages people from time to time hear when they call a Service Center. AILA got explanation for this mysterious phrase from the INS: Don't Panic. "Closed due to an emergency" does not necessarily mean closed and does not necessarily mean that there is an emergency. This message reflects a variety of situations ranging from being closed due to severe weather conditions, power outage, to having the entire staff in a meeting and therefore not answering the telephones. This message in most cases means that the Service Centers cannot answer the incoming calls for a varied reasons!

Updated 10/27/01: NSC 10/17/01 AILA Tour/Conference

• This reporter attended this conference "in very different setting and circumstances" with some AILA members on October 17, 2001. The conference shed some light on certain issues. Steven Thal, Esquire, a prominent immigration attorney who is a member of the AILA-NSC Liaison and former chapter chair of MN-ND-SD AILA, attended the meeting with this reporter and wrote a note which is better than this reporter's note. We report following summary of his note with commendation for his job well done. People are reminded that this is an "unofficial note" and neither Mr. Thal nor the AILA nor NSC will be responsible. People should not act on this information. This reporter and the Oh Law Firm will not be responsible for the consequences of such reliance.
• General Information: There were some slight interruptions within the past several days. For anyone who was meeting a deadline and who had timely sent mail or packages by courier, the delay in receiving the mail or packages at the Nebraska Service Center should not effect the validity of his/her filing as far as it being timely. The NSC processed 1,341,000 cases last year. This year it is expected to process between 1.6 and 1.7 million cases in fiscal year 2002.
• Premium processing: 88% of the cases are completed within 5 days of receipt. Overall the process has been working well. For premium
  processing cases only, if one includes a Fed Ex or other package to returnthe approval notice the Service Center will use it. People many not want to include just the air bill but the actual envelope with the air bill. It is suggested that when enclosing the Fed Ex envelope or air bill, people put a "post it" on it to indicate for use in returning the final decision on the application. Requests for Evidence (RFE) on premium processing cases are sent by fax. There have been a significant number of premium processing cases which have been rejected or returned (116 cases) because either the Form I-907 was not included, the wrong fee was submitted, or the I-129W was not submitted on an H-1B premium processing case. There has only been one refund of the premium processing fee since June which means that INS has
  been meeting the processing time on Premium Processing cases. When submitting a premium processing case to the Service Center, people may want to put in bold capital letters on the outside "Premium Processing." If one is submitting a premium processing request for a case that has already been filed with the NSC, people may want to provide the LIN # or preferably a copy of the underlying receipt. Also, on the Form 907 be sure to put the attorney information not the client information. Motions to reopen and appeals are not eligible for premium processing. It was indicated that they expect to implement I-140 premium processing atsome point in the future, but it is uncertain when it will happen.
• H-1B: NSC is trying to maintain a 60 day processing time. They acknowledge that it may be beyond that at this point and that some cases are taking longer to go out due to a back log with clerical, which means that the notices don't get sent out. This will be fixed in the near future by adjudicating inputing the update into the system and approval notices being processed without it going to clerical. This will include I-129's, I-130's, and I-140's. Expect to see significant improvements in notices being received more timely in these cases. People are suggested on the From I-129W to enter the salary information as a full year annual salary not an hourly, weekly, monthly, or other time period. For I-129 extensions, when people get to the 3rd extension, they do not have to submit the $1000 employer retraining fee. If a successor corporation is merely an existing company that has been renamed only, the prior extensions of the I-129 by the same company count toward the 3rd extension. If, on the other hand, it is a new legal entity with a new employer identification number, the prior extensions may not necessarily count toward the 3rd extension to get beyond the $1,000 employer retraining fee. NSC was not entirely clear on how it will define a "new employer."
  
• H-1B Layoffs: Generally NSC may allow a 2 week window in which to file another application without the laid off H-1B
  worker being deemed out of status.(It depends on case-by-case and there is no hard-fast rule. It is a matter of exercise of disretion) Other Service Centers may be taking a more liberal view in the range of 30-60 days. This will likely be an issue that will have to be clarified by INS headquarters. One alternative to avoid unlawful presence or being deemed ineligible to change to another
  H-1B employer would be to file an I-539 application for change of status to B-1 or B-2 (visitor) and later file the H-1B when employment is offered. NSC, however, may not treat a new H-1B filing as a "transfer" case making the H-1B employee eligible for immediate employment upon filing the H-1B. This may not be consistent with prior direction on that issue and may require further clarification
  from headquarters. If there is an unforseen circumstance and some extraordinary reason, it would use its discretion in a case by case basis in terms of allowing a person to continue with H-1 status for a laid off employee. The fact that they were laid off although
  unforseen does not rise to the level of an extraordinary reason.
• O Petitions: There have been no major changes in the O adjudications. The NSC looks for establishment of alien in the "upper
  crust". As an example O's are the "go to" person with authority within the field. A medical researcher just coming out of a residency or training most likely will not meet the eligibility standard for an O. Although, they may have been involved in cutting edge research, they may not have been the principal researcher and may not have established themselves as the "outstanding" expert in the entire field. For extensions, it is advised to fully document the case because they may not have the earlier file available to compare with the second filed O petition seeking the extension. It is helpful when submitting O petitions to include any press articles about the alien.
• I-140: I-140's are currently in most cases within a 60 day processing time. It is anticipated to maintain at that level. NSC will expedite age out I-140 cases. Be sure to flag this when filing the I-140. NSC is also waiting for headquarters direction on when I -140/I-485 concurrent filing may start. There have been some cases where I-140's have been filed and it is clear that the work will not be within the jurisdiction of the Service Center. Those cases will be transferred to the appropriate Service Center. For RFE's requesting proof of ability to pay, one must establish the ability to pay both at the time of filing as well as at the time of adjudication, but it does not require proof that the alien is currently receiving pay in that it is prospective.
  
• I-360: NSC is adjudicating cases that were filed in mid-April 2001. They
  hope to get within a 90-100 day processing time for I-360's. One must wait
  for the I-360 to be approved before the I-485 can be filed.
• I-131: There have been a significant number of expedite requests for I-131's. They will be expedited for humanitarian reasons. Don't abuse this system or if it increases too much there will be no expedites. There have been printer problems which have resulted in delays for printing I-131 re-entry permits. It has taken up to 6-9 months. This issue is still being worked out. Cases which were filed in March but approved in June are just now being printed and produced.
• I-765: Now taking 75-90 days. Although, NSC has approved a large number of cases (130,000) which are waiting in the que, it is the card center production which is slowing down receipt of the I-765's. If it has been more than 120 days from the date of filing and people have not received the card, peoploe may want to follow up with INS. Also if it is more than 90 days from the date of filing the local INS district office can issue an interim card for up to 240 days.
• I-485: Significantly, the processing time between I-485 employment based cases is now slightly under one year. The Service Center hopes to move towards a 9-10 month processing time for I-485. The front log and data entry mail room delays continue to plague NSC. As far as data entry they are now at Sept 10, 2001 and Sept 19th for mail opening on receipts of cases. This is as of October 17, 2001. When reading the I-485 adjudication dates on the Service Center processing time report, people should allow a 90 day window for cases being adjudicated at the service center. In other words, unless it is more than 90 days beyond the cutoff date for adjudication one should not inquire about the processing (unless there is an age out issue). Address change cases for both the alien as well as the attorney should include the green sheet form G-731N to send to the Service Center. For cases which are being transferred to district offices from the Service Center where the interviews will not be waived, typically there are issues with respect to grounds of inadmissability or having been out of status. If a case is transferred, one cannot request that it be transferred back to the Service Center for adjudication. If there is an error in it being transferred to the wrong district office, then that is an appropriate matter to bring to the attention of AILA liaison.
• With respect to doctors who have National Interest Waivers and are filing for adjustment of status based on their J-1 Waivers, the October 1 memo from Bill Yates posted on AILA InfoNet addresses this issue. Cases which were improperly denied are being reopened by the NSC upon service motion. INS will process the EAD and I-131 for those cases. Where the principal beneficiary has died but surviving derivative beneficiaries still have pending adjustment applications, the NSC is seeking headquarters direction on whether those remaining derivative applications can still be adjudicated or whether they will lose the benefit due to the death of the principal beneficiary. This was brought out by the recent attack on the World Trade Center, but there have been other similar cases where this issue has arisen at the Nebraska Service Center.
• Form 9003: No longer required to be filed for employment based adjustment filings. Back to Top

Updated 10/26/01: President Signed Anti-Terrorism Act (USA Patriot Act of 2001)

• The President today signed this bill (H.R. 3162) into law. For the whitehouse annoucement, please click here. Back to Top

Updated 10/26/01: DOS Makes Immigration Lottery Amended Rules Final Regulation

Updated 10/23/01: DED and TPS, What are They?

• This website has been reporting either extension or redesignation of countires whose qualified nationals in the U.S. are granted certain temporary status along with the work authorization. These countries involve internal political turmoil. TPS stands for Temporary Protected Status, and DED stands for Deferred Enforced Departure. The INS website has just posted an excellent summary of qualification requirements, procedures, and list of the designated countries. Please click here to learn these relief. Back to Top

Updated 10/22/01: Liberian DED and INS Guideline Memo

• INS HQ has released memorandum to implement the executive order of the President to extend DED for certain qualified Liberians. For the details of the memo, please click here (pdf). INS also specifies its policy for treatment of encountered Liberian during the extended DED period. For this treatment issue, please click here (pdf).

Updated 10/19/01: Expedite Standards and Procedures of Four Service Centers

• Today, each of the four Service Centers released this information through the AILA. We will post these information on our INS Processing site soon. It appears that each Service Center adopts not only a different procedure, but also somewhat different standards in that the room for exercise of discretion is different in each Service Center. Additionally, it is unclear how these Service Centers procedures reconcile with the apparent uniform standards for expedite which was released as a part of employer information bulletin for Premium Processing Services. More importantly, these Service Centers procedures do not touch on availability of expedite for those business/employment nonimmigrant petition cases for which Premium Procedssing Services are available and which the employer information bulletin totally terminated. This is expected to be clarified by the AILA Liaison team in the near future. Back to Top

Updated 10/19/01: INS HQ Adopts Uniform Standards for Successor-In-Interest for H-1B and I-140

• There has been a confusion in immigration lawyers community on this issue because in H-1B context, establishment of a successor in interest relationship only required acquisition of a substantial assets of the acquired company and no assumption of liabilities of the acquired acompany was needed inasmuch as the acquiring company takes over all the immigration-related liabilities of the acquired company, while in I-140 immigrant petition context, the INS HQ appeared to require the traditional standards requiring assumption of not only immigration-related liabilities but also all other legal liabilities.
• We welcome the INS opinion which is articulated in a letter written by Efren Hernandez III, Director of Business and Trade Services, INS HQ, dated October 17, 2001 in response to the inquiry by J. Douglas Donenfeld, Esquire, in Chicago, wherein Mr. Hernandez confirmed that the same standards will apply also to I-140 context. It is a letter and not a legally binding opinion, but it is anticipated that the Service Centers will adopt this view. Back to Top

Updated 10/18/01: Scope of the Benefit of INS Memo Permitting NIW FMG to File EB-485

• The INS HQ memorandum dated 10/05/2001 which was released in the last few days will give a tremendous benefit to FMG him/herself as well as his/her spouse and minor children. First and foremost, they will be eligible for EAD and Advance Parole. EAD may allow such MDs to moonlight and do other side jobs. Spouse can also go into open job market.
• It is a different story when it comes to savings in processing times. In I-485 proceeddings, important part of the Service Center processing starts after taking fingerprints which are the key function for the FBI criminal check, CIA security check, American consulate visa fraud check etc. However, according to the NSC, these MD applicants who submit EB-485 before completing the required services in the medically underserved areas or VA will not receive fingerprint notices until they complete the required period of services. Fair enough? It depends to whom you ask. Back to Top

Updated 10/18/01: Suspension of NIV Issuance to Guyanese in Guyana

• DOS reports that Guyanese government has denied or unreasonably delayed taking back a number of deportable Guyanese nationals. In order to pressure the Guyanese government to accept their responsibilities for their nationals, DOS ordered all the visa posts in Guyana to suspend issuance of nonimmigrant visas to nationals of Guyana who are employees of the Government of Guyana or of any of the companies owned in whole or in substantial part by the Government of Guyana. This discontinuance also applies to the spouses and children, whether minor or adult, of these individuals.
• Exceptions to the suspension will be made as appropriate for A-visa and G-visa and limited other applications, but only with specific approval by the DOS HQ. If the Guyanese government continues to refuse or unreasonably delay the return of its nationals, DOS will expand the sanctions to all Guyanese, and eventually all persons resident in Guyana.
• This suspension applies to the visa applicants applying for the niv in Guyana. Guyanese can still apply for niv in a third country if they are physically present in that consular district. Back to Top

Updated 10/17/01: Delay of Plastic Green Card Production

• Currently, all the green card production requests are processed by the NSC. Even though the NSC is somewhat equipped to produce the plastic cards, it currently focuses on border crossing cards and EAD cards. For the green cards, the NSC scans the pictures and required form to a card production facility in the East Coast and NSC does not print the plastic card itself, at least for now. However, the card production facility in the East Coast is currently experiencing a backlog, causing delays in issuance of the plastic green card. People need patience.

Updated 10/17/01: Mailroom Operation Returned to Normal Except VSC

• According to the AILA, mailrooms of all the Service Centers other than VSC return to a normal operation. This reporter today visited the NSC facility and witnessed the change. Good news indeed. Back to Top

Updated 10/17/01: NSC Soon to Remove "Return Request" Stamp on the Envelope

• All other Service Centers do not request the Postal Service to return the mail the Service Centers other than NSC. In other words, the mails from the Service Centers other than NSC can be forwarded to the people, should they move and ask the postal service to forward the mails to new address. Because of this unique practice of the NSC, a number of attorneys and immigrant/nonimmigrant applicants had to experience a nightmare as the postal services were prohibited from forwarding NSC notices to the new addresses of the attorneys and applicants/petitioners.
• Now NSC intends to change practice. NSC, however, has not given us any specific date when they would terminate such practice. They promise that it will happen soon. Therefore, until it is formally announced, people should be prepared to deal with continuing nightmare, should they move. Frequently, notice to NSC of change of address does not work either. We welcome the NSC decision to abandon this unnecessary practice soon. Please stay tuned to this website for the development. Back to Top

Updated 10/17/01: IRS Form 9003 Not Required For EB-485 Filing

• INS HQ issued a memorandum on September 21, 2001 that INS would no longer require filing IRS Form 9003 (yellow form) effective September 21, 2001. For the text of the full memorandum, please click here (pdf).

Updated 10/16/01: Anthrax Scare, Mailroom Problem, and Need for Step-Up of Electronic Filing System

• AILA reports that INS closed mailrooms in all five Service Centers after the incident at the VSC. It was a precautionary measure. It is still uncertain, but the INS HQ indicates that these mail rooms are scheduled to reopen this afternoon. It has been closed since Saturday. Please stay tuned to this website for the development.
• Whether it is a prank or terrorism, Anthrax is causing a psychological warfare in this country. A chain of events starting from the first attack in Florida, followed by NBC, ABC, and the U.S. Senate majority leader's office raises a serious concern with the fear of potential wide spread of such biological attack. The immediate consequences of such fear may see in mail handling in government offices at all levels. Without doubt, we are in a war in all fronts, and immigrant community should be prepared to deal with its fallouts, including growing environment against immigration, and processing delays relating to the need for thorough security and background checks and mailroom problems.
• Some government offices are already encouraging people to use electronic devices rather than mails. Fax, e-mail, and internet do not entail the fear of biological attacks. As people know, the DOL has been working on PERM program which is a system of filing permanent labor certification application via fax and eventually via internet. The INS has also been working on such changes as a long-range plan. People should have noticed that the INS website has been developing "fillable" forms which will eventually be converted to electronic filing system. INS anticipated that it would take a few years. For such electronic filing system, the U.S. Department of Treasury should also reengineer its system to accept electronic signature and payment of filing fees in the form of credit card numbers. Probably, now is the time for these government agencies to step up completion of the reengineering efforts and launch electronic filing and automation process as soon as possible. Back to Top

Updated 10/16/01: DOS Changes Irish Q-2 Visa Requirements

• DOS is revising the Irish Peace Process Cultural and Training Program Visitors administration and visa requirements effective today, 10/16/01. For the Program, please click here. For the changes in Q-2 Visa requirements, click here.

Updated 10/15/01: DOS Replaces OF-156 by New Form DS-156

• The U.S. Department of State replaces the Nonimmigrant Visa Application Form, OF-156, by a new form DS-156. This form is now available on the DOS website. People may also use our weblink on top of this page. Back to Top

Updated 10/15/01: Anticipated Processing Delays as Affected by Anthrax Scare

• We have a very sad news that VSC received a mail with an unknown powder on it in the mailroom. Even though the preliminary test is reportedly negative, its mailroom is closed. So is the NSC mailroom. This reporter cannot find a word to describe the sadness.

Updated 10/12/01: Time to Return to Normalcy in Immigration Business

• People in this country are terribly confused by two contradictory messages which they are getting from the government: The first is message of continuing horrific terroristic threats. This message is somewhat ironically intensifying. The second message is the leaders' call for people's returning to normalcy to help the terribly sagging economy. However, the second message will never work unless the leaders and the government first demonstrate that they themselves are returning to normalcy. When legislative activities and government policy making and administration of important public businesses are continuously held back because of their total obsession with the terrorism issues, the people and the society will never be able to return to normalcy.
• In immigration business, there are several policies which are very important for the improvement in efficiency and effectiveness of administration of immigration business, which apparently have been held back because of the current unusual environment. This reporter urges that the immigration also returns to nolmarcy as soon as possible. The agencies should implement certain policies as soon as possible. These policies, among others, include: (a) INS Release of AC 21 Regulation; (2) DOL Release of PERM Reengineered Labor Certification Regulation; (3) INS Release of I-140/I-485 Concurrent Filing (One-Step Proceeding) Regulation. These are policies which can be initiated without any legislative activities.
• In legislation, the immigration has also turned into a totally backburner issue. There are a whole list of immigration legislation bills which were one time alive but have been placed on the shelves since September 11, 2001. The only immigration issues the Congress recently talked about are security measures and recent terroristic attack related immigrant legislation. We realize the importance of these legislative issues. However, shouldn't Congress also return to normalcy in legislative activities before asking people to return to normalcy? The Congresspeople should also postively demonstrate by acts and not by mouth that they are undertaking the normal businesses which are mandated by the Constitution. Sirs and Distinguished Mesdames, people are always looking up to you for leadership, including return to normalcy!
• Let's All Return to "Sober!" Back to Top

Updated 10/12/01: TSC Staffing Problem and Continuing I-140 Processing Delays

• Reportedly, TSC has been experiencing a staffing problem and unusual delays in processing I-140 petitions. As reflected in the latest release of Service Centers' processing times reports, such delay is particularly noticeable with the TSC, 9 months or longer as opposed to 2 or 3 months with the NSC. TSC indicated that this delay might continue. This reporter misses the wonderful TSC in 1999 when it had itself turned around into one of the best Service Centers for prompt processing. This reporter still remembers the hard-working and eager-to-help faces of the officers and workers when this reporter visited the facility in 1999. Back to Top

Updated 10/11/01: Attention! FMG NIW Serving in MUA or VA Facilities

• INS HQ issued a very important memorandum on 10/01/2001directing INS field offices to follow the guidance in this memorandum in dealing with NIW for EB-2 immigrant Physicians Serving in Medically Underserved Areas or at Veterans Affairs Facilities and Section 214(l)(2) of the INA.
• Subject of This Directive: Should the INS accept an I-485 application from an alien physician who is the beneficiary of an approved I-140 with an approved NIW request based on service in a medically underserved area, who is still fulfilling his/her 3-year medical service requirement in H-1B status pursuant to section 214(l) of the INA?
• Answer and Rule: Service Centers are directed to accept the "filing" of I-485 application from an alien physician who is the beneficiary of an "approved" I-140 with an "approved" NIW request under 203(b)(2)(B)(ii), even if the alien physician received a waiver of 212(e) foreign residence requirement under 214(l) and who is still fulfilling a 3-year medical service requirement in H-1B status pursuant to section 214(l). The INS may not "approve" the I-485, however, until the alien physican has fully complied with the INS requirements for both the waiver under 214(l) and the NIW under 203(b)(2)(B)(ii).
• What to do With Denied Cases before 10/01/01: Service Centers may reopen such 485 cases on its own motion, but it may be prudent that the physicians whose 485 have been denied on 214(l) immediately request the Service Centers to reopen their 485 cases based on this Memorandum.
• What is not Covered in this Rule: An alien physician who received a waiver under 214(l), but is "not" the beneficiary of an "approved" I-140 with an "approved" NIW may not apply for I-485 until the alien physician has "completed" the 3-year service requirement under 214(l). For the full text of the memorandum, please click here (PDF). Back to Top

Updated 10/11/01: WTC Terrorism Victims' Family and INS Relief

• This website has already reported that the Congress is currently working on the so-called Patriot Act of 2001, which provides a number of immigration benefits to the family members of the recent terroristic attack victims. Until the Act is enacted, at least on the statute book, there is no such relief available for the family members.
• Now the INS Commissioner is using his unique authority, called "Deferred Action," and help the family members of the victims whose immigration status is "illegal." Deferred action is the decision of a District Director not to prosecute the alien in out-of-status when such alien is qualified. Traditionally this relief has been granted in extremely rare cases of unusually exceptional extreme humanitarian concerns. The INS reports that the Commissioner has granted to some of the out-of-status family members of the victim this relief. Deferred Action is not a visa status. However, once this relief is granted, the alien is given EAD and remain in the country indefinitely. Such family members should consult with an immigration lawyer to see whether he/she will be eligible. For additional information, please click here. Good Deed, Mr. Commissioner! Back to Top

Updated 10/11/01: Removal of Burma From Guam Visa Waiver Pilot Program

• Burma will be removed from the Guam Visa Waiver Pilot Program effective November 13, 2001. For details, click here.

Updated 10/11/01: Special Immigrant Status to Certain International Broadcasters

• The INS released a regulation today to implement one of EB-4 Special Immigrant Category for certain qualified foreign language international broadcasters. Under this category, the U.S. Broadcasting Board of Governors (BBG) or BBG grantee organizations such as Radio Free Asia, Radio Free Europe/Radio Liberty will be able to file special immigrant petitions on behalf of certain qualified foreign language broadcasters beginning from November 13, 2001. The BBG and its grantees are charged by Congress to broadcast internationally on behalf of the United States Government. This requires that the BBG attract and retain a large number of foreign language broadcasters. These broadcasters must have the unique combination of native fluency in the broadcast language combinedwith an in-depth knowledge of the people, history, and culture of the broadcast area. Historically, the BBG has experienced difficulty in finding and employing members of the domestic workforce possessing this unusual combination of skills to meet the United States Government's international broadcasting needs. By creating a new special EB-4 category, the IBE Act allows the BBG to directly petition for alien broadcasters. For the details, please click here. Back to Top

Updated 10/10/01: Information for Pregnant Permanent Resident Women

• The following is reposting of the information which this website posted in 1999 for the pregnant alien women. Today, someone jokingly told this reporter that difficult time and high unemployment have been historically producing more babies. Probably there is truth to this joke just as the joke that the village along the steam railroad train track has higher pregnancy rate. Trains, particularly freight trains, run after midnight and whistles! The following information may be of help to these new alien fathers and mothers. Please sit back and enjoy it!
  • Updated 07/31/99: Information for Pregnant IV Applicants
  • As I-485 track is expected to take a horrible delay (as affected by the August priority dates) and subject to increasing risk involving loss of the petitioned job, more and more people are thinking about IV consular processing at the home country (in some situations, even taking a greater risk). Without doubt, by the time they go to the consulate for IV interview, a number of women applicants will be pregnant. This reporter wishes that the following information gives some help to such women on the issue of the immigrant status of a baby born after the immigrant visa is issued to the mother. Upon presentation of the baby's birth certificate, INS District Director will issue an immigrant visa waiver and prepare Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, which is the INS internal record to grant a lawful permanent resident status. The same will happen if a green-card woman travels outside the U.S. and during the temporary trip, a baby is delivered outside the U.S.
    In order to get this benefit, the following conditions must be satisfied:
    1: The trip to the U.S. must be made while the baby's parent's immigrant visa is valid;
    2: The baby must accompany such parent.
    For a child who was born while the green-card mother was travelling outside the U.S., the following additional conditions must be satisfied:
  • 3: The accompanying parent must be a returning permanent resident;
    4: The parent and his/her baby must return to the U.S. within 2 years of birth;
    5: The accompanying parent's return trip to the U.S. must be "the first" return trip to the U.S. after the birth of the baby. (This is very important to remember. Such parents should not make trips alone without the baby!); and
    6. The accompanying parent must be admissible to the U.S., which means that the parent is not removable (excludable/deportable) under the immigration laws.
    Failure to follow these rules will result in a nightmare in that the parent will be forced to file the 2nd Preference Family Petition and pending priority dates, the parents and child may have to be physically separated!
    The second situation can be utilized by parents who do not wish that their child be born in the U.S. and automatically become a U.S.citizen, for certain emotional reasons. However, please bear in mind that if you are ambitious and you want to bring up your child to become a President of the United States, you will have to give birth to such child in the United States. That is the Constitutional mandate! (Edited for reposting) Back to Top

Updated 10/07/01: Affect of I-140 Withdrawal/Revocation on Priority Date

• Currently, employer can substitute beneficiary of the I-140 petition. The first step to file a petition to substitute the beneficiary is to withdraw and revoke the I-140 petition which was filed on behalf of the original beneficiary alien worker. The question remains then whether the original beneficiary will be able to retain the priority date even after the petition is revoked. This has been a puzzling question for the immigration lawyers community.
• The answer is "No." This is reflected in recent court decision in the District of Columbia, Longwood Village Restaurant, Ltd. v. John Aschcroft, Civil Action #00-2331(RMU), (U.S.D.C., July 2001). This case shed some lights on three important issues:
  • Whether the origianal beneficiary retains the priority date when the petition is revoked: The INS/VSC said no and the District Court did not disagree with the INS on this interpretation of the priority date retention rule. As the labor certification is growingly difficult and faces challenges by the SESA and DOL, and employers lay off some alien employees for whom the employers obtained I-140 approvals, more and more employers tend to use such approved I-140 petitions on behalf of new employees rather than starting new labor certification applications. Currently, priority dates are not important as visa numbers are "current" for all the employment-based immigrant categories, including China and India. However, should visa numbers become unavailable for any categories in the future, this interpretation of the retention rule will affect seriously those who assumed that he/she was retaining the priority date.
  • Whether the INS can revoke the I-140 petition when the employer expressed withdrawal not to the INS but to the Consular Officer: The court says no. The regulation is very specific on this point in that the petitioner should withdraw in writing addressed to the Service (INS).
  • Whether the original beneficiary can revoke the I-140 petition: The court again says no. Again, the regulation is very specific on this point. It has to be the "petitioner."
• This information is posted because as the nation's economy continues to tumble and the unemployment rate keeps jumping high, it is anticipated that the alien labor certification will increasingly become a rare commodity and a dispute can become fierce between the former employer and the former beneficiary on the issue of "who owns the approved I-140 petition and who controls the priority date" when there is a separation between the employer and employee. Back to Top

Updated 10/05/01: SSA Computer Matching Program With the INS

• The Social Security Administration is initiating a program of sharing the INS files for certain aliens to decide suspension of monthly SSI benefits payment for being absent from the U.S. The files involve (1) aliens who leave the U.S. voluntarily; and (2) aliens who are deported from the U.S. The parameter of this regulation is unclear as to whether this matching program can be abused for other purposes for these aliens. For the details, please click here. Back to Top

Updated 10/01/01: Immigrant Visa Application Processing Fees Advance Payment

• Today, DOS designates additional visa posts in Africa for advance payment of immigrant visa application processing fee and charge of review of Affidavit of Support, I-864. DOS has been changing IV application processing fee payment system from the time of scheduled immigrant visa interview to earlier time of IV visa application processing, gradually expanding the list of visa posts that apply the new system. This regulation takes effect October 1, 2001. Please click here to review the regulation. Back to Top

Updated 09/29/01: INS File Freeze and Premium Processing Services

• In the coming week, the INS "internal" files will be frozen to undergo its nationwide audit and adjudication of cases will be temporarily under seize. However, the INS has announced that its Premium Processing Services will not be affected by this audit process and people are encouraged to use the PPS, should they need urgent decision on employment-based nonimmigrant cases.

Updated 09/28/01: INS Version of H-2A Consolidation Effective Date Deferral

• Today, the INS has released a regulation which is a counterpart to the regulation of DOL which was released yesterday. Back to Top

Updated 09/27/01: Immigration Lottery and ONET Occupations of 2-Year Experience Requirement

• Immigration lottery DV-2003 starts next Monday. One of the eligibility requirement is that either he/she has a high school (12-year) diploma or 2-year experience with occupations that require minimum of 2-year vocational preparation at entry level. DOS and INS will determine this by DOL's ONET Wage data. Please click here to find out which occupations meet this requirement. Back to Top

Updated 09/27/01: H-2A Agricultural Worker Petition Consolidation Rule Deferred

• Today, DOL released a series of regulations to defer implementation of final rule on consolidation of the INS H-2A function to DOL labor certification function. Among the implementation measures was a new Form ETA 9079, Application for Alien Employment Certification and H-2A Petition, which consolidated two current forms, ETA 750 Application for Alien Employment Certification) and INS I-129 (Petition for Nonimmigrant Workers). The NPRM also set forth the implementation of a new fee schedule to collect a combined fee for processing the petition and labor certification application. It is contemplated that under the administrative procedures arrived at by INS and the Employment and Training Administration to implement the delegation of the petition authority from INS to the Department, DOL will collect the petition fee on behalf of INS and will be reimbursed by INS for the costs involved in processing the H-2A petition. For these regulations, please read:
  • Effective Date Deferral
  • Fee Changes

• INS Counterpart Regulation for Deferral (09/28/01)

Updated 09/26/01: It's the Law - Carry Registration Documents

• This is the provision of the immigration statute which has received least amount of attention and least enforced until now when some nonimmigrants were questioned by the INS officers when they tried to fly on domestic flights. However, it is the law that all the aliens should carry with them all the time registration documents. The law provides:
  • Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
• What registration documents one needs to carry?
  • Evidence of registration. The following forms constitute evidence of registration:
    • I - 94, Arrival-Departure Record -- Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.
    • I - 95, Crewmen's Landing Permit -- Crewmen arriving by vessel or aircraft.
    • I - 151, (Removed effective 8/19/96; 61 FR 37673 )
    • I - 184, Alien Crewman Landing Permit and Identification Card -- Crewmen arriving by vessel.
    • I - 185, Nonresident Alien Canadian Border Crossing Card -- Citizens of Canada or British subjects residing in Canada.
    • I - 186, Nonresident Alien Mexican Border Crossing Card -- Citizens of Mexico residing in Mexico.
    • I - 221, Order to Show Cause and Notice of Hearing -- Aliens against whom deportation proceedings are being instituted.
    • I - 221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien -- Aliens against whom deportation proceedings are being instituted.
    • I - 551, Permanent Resident Card -- Lawful permanent resident of the United States. (Amended effective 1/20/99; 63 FR 70313 )
    • I - 688, Temporary Resident Card-Lawful temporary residents of the United States.
    • I - 688A, Employment Authorization Card.
    • I - 688B, Employment Authorization Document. (Added effective 10/4/96; 61 FR 46534 )
    •  
    • I - 766, Employment Authorization Document. (Added effective 10/4/96; 61 FR 46534 )Back to Top

Updated 09/26/01: Liberian DED Extension For One Year From 09/29/01

• The President orders the Attorney General to implement DED extension for one year for those Liberians who are present in the U.S. on 09/29/2001 with certain exceptions. The eligible Liberians will also be given employment authorization. For the details, please click here.

Updated 09/25/01: News on Impact of Recent Terrorism on Immigration

• Nonimmigrant Procedures at the American Consulates: We have already reported that the American Consulate in Tokyo is no longer accepting application in person and application is processed strictly by mail or travel agencies. Today, AILA reports that the American Consulate in Paris, France is adopting similar procedure, accepting applications only by mail. It is anticipated that more and more visa posts abroad will follow suit.
• In the Home Court: Not only certain aliens experience some harassment, but also reportedly there were incidents where the INS officers demanded travel documents, including I-94 and I-797 before boarding even domestic flights in some incidents. It is thus adviceable that foreigners carry passport, I-94, I-797 all the time, particularly when they travel, even within the country.
• Fluid Situation in Pakistan: U.S. Department of States reports that the visa posts and diplomatic missions are pulling out except certain posts like Islamabad and the services are gradually reduced to emergency citizen services. People from Pakistan or those who consider a trip to Pakistan should closely monitor sort of minute-by-minute changing situation in that part of the world. Back to Top

Updated 09/24/01: SESA RIR Conversion Guidance?

• Ever since the RIR Conversion Regulation was released and the conversion was made available on September 4, 2001, SESA in each state has been waiting for guidance from the DOL. Pending such guidance, each SESA has been handling the conversion program all differently depending on where the case was filed. Generally, SESAs have been lenient in giving some room for the employers to prepare for the RIR documentation and held in abeyance commencement of SESA recruitment process upon the request of the employers. As people may recall, the commencement of SESA's recruitment processing by placing Job Order before the RIR conversion request is received from the employers is doomed to shout out the door to the conversion. How lenient the SESAs are? You guessed it! They are all different. People should inquire each SESA of its policy and practice before they face the dead-trap.
• Even though it does not answer this question, the Connecticut SESA website sheds some light on the procedure. Please visit the Connecticut website by clicking here. We thank AILA for providing this information. Back to Top

Updated 09/24/01: Bad News for TCN EB IV Applicants in Ciudad Juarez, Mexico

• AILA reports that Ciudad Juarez will no longer accept third country national employment-based immigrant visa cases based on long pending 485 adjustment applications as of October 1, 2001 because of the heavy caseloads of V visas and IV for Mexican nationals. Please remember that priority dates for immigrant visas for Mexican nationals have not been available, but will become available for certain Mexican nationals beginning from October 1, 2001. The American Consulate in CJ is anticipated to receive tons of applications from Mexican nationals in October! Back to Top

Updated 09/24/01: DOJ Move to Expand Use and Accessibility of Immigrants Worksite Record System

• Today, the U.S. Department of Justice released a proposed regulation to expand the use of I-9 employment control related records and various information on worksites and employment enforcement relating to employers and employees. This expansion includes use of such record for immigration inspection functions and maintenance of such records by all district and suboffices. Currently, such records are kept only by a limited number of field offices. The proposal also includes expansion of accessibility of such records by all the relevant offices.
• It is unclear whether this move is related to the INS' late intensification of employment control issues or to other purposes. It is, however, clear that information on I-9 and related alien employment record are increasingly coming under attention of the INS and related agencies. Privacy of the record of aliens and their employment may be increasingly compromised through the employer sanction actions. For further information, please click here. Back to Top

Updated 09/22/01: I-9 Misrepresentation, Employment Documentary Fraud, Consequences

• Economic down-turn, layoffs, and other related changes in the environment have raised an increased attention to this topic. There has been a lot of misunderstanding and confusion on this topic. This topic becomes extremely serious when an alien has made a misrepresentation as a U.S. citizen to gain immigration benefits since such an alien is permanently removable from the U.S. In fact, this is the single misconduct the immigration law does not forgive. The consequences are "permanent" and "no waiver" under any circumstances. All other grounds of removal can be waived or forgiveable inasmuch as the alien meets certain statutory requirements. Not for U.S. citizenship misrepresentation! The permanent consequences and no availability of waiver are "statutory" and it is indeed one way street to permanent deportation and bar from returning to the U.S.
• However, what misconduct constitutes such "deadly" consequences is a different question. This is often raised in the context of false information being provided to the employer in completing Form I-9 when one gets a job. The following two materials will provide some help in understanding this topic. People are warned that the rules and laws are extremely complex in this area and should never, repeat never act on this information. They should "always" act on legal advice of a competent immigration lawyer. This law firm will not be responsible for such reliance and consequences of such reliance.
  • 1991 INS General Counsel Legal Opinion
  • INS Q & A on Walters v. Reno Court Decision which this website has already reported. Back to Top

Updated 09/20/01: Impact of Recent Terrorist Tragedy on Immigration

• Backburner of Mexican worker immigration issue: News report indicates the so-called Mexican regularization initiative is pushed to a backburner policy priority and even Mexican president admitted that not much is expected to achieve on this issue for the next one year or so.
• INS Processing Delays: Obviously the INS will tighten security clearance process, affecting the total processing times of cases. People should be prepared to deal with such changes.
• INS Reorganization: Informed sources indicate that before this incident, the Congress requested the new INS Commissioner to submit its plan by tomorrow, Friday, September 21, threatening to push ahead its reorganization move. It appears that this move will also be pushed to a backburner. Back to Top

Updated 09/20/01: INS Implements Walters v. Reno Court Decision

• INS has released a notice setting forth its guidance to implement the settlement agreement involving class members on 274C issues in Walters v. Reno, Civil. No. 94-1204C (W.D. WA). This regulation takes effect today. For the details, please click here.

Updated 09/20/01: INS Custody(Detention) Rule in Emergency

• INS has just released Interim Regulation which allows the agencies to detain aliens beyond 48 hours in emergencies such as the recent terroristic activities. Immigration lawyers community is concerned with potentional abuse of this rule and people's rights to due process under the constitution. This rule provides that unless voluntary departure has been granted, the Service must make such determinations within 48 hours of arrest, except in the event of emergency or other extraordinary circumstance in which case the Service must make such determinations within an additional reasonable period of time. Back to Top
  

Updated 09/18/01: Unsettled/Confusing State of Canadians After I-94 Expiration

• One time there was an opinion released by a DOS source that for Canadians expiration of I-94 would not trigger "unlawful presence." This was considered very important because unlawful presence in the U.S. triggers a three-year bar from entering the U.S. However, the INS district offices that are in change of "enforcement" function take a different position saying otherwise. Reportedly, different district offices take different positions even within the INS. Considering the unsettled state of this issue, Canadians may not want to remain in the U.S. for 180 days or more after their I-94 expires, at least until the INS policy is clarified by the INS HQ. Back to Top

Updated 09/18/01: Beware, TCN Visa Applicant in Mexico

• AILA reports that Mexican government will not issue visas to certain Third Country National (TCN) until its check is cleared and the procedure will take 30 or more days. Some of these nationals include: India, Pakistan, Afghanistan, Sri Lanka, Azerbaijan, Uzbekistan, Turkmenistan, Turkey, Taiwan, Vietnam, Bosnia. Apparently this decision is made, considering the recent terroristic activities surrounding these countries.
• These nationals should take into account this period when making an appointment with American Consulate in Mexico for visa applications. Many people have been applying for visas in Ciudad Juarez which is a border town to El Paso Texas because they are allowed to return to the U.S. even if visa application is denied inasmuch as he/she has a valid I-94 and otherwise admissible to the U.S.
• If he/she fails to appear on the date of appointment without notifying cancellation, that person is permanently barred from applying for a visa through American Consulate in Mexico or Canada as a TCN! Back to Top

Updated 09/17/01: INS Audit and Temporary File Freeze

• AILA reports that the INS will undergo another nation-wide audit from 10/01/01 through 10/05/01 and national file (inter-office) will be frozen beginning from 09/21/01 and intra-office file will start being frozen beginning from 09/28/01.

Updated 09/16/01: Change of Leadership at TSC

• Jim Burzynski, who had been the Director of TSC, was transferred to the Director of the new Missouri Service Center which processes the LIFE Act cases. Since then Carmelo Ortiz has acted as the Acting Director of TSC.
• On September 11, 2001, Evelyn Upchurch became the new Acting Director of TSC. Ms. Upchurch worked with the INS HQ for the past two years handling INS Service Center Operations.
• By the way, people are wondering whether the Missouri Service Center indeed exists and operates since the LIFE Act cases are filed with mailing addresses in Chicago. The answer is "yes." Even if the cases are filed with the INS P.O. Boxes in Chicago, the cases are transported to the Missouri Service Center where they are adjudicated. The only reason why the LIFE Act cases are filed with the Chicago addresses is that the filing fee checks are deposited and processed through a bank in Chicago. Hmm...... Back to Top

Updated 09/15/01: Our Continuing Prayer for Victims and Families

• This reporter also weeps. There were many, many twinkling eyes and bright stars looking into my eyes every day through the computer monitors from those buildings. Loss of these stars gives this reporter enormous emotional pains and tear drops. This reporter never knew that it would be this difficult and painful to say "Good Bye," but must now say "Good Bye." After all, the stars will continue twinkling and shining in the sky in the night!

Updated 09/14/01: AILA's Special Arrangement With Agencies re: Deadlines

• AILA has made a special arrangment with the agencies so that any untimely filing related to the current mail or overnight delivery services problems will be handled as follows:
  • INS will liberally exercise discretion to accept filings that miss deadlines (such as status expirations, RFE response deadlines, appeal deadlines, etc.) as the result of situations created by the attacks. This includes the lack of mail or courier service due to grounded air traffic and halted mail service. AILA is working with INS to further refine how this is defined. DOL and SESAs also will liberally overlook deadlines missed as the result of situations created by the attacks. DOL and INS will expedite (without the premium processing fee) H-2B requests for persons to work on rescue, clean-up or rebuilding efforts in the aftermath of the attacks. For requests going to the NSC, please mark these petitions to the attention of Neil Jacobson. VSC has offered to expedite cases for petitioners that were located in the World Trade Center (without the premium processing fee).
• Caveat: However, no details are available about for the specific conditions for exercise of such discretion. People should not assume that such exercise of discretion will apply to any or all situations! Until it is clarified, people should adhere to the rule of "timely filing."
• Thanks, AILA! Back to Top

Updated 09/10/01: Relevant Text of H.R. 1885 As Passed by Senate on 09/06/01

• As reported at this website, the Senate passed the House bill, H.R. 1885 with amendment on September 6, 2001 to extend 245(i) until 04/30/2002. The relevant part of the bill as passed in as follows:
  • `(D) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after April 30, 2001, demonstrates that the familial relationship existed before August 15, 2001, or the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001;'.
• The Senate's original bill, S. 778, is still to be acted upon by the House, but AILA reports that it is imminent that the House will pass the compromised version of the Senate. Please stay tuned to this website for the development. Back to Top
  

Updated 09/10/01: V-Visa Status Is "Not" a Panacea to Immigration

• This is a warning to V-Visa status applicant that granting a V-visa status does not forgive previous unlawful presence for the purpose of green card application unless the 3-year or 10-year bar is waived under the prescribed sections of immigration statutes.
• Those who accumulated unlawful presence in the U.S. for over 180 days or 365 days will have no problem in applying for and getting approval of V-visa status by the INS under the recently released V-visa regulation. In other words, the 3-year or 10-year bar will not apply to application for V-visa status.
• However, for the purpose of immigrant visa application, they are still subject to the three year bar or ten year bar. Therefore, these people should never consider a consular immigrant visa proceeding unless they are qualified for the waiver. Those who are eligible for 245(i) will certainly be able to adjust status to a lawful permanent resident inasmuch as they do not travel.
• The real problem is those who are eligible neither for 245(i) benefit nor 3-year/10-year bar waiver under the statute. These people will be neither eligible for immigrant visa issued by the American Consulate nor adjustment of status (I-485) by the INS. Probably the option for these people will be for the Permanent Resident petitioner to convert to a U.S. citizenship before the INS adjudicate V-visa spouse's pending I-485. However, even after the INS denies I-485 before the Permanent Resident petitioner becomes a U.S. citizen, he/she may still have a relief in immigration court once the petitioner becomes a U.S. citizen before the court order of removal is implemented. Those who entered without inspection (EWI) but obtained V-visa status who are subject to 3-year/10-year bar are indeed dead-trapped even after the Permanent Resident petitioner becomes a U.S. citizen, if they are neither eligible for 245(i) nor waiver of 3-year/10-year bar under the statute. Probably the sole relief may lie with the cancellation of removal by the Immigration Judge in the removal proceeding.
• People should seek legal counsel and this law firm will not be responsible for the consequence of reliance on this posting. This is not a legal advice. Back to Top

Updated 09/08/01: Why 485 Cases Are Referred to Local INS Offices?

• Service Centers have been referring some 485 applications to local INS district offices for interview before the 485 applications are adjudicated and it has been a puzzle to those whose cases were referred to the local district office raising a lot of speculation. According to the CSC, the INS HQ requires following cases to be referred to local disctrict offices:
  • Fingerprints rejected twice by FBI
  • Fingterprint has a positive response
  • Medical condition requiring a waiver
  • Jurisdiction (i.e., family-based case)
  • Does not meet interview waiver criteria
  • Principal alien's INS file located at the Local Office
  • Dependent alien's INS file locagted at the Local Office
  • Asylum applicant
  • Applicant under investigation
  • Age-out
  • Has multiple INS file number.
• However, not all cases falling under one of these criteria have been remoted to the local districts according to the experience of immigration practitioners. A good example is aging-out cases. Apparently there still remains some room for exercise of discretion in determining which cases to be sent out and which cases not.
• It is nice to know that not all cases are remoted for the purpose of investigation. Those experiencing such district interview referral should not live in fear unless there is indeed a serious question involved in his/her case! Back to Top

Updated 09/08/01: CSC Standards for I-140 Amendment Pending I-485

• CSC generally follows the INS HQ memorandum of 12/10/1993, except when I-485 has been pending more than 180 days. In other words, when I-485 is pending less than 180 days or I-485 has yet to be filed, the following rules apply:
• Simple Name Change and No Change of EIN Number: Employer still needs to file I-140 amendment.
• Merger of Two Companies: Employer still needs I-140 amendment for employees of the two merged companies.
• Acquisition of a Company Taking over All the Interests/Liabilities of the Acquired Company related to Labor Certification and I-140 Petition: The acquiring company still needs to file I-140 amendment.
• All in all, it appears that CSC is applying a very rigid rule, requiring I-140 amendment in most cases of corporate resturing unless I-485 has been pending more than 180 days.
• Caveat: Where merger/acquisition fails to meet the traditional standard of successor-in-interest, filing of I-140 amendment may not necessarily result in approval of amendment. People should act only with legal counsel of the issues and strategies of an experienced attorney to review the potential risks and available options involved in such changes.
• Caveat: This rigid standard does not necessarily apply in other Service Centers. For other Service Centers, people should check with the Service Center of their jurisdiction. Back to Top

Updated 09/08/01: TSC Permits Multiple I-485 Filing

• This has been a very confusing question for immigration practitioners as well as the immigrants. Now, at least one Service Center, TSC, confirms that it allows filing of more than one I-485 by the same applicant. Dependent family members who filed I-485 can file another I-485 as a principal applicant without withdrawing the pending his/her I-485, should he/she become eligible to file I-485 on his/her own approved immigrant petition (I-140, I-130, I-526, I-360, etc). In this case. two I-485 applications will be pending for the same person, one as as a derivative dependent beneficiary applicant and the other as the direct beneficiary applicant. For instance, a wife files I-485 along with her husband's EB-485, as a dependent family member. Later she gets her own I-140 petition approval. TSC will allow her to file a second I-485 application based on her own approved I-140 petition. TSC advises that when the applicant files a second I-485, he/she notes visibly on the form that it is a second 485 application and writes in pending SRC number.
• Therefore, the TSC filers will have two options: One option is the current INS HQ policy that permits "switch" of direct beneficiary without affecting the pending 485 applications for the spouses. For instance, a wife files I-485 as a dependent beneficiary along with her husband's EB-485 application based on her husband's approved I-140 petition. Later her own I-140 petition is approved and priority date is current. She can replace her husband's underlying approved I-140 petition by her own approved I-140 petition as the new underlying I-140 petition. In this case, her husband will be switched to a dependent beneficiary applicant and she will become the principal beneficiary applicant. This switching will not affect processing of their on-going I-485 applications in terms of processing times or otherwise. This can be a lifesaver when the original applicant (the husband in the illustration) loses a job pending I-485 or faces a potential denial for whatever reasons. On top of this option, TSC allows concurrent filing of two I-485 applications by an individual applicant as another option. If this practice is stretched, the whole family will be able to file more than one I-485 applications concurrently and take advantage of approval of whichever applications that come along first. In this scenario, each spouse will have two applications, one as a principal applicant and the other as a dependent applicant. The children could have two applications, both as a dependent applicant.
• Caveat: This is a view expressed by TSC at the AILA liaison meeting in August and this practice can change. Besides there is no information available about whether the same will be permitted in other Service Centers. People should refrain themselves from jumping into his/her conclusion and act at his/her own risk with other jurisdictions! Back to Top

Updated 09/08/01: New INS V-Visa Application Filing Instructions and Forms

• The following links will provide assistance to the V-visa application filers:
  • INS News Release of V-Visa Regulation
  • INS V-Visa Regulation
  • V-Visa Application Form and Instructions
  • LIFE-related processing information in general

Updated 09/07/01: INS V-Visa Regulation Released

• Today INS released the long-awaited V-Visa regulation. Release of this regulation plus the Senate passage of 245(i) Extension bill is indeed a good gift to the Mexican President Fox who returns to Mexico today! Please stay tuned to this website for the summary. Back to Top

Updated 09/04/01: Somalia Redesignated for TPS Until 09/17/2002

• Today, the INS announced redesignation of Somalia for TPS until 09/17/2002. For the application procedures and other details, please click here.

Updated 08/31/01: Brundi, Sierra Leone, Sudan TPS Redesignated to 11/02/2002

• INS released regulations to redesignate the Temporary Protected Status for Brundi, Sierra Leone, Sudan for one year until November 2, 2002. For the detailed procedures and requirements for the extension, please read the following regulations:
  • Brundi
  • Sierra Leone (PDF)
  • Sudan

Updated 08/29/01: INS Corrects Filing Address for LIFE Legalization 485D & Family Unity Benefits 817

• Today, INS announces that the filing address for I-485D and I-817 for seeking the benefits under LIFE Act Legalization and Family Unity Benefit provisions is: United States Immigration and Naturalization Service, P.O. Box 7219, Chicago, IL 60680-7219. This annoucement correcting the error in the previous federal register takes effect today, 08/29/2001. For details, please click here. For the full text of the regulation on LIFE Legalization and Family Unity Benefits Application of June 1, 2001, please click here. Remember, though, that the filing address in this regulation was incorrect.
• This federal register announcement formalizes previous INS announcement on its website on 07/23/2001. Back to Top

Updated 08/27/01: V-Visa Processing Update

• On 08/21/01, we reported that the DOS took a position that unless I-130 is approved, the consulates would not issue V-visas. In other words, Receipt Notice was considered insufficient. However, there is a small good news on the situation. INS HQ confirms that INS is working with the DOS to share a database extract so that DOS will have proof of the filing of the I-130 other than the INS receipt. This should help the consulates to process V-visa applications even if I-130 has yet to be adjudicated.
• Despite of our report that the INS did not process V-visa status application until the INS V-Visa regulation was released, there has been a rumor that the INS was accepting V-visa status application. INS confirms once again that INS does not accept nor process V-visa status application at this time. We hope that this regulation be released soon.
• The V-visa holders who have already been issued the V-visas by the American consulates overseas should send their employment authorization application to: United States Immigration & Naturaliazation Service, P.O. Box 7216, Chicago, IL 60680-7216. For the details, click here. Back to Top

Updated 08/24/01: Automatic Waiver of Tetanus Vaccination for 485 Medical Exam

• People must have learned through the media that in this country, there is a severe shortage of Tetanus Vaccine. This vaccination is required for the 485 medical clearance, though.
• The AILA teleconference with the INS HQ reflects that the requirement for vaccination that contains tetanus will be temporarily waived automatically until September 30, 2001. The Civil Surgeons who conduct the green card medical examination should be made aware of the current INS policy. People who face any civil surgeons who are ignorant of the INS policy and refuse to complete medical report should be reminded of the minute of AILA-INS/ISD Teleconference dated 08/09/2001. Back to Top

Updated 08/24/01: INS Address for Detained Alien Release Request

• On July 24, 2001, the Attorney General issued a memorandum directing the INS to begin accepting the request for release of detained alien under the U.S. Supreme Court decision of Zadvydas v. Davis.
• Today, the INS released a federal register to announce the office and address that will accept such requests. Any detained alien who believes that he or she may be eligible for release under the Zadvydas decision, should submit a written request for release, along with supporting documentation, to: U.S. Department of Justice, Immigration and Naturalization Service, Headquarters, Post-Order Detention Unit, 801 I Street NW., Suite 900, Washington DC 20536. For the full text, please click here. Back to Top

Updated 08/21/01: Distressful V-Visa

• Reportedly, there are over 380,000 Mexicans who are the spouses and children of permanent residents who are caught up with the INS processing backlogs or priority dates backlogs and consequently eligible for V-visas that were created by the LIFE Act in December 2000. However, as we have already reported, the eligible candidates who are in the United States are stuck with the protracted INS regulation enactment. Lucky candidates who are outside of the U.S. could apply for the V-visas. Reportedly, American Consulate in Ciudad Juarez, Mexico are flooded with these cases.
• AILA reports today that even the consular processing of V-visas are in trouble. Story goes that the Consular officers have no way of confirming the information for I-130 relative petitions and therefore, the American consulates will cease to issue V visas to those whose I-130 petitions have not yet been approved by the INS. This will create a vicious circle because the INS considers F-2 cases low priority cases and there are a horrendous backlog of F-2 cases. These cases have been moving along indeed in snail pace. Consequently, the reported decision of the U.S. Department of State not to issue visas unless the petition is first approved by the INS is an act that slaps the face and intent of this legislation in that the heart of V-visa legislation was to help the family members reunite exactly in this type of situation. The legislation addressed relief not only from priority date backlogs but also from the INS backlogs! My, my, my...........! Back to Top

Updated 08/18/01: Special Notice to TSC Premium Processing Filers

• TSC has changed the inquiry phone number for the Premium Processing Unit. It is now (214) 275-4415. However, the SRC Receipt Notices still show the old number which is a number for a private residence. Please help this family from the nightmare of getting embarassing INS inquiry calls! We have also changed this number above.
• When the Service Centers started the Premium Processing, they already forewarned that the inquiry phone number could change from time to time. This necessitates the Premium Processing filers to double check the Service Centers' inquiry number to see whether the number is current at the time they make such calls. Back to Top

Updated 08/17/01: Affect of Travel Pending Application: COS vs. EOS

• These are the subjects that confuse tremendously immigration lawyers as well as immigrants. The INS Memorandum dated June 18, 2001 reconfirms that there are two different rules between COS (Change of Status) and EOS (Extension of Status). These differences are as follows: If one travels outside the U.S. before the INS decides the case, the case is considered "abandoned" in the case of COS, but not in the case of EOS.
• COS: The memorandum does instruct the INS directors to deny COS application if the officers learn that the alien travelled outside the U.S. before the application is adjudicated, as the INS considers such application "abandoned." Therefore, people should never leave the country before the COS application is decided.
• EOS: The memorandum also reconfirms that unlike the COS situation, the EOS applicant is not precluded from travelling outside of the U.S. while the extension application is pending with the INS. However, there are two circumstances in EOS situations: (1) EOS application is approved while the alien remains outside the U.S. and before the alien returns to the U.S. (2) EOS application is approved "after" the alien returns to the U.S. Even though this memorandum did not reach this far in analyzing the rule, there is a rule that has been in effect for a while. It is called "last action" theory. Under the last action theory, even though EOS application in the senario (1) is not considered abandoned, the alien's extension can be affected depending on how the alien returns to the U.S. It appears that if the alien returns to the U.S. without the extension approval notice, the immigration inspector at the port of entry will give a new I-94 based on the existing visa or the NIV status before extension, and this may be considered the "last action" of the INS overriding extension approval. In this regard, it appears that it is extremely important that the alien somehow receives the hard copy of extension approval notice and returns to the U.S. using this notice with extended period of stay permitted by the INS. In the senario (2), the last action of the INS is approval of extension application since the alien returns to the U.S. with the inspection by the immigration inspectors at the port of entry, and the extension of status is totally unaffected.
• Caveat: The rule of last action applies only to the EOS situation and not, "repeat," not COS situation. Remember that in COS situation, no matter what, once the alien leaves the U.S. pending application, that application is considered abandoned regardless of when the alien returns to the U.S. This is the area which has confused a lot of practitioners.
• Caveat: In employment-based nonimmigrant situation, the principal alien (H-1B, L-1, O-1, etc) files both EOS and COS using the form I-129 and supplement, while the dependents or non-employment based nonimmigrants apply for EOS or COS using I-539. The impact of the COS rule can be differ between these two groups. In the group one (principal alien), the "petition" includes two legal proceeding: Employer request for INS permission to employ a foreign worker, and the alien's application for his/her current permitted stay. In the group two (539 application), there is only one legal proceeding involved, alien's application for change/extension of permitted stay. Consequently, the approval of the petitions in the group one will remain valid for the employer, but the same is not true for COS applicant alien if he/she leaves the U.S. pending the petition. What this means is that the approved petition is "not" totally dead. The alien will just have to leave the country again and return to the U.S. with the visa obtained using this approved petition and return to the U.S. This is so because the INS cannot deny the employer's petition inasmuch as the petitioner is eligible. It just can deny the portion of alien's application for change of status. In the second group that uses I-539, the same situation of COS and travel pending application will be totally killed since there is only the alien's application for change of status.
• The foregoing is a summary of the memorandum in part and a summary of this reporter's understanding of the rules. People should not act on this posting unless they first seek legal counsel. This reporter's understanding is not a law. Back to Top

Updated 08/17/01: Change in "Au Pair" Youngsters' Cultural Exchange Visitor Program

• Effective today, 08/17/01, the Au Pair program requires not less than 12 hours of credit or equivalent. Until yesterday, the requirement was not less than 6 hours. This change requires reduction of hours spent for child-care and increase of learning opportunity.
• The au pair programs are intended to offer foreign nationals the opportunity to live with an American host family and participate directly in the home life of the host family while providing child care services and attending a U.S. post-secondary educational institution.
  The U.S. Department of State's goal is amending the regulation today to provide an opportunity for participation by foreign nationals who wish to pursue their academic studies more vigorously. To this end, the Department now approves a reduction in the amount of child care services this au pair participant will provide to not more than 30 hours per week and an increase in the amount of academic credit the au pair will pursue to not less than twelve semester hours or its equivalent. Existing provisions for au pair participation based upon up to 45 hours of child care services and the pursuit of not less than six semester hours of academic credit or its equivalent remain unchanged. To accomplish this dual objective, EduCare au pair participants will be placed with host families that need before and after school child care services for their school age children. Accordingly, EduCare au pair participants may not be placed with families having pre-school children unless alternative, full-time arrangements are in place for the supervision of such pre-school children. As the EduCare au pair participant will be more actively pursuing his or her academic studies, a reduction in the number of hours that the au pair will provide child care services, from not more than 45 hours per week to not more than 30 hours per week, is hereby adopted. This reduction in the number of hours of child care services provided dictates a corresponding reduction in the weekly wage paid to an EduCare au pair participant. For the amended regulation, please click here.
  

Updated 08/15/01: INS Guidance of K3/K4

• The INS has released a brief guidance on K3/K4 visa application. A good summary. Back to Top

Updated 08/15/01: INS "Expedite" Guidelines (PDF)

• The INS HQ Employer Information Bulletin 99-24 dated July 1, 2001 indicates that the following is the expedite guidelines:
  • Termination of Standard Expedited Processing for Most Cases
    • Regardless of circumstances expedite requests will no longer be available to petitioners whose submissions are eligible for Premium Processing unless a petitioner has been designated a non-profeit entity by the U. S. Internal Revenue Service.
    • Accordingly, Expedited Processing is available only for the cases which are not covered by the Premium Processing, such as immigrant cases, no business/employment nonimmigrant petitions, family-based cases etc. or the petitioner is a non-profit entity. It is thus clear that people who file those employment/business related nonimmigrant cases should not even think about or waste time and energy to get the INS mercy of "expedite." They should just use the Premimum Processing.
    • When "expedite" is available, people should also meet one of the five following standards:
      • (1) Severe financial loss to company or individual
      • (2) Extreme emergent situation
      • (3) Humanitarian situation
      • (4) Department of Defense or National Interest situation providing that request is submitted by U.S. Government agency and states that delay will be detrimental to the Government of the United States
      • (5) INS error.
• Good to know!? Back to Top

Updated 08/15/01: Summary of K3/K4 Regulation

• K-3 Spouse Visa Requirements Under the LIFE Act:
  • (1)The alien must already be married to a U.S. citizen
  • (2)The U.S. citizen spouse has filed a relative visa petition on his or her behalf (I-130)
  • (3)The alien's I-130 petition and immigrant visa has yet to be adjudicated and the alien seeks to enter the U.S. to wait the I-130 petition approval and availability of an immigrant visa.
  • (4)The U.S. citizen spouse must be petitioning (I-129F) on that alien's behalf to obtain a nonimmigrant visa (K-3). The petition must be approved by the INS before the Consular Officer abroad can issue the K-3 visa.
  • (5)At the time of admission to the U.S., the alien must be in possession of the K-3 visa.
  • (6)The K-3 visa must be issued from the same foreign country where the marriage occured, if the marriage occurred outside theU.S. where there is an American visa issuing post. If there is no American visa issuing post in that country, this requirement is waived.
• K-3 Spouse Visa Status Termination:
  • Automatically terminates 30 days following the denial of I-130 petition or I-485 application or immigrant visa application.
  • However, the termination is not final until the applicable administrative appeal has been exhausted, or the period of appeal expires.
  • Any finding by the INS that a fee or other consideration was given for the purpose of filing the relative visa petition or the petition to obtain K nonimmigrant status for a spouse also results in termination of the K status.
• Bar to Adjustment to Permanent Resident Status Other Than Through the U.S. Citizen Spouse Who Filed K-3 Visa Petition.
  
  K-4 Children:
  • Only children of the eligible spouses of U.S. citizens are eligible for the K-4 nonimmigrant classification.
  • I-129F must also be filed with and approved by the INS for the purposes of obtaining K-3/K-4 nonimmigrant status for a spouse and any children of the spouse.
  • If there is more than one beneficiary, only one Form I-129F need be filed.
  • The U.S. citizen petitioner is not required to file a Form I-130 immigrant visa petition on behalf of the alien's children seeking K-4 nonimmigrant status.
  • Nonimmigrant K-4's are dependent on the K-3 for their status. Therefore, K-4 eligibility is restricted to those whose parents are eligible for a K-3 nonimmigrant classification.
  • K-4 aliens must be under 21 years of age and unmarried. However, nothing in the law prevents the U.S. citizen stepparent from filing Form I-130 for the child, and such action would be prudent and beneficial to the child. The child will not be able to adjust
    status to that of a lawful permanent resident (LPR) or even file an application for that status until the U.S. citizen stepparent files Form I-130 on the child's behalf. If the U.S. citizen never files the Form I-130 on behalf of the child, the biological parent may do so after immigrating, but the child may have to wait for a visa number to become available. In addition, since the parent would no longer be in K-3 status but would be an LPR, the child would no longer be in lawful K-4 status, since it is merely a derivative classification.
• Important Note: INS interprets the word ``availability'' in the phrase ``awaiting the approval of such petition and the availability to the applicant of an immigrant visa'' to mean the approval of the adjustment of status application (I-485). Read literally, the language could mean that those aliens with approved Form I-130 petitions on their behalf would not be eligible for K-3/K-4 status. This is because those aliens would not need to await the approval of the petition and because no visa number is needed by an immediate relative of a U.S. citizen. A visa is available as soon as the Form I-130 is approved. However, the INS believes that Congress did not intend to create a nonimmigrant classification for spouses and children of U.S. citizens that is based on the filing of a Form I-130 petition, only to see that classification cut off to them part of the way through the immigration process. However, the INS also believes that Congress did not intend for this K-3/K-4 status to be of indefinite duration and that status holders must be taking steps to ultimately immigration. To ease applicant burden and to avoid any confusion, the INS recommends that petitioners whose alien spouses wish to first obtain a K-3/K-4 visa abroad and later adjust while in the United States so state in Question 21 of Form I-130. Petitioners may state in this question that their beneficiary will apply for adjustment of status in the United States (I-485). Petitioners who have previously stated on an approved Form I-130 that the beneficiary would visa process abroad should notify the Service that they now intend to apply for a K-3/K-4 nonimmigrant visa and will be applying for adjustment of status to that of lawful permanent resident in the United States. The INS will then request that the National Visa Center (NVC) return the approved Form I-130 to the Service Center with jurisdiction.
• Application Procedures:
  • The INS plans to design a new form for this purpose, but because LIFE is already effective and a process is needed to implement it immediately, the Service will use the Form I-129F until further notice. Applicants using Form I-129F to apply for K-3/K-4 status should omit sections (B)(18) and (B)(19) as instructed on the new version of the form.
  • Cabeat: Applicants for the new K-3/K-4 classification are not exempt from the 3- and 10-year bars, as it did for the other new visa category, the V visa. However, the K-3/K-4 nonimmigrants are given the same opportunity to apply for the same waiver provisions as do the K-1/K-2's (fiancee and children).
  • Applications for K-3/K-4 status should be sent to the following address: Immigration and Naturalization Service, P.O. Box 7218,
    Chicago, IL 60680-7218
  • Upon approval, the INS will send approval notice to the American Consulate in the foreign country where the marriage had occurred.
  • The alien will then appear at the consulte to apply for the visa.
• Admission
  • Aliens appearing at U.S. Ports-of-Entry (POE) with a valid nonimmigrant K-3 visa will be inspected, and, if admissible, will be admitted into the United States for a period of 2 years.
  • Similarly, an alien children appearing at a POE with a valid nonimmigrant K-4 visa will be admitted for a period of 2 years or until the day before the alien's 21st birthday, whichever is shorter.
• Changing to or From K-3/K-4 Nonimmigrant Status
  • Nonimmigrant aliens will not be able to change from another nonimmigrant status to K status while in the U.S.
  • At the same token, K-3 and K-4 nonimmigrants may not change to any other nonimmigrant classification. This is comparable to the prohibition against adjustment of a K to LPR on any basis other than the marriage on which the K petition was based.
  • Howver, neither of these prohibitions will affect the ability of alien spouses and children of U.S. citizens in the United States to remain. A United States citizen's spouse and children remain eligible to file for permanent residency at any time if the petitioner files Form I-130, and the beneficiary files Form I-485. While these are pending, the spouse of the U.S. citizen and his or her child may remain in the United States without accruing unlawful presence, and may obtain work authorization and permission to travel outside the United States and return.
• Employment Authorization
  • Aliens admitted to the United States as a K-3 or K-4 nonimmigrant will be authorized to work incident to status.
  • However, K-3 and K-4 nonimmigrants will still need to file Form I-765 and the fee with the INS to obtain evidence of eligibility to work legally in the U.S.
  • K-3/K-4 seeking to renew employment authorization documents will be required to show that they are pursuing the immigration process and still meet the necessary nonimmigrant classification by having an application or petition awaiting approval. In order to renew employment authorization as a K-3/K-4, the applicants will have to show that the Form I-130 has been filed on their behalf,
    and, if the Form I-130 has been approved, that their application for an immigrant visa or their application for adjustment of status has been filed with the INS or Department of State, as applicable, in order to receive a second employment authorization document.
  • This renewal may be requested concurrently with the application for extension of stay.
  • Applications for employment authorization for those in K-3/K-4 status should be sent to the following address: Immigration and
    Naturalization Service, P.O. Box 7218, Chicago, IL 60680-7218.
• Extension of Status
  • Following the 2-year admission period, a K-3 and K-4 nonimmigrant may apply with the Service for an extension of stay using Form I-539 in 2-year increments.
  • The INS will require an alien seeking an extension of stay to have filed a Form I-485 or an application for an immigrant visa.
  • If Form I-485 or application for an immigrant visa has not been filed, the alien must be still awaiting approval of the pending Form I-130, in order to be eligible for an extension of stay, or be able to provide the INS with ``good cause'' as required by the new 8 CFR 214.2(k)(10)(ii) added by this regulation. In other words, the INS will require the Form I-485 to be filed prior to allowing an
    extension of stay as a K-3 or K-4.
  • In addition, the alien must continue to be married to the U.S. citizen spouse who petitioned for the alien's K status.
  • Finally, the U.S. citizen parents (including stepparents) of K-4 aliens should file Form I-130 on the child's behalf at the earliest possible time, if they have not already done so. These requirements will ensure that all aliens who enter as K-3 and K-4 nonimmigrants ultimately continue the immigration process to become permanent residents and continue to meet the statutory definition of the K-3/K-4 nonimmigrant classification.
  • If the Service intends to deny an application filed for an extension of K-3/K-4 status, the Service will send the applicant a notice of intent to deny and the basis for the proposed denial. The applicant will then have 30 days from the date of the notice to submit
    additional information in rebuttal. No appeal shall be available for Form I-539 denials which are filed for an extension of K-3/K-4 status.
    
• Termiination of Status
  • As stated earlier, K-3/K-4 nonimmigrant status will terminate 30 days following the denial of one of the following: The Form I-130, filed on the alien's behalf by the citizen petitioner; an application for an immigrant visa by the alien; or the alien's Form I-485 adjustment of status application.
  • If any of these is denied, the alien will have 30 days to leave the United States or will become deportable and will begin accruing
    unlawful presence for purposes of 3-year or 10-year bar.
  • In addition, the alien will no longer be authorized to work in the United States, and if the alien continues to work without authorization, this will be an additional basis for removal.
  • If the K-3's status is terminated, the derivative K-4's status will also be simultaneously terminated.
  • Additionally, if either the petitioner's Form I-130, or either of the alien's applications listed in LIFE section 1103(c) is denied or is approved but later revoked, the alien's K-3/K-4 nonimmigrant status will terminate 30 days later. Events that can cause the
    revocation of petitions are listed in 8 CFR part 205, and include the divorce of the citizen petitioner from the alien beneficiary.
  • K-3/K-4 status will also be terminated after 2 years if the alien does not file a request for extension of stay with the INS. In
    order for an application for an extension to be approved, the alien must show that one of the following has been filed and is awaiting approval: (1) The Form I-130 petition, (2) an application for an immigrant visa, or (3) a Form I-485 adjustment of status application. The INS believes that if none of these factors is present, the alien is not ``awaiting approval'' of anything.
  • Finally, K-4 status will be terminated when the alien turns 21 years of age or is married. This is another incentive for the citizen petitioner to file Form I-130 on behalf of the K-4 alien child as soon as possible, so that the child may adjust status as soon as possible. Once the K-3 spouse obtains LPR status, there will be no basis for the K-4 dependent's status.
• Adjusting Status From K-3/K-4 to Permanent Resident
  • They are subject to the requirement of conditional residency. Therefore, if the aliens is applying for 485 based on a marriage of less than 24 months in duration, they will be given a status of ``conditional permanent residents'' for two years. Then they must file a petition to remove the conditions with the INS within 90 days of the 2-year anniversary of receiving conditional permanent resident status. Therefore, aliens who end up adjusting status 2 years or more following the original marriage will not be subject to the conditional residency requirements.
• Travel Outside of the U.S. While in K-3/K-4 Status
  • Aliens present in the United States in a K-3/K-4 nonimmigrant classification may travel outside of the United States and return using their nonimmigrant K-3/K-4 visa, even if they have filed for adjustment of status in the United States prior to departure.
    Accordingly, the Service will not presume that departure constitutes abandonment of an adjustment application. (This rule is different for a K-3/K-4 nonimmigrant than for fiances and their children (K-1/K-2).
• Medical Examinations
  • To date, applicants for K nonimmigrant visas have been required to obtain a medical examination abroad pursuant to Department of State regulations prior to entry, and the medical examination is not repeated if they apply for adjustment of status within 1 year of the date the examination was performed.
  • They are, however, required to submit with the adjustment of status application a vaccination assessment completed by a designated civil surgeon in order to establish their compliance with the vaccination requirements.
    
• Affidavit of Support
  • Aliens entering as K-3/K-4 nonimmigrant aliens will not be subject to the Affidavit of Support requirements of I-864. Instead, they will be treated the same as K-1/K-2 nonimmigrants and be required to file a Form I-864, Affidavit of Support Contract Between Sponsor and Household Member, at the time of adjustment. Back to Top

Disclaimer: The foregoing is the summary excepted from the regulation and not from a full text. People should read the full text. This law firm will not be responsible for consequence of reliance on this summary when this website set up a link to the full-text of the regulation below.
Updated 08/14/01: INS K-3 and K-4 Visa Regulation

• The LIFE Act created two nonimmigrant visas to allow the spouse and children to enter the U.S. while they wait for priority dates or immigrant petition approvals. "V" visa is for the spouse and children of a lawful permanent resident and "K-3, K-4" visas are for the spouse and children of a U.S. citizen. Implementation of this legislation was long delayed pending enactment of regulations by the DOS and INS. For the V visas, the DOS enacted regulation and started processing V visas but the INS has yet to enact the regulation for those spouses and children of permanent residents who are already in the U.S. This has created unfairness between those spouses and children who are outside the U.S. and those who are in the U.S. People hope that the INS releases this V visa regulation soon.
• Processing of K-3(spouse) and K-4(children) visas for the spouses and children of U.S. citizen abroad has been under seize both by the American Consulates and the INS pending enactment of the INS K-3/K-4 regulation. These visas require the approval of petitions by the INS before the American Consulates can issue the visas. This long-awaited release of K-3/K-4 visa regulation by the INS will relieve the forced separation between the U.S. citizen spouse and the alien spouse and children abroad caused by the INS delays in processing of immigrant petitions. Please stay tuned to this website for the summary. Back to Top

Updated 08/09/01: INS Memorandum on Fingerprint Waiver Policy (PDF)

• This INS HQ Memorandum of July 20, 2001 by Michael Pearson sets forth the INS policy and procedure for waiver of fingerprint in certain circumstances relating to the birth deformities or skin conditions or psychiatric problems or other defects with the fingerprint. People have experienced a repeated rejection of fingerprint by FBI for the defects of the hands or skin of the applicants. These people should read and carefully follow the procedure in this memorandum. Back to Top

Updated 08/07/01: Special Legislative Bill for Foreign Nurses and Physicians, S. 1259

• Before the Congress went into the Summer Recess on August 4, 2001, the U.S. Senator Sam Brownback introduced a bill tiled "Rural and Urban Health Care Act of 2001" to: (1) revise admission requirements for nonimmigrant alien nurses, including increasing the type of qualifying employer-facilities; (2) revise related immigrant status provisions; and (3) increase the number of annual two-year foreign residency requirement waivers for aliens receiving graduate medical education or training in the United States from the current 20 to 40.
• This bill also proposes to repeal Section 3 of the Nursing Relief for Disadvantaged Areas Act of 1999.
• For this legislation, our colleague, Carl Shusterman, testified before the Congress committee, to testify for the needs for special legislation to deal with shortage of health professionals in the country. This website sends a salutation to Mr. Shusterman for his job well done.

The bill is referred to Senate Committee, and as soon as the Senate returns on September 4, it is expected that it will go through a normal legislation process. Please stay tuned to this website for the development. In the mean time, people may read the full text of this proposed legislation by clicking here, S. 1259. Back to Top

Updated 08/03/01: DOL Releases RIR Conversion Regulation (PDF)(TEXT VERSION)

• DOL has just released the long-awaited RIR Conversion Regulation. This regulation will take effect on September 4, 2001. This regulation allows applicant to convert from the regular labor certification to RIR application without losing the priority date.
• SUMMARY:
  • Applicant must satisfy two cutoff dates:
    • Regular labor certification should have been filed on or before August 3, 2001, "today." In other words, the priority date must be August 3, 2001 or earlier dates.
    • The RIR conversion request must be filed "before" the State Office (SESA) starts recruitment process by placing a "Job Order." Therefore, even if it is filed on or before August 3, 2001, if the employer receives from the SESA an instruction to initiate the recruitment process along with the number of Job Order, that case cannot be coverted. Since the regulation takes effect on September 4, 2001, no conversion request may be filed earlier than the effective date. What it means is that for the applicant to be eligible for the conversion, the Job Order should not be placed by the SESA until Septemter 4 or thereafter.
  • Inasmuch as the priority date is August 3, or earlier, there is no time limit for filing RIR conversion request other than September 4, 2001. Therefore, the employer can file any time after September 4, 2001.
  • The regulation requires that the conversion request be filed with all the RIR documentation.
  • What recruitment evidence is acceptable? There is no cutoff date for useable evidence. Therefore, any RIR supporting documents that exist at the time of request may be used inasmuch as it is within six months prior to the conversion request. It appears that this is a big change from the earlier proposed regulation.
  • Some cases which have already been forwarded to the Regional Certifying Officer can still use the RIR conversion inasmuch as the State recruitment process was not commenced. There will be only a few cases that can take advantage of this rule, such as cases which have been forwarded to the Certifying Officer by the SESA to resolve certain issues.
  • Final Rule. This means the regulation is implemented from September 4, 2001 and certain applicants who filed labor certification application on or before August 3, 2001 will be able to convert such application to RIR on or after September 4, 2001.
  • Finally, the SESA's order to amend or correct the application for a minor issue which would not change the classification of the job will not affect the proceeding after the RIR conversion request.
  • Those who do not have Adobe Reader may click here for TEXT VERSION of the regulation.
  • People should not rely on this summary. It is not a law. People should read the regulation carefully and follow the rules therein. This law firm will not be responsible for consequences of such reliance. This is not legal advice. Back to Top

Updated 08/02/01: DOL H-2A Labor Certification Regulation Amendment Effective 08/02/2001

• DOL has released this regulation to set forth the adverse effect wage rates, meal charges, and maximum travel subsistence reimbursement for certification of agriculture and logging industry temporaray worker employment certification application (H-2A). This regulation has become effective today, August 2, 2001. Immigration practitioners in Essential Worker immigration practice should review this regulation to assist the employers and the farm and logging industry temporary workers for H-2A visa petition. Back to Top
  

Updated 07/26/01: INS Releases Immigration Under NIW for Physicians in Underserved Areas

• The INS has released the summary of the current laws on Physicians NIW immigration. Please click here to review the INS release. Back to Top

Updated 07/24/01: News for Deportation Practitioners: INS Responses to Zadvydas

• Today, the Attorney General issued a Memorandum of Understanding to the INS Acting Commissioner in Federal Register Vol 66, No 142, directing the INS to take certain actions in response to the U.S. Supreme Court .Decision, Zadvydas v. /Davis, 533 U.S.__, 121 S.Ct 2491 (June 28, 2001). click here.

Updated 07/23/01: DOS Amendment Regulation on SN,SK and U Visas

• Probably this message is more related to the practicing immigration lawyers than immigrants. Today, the U.S. Department of State revised its regulation to correct its errors in its recent enactment of regulations relating to the SN immigrant category and the new "U" nonimmigrant category. To get this amendment, please click here.

Updated 07/21/01: Follow-Up Discussion of Spouse Immigration for Current 485 Waiters

• As previously discussed, a number of current or future 485 waiters are unmarried and planning for the marriage back in home country. Unless the spouse is brought in the country (U.S.) timely in H-4 status, the spouses must go through the following-to-join beneficiary immigration application. The following-to-join in itself is also available only when the spouse is acquired before the I-485 waiters get the approval of his/her application. From the moment when the I-485 is granted by the INS, the newly acquired spouse of the new permanent resident is eligible neither for the accompanying spouse immigrantion track nor the following-to-join immigrant track. In this case, the new permanent resident must file a FB-2A immigrant petition for the spouse which has a serious priority date backlog. Consequently, the couple may have to live in two different countries over the Oceans for a number of years before they can reunite.
• The new spouse, who marries the I-485 waiters before the I-485 application is approved but fails to enter the U.S. on H-4 status before I-485 is approved, is forced to go through the consular immigrant processing as a following-to-join beneficiary. The risk in this case is two folds: First the spouse in the home country will not be able to join his/her loved one in the U.S. on a nonimmigrant status until the American Consulate approves and issues an immigrant visa, no matter how long it takes, because of so-call Section 214(b) Intended Immigrant issue. More importantly, the new spouse in home country has to apply for an immigrant visa using his/her spouse's employment-based category priority date. Consequently, should the priority dates move backward for the employment-based immigrant category, the American Consulate will not be able to issue an immigrant visa to him/her until it becomes current, no matter how long it takes. At this time, employment-based categories are all current for every country. Besides, the Visa Office predicts that it will remain so for India and China EB-3 for a while. However, it is foolish for anyone to assume that it ain't happen. Prediction is literally a prediction. It is not a law or rule. Depending on the demand of immigrant visa numbers, it can change.
• All those current or future overseas spouses of their loved other-half in the U.S., please listen to this message very carefully. If you think something else back home is more important than uniting with your loved ones as quickly as possible, who will stop you? But do not blame others including your loved ones in the U.S., should a tragedy haunt you. Why? Because you yourself created the tragedy with the full knowledge. Don't even think about arguing extreme hardship or humanitarian concern flowing from the forced physical separation. It was your choice to take your arguable extreme hardship! Back to Top

Updated 07/17/01: Singles, Beware!

• A large number of 485 waiters are singles or unmarried at the time they file 485 applications. Inasmuch as they maintain their valid H-1B status, they will be able to marry in home country and bring their newly acquired spouses to the U.S. in H-4 status "inasmuch as the spouses enter the U.S. before the 485 waiters get 485 approval. "Approval" means approval of 485 application by adjudicators in the Service Centers and neither receipt of notice nor stamping in the passport nor getting plastic card.
• Lately, we face 485 filers who marry and bring their spouses to the U.S. in H-4 status close to the time of approval of their I-485. Legally, by the time the principal alien's status is converted to a lawful permanent resident, the spouse's H-4 status should also terminate since H-4 is a visa status dependent on a valid H-1B visa status. Therefore, there arises a question as to what happens if the spouse's I-485 application as an "accompanying" spouse is belatedly receipted by the INS after the principal alien's 485 application is approved. Strictly speaking, by that time the H-4 spouse is no longer in H-4 status and there is a serious question of the spouse's eligibibility for 485 application, since only an alien in status can submit 485 application.
• Two consequences can arise. First, inasmuch as the principal alien started the green card process (priority date) before April 30, 2001 and was present in the U.S. on December 21, 2000, the spouses may still be able to file I-485 as a following-to-join beneficiary and using 245(i) benefit. The principal alien's grandfathered 245(i) benefit is also transferred to the spouse without requirement of presence in the U.S. on December 21, 2000 under the LIFE Act that reinstated 245(i) benefit until April 30, 2001. Secondly, the spouse may also apply for immigrant visa at the American Consulate at the home country as a following-to-join beneficiary. However, in the second option, the unlawful presence of the spouse may continue to run and if the spouse departs from the U.S. after 180 days to have the immigration interview, he/she may be subject to the three-year bar and the consulate will not be able to issue immigrant visas. Additionally, the INS may be able to initiate removal proceeding if he/she is arrested.
• Filing delay of 485 is usually caused by medical examination and collection of such evidence as birth certificate or marriage certificate from his/her home country. In emergency, people may consult their legal counsel as to whether it is desirable to file the signed I-485 application with a proper filing fees without sufficient supporting documentation to get their cases in the system ("filed") before their status runs out. The INS will then issue RFE to request the required supporting documentation.
• This is not a legal advice and people should seek legal counsel for their individual cases and should not rely on this posting. This law firm and its lawyers will not be responsible for consequences of such reliance. Back to Top

Updated 07/11/01: Same-Sex Cohabing Partner Accompanying H, L, E or Other Long-Term Nonimmigrants

• The U.S. Department of State has released a memorandum addressed to its posts throughout the world relating to the opportunity of "significant other," no matter whether same-sex or opposite-sex, to accompany the principal nonimmigrants such as H-1B, L-1, F-1, etc. who need to stay in the U. S. for a prolonged period of time for study or work. Recognizing the hardship from separation, the DOS is amending its Foreign Affairs Manual as follows:
• N11.4 Cohabitating Partners, Extended Family Members, and Other Household Members Not Eligible for Derivative Status
  • B-2 classification is appropriate for aliens who are members of the household of another alien in longterm nonimmigrant status but who are not eligible for derivative status under that alien's visa classification. Such aliens may include cohabitating partners or elderly parents of temporary workers, students, diplomats posted to the U.S., etc. B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2 or other derivative visa. If such individuals plan to stay in the U.S. for more than six months, they should be advised to ask INS for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal alien's nonimmigrant status in the U.S.
  • People should remember two key points:
    • First, the significant other of H-1B or L-1 will not enjoy dural intent and must prove that he/she is not "intended" immigrant by showing his/her strong ties to the home country. The memo indicates that one of the yardsticks to measure such ties includes the strength and length of the ties between the cohabiting partners. The longer the relationship was, the better chance he/she has to get such B-2 status to accompany his/her significant other. In asmuch as such ties are established, it appears that both the DOS and INS seem to agree to allow him/her until the principal alien completes nonimmigrant stay.
    • Secondly and Caveat: After the initial entry to the U.S., the person needs to apply for extension every six month or whatever period the INS grants at the port of entry or the field offices. Extended stay after the initial entry remains strictly the jurisdiction and authority of the INS. It appears, though, that the INS had a chance to review this memo and tacitly agreed.
    • One additional caveat: "B-2 is B-2" no matter what. He/she must be "admissible" as B-2 in all other respects other than duration of stay in the U.S.
• Hmmmmmmmm......Interesting!?? Back to Top

Updated 07/05/01: Reminder of Cut-Off Date in RIR Conversion Regulation

• According to the DOL officials who attended AILA Conference in Boston, this regulation will be released "very, very soon." This reporter feels that the release will be imminent. Reportedly, the regulation will allow employers to use the recruitment efforts, including newspaper ads and internet recruitment, which were generated "before the date of release of the regulation!" Employers and alien employees who need conversion should keep in mind this important cut-off date for the advertisements. Back to Top

Updated 07/04/01: AC 21 Memorandum in Full Text

• As promised, this Reporter has just posted the full text of the AC Memorandum. This should be a good reading material for the holiday. Back to Top

Updated 07/02/01: Alert to Canadian TN-Visa Travellers

• The AILA has reported that the INS revised its Inspector's Field Manual (IFM) relating to the Canadian TN applicants/travellers. The revision will have very serious consequences on certain TN applicants at the Northern border. It took effect on 05/25/01.
• Before the revision, the TN applicant at the border who was ineligible for admission to the U.S. on a TN-status had an opportunity to seek review of such decision by an Immigrant Judge, should he/she ask. The IFM removed such procedure and converted to "expedited removal." Consequently, the TN applicant who faces a denial of admission for the reasons specified in 212(a)(7)(A) or 212(a)(6)(C) has only two options: Either withdraw the application for admission to the U.S. or face "expedited removal." Under the immigration laws, the alien who was removed through the expedited removal is subject to the five (5) year bar to the entry to the U.S.
• The full text of the new provision is as follows:
  • Denial. In the event a Canadian citizen applying for admission pursuant to NAFTA cannot demonstrate to the admitting officer that he or she satisfied the requirements for admission pursuant to the NAFTA, Appendix 1603.D.1, he/she should normally be offered the opportunity to withdraw hi/her application for admission. If the inspector believes that the alien is inadmissible under Section 212(a)(7)(A) (intending immigrant) or 212(a)(6)(C) of the Act (seeking admission by fraud or willful and material misrepresentation) and the alien does not wish to withdraw his/her application for admission, the inspector should place the alien into an expedited removal proceeding.
• The Canadian TN travellers or applicants are hereby warned that they should seek legal counsel before they choose between withdrawal or facing removal. Back to Top