THE OH LAW FIRM

Dedicated Professionals in Immigration Law

Reported by Matthew Oh, Esquire.

(07/01/2002 - 10/31/2002)

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

Updated 10/31/2002: AAO Appeal Processing Times of 10/17/02 By Type of Case

Updated 10/31/2002: Eligibility of Naturalization for Battered Spouse/Child Being Granted Green Card Based on I-360 Petition

• INS Executive Assistant Deputy Commissioner, William Yates, issued a memorandum on October 15, 2002 to lay out certain benefits and exceptions from certain eligibility requirements for application for naturalization for the applicant who is granted a lawful permanent resident status based "battered spouse" special immigrant petition, I-360.
• Under the memorandum, such permanent resident is eligible for application for naturalization in three (3) years from the date of lawful admission to permanent residence even if the following conditions do not exist:
  • Residing together with the U.S. citizen spouse;
  • No question of ongoing validity or termination of the marriage to the U.S. citizen spouse;
  • Length or continuity of cohabitation with the U.S. citizen spouse;
  • The requirement for U.S. citizen spouse being alive or maintainiing U.S. citizen status at the time the application for naturalization is filed.
• For the full text of the memorandum, please click here.

Updated 10/31/2002: "Original I-94"

• The INS form I-539 instruction for Extension of Status (EOS) and Change of Status (COS) requires submission of "original" I-94 in certain nonimmigrant cases like F, B, etc. People, being misguided by this I-539 form instruction, a number of people have submitted "original" I-94 to the Service Centers.
• This form instruction contradicts the Service Centers' procedure which does not want and does not require "original" I-94 for I-539 filing. Apparently, the printed form instruction has yet to be updated. The Service Centers remind the people that "Please do not submit Original I-94!" People should just submit a photo copy of front and back of I-94 and printed INS sheet that states that it is a correct copy of unaltered original.
• The "Original I-94" is very important because it is a proof of two important legal matters: It is a proof that he/she entered the U.S. "with inspection." People who fail to prove "enter with inspection" are considered an undocumented alien and cannot apply for any status. Secondly, it is a proof of "maintaining nonimmigrant status." Please remember that the "visa stamp" in the passport is not a proof of maintaining nonimmigrant legal status. Once a new I-94 is issued by the Service Centers with the approval of EOS/COS, the new I-94 becomes of such proof, but people may have to keep a copy or original of I-94 which they received at the airport as such document may be needed when they apply a number of applications or petitions. Besides, nowadays, various state and federal agencies require I-94 for security check, not to mention the employer's need for I-9 compliance.

Updated 10/30/2002: Minnesota INS District Office Policy Change for EAD/AP Processing for EB-485 Applicants

• Informed sources indicate that the INS District Office will no longer process EAD and Advance Parole applications for those whose cases are pending at the Nebraska Service Center, Effective January 1, 2003. Minnesota INS District Office is one of a handful INS local district offices that issue EAD and Advance Parole for EB-485 applicants.
• What does this mean? People will have to apply for EAD and Advance Parole with the Nebraska Service Center. Currently, the processing times for EAD and Advance Parole applications for EB-485 applicants are quite backlogged and people should take this into consideration. At the same time, those who are eligible for EAD/AD within this year should obtain EAD or EAD renewal before the new policy takes effect on January 1 next year!!

Updated 10/30/2002: One-Year TPS Extension for Sierra Leone

• The Attorney General announced today one year extension (til 11/02/2003) for Sierra Leone qualified nationals. To re-register for the TPS extension, an applicant must submit Form I-821 (Application for Temporary Protected Status), Form I-765 (Application for Employment Authorization) and two identification photographs to the local INS district office by December 30, 2002.
• If the applicant is only seeking to re-register for TPS, there is no filing fee. However, all applicants who also seek an extension of employment authorization must submit a $120 filing fee with Form I-765 by December 30, 2002. Applicants may request a fee waiver in accordance with the regulations.
• Applicants for an extension of TPS benefits do not need to submit new fingerprints nor the $50 fee. Children who are beneficiaries of this status and have reached the age of 14, but have not been previously fingerprinted, must pay the $50 fingerprint fee with their application for extension.
• Individuals should submit their re-registration package to the INS district office with jurisdiction over their place of residence during the sixty-day re-registration period that begins October 31, 2002 until December 30, 2002. For the full text of announcement, please click here. See also regulation.
  

Updated 10/29/2002: eGovernment Strategy and Online Filing System Ahead

• This web site reported earlier that the federal government was actively launching e-Government system which is the government services through on-line interface system. As everyone knows, the INS has already started online individual case status checking system of eGov and the U.S. Department of Labor is also actively pushing eGov system. This is a overture to the initiation of forthcoming "online filing" services of the agencies. We reported that the PERM labor certification system had premised its concept on the online filing system down the road and the INS will also start online filing system beginning from Form I-90 and Form I-765 (EAD Application) in the near future.
• The immigrant community should make themselves familiar with these on-going and forth-coming changes to prepare themselves for the cyber-era immigration process. For the details, please click the followings:
  • Federal Government's eGovernment Strategy
  • INS Announcement

Updated 10/27/2002: Continuing Downturn Economy, 7th-Yr H-1B Extension Bill, and Labor Certification Options

• The President is anticipated to sign the DOJ Authorization Bill coming week which includes 7th-year H-1B extension provision. This 7th-year H-1B extension provision amends the AC 21 Act provision that requires filing of I-140 petition in the case of labor certification cases before one can apply for the 7th year extension. The new law will remove such requirement and anyone whose labor certification application is pending for 365 days or longer will be able to apply for extension of H-1B status beyond the 6-year limit.
• Examination of the DOL Processing Times report will tell the readers that there are three categories of states when it comes to processing delays: (1) No delays at the state as well as federal levels; (2) Delays at the state level but fairly less delays at the federal level; and (3) Delays at both the state and federal levels. Obviously, majority of the beneficiaries of the new legislation will come from categories (2) and (3), particularly (3) as most of them have been waiting for longer than 365 days in the "regular" labor certification applications. These are big-ten states.
• What happens with those who need the labor certification and have yet to file such applications? Obviously, the foregoing information will be able to help them to structure the labor certification route. People should consider the two constraints as given in stratagization of labor certification. One is the continuing poor economy and high unemployment, and the other is different conditions of labor certification processing in different locations.
• As everyone knows, the U.S. employers are currently reluctant to initiate RIR applications because of the risk of failures and challenges by the DOL. Their recruitment efforts usually produces huge responses from U.S. workers. Assuming that the poor economy stays at it stands now, the chances for employers agreeing to filing of RIR may be very limited. In the meantime, your H-1B time keeps running toward the 6-year limit! Here comes your need for considering filing of a regular labor certification application. First, it will help in accumulating 365 days so that at least you do not have to worry about the H-1B 6-year limit. Second, your employer then may be able to start either RIR-type or PERM-type recruitment process parallelly with the on-going regular labor certification or when the economy and unemployment improves. It is better than just sitting and yawning and doing nothing. What about H-1B quota reduction to 65,000 in coming October 1, 2004? You do not have to worry about it once you accumulate 365 days because the DOJ Authorization bill exempts such H-1B eligible aliens from the H-1B annual cap!
• Caveat: The foregoing information applies only to the states of category (2) and (3) above, particularly category (3) of big states. It does not work with the states of category (1) because these states and Regions do not experience much delays. If they file a regular labor certification application in these states, the employer will have to start the "supervised" recruitment process in a very short time from the date of filing. For the people in these locations, it may be better off to start RIR or PERM from the beginning for a couple of reasons: First, the unemployment rate in these states is usually much better than those in big states, especially high-tech and other higher level professional jobs. Second, the processing time is so short that except an unusual situation, 7th-year H-1B extension consideration may not play an important role in the decision-making process. In fact, in these locations, even the chance of a successful regular labor certitications may be much higher than big states. These locations include Montana, North Dakota, South Dakota, Maine, New Hampshire, Vermont, Delaware, West Virginia, Seattle, Iowa, Alaska, etc. Unfortunately, most of the jobs are located in the big 10 states!! Something to think about.

Updated 10/25/2002: State Dept Terminates 20-Day Mandatory Holding Policy for Nonimmigration Visa Applications for 26 Nationals

• A very good news for those 26 nationals who have been subject to authomatic "20-day automatic holding" procedure to issue a nonimmigrant visa. The U.S. Department of State has terminated this policy. It is hoped that it helps to reduce the visa processing times for these nationals from hereon. For the full text of the DOS cable to the visa posts, please click here.

Updated 10/25/2002: H-1B LCA Violations Cost 5 Medical Clinics in TN Over $1 Million Back Wages Payment and Penalty

• The Administrative Law Judge of U.S. Department of Labor awarded $1,044,294 back wages to the foreign medical doctors who had filed complaints against 5 medical clinics in Tennessee and additionally the Judge imposed $108,800 civil penalty for the violations in a decision which was handed down on October 10, 2002.
• In this case the Administrator, Wage and Hour Division, Employment Standards Administration ("Prosecuting Party" or "Administrator") alleges that the Respondents owe back wages to 17 doctors employed to work in 5 medical clinics in Tennessee, and civil money penalties, because Respondents failed to pay the wages set forth in their LCAs; discriminated against 9 of the doctors by discharging them, or constructively discharging them, in retaliation for engaging in conduct protected by the Act; failed to make documents available for public inspection; and failed to maintain required documentation. For the reasons stated below, the Judgefound the Respondents to be liable for back wages in the amount of $1,044,294.04, and civil money penalties in the amount of $108,800.00. For the full text of the decision, please click here.
  

Updated 10/25/2002: State Dept Revises List of Countries for 6-Month Validity of Passport Beyond Expiration

• This public notice adds Romania to the list of competent authorities that have provided the necessary assurances to the Government of the United States. This notice also adds Bosnia-Herzegovina, Croatia, Guatemala and Guyana to the list. These countries have had agreements in place for some time, but were inadvertently dropped from the list in previous notices. for the updated list of competent authorities that have made the necessary assurances, please click here.

Updated 10/25/2002: President Adds 10,000 for FY 2003 Asylee 485 Quota

• The President issued an order that an additional 10,000 refugee admissions numbers be made available during FY 2003 for the adjustment to permanent resident status under section 209(b) of the Immigration and Nationality Act (8 U.S.C. 1159(b)) of aliens who have been granted asylum in the United States under section 208 of the Act (8 U.S.C. 1158). The President previously determined the annual admission numbers for refugees for FY 2003 to be 70,000.
• Additionally, he also orders that, for FY 2003, the following persons may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence:
• a. Persons in Vietnam
  b. Persons in Cuba
  c. Persons in the former Soviet Union
• For the full text of the order, please click here.

Updated 10/24/2002: DOJ Authorization Bill in White House For Signature

• Congressional Record indicates that this bill was sent to the President yesterday for his signature. Accordingly, the clock of 10 days started ticking yesterday. The U.S. Constitution Article 1, Section 7 provides in part that "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."
• As we reported earlier, this bill includes a number of important immigration provisions such as 7th year H-1B extension on reaching 365 days after filing alien labor certification application, Conrad 30 program for foreign physicians, investor immigrant (EB-5) eligibility changes, etc.

Updated 10/22/2002: Full Text of November 2002 Visa Bulletin, Including DV Numbers

• Until today, the only means to get access to the November 2002 immigrant numbers was DOS telephone system. It was indeed unusual that DOS did not update the November information until today! Now people will be able to access the complete text of the November 2002 Visa Bulltin.
• DOS Prediction for FY 2003 Movement: The cut-off date movement during recent months in most Family-sponsored immigrant categories has been much greater than might ordinarily be expected. It should be noted that these rates of cut-off date advances cannot be expected to continue indefinitely. It has been our experience that a significant increase in demand usually follows such rapid movement in the cut-off dates. Heavier demand for numbers in the coming year, especially from the Immigration and Naturalization Service for adjustment of status cases, could limit or end movement in some or all of the cut-off dates.

Updated 10/22/2002: Asylum Application To Be Used as EAD Application

• INS is seeking an emergency OMB review to use the asylum application, I-589, as application for asylum as well as an application for employment authorization. It intends to implement this new rule on emergency basis fox six months beginning from October 24, 2002. Under this new rule, those who are granted an asylum will not need to file a separate EAD application, I-765, which have burdened the INS so much until now.
• The INS seeks permission to use the Form I-589 to serve as an alternate application for evidence of employment authorization for individuals granted asylum, eliminating their need to file a separate Form I-765, Application for Employment Authorization with the INS if, after being granted asylum, they wish to receive an Employment Authorization Document (EAD) containing both evidence of employment authorization and identity. The Form I-589 collects the same biographic information as that collected by the Form I-765. In those cases where asylum is granted, the biographic information contained on the I-589 could also be used to generate the employment authorization document. While dual-use has advantages for both the government and the public with respect to streamlining information collections, passage of the Border Security Act has increased the necessity of developing such a process. Section 309 of the Border Security Act requires the Attorney General to begin issuing an employment authorization document (EAD) with a photo and fingerprint to asylees ``immediately'' upon the grant of asylum. Such procedures must be in place as November 10, 2002. Due to the passage of the Border Security Act the question of how to process asylee employment authorization documents became even more critical. The INS and the Department now seek emergency OMB approval for the dual use of the Form I-589 to enable the INS to comply with the Border Security Act implementation date of November 10, 2002, as discussed above. Read on for the Federal Register announcement.
  

Updated 10/21/2002: Things to Do If Social Security Number Issuance Is Delayed Pending the INS Status Check

• There are unconfirmed reports that those who are granted work permit or permanent resident evidence stamp or H-1B or L-1 or E-visa status etc are refused issuance of the Social Security Card allegedly for the reason that the SSA cannot verify the status of the applicant in the database. If you just sit and wait, it can take quite sometime before SSN is issued.
• These people should go to the INS Form site and download and file in person the Form G-845 or G-845S with the local INS district office. INS confirms that such Document Verification Request is quickly processed and the sought-after-intformation is fairly quickly forwarded to the Social Security Administration so that the SSA can issue the Social Security Number.

Updated 10/20/2002: Backburner Mexican Immigration Issue and Political Fall-Out

• Ever since the 9/11 broke out, the Mexican legal/illegals immigration issues has been thrawn into the back seat of American politics. Reportedly, the Bush Administration is not paying attention to this issue as they are so obsessed with the issues of war with Iraq and North Korea, not to mention the fight on terrorism. Read on.
• New York Times reports that the Mexican President Fox is in trouble because of his failure to achieve the Mexico's frontburner issues with their neighbor, including "immigration." It is interesting to see whether there will also be any political fall-outs on this side of the court, particularly November 5 election. As we reported, the Hispanic population in the U.S. is reportedly approaching 40 million stong! They certainly have a card to play. Rep. Gephardt took a jab and hopes to get involved in the card game. Hispanic readers, what do you think?

Updated 10/19/2002: Children Status Protection Act (Aging-Out Act) and INS "Aging-Out" Expedite Practice

• Apparently, the INS HQ has not made any decision on impact of the Aging-Out Act on the INS practice of expedite of Aging-Out cases. There is no confirmed information as to what other Service Centers are doing on this issue, but at least one Service Center (Nebraska Service Center) confirmed that it would continue "expedite" of aging-out cases. Accordingly, people who have a child approaching 21 years of age should request "expedite" for their I-140 and I-485 if the jurisdiction of their cases belongs to the Nebraska Service Center. Assumedly, such expedite can be more readily available in the aging out cases because such cases can now be filed in the form of I-140/485 concurrent filing. Until the INS HQ decides otherwise, the people with aging-out child will thus get a double benefit: (1) Guaranty of aging-out child's eligibility for immigration; and (2) Expedite of immigration processing not only for the aging-out child him/herself but also for the parents and siblings!

Updated 10/19/2002: DOL PERM Status

• We reported a few days ago that DOL had received 160 comments. However, the actual figure is confirmed by DOL to be 180 comments with thousands of pages. Apparently, this is an overwhelming task for the DOL even to read, not to mention analyzing and researching the issues presented by these comments. Good news is that there is no change in the DOL's schedule to launch the PERM program in the 1st Quarter of 2003, according to the DOL.

Updated 10/18/2002: End of TCN Processing in Ciudad Juarez in Mexico

• AILA has reported that effective November 1, 2002, the American Consulate in Ciudad, Juarez, Mexico will stop taking nonimmigrant visa application appointments from "Third Country Nationals" except the following TCN people:
  • TCN who are residents of its district, principally Chihuahua, plus the states of Durango and Coahuila.
  • TCN residing in Mexico in an FM-3 visa status.
  • TCN who live in the general El Paso area (southern New Mexico/west Texas) and work in Ciudad Juarez, on presentation of their FM-3 as proof of residence.
• Reportedly, the action is not related to "security" issue but the problem of workloads.
  

Updated 10/18/2002: DOL Seeks OMB Review for Launch of E-Gov

• Department of Labor seeks to serve as the managing partner of the Administration's “GovBenefits” strategy for assisting citizens in identifying and locating information on benefits sponsored by the Federal government. This tool will greatly reduce the burden on citizens attempting to locate services available from many different government agencies by providing one-stop access to information on obtaining those services. From time to time, the precise questions or content may require modification to accommodate additions to the GovBenefits portal as well as new or revised services. Respondents answer a series of questions to the extent necessary for locating relevant information on Federal benefits. Responses are used by the respondent to expedite the identification and retrieval of sought after information and resources pertaining to
  benefits sponsored by the Federal government. Read on.
• The INS started recently e-gov online Service Center case status checking services for individual cases.
  

Updated 10/16/2002: President Announced 70,000 Refugee Admission for FY 2003

• Today, President Bush announced refugee admission numbers for the new Fiscal Year 2003 that started on October 1, 2002 as follows:
  • Africa. . . . . . . . . . . 20,000
    East Asia . . . . . . . . . 4,000
    Eastern Europe. . . . . . . 2,500
    Former Soviet Union . . . . 14,000
    Latin America/Caribbean . . 2,500
    Near East/South Asia. . . . 7,000
    Unallocated Reserve . . . . 20,000
  • Total....................................70,000
• For the complete text of announcement, please click here.

Updated 10/16/2002: INS Clears Rumor on Foreign Student Interview For Special Registration

• The INS has announced that recently, foreign students may have been informed that they must report to the nearest INS office no later than October 30, 2002 for special registration interviews. This information is not correct. Special registration procedures currently pertain only to those nonimmigrant visitors who were registered upon their arrival into the United States by Immigration and Naturalization Service (INS) inspections officers at ports of entry and notified at that time of the requirement to appear at an INS office for an interview. For the full announcement, click here.

Updated 10/16/2002: Foreign Student Electronic Monitoring Systems - How Soon/How Far They Can Go?

• There is a question at this time whether SEVIS will indeed start a full operation in January 2003. But the posting of today's news is not so much whether or not it is going to work. Rather the question is related to "how such monitoring system affects foreign students lives both emotionally and physically" and "what are the limits to the level of tolerance." Read on.

Updated 10/16/2002: Fading Hope for Illegal Aliens' Relief Legislations

• The curtain of the 107th Congress will pull down in about three months and all the legislative bills that fail to pass the Congress will die with it. The Congress has a very limited period of time for its last sessions before the close of 107th Congress because of the Midterm election on November 5, a long holiday season in December, etc.
• The news report indicates that one of the victims of this drama will be 245(i) extension legislative bill. However, the failure to pass the pending 245(i) will have a minimal impact on most of the undocumented aliens in this country, particularly employment-based hopefuls, because of extremely restrictive conditions for eligibility of the proposed 245(i) benefits. Under the pending bills, majority of the out-of-status aliens would have been ineligible for the benefit anyhow.
• Well, what the heck. Let it be. Let's hope for the better Congress in the upcoming 108th Congress. There are already news that the people are distasted with the incumbent politicians. The result of the November 5 election may testify to that fact. The relatives and friends of immigrants and naturalized U.S. citizens, please go to the voting polls on November 5 and let your voice heard!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Updated 10/15/2002: Department of Justice Authorization Bill Status

• On October 3, 2002, the Senate passed and cleared this bill for the White House. However, at the last minute, a bill was introduced by the Wisconsin Congressman for technical correction with this bill. The correction bill passed the House and sent to the Senate for consent. Please see the Congress record.
• As people know, this U.S. Department of Justice authorization bill includes three important immigration legislations, including 7th year H-1B extension amendment, Conrad 30 Program for International Medical Graduates, and Investor Immigrant eligibility and removability amendments.
• Since the Constitution requires that a legislative bill be signed by the President within 10 days after his receipt from the Congress, people have been nervous. The good news is that the technical corrections do not include any of these immigration legislations. Additionally, since the bill was not sent to the President on October 3 and not even until the end of last week, people do not have to worry about the fate of these legislations. Furthermore, the Congress is still in session. Under the Article 1 of the United States Constitution, when the Congress is in recess and the President cannot return the bill with veto, it is considered a pocket veto. However, when the Congress is not in recess, since the President has an opportunity to return but fail to return the bill, it is considered consent and the bill automatically becomes a law by force of the Constitution of the United States. Please stay tuned to this web site for the development.

Updated 10/13/2002: Certification Requirement For Allied Health Care Workers Under Proposed Regulation

• The proposed regulation which we reported yesterday seeks comments until 12/10/2002 before the INS goes into interim or final rule-making process. Once the final regulation is published, all the existing regulations (First, Second, and Third Interim Regulations) which are currently in effect will expire. In light of the importance of the proposed regulation for the foreign allied health care workers, we will summarize only those provisions that bear on the aliens' certificate or certified statement requirements.
• Who Are Covered:
  • Both Immigrants and Nonimmigrants: Currently, such certificate or certified statement is not required for nonimmigration visa application.
  • Occupations Covered:
    • Nurses: Licensed LPN, Licensed Vocational Nurses, RN
    • Occupational Theratists
    • Physical Therapists
    • Speech Language Pathologists and Audiologists
    • Medical Technologiests (aka Clinical Laboratory Scientists)
    • Medical Technicians (aka Clinical Laboratory Technicians)
    • Physician Assistants
  • Occupations Not Covered:
    • Physicians
    • Non-clinical Care Occupations: Medical Teachers, Medical Researchers, Managers of Health Care Facilities, Medical Consultants, etc
  • Nonimmigrant Visa Categories:
    • H visas
    • J visas for purposes other than training
    • O visas
    • TN for Canadians and Mexicans
    • F-1 and J-1 student for "training is not subject to this requirement.
  • Those Who Have Been In Training In the U.S. or In Possession of a Valid State License: These aliens are still subject to the certificate or certified statement requirement!
  • Those who apply for immigrant visas or I-485 application based on proceedings other than employment-based I-140 petitions for the clinical healthcare work purposes are not subject to the certificate requirement, for instance, family-based immigration, investment immigration, employment-based immgration for occupations other than the designated allied health care workers, immigration lottery, political asylum, immigration court proceedings, etc.
• Effect on Those Who Are Already Working In the U.S.: Non-immigrant allied health care workers who have already entered the U.S. under an automatic waiver provisions of the existing regulations and working as health care workers will not be subject to the certificate or certified statement requirement until one of the following two things happens, whichever occurs first:
  • They have to file an extension of stay or
  • They travel and apply for admission to the U.S. Accordingly, inasmuch as they do not travel outside of the U.S., they do not have to comply with the certificate requirement until their current status expires!
• When to Submit the Required Certificate or Certified Statement?
  • In Immigrant Proceedings:
    • Consular Proceedings: At the time when the immigrant visa is issued. Accordingly, inasmuchas he/she gets the certificate or certified statement before the immigrant visa interview, he/she will have no problem in obtaining the immigrant visas.
    • I-485 Adjustment of Status Proceedings: The certificate or certified statement is required for adjudication and approval of I-485. Therefore, in both consular and adjustment proceedings, people do not need the required certificates or certified statement for the purpose of I-140 petition filing and approval or I-485 filing. The proposed regulation clarifies this issue which has confused the practitioners and aliens and was taken as a practice point.
• Validity of Certificate or Certified States: Valid only for 5 years. Therefore, people must attain a new certificate if it is about to expire.

Updated 10/12/2002: PERM Finalization Facing Challenges and Delays

• As this web site reported, the final regulation of PERM was scheduled to be released back in August. However, unconfirmed sources indicate that the DOL received over 160 comments in response to the proposed PERM regulation, most of which had raised serious issues. Allegedly, the proposed regulation contains a number of rules which affect very negatively giant corporations that need foreign workers. It is unclear at this point when the final regulation will be released or even released at all. Please stay tuned to this web site for the development of this news.

Updated 10/12/2002: INS Congressional Testimony on Changes in Processing Since Los Angeles Int'l Airport Shooting on 07/04/02

• On October 9, 2002, Mr. William Yates, Deputy Executive Associate Commissioner of INS, testified in Congress on the background of INS granting a green card to him and procedural changes the INS has made since the incident in the processing of asylum applications and green card applications. People will be able to get some insights into the security clearance process in adjudicating I-485 application through this material. For the full text, please click here.

Updated 10/11/2002: INS Proposes Streamlining and Change of Certification Process for Allied Health Care Workers

• INS published this morning a proposed regulation to streamline allied healthcare worker certification business which has been regulated upto now by First, Second, Third Interim Regulations, H-1C regulation, etc. They also proposes to expand coverage of this regulation to certification for permanent residence application as well as nonimmigrant status application, excluding non-immigrant F and J students who are coming to the U.S. for training. The comment must be submitted by December 10, 2002. This regulation does not apply to International Medical Graduates.
• This web site will post summary soon.

Updated 10/11/2002: INS Launches Automated Entry/Exit Control System for Visa Waiver Program Travellers

• INS published this morning a regulation mandating the carriers to electronically transmit the following data within 15 minutes of flight for arriving and departing VWP aliens. The information covered are:
  Passenger information;
  • Last Name;
    First Name;
    Middle name or middle initial;
    Date of birth;
    Gender or sex (F--Female; M--Male);
    Nationality;
    Document number;
    Country of document issuance;
    Document type (e.g., P=Passport, V=Visa, A=Alien registration card);
    Flight or vessel information (Advance Passenger Information (API) header message)
    Airline International Air Transport Association (IATA) carried code or vessel name;
    Airline flight number, or tail number for private or Corporate aircraft;
    Date and time of scheduled flight or vessel arrival into the United States;
    Date and time of scheduled flight or vessel departure from the United States;
    Port of arrival;
    Port of departure;
    Contact name and number; and
    Traveler status (e.g., P=Passenger, C=Crewmember).
• Please click here for the full text of the regulation.
  

Updated 10/10/2002: College/University Tenure-Track Faculty and Special Immigration Procedures and Standards

• The immigration law provides some assistance to the higher learning institutions in recruiting the best foreign brains for their faculty in competition against the attractive and high-salaried positions in the private industry by providing so-called "Special Handling" labor certification procedure and standards as distinguished from other types of labor certification applications. This Special Handling labor certification system makes the teachers' immigration easier than other competing jobs in the private industries in two ways, among others: The Special Handling labor certification is considered a "priority case" in processing of the labor certification applications and the labor department processes such cases in a short period of time. Besides, the standard for determination of unavailability of "qualified" U.S. worker is the alien's qualification itself. Even if other applicants are equipped with basic requirements for the position, they are considered not "qualified" if the alien is "more" qualified. The fact that the college or university selected and hired the alien in itself tells that the alien is selected because he/she was more qualified than other candidates in the competitive selection process. It is interesting to note that in the proposed PERM labor certification regulation, this special standard will be equally applicable to both "Special Handling" cases and "regular PERM" cases in the college/university teacher cases. Of course, these two cases should follow two different procedures: One, special handling procedure, and the other, normal PERM labor certification procedure.
• In Special Handling labor certification cases, the college or university submits the alien labor employment certification application, ETA 750, along with the record of recruitment and selection process. The application must be "receipted" by the State labor certification officer within 18 months from the date of "selection." The term, "selection," is loaded terminology when it comes to determination of at what point of time the "selection" is made. One time, the immigration legal community misunderstood that the selection is the point of time when the alien obtained employment authorization under the immigration law. Accordingly, it was quite frequently accepted by the labor department that the "selection" did not start until the H-1B petition is approved, should the alien have joined the college or university as a H-1B alien. However, the Board of Alien Labor Certification Appeals (BALCA) of the U.S. Department of Labor straightened out the standard on January 24, 2002 by ruling that whether or not the alien is authorized to work is irrelevant in determining when the "selection" was made and that the standard is whether the final decision maker which is usually "dean" of a school or department made a decision and wrote an "offer" of the employment to the alien based on the recommendation of the Selection Committee of the school. If the offer is a "conditional" offer which becomes effective only when the condition is met, such offer would not be taken as a selection. For instance, if the letter states that the job is offered to the alien contingent upon getting approval of H-1B or EAD approval, then such offer is not effective until H-1B or EAD is approved by the INS and the point of time of selection should be the starting date of H-1B or EAD. However, if no such condition is attached to the offer and the offer is unconditional, the offer takes legal effect and "selection" is considered made on the date of letter of employment offer to the alien.
• The correct understanding of the definition of "selection" is critical in that people can miss the 18 months deadline if they misunderstand that the clock for 18 months does not start until he/she gets H-1B approval or EAD on practicial training.

Updated 10/10/2002: INS Instructions on How To Report Address Change

• INS gives details of "how to report" on its web site. This instruction suggests to use some means of filing that preserves evidence of filing, including return receipt or overnite or otherwise. It is somewhat confusing in that there was a report that some of the certified mails or overnite mail report was rejected as the INS facility did not have resources to handle such bulk receipt certifications. Since this online instruction appears to be "official," people may want to follow this instruction in reporting address changes.

Updated 10/10/2002: U.S. Department of Justice Inspector General Audit Critical of INS Failure in Removal Functions

• This extensive audit report of September 2002 reviews the INS' removal proceedings handling and is critical of some failures with the INS. It reports that the INS incurs millions annually to detain criminal aliens due to failures in the Institutional Removal Program process. Read on.

Updated 10/09/2002: Attorney General Announces Gateway Information Sharing Project Among Law Enforcement Agencies

• Attorney General John Ashcroft today unveiled the Gateway Information Sharing Project (ISI), a pilot program that integrates investigative data from federal, state and local law enforcement agencies into one database that will ultimately be accessible to all participating agencies via secure Internet. Read on.

Updated 10/09/2002: State Department Testimony of Details of Security Devises Thus Far Developed and in Place

Updated 10/09/2002: INS Congressional Testimony of Details of Security Devises Thus Far Developed and in Place

• Today, the INS testified before the Congress details of anti-terrorism devises thus far being developed and used in collaboration with other agencies. All of these devises have some impact on the travelling of aliens and applying for status. Please read on.

Updated 10/09/2002: State Department Regulation of NIV Application Fee Increase to $100

• Today, the U.S. Department of State released a regulation increasing nonimmigrant visa application from $65 to $100, effective November 1, 2002. Read on. The Department explains why it has to increase the fee. Read on.

Updated 10/09/2002: Here We Go Again, Roller Coaster of Judicial Decisions on Constitutionality of Secret Hearings

• It is still fresh in memory that the U.S. Court of Appeals in the 6th Circuit in Cincinnati, Ohio held the closed/secret immigration hearing was unconstitutional. Yesterday, the U.S. Court of Appeals in the 3rd Circuit in Philadelphia, Pennsylvania disagreed and held that such hearing was constitutional. The so-called Creppy Memo has been riding a rough roller coaster at federal district court level and now at the federal court of appeals level. Will the U.S. Supreme Court hear this case and resolve the issue once and for all? Simply amazing! Read full text of North Jersey Media Group, Inc. v. Ashcroft, No. 02-2524 (3rd Cir. Oct. 8, 2002)

Updated 10/08/2002: Kentucky Consular Center for Immigration Visa Lottery Processing

• The Kentucky Consular Center is the agency that is in charge of processing immigration lottery. Those who are interested in the lottery may visit this site in the future.

Updated 10/08/2002: 7-Year H-1B Extension New Legislation and Issue of Change of Employer/New Labor Certification

• There are at this time a huge number of H-1B professionals whose employers filed "regular" labor certification applications and are stuck because of the terrible backlog in the DOL's processing of regular labor certification applications. Most of them are located in the so-called "big ten states." A number of them are currently facing the H-1B 6-year limit. This new legislation is indeed a saviror to these professionals in such states as New York, New Jersey, California, Texas, Florida, etc. This reporter extends a "big congratulations" to these professionals.
• The following report may give them another hope for change of their lieves, even though they may have to wait for the INS answers to the question. The current INS interpretation of the 7-year H-1B extension eligibility states that inasmuch as the benefit is attached to the "individual alien applicant" by meeting 365 days passage and I-140 petition pending, the eligibility is ported to a new labor certification application filed by a new employer for the alien. The interpretation was based on the notion of "alien-based" benefit rather than employer-based eligibility, using the analogy of 245(i) benefit interpretation.
• Now, the new law will allow an alien to apply for the 7th year H-1B extension with the proof of 365 days waiting time and without need for the proof of I-140 pending. In other words, 7-year extension benefit attached to a specific alien beneficiary when the waiting time reaches 365 regardless of what stage the alien is at. Accordingly, should the INS apply the same analogy and logics, the INS should allow 7th year extension of H-1B to those aliens who completed labor certification application waiting time for 365 days or longer and have yet to start I-140 proceeding upon approval of the labor certification but change the employer who files a new labor certification application or labor certification-waved I-140 petition. The INS has yet to announce its views on this issue as soon as this bill is signed by the President, but the INS cannot have two conflicting views on the same issue and it is the opinion of this reporter that the answer to this question should be "positively and absolutely" YES!! But people should wait for the INS answer to this question before they jump into the wagon prematuredly.

Updated 10/08/2002: State International Medical Graduates Conrad Program Update

• As we reported, the Congress passed a bill to expand and extend the Conrad program: 30 per each state and effective until May 31, 2004.
• Effective Date: Once the President signs the bill, the effective date of this legislation will go back to May 31, 2002 so that there is no gap between the date of sunset of Conrad 20 and the start of Conrad 30. IMGs may want to check back with their legal counsels how this will affect their cases which they started earlier.
• Conrad 20 Sunset Misunderstanding: The U.S. Department of State clarified that the sunset date of May 31, 2002 just shut out those IMGs who had not entered and started the training program before that date. Accordingly, those IMGs who entered the country and started training should have been continuously eligible for J-1 waiver application on the Conrad 20 sponsorship even after May 31, 2002. Apparently there was some misunderstanding with some state agencies. People may want to check back and discuss this issue with their legal counsels. Good luck, foreign physicians!!

Updated 10/07/2002: DOJ Authorization Legislation Permits 7-Year H-1B Extension for Consular IV Processing

• The U.S. Department of State Authorization bill which awaits the President's signature will bring two marvellous changes to the H-1B 7th year extension:
  • No Requirement for "Pending I-140 Petition": This legislation removes the requirement under AC 21 that a I-140 petition or I-485 be pending> Accordingly, inasmuch as 365 days or longer time have elapsed since filing of alien labor certification or I-140 petition (alien labor certition waiver cases), the INS must grant H-1B extension indefinitely in one-year increment until a decision is made on I-140 petition or I-485 or immigrant visa.
  • 7th Year or Longer Extension of H-1B is available for "Consular IV Processing": Surprisingly, the H-1B extension beyond 6-year limit will be available for those who opted for consular immigrant visa application processing rather than I-485 adjustment of status proceeding until the consular officer denies the immigrant visa application, inasmuch as 365-day or longer time have passed since filing of alien labor certification application or I-140 petition (labor certification waiver cases). Isn't it beautiful?

Updated 10/07/2002: All You Want to Know About International Adoption Immigration Procedures and Issues

• The INS had a International Adoptions Conference in Washington, D.C. in July 2002 and the INS has released quite comprehensive and extensive coverage of the subject on its web site. Please click here.

Updated 10/07/2002: INS Explains Documentary Requirement for Entry to the U.S. From Canada/Mexico

Updated 10/07/2002: List of State Conrad Program Contacts in October 2002

• As we have reported, the Congress passed Conrad 30 bill, extending and expanding State J-1 Programs for International medical graduates. It is expected that the President signs this bill soon.
• As the physican foreign residence requirement waiver programs are about to be revitalized, this reporter thought that it would be appropriate and timely to update the information on contact person in each state. We have also updated the federal IGA contact information. Please read on.

Updated 10/06/2002: Understanding Designation of Different Nationals for Different Types and Depth of Nonimmigrant Restrictions

• Since 9/11/2001 incident, the U.S. government has been designating different nationals for the purpose of travel restrictions in and out of the U.S., causing confusion among the nationals from some of these countries. This reporter would like to summarize these designations from those who are under the strictest control to those who are under the less level of control.
• Five (5) Nationals Designation for Special Registration Requirement: Iran, Iraq, Libya, Sudan, and Syria: These nationals entering the the U.S. are currently subject to photographing, fingerprinting, special registration, reregistraion 30 days after entry and annually, and departure from the U.S. only through the designated airports. On top of these most restrictive controls, they are also subject to all the restrictions that follow.
• Seven (7) Nationals of Terrorism Sporsoring Countries Whose Automatic Visa Revalidation for the Purpose of Travel to/from Canada and Mexico and TCN Visa Application in Canada/Mexico and Visa Revalidation at DOS: Foregoing 5 plus Cuba and North Korea : These nationals are currently subject to two different restrictions: (1) These nationals cannot travel to/from Canada/Mexico without a valid visa, regardless of applying for a visa on the trip. (2) Currently, American consulates in Canada/Mexico do not entertain Third Country National visa applications for these nationals. (3) The U.S. Department of State also currently does not entertain a visa revalidation application for these nationals through the Visa Office within the United States.
• Twenty-Six (26) Nationals Being Subject to the 20-Day Special Clearance Procedure for Visa Issuance: 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. These are mostly Muslim/Arab nationals whose visa applications require minimum of 20 days for the visa offices to make a decision because of the special security clearance. Recent news indicate that the nonimmigrant visa issuance in these countries takes much more than 20 days, even taking a few months! The U.S. Department of State does not disclose the details but it appears that some of these nationals plus other nationals are currently unavailable for the U.S. Department of State visa revalidation in Washington, D.C.
• Caveat: The foregoing restrictions and list of nationals are specifically designated by the regulations or policy memos, but other nationals who are not named in the lists can also come into the parameters of these restrictions because of the loose provisions in these regulations opening such doors to the immigration inspectors at the airports and the American consuls at the visa posts throughout the world. The information on some of the target countries has already been leaked, even though it was a classified information, and reported in certain websites.

Updated 10/04/2002: AILA's Washington Update of 10/04/2002

• AILA's Washington Update is most authoritative and informative sources for legislative activities in the nation's Capital. This edition is particularly helpful reporting the DOJ Authorization Bill.

Updated 10/04/2002: Various "Surprise" Immigration Bills on Way to the President for Signature

• Immigrant community is getting a few surprise gifts from the passage of the U.S. Department of Justice Authorization Bill, which the Congress passed yesterday and is on its way to the White House for the President's signature. The details will be summarized and posted on this web site soon, but the report indicates that the immigration providisions include the followings:
  • J-1 Waiver for International Medical Graduate through the state sponsorship: Each state can sponsor 30 per year and this program will continue for the next two years.
  • 7th year H-1B extension for those who have been waiting for labor certification application for 365 days or longer. This includes the labor certification waiver cases that wait for either I-140 approval or I-485 approval for 365 days or longer. Reportedly, the 7th year H-1B extension is available for these aliens even if their status has been changed or they left the country! Wow!
  • Various Immigrant Investor provisions removing a number of conditions and requirements so that people can immigrate to the U.S. more easily. The current law requires so many nasty conditions to investor immigration that the law has been discouraging and hampering foreign investors' immigration.
  • Children's application for naturalization, where the qualified parent deceased, as submitted by the grandparents or qualified guardians inasmuch as the parent died during the preceding 5 years and not longer.
• Please revisit this site for more detailed summary.

Updated 10/03/2002: I-140/485 Concurrent Filing and EAD/AP Adjudication Procedure

• The INS HQ confirms that the Service Centers will not process adjudication of EAD and Advance Parole in the I-140/485 concurrent filing cases unless the Service Centers first complete the prima facie review of eligibility of I-140 petition or thorough adjudication of I-140 petition. The result of such review or adjudication of I-140 will be as follows:
  • Denial of I-140 petition without even issuing RFE if the applicant is statutorily ineligible. If this happens, the Service Centers will also deny I-1485, I-765 EAD application and I-131 Advance Parole.
  • RFE is issued if the prima facie evidence of eligibility is not included at the time of concurrent filing. This is a situation where insufficient evidence is submitted and the Service Centers are unable to determine eligibility of I-140 petition. Once RFE is issued such, processing of I-765 EAD and I-131 Advance Parole will remain on hold until the requested evidence is received. Additionally, the 90-day EAD adjudication requirement under the INS regulation will also stop running and it will run again as soon as the requested evidence is received. It means that once RFE is issued for I-140 petition in the concurrent filing case, the alien will not be able to obtain employment authorization card and advance parole quite a long time and will not even be able to obtain "interim EAD" card at the local district office because of the toll of 90-day running. In the opinion of this reporter, the INS interpretation of tolling of 90-day for the purpose of EAD adjudication requirement is very controversial and somewhat arbitrary.
  • Any way, if the Service Centers determine that the I-140 petition is statutorily eligible and the proper evidence for determination of eligibility are found in the filing, the Service Centers will issue EAD and Advance Parole. Currently, the Service Centers are targetting at making I-140 statutory eligibility review or adjudication within 60 days from the date of receipt. In the concurrent filing situation, people should be prepared for delay of getting EAD and Advance Parole.
• The foregoing procedure is currently followed by the Service Centers, but it appears that the local district office practices vary depending on each district's practice.

Updated 10/03/2002: Non-Immigrant Visa Application Fee Increases Again As Of 11/2002

• AILA has reported that $100 will be charged for the nonimmigrant visa application fee for the machine readable visa beginning from November 1, 2002. Please stay tuned to this web site for the release of information from the U.S. Department of State itself.

Updated 10/02/2002: INS HQ EAD Processing Times Guidelines for Service Centers

• NSC Newsletter indicates that the INS HQ instructed the field offices to adjudicate EAD applications in the following guidelines: Political asylum applicant,within 30 days, and all other cases, within 90 days. It appears that this news cuts both ways. It is a good news that the EAD will be adjudicated within 90 days. However, the fact that the HQ did not set a shorter period of time may imply that the EAD applications other than asylum cases may continue to take more than 30 days. As for the 90-day guidelines, since the EAD applicant can obtain an interim EAD card at the local district offices any way, once the Service Centers fail to adjudicate within 90 days, unless the Service Centers endeavor to reduce the EAD processing times to the level of far shorter time than 90 days, this is a mixed-bag news.

Updated 10/01/2002: INS Withdraws H-2A Petition Function Delegation to DOL and Procedures

Updated 10/01/2002: INS Published Liberian TPS Regulation

• The regulation will be in effect from today through October 1, 2003. The application should be filed from today through April 1, 2003 with certain exceptions. Read on.

Updated 09/30/2002: One-Year TPS for Liberians

• INS has announced one-year TPS program for Liberians Effective October 1, 2002. For the announcement, click here. For the Questions/Answers, please click here.

Updated 09/30/2002: INS Congress Testimony of Tracking International Students in Higher Learning Institutions

Updated 09/30/2002: INS Restricts Ports of Departure for Special Registration Aliens

• Effective tomorrow, October 1, 2002, the nationals who are subject to the Special Registration Requirement and were photographed, fingerprinted, and registered since 09/11/2002 will not be allowed to depart from the United States unless they go through a special inspection and registration procedure in the "designated ports" of entry. The INS today published this regulation. For the list of the designated ports of entry, please click here.

Updated 09/30/2002: Nonimmigrants, Think Twice Before You Leave If Your Visa Expired

• Despite the announcement of the Spokesman of the U.S. Department of State, reports indicate that nonimmigrants, especially students, are stuck at home country for the problem of visa issuance. Such news leaves a travel advisory to the visa-expired nonimmigrants - "Beware of the visa processing problems at the visa posts at your home country and unless you are prepared to wait for months in worst situation, you should think twice before you decide to go back home to visit the family and friends and *to apply for a nonimmigrant visa, especially student visa!!* We are approaching the biggest and most travelled season for the nonimmigrants and people should take this news very seriously. Read on.

Updated 09/29/2002: U.S. Dept of Justice Information Technology Strategic Plan 2002

• It is unclear at this point as to whether the immigration services function will remain with the U.S. Department of Justice or move to the new Department of Homeland Security or keep remaining as part of the INS (if it survives at all). However, this Strategic Plan sheds some light on the direction of electronization of the government proceedings, including "egov" sites. People will immediately realize that the Service Centers online individual case tracking system was a part of this new venture. For the full text of the Strategic Plan, please click here.
• Just a passing note: The immigrant community should appreciate the soon-to-depart INS Commissioner, James Ziglar, for having kept his promise that the on-line tracking system would be launched before the end of this fiscal year, September 30, 2002. Thank you Mr. Commissioner!

Updated 09/27/2002: House Passed Bill Expanding 7th Year H-1B Extension Eligible Aliens

• The House of Representatives passed a bill as part of the U.S. Department of Justice Authorization bill expanding the eligibile H-1B aliens to those whose alien labor certification has been pending more than 365 days. Under the AC 21 Act, the only H-1B aliens who can apply for the 7th year H-1B extension are those who meet two conditions: (1) I-140 petition is filed and (2) 365 days have passed since the filing of alien labor certification. There are currently a large number of people who filed a "regular labor certification application" as early as 1998 which have yet to be certified. Most of these people are located in large states such as New York, California, Texas, Florida, etc. Some of these waiters are approaching the 6-year limit of H-1B but unable to apply for the 7th year extension because of the requirement for (1) above. The House bill which is reportedly expected to be passed by the U.S. Senate as well next week will save such labor certification waiters by allowing them to apply for the 7th year extension of H-1B so that they can complete the green card process. What a positive news! Please stay tuned to this web site for the development of this news.

Updated 09/27/2002: CONRAD Program for Foreign Physicians To Be Extended to 2004 and State Quota Increased to 30

• Buried in the U.S. Department of Justice Authorization Bill which the House just passed and the Senate is expected to pass next week, according to the AILA, is a bill extending Conrad program until 2004. This bill also increases per state quota from 20 to 30. Good news for foreign physicians!

Updated 09/27/2002: INS Fact Sheet on Phase II SEVIS Regulation

Updated 09/26/2002: DOJ Downplays Adding Saudis, Pakistanis, and Yemenis to the Special Registration List

• In order to deal with the reaction of these countries to the news that they may be added to the Special Registration countries list, the U.S. Department of Justice and the INS downplays the special requirement for the admission to the U.S. Read on.

Updated 09/26/2002: Senate Standoff Continues and Heated Up Under a Tremendous Pressure Facing Recess Before November Election

• The Senate stalemate is so hardened that no one knows anymore the fate of the bill on Department of Homeland Security. Read on.

Updated 09/26/2002: Final Rule on Information Sharing Between Financial Institutions and Federal Law Enforcement Agencies

• Today, the U.S. Department of Treasury is issuing this final rule to encourage information sharing among financial institutions and Federal government law enforcement agencies for the purpose of identifying, preventing, and deterring money laundering and terrorist activity. For the regulation, please click here.

Updated 09/26/2002: Final Rule for Special Immigrant Status for International Broadcasting Employees

• Today, the U.S. Department of State released Final Rule to implement a law which created a new class of special immigrants under INA 203(b)(4) for international broadcasting employees. Such aliens must be seeking to enter the United States to work as a broadcaster for the International Broadcasting Bureau of the Broadcasting Board of Governors, or for a grantee of the Broadcasting Board of Governors. The alien's accompanying spouse and child(ren) are entitled to derivative status. The law limits the number of immigrants in this category to 100 annually, excluding spouses and children for whom there is no numerical limitation. For the full text of the regulation, please click here.
  

Updated 09/25/2002: Justice Plan to Add More Countries to List of Special Registration by October 1?

• Report indicates that a confidential memo of the U.S. Department of Justice was leaked and reported by WordNetDaily.Com relating to the subject. Apparently, the countries involved in this additional watch list were stunned and embarassed by the memo, reacting very negatively. For the report, please click here.

Updated 09/25/2002: State Department Congress Testimony on ISEAS and How It Works

• Please read this testimony to learn how this student electronic monitoring system works. Read on.

Updated 09/25/2002: INS Publishes Follow-Up SEVIS Enrollment and Certification Rule

• To facilitate the review of all Service-approved schools and to ensure the enrollment of all eligible schools in SEVIS in a timely manner, the Service has implemented a two-phased process for school review and SEVIS enrollment. This new regulation which takes effect today, September 25, 2002, provides details for the schools. For the regulation, please click here.

Updated 09/24/2002: INS Started Online Service Center Case Status Checking Services

• The INS has just started online Service Center case tracking services. The case status information on this site is updated regularly throughout the business day. If any action is taken regarding your case, the change will be reflected on this site within a few minutes of the action-taking place. People can now check their case status through the above link. Now people can save expensive long-distance phone bills.

Updated 09/24/2002: INS Memorandum on Child Status Protection Act ("Age-Out Act")

• The U.S. Department of State issued its cable to the visa posts on its interpretation of this new law. Now the INS HQ has just released this memorandum laying out its interpretation of the Age Out Act. People with aging out children should read this memorandum.

Updated 09/24/2002: DOS Announces Speedier NIV Visa Processing

• As this web site reported yesterday, nonimmigrant travellers have been experiencing a number of problems from the delay of visa processing at the visa posts. Today, the U.S. Department of State announces that people will see speedier visa processing from now. For the announcement, click here.

Updated 09/24/2002: On-Going INS Annual Files Audit

• AILA reports that the INS is undertaking another "annual" file audit until the first third of October, during when the movement of files will be frozen. Reportedly, it will minimize processing delays, but it is obvious that for awhile, people may experience some delays in some aspects of INS processing.

Updated 09/24/2002: Withdrawal of H-2A Agricultural Worker Petition Regulation by DOL

• In a striking move, the U.S. Department of Labor announced that effective 09/24/2002, the regulation to implement authority which was delegated by the INS to process both H-2A petition on behalf of the INS along with the temporary labor certification application in a consolidated one application form was withdrawn and cancelled. The DOL regulation on application fee for the consolidated procedure has also been withdrawn. For the authority withdrawal issue, please click here, and for withdrawal of fee regulation, please click here.

Updated 09/23/2002: U.S. Government Is Reviewing H-1B Program

• The H-1B program is growingly under attack and the news report indicates that the U.S. Government Accounting Office is currently reviewing this program. For details, click here.

Updated 09/23/2002: Increased Number of Foreign Students Stranded Abroad for Visa Issuance Delays

• Nonimmigrant visa issuance is taking longer and longer time because of the security clearance and report indicates that increasing number of foreign students are unable to return to the U.S. in time for school schedules because of visa delays. Those who need to apply for a visa on a trip to home country should double check the visa processing delays at the U.S. visa post in the country before one embarks on the trip. Read on.

Updated 09/20/2002: America's Open Arm for Refugee Heaven Narrowed

• This fiscal year, the country has processed admission of only 28,000 out of 70,000 quota and reportedly 42,000 unsued numbers may be wasted by the President's decision to allocate only 70,000 without the unused numbers tacked on the new fiscal year's allocation. Besides, it is unclear how many of the new year's numbers will be actually used in the coming year. Read on.
  

Updated 09/19/2002: Foreign Students, Beware of Education Dept-INS Computer Matching Program

• The U.S. Department of Education published a notice that effective 30 days from today, Department of Education will check the immigration status through the computer matching program between the two agencies for those who apply for financial loans and grants. For the full text of the notice, please click here.

Updated 09/19/2002: Unresolved Issues and Drawback of I-140/I-485 Concurrent Filing

• This web site brought up two critical issues as soon as this regulation was released: Whether or not I-140 will be held up until the time I-485 is adjudicated and then adjudicate two proceedings concurrently. The second issue was its impact on AC-21 180-day rule. The concurrent filing has without doubt a number of benefits including, among others, EAD, Advance Parole, tolling of unlawful presence for the purpose of 3-year or 10-year bar, etc. At the same time, it creates some drawbacks because of the unresolved issues and uncertainty of the INS policies.
• Informed sources indicate that these two issues are still up in the air and the concurrently filed cases are held up until these policy issues are resolved at the INS HQ, except the cases which are denied on the grounds of IBIS hit or frivolous nature of I-140 filing, in which cases both I-140 and I-485 are returned to the applicant with the notice of denial. The INS HQ remains silent on these two issues, despite the request for answers by various sources including the AILA and this web site. More troubling is that the sources indicate that when I-140 petition had already been filed at the time the concurrent filing regulation was released and I-485 application is filed afterwards with the Receipt Notice of I-140, some offices pull out the pending I-140 petition and keep it with the I-485 applications to await the HQ decision. Thus the I-140 petition which could have been adjudicated unless I-485 is filed as a concurrent filing appears to be held up pending the policy decision. The INS HQ released to the AILA a few days back that I-140 would be adjudicated in 60 days to avoid EAD being issued for unqualified I-140 petitions, but it appears that it was to detect and deny certain I-140/485 cases rather than adjudicating all the concurrently filed I-140 cases separately. It is hoped that the INS resolve these issues as soon as possible.

Updated 09/18/2002: Mounting Backlog of Processing of AR-11

• News report indicates that ever since the Attorney General announced enforcement of AR-11 filing violators on July 22, 2002, the INS has received 870,000 but was able to process only 120,000 reports. This web site predicted quite earlier that the current AR-11 paper reporting system will not work unless the INS utilizes electronic filing system or reporting through the intermediaries. That is exactly what is happening now. Not knowing the problem, some people attempted to file AR-11 via certified mail return receipt requested to preserve evidence, which was rejected by the INS in a number of cases as apparently they did not have resources to handle such certified mail deliveries. Read on.

Updated 09/18/2002: Change of Fax Number for Texas Service Center Premium Processing Unit

• AILA reports that the Texas Service Center has changed the fax numbers for its production lines, including Premium Processing Unit. For the new numbers, please visit our INS Processing Times page in the left index of this page.

Updated 09/18/2002: INS Testimony in Congress on SEVIS

• The INS assured the Congress in today's testimony that the SEVIS will run in full operation in January 2003 as scheduled. Read on. For the full text, click here. However, the Inspector General of the U.S. Department of Justice gave a different view, saying that the system will not be in full operation by the end of January, 2003. Hmmmmm.................., Read on. For the full text of the Inspector General, please click here. See also DOS report.

Updated 09/18/2002: Foreign Student Monitor/Tracking Systems: ISEAS and SEVIS

• Lately readers come across quite frequently the news on ISEAS (Interim Student and Exchange Authentication System) and SEVIS (Student and Exchange Visitor Information System). We would like to explain very briefly what these represent.
• These two systems are electronic reporting and tracking database systems to monitor foreign students (F or M visas) and exchange visitors (J visa). SEVIS is regulated and managed by the INS and the ISEAS is regulated and managed by the U.S. Department of State (American consulates). The SEVIS which is the main tracking system started operational on September 11, 2002, but considering the schools' need for lead time to comply with the reporting requirement, the INS made the compliance "non-mandatory" until January 30, 2003 and currently only limited number of schools are actively participating in the system. In order to fill the vacuum until January 30, 2003, the U.S. Department of State initiated on September 11, 2002 ISEAS as an interim measure. The ISEAS is expected to sunset on January 30, 2003 when the SEVIS becomes the sole monitoring system. Consequently, until January 30, 2003, the schools are required to report to both systems when they admit the foreign students if the school has already participated in the SEVIS. For the SEVIS, please refer to the INS website.
• The ISEAS uses two computer systems: Internet and Intranet. Under the ISEAS, the schools or exchange visitor sponsors are required to report to the Department of State admission of the foreign students or exchange visitors by entering the information on I-20 or DS-2019 (formerly IAP-66) into the system using "internet." The system then give confirmatioln number to the sponsors. Until the Department of State receive such report in the system and confirmation number is issued, the visa posts will not issue student or exchange visitor visas. When a student or exchange visitor submit a visa application, the visa post, using intranet, verify the information against the ISEAS record and a visa is issued and such issuance of visa is notified to the INS IBIS. (Caveat: for first 30 days from 9/11/02, the State Department will also accept the report of the schools via e-mail considering the lead time to operate the ISEAS in full.). For the details, please read the regulation.
• The SEVIS, the ultimate monotoring system, will turn the current student documentation and reporting process from papers to the internet. The school enters I-20 information into an INS database when the student is admitted. The database then generates the I-20 with a bar code and prints it out at the school. Please note that the SEVIS generated I-20 look slightly different from the current I-20, carrying a unique number and bar code. Once the file is created such, the school does all the future reporting via the web directly into the database. For instance, documents for student's family or overseas travel or a new visa stamp, school transfers, CPT or OPT practical training authorizations, failure to carry full course of study, termination from school, etc. When the SEVIS goes into a full operation, the visa posts and immigration inspectors will be able to type the unique ID on I-20 or scan the bar code on I-20 and open the record in the SEVIS, getting access in full to the record. The visa posts and immigration inspectors will also revise the record inputing the date and place of visa issuance or the date and place of entry of the student to the U.S. The SEVIS will also make student status information available to the Social Security Administration, and the INS will in turn have access to the SSA data to identify lawful or unlawful employment.
• Well, we are in the cyber age. Modern technology helps such monitoring more effective, not to mention the help from the data/information sharing among the systems. All of us are turned into a "dot" in the "net," no matter whether it is a spider net or cyber net.

Updated 09/17/2002: Closed Immigration Court Hearing Ruled Unconstitutional by Another Court in Michigan

• Today, a federal judge in Michigan ruled again that the closed immigration court hearing is unconstitutional. Read on.

Updated 09/17/2002: Biometric Border Crossing Card for Mexicans Effective 10/01/2002

• The Mexicans who have been crossing the border using Border Crossing Card will not be able to cross the border using the old non-biometric Border Crossing Card unless they carry the new biometric Border Crossing Card. For the INS announcement, please click here.

Updated 09/15/2002: INS Opens Office of Transition and Restructuring

• The INS has announced that the INS is moving ahead restructuring of the agency separating immigration services function from the enforcement function and creating two bureaus: Bureau of Immigration Services and Bureau of Enforcement. At the same time, the INS has started work for transition of the agency to the new Homeland Security Department. For these purposes, the INS created the Office of Transition and Restructuring and appointed the Acting Deputy Commissioner of the INS to head the Office. For the announcement, please click here.

Updated 09/15/2002: Anti-Immigration Forces Mount H-1B Abolition Campaign

• The CNN broadcasted on Saturday quite an extensive program relating to the H-1B foreign workers and a move by some legislators to abolish H-1B visa in the immigration statutes. Anti-immigration forces are apparently attempting to take advantage of the country's mood against immigration based on misguided information connecting the terrorism with immigrants in general. Even though it is doubtful whether the American businesses will be able to sustain their international competitiveness without the help of H-1B foreign professionals, the business leaders and immigrant community and related organizations should be alerted against such move. Even without such scheme of anti-immigration forces, the H-1B annual quota is scheduled to return to 65,000 a year beginning from October 1, 2003, raising serious concerns among the business leaders. The CNN news should be taken as a wake-up call by immigration community and organizations.

Updated 09/15/2002: INS Guidelines for Interview Waiver for I-485

• On 08/14/2002, the INS HQ issued a memorandum to guide the INS field offices as to when the interview may be waived for the green card applications.
• Basic Principle:
  • Unless this memorandum listed as one of the types of cases for which interview may be waived, the field offices must adjudicate I-485 after the interview.
  • For listed cases, interview is normally waived, but it is a matter of discretion and the aliens do not have a right to claim the interview waiver. Additionally, the INS retains the authority to require an interview for any I-485 applications if they choose to do so. Therefore, where there are concerns regarding possible fraud or misrepresenation, neither the application nor record contain sufficient evidence to support a denial, the Director "must" conduct an interview or investigation to address these concerns even though the case falls within the categories listed below.
• Family-Based I-485 at Local District Offices: The interview is waived for the following cases:
  • I-485 is based on I-130 for an unmarried child of a U.S. citizen;
  • I-485 is based on I-130 for a prent of a U.S. citizen;
  • I-485 by a K-1 (fiancee) spouse of a U.S. citizen;
  • I-485 is based on I-130 for an unmarried child of a permanent resident, who is under 14 years of age.
• Employment-Based I-485 Filed with the Service Centers: The interview is waived for the following cases:
  • I-485 is based on I-140 and the alien is "lawfully" employed with the "original" employer as a nonimmigrant. Therefore, the following cases may be transferred to the local district offices "on a case by case basis" for interview:
    • 245(i) cases
    • Those who changed employer under the AC 21 180-day rule
    • Aliens who are not in a "nonimmigrant" status.
  • I-485 is based on I-526 investment immigrant petition.
  • I-485 is based on I-360 religious worker petition.
• Asylee/Refugee I-485: Except the following cases, interviews are waived:
  • Higher risk aliens;
  • Cases with complex issues;
  • Criminal charges and indications of fraud;
  • Changes in the country conditions.
• Cubans filing I-485 under the Act of November 2, 1966
• Battered Spouse I-360-based: only if the INS is not in possession of any new information that casts doubt on the approval of I-360 petition.
• Other Cases:
  • Aliens who were already interviwed in the course of an investigation, field examination and INS determines no further intereview is necessary.
  • INS has a sufficient evidence to deny without an interview.
• Caveat: For EB-485 filers, the cases are also transferred in practice on other grounds, such as existence of the alien's file at the local office, etc. We reported the events of transfer a few months back. People may want to revisit our prior posting on this issue.

Updated 09/13/2002: INS Announces Expansion of Cambodian Adoption Review

• The Cambodia Adoptions Task Force announced today a final expansion of the special humanitarian initiative that is currently underway in Cambodia to include a limited number of additional orphan adoption cases. The task force was established on March 1, 2002, to address the special circumstances of those prospective adoptive parents whose cases were pending on December 21, 2001, when the Immigration and Naturalization Service (INS) suspended U.S. orphan visa petition processing in Cambodia due to allegations of child trafficking in the Cambodian adoption process. The initiative will now include those prospective adoptive parents who filed an I-600A application by December 31, 2001. To be eligible, the parents must have designated Cambodia by September 1, 2002. Additionally, a Cambodian child that is to be adopted must have been born on or before December 31, 2001. Read on.

Updated 09/13/2002: H-1B Professionals and U.S. Department of Commerce Review for Technology Transfer Control

• The Government Accounting Office (GAO) report indicates that to better direct its efforts to detect possible unlicensed deemed exports, in fiscal year 2001 Commerce screened thousands of applications for H-1B and other types of visas submitted by foreign nationals overseas. From these applications, it developed 160 potential cases for follow-up by enforcement staff in the field. However, Commerce did not screen thousands of H-1B change-of-status applications submitted domestically to the Immigration and Naturalization Service for foreign nationals already in the United States. In addition, Commerce could not readily track the disposition of the 160 cases referred to field offices for follow-up because it lacks a system for doing so. Commerce attaches security conditions to almost all licenses to mitigate the risk of providing foreign nationals with controlled dual-use technologies. However, according to senior Commerce officials, Commerce staff do not regularly visit forms to determine whether these conditions are being implemented because of competing priorities, resource constraints, and inherent difficulties in enforcing several conditions. To read full report, please click here.
  

Updated 09/13/2002: Immigration Visa Lotteries As Sources of Intelligence

• We reported a few days ago that there was a debate as to whether the government should preserve millions of visa lottery entries to gather background information on the entrants and their immediate family members. Until now, the U.S. Department of State has been reportedly shredding the unsuccessful entries.
• The newsreport indicates that the U.S. Department of State has decided to stop shredding these lottery and visa rejected documents. Hmmmmm.......... Read on.

Updated 09/13/2002: INS Overwhelmed By Flood of AR-11 Address Change Reports

• You guessed it. Read on.

Updated 09/12/2002: Causes for Late Processing Delays of Various Petitions

• The pace of processing of I-129, I-140, and I-485 cases was one time getting faster, H-1B being approved less than 60 days and even I-140 being approved in less than 60 days. However, people must have noticed that the processing times have substantially increased during the last two or three months. Why?
• VSC explains that basically three factors have affected and will affect the processing delays: (1) Security check (IBIS) mandate; (2) Adoption of 30-day processing policy for I-539 applications, causing reduced resources availability for such petitions; (3) 175,000 El Salvador TPS Extension cases that starts in September.
• Our interest is whether there are any hope for these causes being removed. Obviously not. It thus leads to the conclusion that the processing delays may continue for a while. Certainly not a bright news!

Updated 09/12/2002: H-1B Layoff and Untimely Filing of H-1B Extension by New Employer

• As people know, AC 21 memorandum stated that once AC 21 regulation is released, it will give a window of 60 days to file a H-1B portability case. People also know, the Service Centers one time had an informal practice to allow from 30 days to 90 days depending on the specific Service Center to file a portable H-1B petition by a new employer using "extraordinary circumstances" exception to the requirement for "timely" filing of extension application in the H-1B regulation.
• However, the Service later hardened its leniency practice, even stating that the INS would take "no tolerance policy," and lately people have witnessed a massive denial of untimely filed extension applications.
• This change of practice is reflected in the Vermont Service Center's recent disclosure of its current practice in its answers to the AILA on 08/26/2002 that until AC 21 regulation is enacted, the VSC no longer prescribes a "systematic approach" for handling H-1B extension with change of employer petitions where the previous employer has laid-off the alien, and the VSC instructs the officer to deny late filed extension of stay applications/petitions unless the officer determines that the petitioner/applicant has satisfied all four criteria for exception under section 214.1(c)(4). In other words, the VSC has made it clear that there is no such leniency policy for any fixed period of time and each case will be determined on its own merits. Accordingly, there are heightened risks involved for people to file a untimely extension petition unless there is indeed a very compelling reason or circumstance involved. It appears that the Service Centers tend to apply "extraordinary circumstances" language very narrowly and days might have gone that company close-down or lay-off was one time almost automatically taken as extraordinary circumstances.
• What are the four criteria any way? Here it is:
  • (i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
  • (ii) The alien has not otherwise violated his or her nonimmigrant status; (such as unauthorized employment)
  • (iii) The alien remains a bona fide nonimmigrant; and
  • (iv) The alien is not the subject of deportation proceedings or removal proceedings.

Updated 09/12/2002: DOS Cables Visa Posts ISEAS and Additional Clarification for Monitoring F,J,M Alien Students

• Designated School Officials are required to participate in this Interim Student and Exchange Authorization System (ISEAS) and should familiarize themselves with these two cables:
  • Cable on ISEAS
  • Cable on Further Clarification

Updated 09/12/2002: Reporter Pictures Demoralized and Wounded INS

• A reporter pictures in detail the deeply wounded and demoralized INS and a sad state of the agency. Read on.

Updated 09/11/2002: U.S. Dept of State Interpretation/Guidance on Age-Out Act

• The U.S. Department of State sent a cable to all the visa posts throughout the world to guide the consular officers in applying this new statute. People may want to skip the first part which is a copy of the statute itself and read the second part which contains very helpful points in understanding this law.

Updated 09/11/2002: How 9/11 Affected American Life and Information Flow Control on the Internet?

• The U.S. Department of State has reported extremely extensive survey on this subject by Pew Institute, and the readers may want to read this. For the DOS summary, click here. For the full-text of Pew survey, please click here.

Updated 09/09/2002: U.S.-Canada Nexus Program

• The White House announces the Nexus Program to allow bonafide Canadian and U.S. citizen and permanent residents' travel easier between the two countries.
• United States - Canada Nexus Program : The NEXUS alternative inspection program allows pre-screened, low-risk travelers to be processed with little or no delay by United States and Canadian border officials. Approved applicants are issued photo-identification and a proximity card. Participants cross the border in a dedicated lane, where they present their membership identification and proximity card, and make a declaration. They are then released, unless chosen for a selective or random secondary referral. The U.S. Customs Service (USCS), the U.S. Immigration and Naturalization Service (USINS), the Canada Customs and Revenue Agency (CCRA), and Citizenship and Immigration Canada (CIC) are cooperating in this venture to simplify border crossings for pre-approved, low-risk travelers.
• WHO QUALIFIES FOR NEXUS? Individuals may qualify to participate in NEXUS if they are a citizen or permanent resident of the United States or Canada, or are a non-permanent resident who can demonstrate a need to use the NEXUS lanes. However, individuals may not qualify if they:
  • Are inadmissible to the United States or Canada under applicable immigration laws;
    Provide false or incomplete information on their application;
    Have been convicted of a criminal offense in any country for which they have not received a pardon;
    Have been found in violation of customs or immigration law; or
    Fail to meet other requirements of the NEXUS program.
    To participate, an individual's application must be approved by both the United States and Canada. If an individual does not meet the requirements of the program, their application will be denied.
• WHAT ARE THE BENEFITS OF NEXUS? Individuals approved to participate in NEXUS receive an identification card to use at the border that will allows them to: Use NEXUS-dedicated lanes in the United States and Canada; and Cross the border without routine customs and immigration questioning. Because NEXUS is a harmonized program, applicants complete a single application form. NEXUS also allows United States and Canadian Customs and Immigration officials to concentrate their efforts on potentially higher-risk travelers and goods, which helps to ensure security and integrity at our borders.
• WHERE IS NEXUS CURRENTLY OPERATIONAL? Port Huron, Michigan / Sarnia, Ontario Opened June 2000
  Blaine, Washington / Douglas, British Columbia Opened June 26, 2002
  Blaine / Douglas, Pacific Highway Crossing Opened June 26, 2002
  Point Roberts, Washington / Boundary Bay, British Columbia Opened July 29, 2002
• WHAT ARE THE NEXT STEPS FOR NEXUS?
• NEXUS will be operational at both the Detroit/Windsor and Buffalo/Fort Erie bridges beginning in January of 2003 and at the Detroit/Windsor tunnel by March 2003. NEXUS will be expanded to the Queenston/Lewiston Bridge, the Rainbow Bridge and potentially the Whirlpool Bridge by Spring 2003. NEXUS will also be expanded to all other high-volume crossings between the two countries by the end of 2003. NEXUS enrollment centers will open in Detroit, Michigan on September 9, 2002 and in Buffalo, New York in October 2002.
• For the background information, please read on.
  
  

Updated 09/09/2002: INS Advisory to Salvadoran TPS Applicants and Their Employers

• Advises opening for applicants. Read on
• Advisory for their employers
• Extension of TPS Details

Updated 09/08/2002: DOL PERM Program Finalization Delays

• On May 13, 2002, the U.S. Department of Labor Employment and Training Administration released its planned schedule of finalization of PERM regulation as seen below. The proposed regulation has already been published per this schedule, but release of the final regulation has been delayed. This web site will post it as soon as it is released.
• "LABOR CERTIFICATION PROCESS FOR THE PERMANENT EMPLOYMENT OF ALIENS IN THE UNITED STATES
• Abstract: The Employment and Training Administration (ETA) is in the process of reengineering the permanent labor certification process. ETA's goals are to make fundamental changes and refinements that will: streamline the process, save resources, improve the effectiveness of the program and better serve the Department of Labor's (DOL) customer.
• Statement of Need: The labor certification process has been described as being complicated, costly and time consuming. Due to the increases in the volume of applications received and a lack of adequate resources, it can take up to 2 years or more to complete processing an application. The process also requires substantial State and Federal resources to administer and is reportedly costly and burdensome to employers as well. Cuts in Federal funding for both the permanent labor
  certification program and the U.S. Employment Service have made it difficult for State and Federal administrators to keep up with the process. ETA, therefore, is taking steps to improve effectiveness of the various regulatory requirements and the application processing procedures, with a view to achieving savings in resources both for the government and employers, without diminishing protections now afforded U.S. workers by the current regulatory and administrative requirements.
• Alternatives: Regulatory alternatives are now being developed by the Department. The public will be afforded an opportunity to comment on the Department's plans for streamlining the permanent labor certification process in a notice of proposed rulemaking which will be published in the Federal Register.
• Timetable:
  ________________________________________________________________________
• Action Date FR Cite
• ________________________________________________________________________
• NPRM 05/00/02
  Final Rule 08/00/02
• Regulatory Flexibility Analysis Required: Undetermined
• Government Levels Affected: State, Federal
• Agency Contact: Dale Ziegler, Chief, Division of Foreign Labor Certification, Department of Labor, Employment and Training Administration"

Updated 09/05/2002: INS HQ Memorandum on "Age-Out Act" Implementation for Asylum Dependent Children

• The INS HQ issued a memorandum to give a guidance to the Asylum Officers for implementation of this new law. Please click here for the Memorandum.
• For the Act itself, please click here.

Updated 09/05/2002: INS Designates Iran, Iraq, Libya, Sudan, Syria for Registration/Fingerprinting/Photographing Requirement

• AILA reports that the INS will release the notice in a federal register designating these 5 countries as authorized under the recently announced regulation. The registration requirement will be implemented from September 11, 2002. For the details, please stay tuned to this web site.
• Read details in the regulation: Text version and PDF version

Updated 09/05/2002: Mounting Federal Workers Challenge to Homeland Security Legislation

• News report indicates that the new Homeland Security Department legislation is facing a deadlock over the issue of the federal workers rights for the new Department. This amendment is likely to be voted on next week, with the continuing threat by the President to veto the bill, if the bill fails to give him an authority to restrict the workers rights.

Updated 09/03/2002: Enactment of DHS in Time for 9/11 from Slim to Nil

• Reportedly, the Senate debated for 7 hours today on this legislative bill and voted 94-0 to have a full debate, meaning that it will take several weeks before the debate is completed and the House and the Senate reach a compromise. There is reportedly a sharp confrontation between Bush White House and the Senate Democrats on the federal employees' rights. In the meantime, it is likely that the INS will stay in course, even though the issue of employees' rights somewhat affects the morale of the INS employees.

Updated 09/03/2002: INS Annual Report of Legal Immigration 2001

Updated 08/31/2002: One Million Immigration and Processing Times Reduction in FY 2001

• News sources report the INS information that last year more than 1 million people immigrated, mostly family-based, and the average processing time was reduced to 11 months, even though there were differences among the field offices when it comes to the specific processing times for each location. Reportedly, the INS is in its track to reduce the I-485 processing times to 6 months in 2004 as promised by the INS Commissioner as well as Bush. For the INS release of the statistics on 08/30/2002, please click here. For the INS local district offices family-based I-485 processing times in over 50 locations throughout the country as of July 2002, please visit out INS Processing Times page. The local processing times report includes also EAD and Advance Parole processing times at each local INS office. The INS Processing Times page of this web site also reports employment-based and asylum-based I-485 applications processing times.

Updated 08/30/2002: Minnesota Court Ruled Laidoff H-1B Ineligible for Unemployment Benefit

• The Minnesota State Court of Appeals has ruled that when a nonimmigrant alien is admitted to the United States as a temporary worker for a specific employer and the employer terminates the alien’s job, under United States Immigration and Naturalization Service rules the alien is “out of status” and is no longer eligible to work in the United States. Because the alien is ineligible to work in the United States, he is also ineligible to receive unemployment benefits under the plain language of Minn. Stat. § 268.085, subd. 12(a) (2000). Read on. (Courtesy of Robert Weber, Esq.)
• The same rule may apply to other employment-based nonimmigrants, such as L-visa, TN-visa Canadians, O-visa, P-visa, H-2B, H-2A, etc. etc. in that the status is tied to continued employment by a specific employer.
• Regardless of the eligibility of the unemployment benefits under the law, this web site warned that the laid-off H-1B should not visit the State unemployment benefits office to claim the unemployment benefits as the state offices can contact the INS offices. This Minnesota court decision not only confirm that the unemployed H-1B is not only ineligible for such benefits under the law, but also reminded the community that such aliens are "illegal!"
• This raises a question on whether those former H-1B aliens who started working on EAD after filing EB-485 adjustment of status would face a similar consequence. It appears on the surface, though, that such alien is not required to maintain any nonimmigrant status and the alien remains in status "pending" adjudication of EB-485 application. At least theoretically, such alien's "status" is not contingent upon continuing employment with any given employer and unlike an alien working on an employment-based visa status, such alien who has been working on EAD may have a valid unemployment compensation claim, applying the analogy of the Minnesota Court of Appeals' decision. However, people should recognize the distinction between the consequences of unemployment on unemployment benefit claims and the consequences of unemployment on the immigration. Unemployment during the first 180 days and claim of unemployment compensation benefits can bring a serious immigration consequences because the alien is required to prove the "continuing existence" of petitioned job with a specific employer who filed the labor certification application and/or I-140 petition and notice of layoff to the INS through the State unemployment office during the 180-day period may be taken by the INS as an evidence that the petitioned I-140 job no longer exists. Therefore, even if theoretically the alien may be entitled to a claim of unemployment benefits, "practically" such benefits may not be claimed by the alien because of the potential consequences on the pending EB-485 proceedings. Theory and reality are two different things! Please enjoy the Labor Day weekend.

Updated 08/30/2002: Sudan TPS Program Extension One Year Till 11/02/2003

• Read DOJ Announcement.

Updated 08/30/2002: Brundi TPS Program Extension One Year Till 11/02/2003

• Read DOJ Announcement.

Updated 08/29/2002: Immigration Lottery and Intelligence

• Reportedly, last year, the U.S. Department of State received over 8.7 million lottery mails. Those mails who failed to make it were reportedly shredded by the government.
• Believe it or not, the lottery ineligible countries are understandably very friendly nations to the United states, meanwhile the people of special interest for the purpose of homeland security of this country are eligible for the lottery and can be a very important source of information and intelligence data. The Washington Post reports that the government may take the lottery applications as useful sources for homeland security investigation. Ah, ha! Smart idea, even though we have a serious issue of right to privacy. It will be interesting to see how such change of practice will affect the lottery program.

Updated 08/28/2002: What is IBIS Check and How to Alleviate Processing Delays Resulting from the Hit?

• People know that all the applications and petitions are currently mandatorily going through the IBIS check, causing delays in processing of cases, particularly when there is a IBIS hit in the checking process. IBIS is the abbreviation of Interagency Border Inspection System and a national security check system which utilizes data from various law enforcement sources such as NCIC, FBI, CIA, INS, Customs, and other agencies. The IBIS checks are reportedly instituted to "identify" suspected terrorists, aggravated felons, wants and warrants, previous INS contacts, national security risks and other causes for security concern.
• A hit on an IBIS is known to cause a substantial delay in processing cases in order to establish identity, especially when similar common names are involved. The INS sources indicate that submitting a copy of the alien's driver license can be very helpful in alleviating such delays as the driver license includes such identity information as height, weight, hair color, etc. Driver license is considered a "private" document and not everyone will be comfortable to submit a copy when they file any application or petition. However, in some situations, particularly people from certain parts of the Middle East, East Asia, and Africa may want to consider such option after seeking legal counsel on the issue. In Islamic world and Hindu culture, certain names are extremely common and in a number of cases, the names are used loosely without clear identity.
• Tips: People may want to print a "full" name, including middle name, with no abbreviations, and consider enclosing a copy of their driver licenses to help the INS to deal with the delays caused by the IBIS check. It is not a requirement, but a good tip of information to consider!

Updated 08/28/2002: Proposed 212(c) Regulation in Hot Spot

• On August 22, 2002, we reported the INS proposed regulation to deny motion to reopen decisions of immigration court prior to 1997. Arguably this proposed rule is considered to be a challenge to the U.S. Supreme Court decision that allowed such challenge of the immigration court decision and raises a very serious eye-brow over the Attorney General's overstepping the constitutional authority. Read on.

Updated 08/27/2002: NSC E-Mail Receipt Notice for Premium Processing

• It appears that the NSC has started sending out Receipt Notice for Premium Processing cases via e-mail. Vermont Service Center has been using e-mail notice for awhile. Bravo, NSC! What a good user-friendly service for customers! Please keep it up. This web site encourages TSC and CSC to follow a similar e-mail notice procedure.

Updated 08/27/2002: Canadians/Mexicans Part-Time Commuter Student Regulation

• As announced yesterday, the INS today released this regulation. Please click here for the regulation.

Updated 08/26/2002: U.S. Court of Appeals in the 6th Circuit Held Closed Immigration Hearing "Unconstitutional"

• News report indicates that a federal appeals court Monday ruled that the Bush administration violated the Constitution by holding secret immigration hearings for a figure under investigation in the Sept. 11 attacks. The closed and secret immigration hearings, so-called Creppy Memo, have been running a rollercoaster and a seesaw game. Read on.
• Please read Detroit Free Press, et.al vs. Ashcroft, et.al, for the full text.
• The U.S. Department of Justice responded to the ruling.
  

Updated 08/26/2002: INS Will Release Part-Time Commuter Student Rule for Canadians and Mexicans

• The Immigration and Naturalization Service today announced an interim rule to allow Mexican and Canadian commuter students to study on a part-time basis at schools located within 75 miles of the United States border. This new rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F-1 or M-1 nonimmigrant visa category. For the announcement, please click here. For the fact sheet, please click here.

Updated 08/26/2002: DOJ Releases Final Rule on EOIR Reform

• The U.S. Department of Justice released this controversial EOIR Reform "final rule," reducing the number of the Board of Immigration Appeals and restricting appeal procedures. This proposal was strongly opposed by the immigration lawyers community as well as immigrant community as it will compromise the due process in immigration appeals. Please click here to read regulation. (This is a very long file. You need patience.)
• Attorney General's explanation of the final rule.

Updated 08/26/2002: Visa Office Notice of Visa Application Processing Status

• Visa Office has made a special note that the visa application processing is currently unpedictable because of the security check and clearance procedure and advises people to be aware that depending on the nationality and last residence of the applicants, the delay can exceed 6 weeks or 8 weeks or more. It may be prudent for the nonimmigrant visa applicants to plan a way ahead of time for journey and application. The nonimmigrants who are currently residing in the U.S. and plan to return home to apply for a visa renewal should check with the American consulate in their home countries ahead of time not to experience a problem with their obligation to return to work or study within certain period of time. For the announcement, please click here.

Updated 08/25/2002: Transition to DHS, Potential Vacuum Period, and OMB Freeze of Tech Spending for Some Agencies

• People may recall our report that when the House worked on the Department of Homeland Security bill, the powerful think-tank Brookings Institute advised the Congress and the Administration not to rush for fear of potential vacuum during the period of transition from 22 federal agencies into the new DHS. A few days ago, the Washington Post reported that it would take even four to five years for the DHS to become functional as intended by such legislation.
• This news is now indirectly confirmed by the OMB by freezing spending of billions of dollars for the new security department technical systems on the ground that initiation of such projects and contracts would turn out waste of money as such technical systems would not come into operation for sometime after the new Department is born. See Washington Post report. Without doubt, this is a big disappointment to the business in IT industry and related businesses who have been looking forward to tapping the huge business opportunities from the federal government, but it also raises some concerns with not only potential vacuum in security operations, but also the potential vacuum in the services for the customers of the 22 agencies which are expected to be merged into the new mammoth Department on or after January 2003. This also reaffirms the need for the immigration services function to stay out of the new "Security" Department which this web site has been advocating all along. Immigration benefits and services operation of the federal government should have no business with the "Security" function. This web site reminds once again the political leaders of importance of corret understanding of immigration services function not to fall into the fallacy of miximing up immigration business and issues with the terrorism issues.

Updated 08/22/2002: Attorney General Appoints Lori Scialabra as New Chair of Board of Immigration Appeals

• Attorney has announced that Ms. Lori Scialabra has been appointed as the new Chairperson of the Board of Immigration Appeals. For the annoncement, please click here.

Updated 08/22/2002: EOIR Corrects 08/13/02 Rule on 212(c) Relief

• The immigration court practitioners are reminded that there was a critical error in the federal register and the EOIR published a federal register to correct this problem. They should pay attention to the following correction immediately:
• "As published, the proposed rule contains a typographical error that may cause confusion and therefore is in need of clarification. In proposed Sec. 3.44(d), the rule describes the effect of a prior denial of section 212(c) relief on discretionary grounds. As currently published, the rule states that if an LPR had been previously denied relief, a new motion to seek relief would be granted. The actual effect of a previous denial of section 212(c) on discretionary grounds is that a new motion seeking relief would be denied." For the federal register, please click here.

Updated 08/21/2002: DV-2004 (Immigration Lottery)

• The U.S. Department of State released the new Immigration Lottery Program, DV=2004 (10/07/2002-11/06/2002) today. Please read the regulation(text version. For the PDF version, click here. Good luck everyone!
• DV-2004 Immigration Lottery Instructions of DOS

Updated 08/20/2002: I-140/I-485 Concurrent Filing and EAD/AP

• It appears that the INS is mindful of potential abuse of concurrent filing by filing a frivous petition by some people to obtain EAD and Advance Parole. Such abuse may be evident particularly in labor-certification waived employment-based immigrant proceedings, such as National Interest Waiver, Extraordinary Worker Petition, Outstanding Teacher/Researcher, or Multinational Corporate Executive/Manager Petitions, as people in such categories can file from the outset I-140 petition together with I-485 application, plus EAD and AP applications. The INS sources indicate that the INS will time processing of concurrently filed I-140 and EAD applications such that the EAD may not be issued until I-140 is adjudicated. Since people can apply for a termporary EAD 90 days after filing of EAD application, the INS apparently is targeting at adjudication of I-140 within 60 days so that flood of temporary EAD applications be minimized to the maximum.
• This developing policy of the INS gives a clue to two points. First, it appears that the INS will adjudicate the concurrently filed I-140 ahead of I-485 application separately at the earliest possible date. It is indeed a good news for those who may have to consider utilizing 180-rule under the AC 21 Act. Secondly, some INS district offices have been issuing EAD card with the I-485 Receipt Notice, but this practice can change for the concurrent I-140/I-485 filers. People should keep eye on the procedural change at the local district offices. In the meantime, people may start filing EAD application along with the concurrent filing of I-140/I-485 against the potential change in local district office procedures on EAD and AP. People may also have to give enough lead time to obtain EAD in the future and make it sure that during such EAD processing period, they maintain their work-permit visa status or unexpired EAD so that their employment is not disrupted. Please stay tuned to this web site for the development of this news.

Updated 08/16/2002: INS Sees Big Drop in High Tech Visas

• We reported a huge drop in H-1B cap cases in this fiscal year. News report indicates that most of this was attributed to a big drop in high tech H-1B petitions. Read on.

Updated 08/16/2002: INS Commissioner To Resign End of the Year

• The current INS Commissioner announced today that he will retire from the INS position at the end of this year. Read on.

Updated 08/16/2002: DOL Clarification of Levels I and II in Prevailing Wage Determination for Labor Certification

• The U.S. Department of Labor has issued a guidance for determination of level I and Level II distinction in processing prevailing wage for alien labor certification applicationsl. For the details:
  • Clarification Letter
  • Q & A

Updated 08/16/2002: Guatemala Follows Mexican Consular ID Success for Illegals' Banking

• The news indicates that the Consular ID for Mexican illegals which has been accepted by large banks appears to be something the Mexican President Fox made arrangement politically. In order to follow the suit, the government of Guatemala plans to start granting identity documents today that could help illegal immigrants from that country open bank accounts, cash checks and check out library books in the United States. At least three other countries -- El Salvador, Honduras and Poland -- said they are considering granting similar documents. Why it is controversial, please read on.

Updated 08/14/2002: INS Releases Report of Characterics of H-1B in FY 2001 (10/01/2000-09/30/2001)

• This report is a follow-up to its FY 2000 report which was also received only a few days ago. This report will also not reflect the impact of 9/11. Read on.

Updated 08/14/2002: Is There a Life for I-140 Premium Processing After I-140/EB-485 Concurrent Filing Procedure?

• One may wonder why I-140 Premium Processing still needs to be launched. Close analysis will establish that there are a number of reasons why the INS should still launch the Premium Processing for I-140 as planned and scheduled. First and foremost, the I-140/EB-485 concurrent filing benefits only those who are eligible for adjustment of status. However, there are two groups of other people who are not eligible for adjustment of status in the U.S. and need to go through the consular processing of immigrant visas: (1) Those who violated nonimmigrant status in the U.S. and neither eligible for 245(i) nor 245(k). (2) The alien beneficiaries are located outside of the U.S. and need to apply for immigrant visa in the home country. For instance, most of healthcare workers take this track. Premium Processing of I-140 will allow these people to immigrate to the U.S. in a short period of time. Accordingly, launch of Premium Processing of I-140 will give an opportunity to give an equal benefits between the consular processing applicants and INS adjustment of status applicants. The system should assure some level of fairness between these two immigrants. Secondly, Premium Processing of I-140 will somewhat relieve the INS from the undue burden of increasing caseloads of adjustment of status and will bring the effect of encouraging more number of people to seek consular processing, whereby the caseload can be somehow restributed between the INS and the DOS. Considering the fact that upcoming PERM labor certification system will add a tremendous caseload and pressure on the INS 485 application processing, some of these cases can be diverted to overseas visa post immigrant visa processing.
• For this reason, this web site urges that the INS launches the I-140 Premium Processing System as scheduled and without any delays. We understand that the Premium Processing regulation was initially planned to be released in August 2002 as well. We also understand that this schedule might be readjusted to coordinate with the I-140/I-485 concurrent filing system. We feel that the launch and operation of these two systems in pararell will improve the INS adjudication processing in the long haul.

Updated 08/13/2002: Attorney General Announces Registration, Fingerprinting, Photographing Launch Effective 09/11/2002

• Attorney General announcement gives further details on how it will be implemented. Read on.

Updated 08/13/2002: Late Filing of Address Change Report AR-11

• Most of the current nonimmigrants and immigrants as well as the naturalized citizens who were one time immigrants should have been prosecuted for violation of this law if the INS had enforced this law. However, as this web site reported, this provision in the immigration statute was such an archaic provision that it had not been enforced for years. Most aliens did not even know that such law had existed. In someway, the government was a guilty party in terms of negligence. However, probably, the agency cannot be blamed for failure to enforce this law because in the mondern American history, there was no security challenge and no need for enforcement of such law. It is like certain criminal offenses in the criminal codes in the country which still exist in the book but rarely enforced because of the change of society. For instance, a number of statutes still keep "adultery," "bigamy," and "sodomy" as criminal offenses. The offenses which are committed by the consenting parties are in fact the norm in the current American culture rather than criminal offense. What about all those "johns" who are indeed violating prostitution statutes. We also have a statutory rape when one has a sex with the consenting minor and other party is an older person. Teen-age sex is such a pervasive behavior in this culture that a huge number of high school seniors or college male students should have been rounded up for having committed "rape", which in reality it is not.
• The problem is "law is law." Until the legislators remove archaic laws, the law enforcement agencies cannot officially pronounce that they will not prosecute it, even though they actually do not. Similar things seem to be happening with the address change report issue. This address change report provision all of sudden has become a highlight of the day because of the 9/11 terrorism and the ongoing security battle in this country. Under the circumstances, enforcement of this law is justified and people should cooperate with the authorities. But what happens with the previous violation? You guessed it. The INS cannot officially say that they will not enforce the law. At the same time, they cannot ignore the reality. Therefore, in the preamble of the newly released regulation on registration, fingerprinting and photographing of certain designated aliens, the INS states that they will exercise "prosecutorial discretion." In the criminal prosecution and immigration law enforcement, prosecutorial discretion against enforcement in certain circumstances has been utilitized for centuries in the common law world. Additionally, logistically it is impossible to round up tens of millions of people who previously violated "innocently." Neither do they have dentension facilities. At the same time, they cannot prosecute selectively since it touches the fundamental nerve of the American constitution.
• Future violation with the knowledge of enforcement of this law is a different story. In exercising so-called prosecutorial discretion, even late filing can tip the scale towards one's favor. Readers, please file AR-11.

Updated 08/13/2002: INS Seeks Comment on Launch of Online Case Status Checking System

• INS proposes to implement case status online service that will provide case status of an immigration or naturalization action to customers (and their representatives) via an interactive voice response system on a toll free, 1-800 line or a web-based application. Individuals or their representatives will look up status on the Internet by typing in the receipt number of the submitted form or through interaction on a toll-free telephone line. For individuals or organizations such as law firms and non-profit organizations that
  represent many individuals and their respective cases, the INS proposes to implement a capability for each requestor to develop their own log of pending cases on the web. The log will include multiple receipt numbers that correspond to individuals' cases. A requestor will have access only to a non-attributable case status receipt number.
  INS will provide an option for the requestor to receive email notification of status. The requestor would query the system and, if desired, request email notification of further status changes. This option reduces the number of times that a customer must access the system for case status.
• The comment should be submitted by 10/15/2002. Readers are encouraged to flood the INS office with the positive comments!! For the address, please see the announcement. The online tracking system was announced by the INS Commissioner sometime ago with the scheduled starting date before 10/01/2002. This announcement probably indicates that there will be a slight delay in lanunching the online tracking system. Still, it is a very positive move on the part of the INS for customer services.
  

Updated 08/13/2002: Anybody Worrying About H-1B Cap Reach Before 09/30/2002? Are You Kidding?

• Your guess is as good as mine! According to the AILA, as of June 30, 2002, the INS had approved 60,500 H-1B cap cases out of 195,000 annual cap! By June 30, 2002, the INS approved a total of 147,000, out of which 42,700 were the carry-over from the previous fiscal year. Consequently, only 104,300 cases which were filed after 10/01/2001 were approved. In other words, the INS approved 60,500 cap cases and 43,800 non-cap cases such as extension, amendment, cap-exempt cases if one counts the cases which were filed within FY 2002. The 9/11 and the post-9/11 change of environment against foreign professional worker employment as affected by the downturn economy and hostile environment have left a deep scar on the H-1B face. For the INS release, please click here.

Updated 08/13/2002: 212(c) Relief for Permanent Residents Convicted Before 04/01/1997

• EOIR proposes to establish procedures for lawful permanent residents (LPRs) with certain criminal convictions arising from plea agreements reached prior to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. It also sets forth procedures and deadlines for filing special motions to seek such relief before an Immigration Judge or the Board of Immigration Appeals for LPRs currently in proceedings or under final orders of deportation or removal. The comment should be submitted for this proposed rule by 10/15/2002.
  

Updated 08/12/2002: INS Released Charateristics of H-1B Workers as Reflected in H-1B Filings in FY 2000 (10/01/99-09/30/00)

• Please click here to read the PDF report of the INS. Remember, though, this statistics and characteristic reflects a completely different economic and political environment, which may not reflect the demand and supply of H-1B workers by specific industry and specific occupation post 9/11, particularly current system.

Updated 08/12/2002: INS Registration, Fingerprinting and Photographing Rule Published

• The INS today published the final rule on the requirement of registration, fingerprinting and photographing certain nonimmigrants, effective 09/11/2002. This web site will post the summary soon. Please read the regulation.
• Summary: The following are selective summary of the regulation:
  • Nonimmigrant Categories: All nonimmigrants except A and G visa categories.
  • Nonimmigrant Subject to the Special Requirements:
    • Nationals/Citizens of Specified Countries to be designated and published in a separate Federal Register by the Attorney General later.
    • Those new arrivals who the Consular Officer or Immigration Inspector believes to be such designated nationals/citizens.
    • Those new arrivals who the Consular Officer or Immigration Inspector believes to fit the pre-existing criteria whose presence in the U.S. warrants monitoring either in the national security interest or law enforcement interest.
  • What are Requirements:
    • Registration, fingerprinting, and photographing at the time of entry into the U.S.
    • Report to the designated INS Office within 30 to 40 days after entry for the follow-up interviews and report of maintaining nonimmigrant status as well as current whereabouts and employment.
    • Annual registration at the local District Office within 10 days of the month and day of the anniversary of entry into the U.S.
    • Address change report within 10 days whenever the alien moves.
    • Report to the Immigration Inspector before the departure from the U.S., and some aliens will be barred from the departure. Failure to comply with this report requirement will make such alien inadmissible to the U.S. in the future as a security-risk alien.
  • What about the Designated Nationals/Citizens Already in the U.S?
    • The designated nationals/citizens will be served a notice to appear for registration, fingerprinting and photographing. The detail procedure will be separately developed by the INS.
• This is a selective summary and not a law itself. People should read the regulation and should not rely on this summary.

Updated 08/12/2002: 35.4 Million Hispanics, American Politics, and Mystery of Inactive 245(i) or Amnesty Legislation

• Reportedly, 12.5% of the American population consist of Hispanics and both political parties are engaging fierce competition to attract these voters to their side. However, the immigration bills of 245(i) or amnesty of illegal aliens have remained a backburner! The November election is about 3 months away and it is a everybody's guess game as to whether these issues will be heated enough by the Hispanic community so that when the Congress people return to the Hill in September, they act on one of these bills, not just being totally obsessed with the DHS bill and 9/11 anniversary issues!

Updated 08/10/2002: September Visa Bulletin and Aging-Out Children

• The September 2002 Visa Bulletin allows, from September 1, 2002, certain aging-out children to apply for an immigrant visa or adjustment of status. Those alien children who are about to reach 21 or reached 21 recently should read the Age-Out Act and the Summary.
• The Age-Out Act covers alien children in many different situations and the parents should read this summary!
• One of the children who are benefitted by this law is a so-called accompanying or following-to-join beneficiary child who is entitled to the same immigration benefit as the principal immigration applicant, the parent. The accompanying child files I-485 or immigrant visa along with the principal alien parent or at least before the parent is granted an immigrant visa or a permanent resident status. If the alien child is outside of the U.S. or within the U.S. but the parent did not submit I-485 for the child and got 485 approval, the child can still apply for an immigrant visa in the home country as the following-to-join beneficiary and without the need for the parent filing immigrant petition for the child. If the child is within the U.S., the child can still file I-485 application even after the parent was granted a permanent resident status inasmuch as either the child's nonimmigrant status is legal or the child is covered by 245(i) or 245(k) benefits. The after-acquired child which includes those who were born or acquired (for instance, step-child) after the parent acquired permanent resident status is eligible neither for accompanying child nor following-to-join child benefit and unless the permanent resident files F-2A petition, the child cannot apply for an immigrant visa or I-485 even after the time consuming priority date reaches his/her case.
• Before the Age-Out Act was enacted, the law required that the child should remain under 21 years of age at the time I-485 application of the child is "adjudicated and approved," or "immigrant visa is approved and the child enters the U.S." Because of the processing delays of I-130 and I-140 petitions and I-485 or immigrant visa applications, a large number of the children got disqualified at the last minute unless they received the benefit of "aging-out expedite" processing by the authorities. The Age-Out Act saves the aging-out children from such risk of losing immigrant benefits even after he/she reaches 21 years of age.
• The Visa Bulletin is important for these children not only because they can apply for a green card from that month but also because the Age-Out Act requires that such child seek the green card benefit within one year from the date when the priority date becomes available for his parent, the principal alien. The definition of "age-out" for the accompanying or following-to-join children is such that even if the child had reached 21 when the priority date becomes available for the parent in the Visa Bulletin, some of them can still be eligible if the petition processing delays are taken out in counting his/her age. For instance, if the petition approvel took one year and one day, the child who is now 22 years of age at the time priority date becomes available will still be considered a "child" under 21 years of age and can apply for the green card, no matter how long it takes to get approval and no matter how old he/she is at the time of I-485 or immigrant visa approval. This rule of reduction of the days of petition processing delays can be tremendously beneficial in the family-based immigrant petition context because the Service Centers have been holding off processing of family petition cases for whom priority dates were unavailable as they were considered "low priority" cases in processing prioritization. It sometimes took years. Therefore, a large number of alien children who are currently way over 21 years of age can still apply for a green card!! Such aliens are rewarded by the Congress for enduring the pains of delays in processing times and the agencies are penalized for their delay in processing of such petitions through this new law. How beautiful!

Updated 08/10/2002: Battered Spouse/Children Self-Petition and Revocation Authority Under VAWA

• Effectifve August 5, 2002, the agency that has authority to revoke such I-360 self-petition is limited to the Vermont Service Center, and no other District Offices or Service Centers will have authority to take such an action. If you were granted such self-petition or lawful permanent resident status based on such petition approval, and are threatened by any District officials in your area or other Service Centers for revocation, you should immediately contact an attorney to correct the problem.

Updated 08/09/2002: State Department Amends Immigration Lottery Regulation

• The U.S. Department of State has released Interim Regulation to revise the definition of high school education and photograph details, without announcing the DV-2004 Program. However, it is expected that the DV-2004 Program be announced soon. For the regulation, please click here.

Updated 08/08/2002: Concurrent I-140/EB-485 Filing and INS Jurisdictions

• The concurrent I-140/EB-485 filing regulation leaves so many questions unanswered, including AC 21 I-140 portability and adjudication procedure which we reported earlier.
• The INS jurisdiction (which service center to file) is another area which is unclear at this time. We will review a few areas which need the INS answers:
  • Sole Jurisdiction: The Service Centers have ceased to accept applications for sole jurisdiction from the employers. However, the Service Centers recognize the sole jurisdiction filing for certain large corporations which had been granted such privilege before the INS decided to stop such practice. In sole jurisdiction filing, the company is allowed to file in one Service Center all the petitions of the company no matter where the intended place of employment is located. In most sole jurisdiction filing cases, the designated Service Center is neither related to the intended place of employment nor resident of the alien. It is an open question at this time whether the INS will allow concurrent filing with the sole jurisdiction Service Center. Assuming that the INS continues the current two policies, there is no reason why the INS should disallow such filing. The first determining factor is whether the INS will continue to honor the existing sole jurisdiction for certain employers. The second determining factor is whether the Service Centers will continue their practice which prefers filing of EB-485 application with the Service Center that has jurisdiction over the I-140 petition, no matter where the alien resides. Currently, the Service Centers also give an option to the EB-485 filers to file with the Service Centers that have jurisdiction over their residence. However, it appears to be obvious that in the context of concurrent I-140/EB-485 filing with the sole jurisdiction Service Center, such concurrent filing may be limited to that Service Center only.
  • Simultaneous Filing of I-140/EB-485: This is a problem area. The INS regulation requires that I-140 petition be filed with the Service Center that has jurisdiction over the place of intended employment and not alien's residence. On reading of the concurrent filing regulation, it appears on surface that I-140 petition is the principal legal proceeding and EB-485 application is allowed to tack on the petition. Since in I-140 proceeding, the Service Center has never allowed the employers to file with a Service Center that does not have jurisdiction over the place of intended employment unless it was granted a sole jurisdiction privilege, the concurrent filing jurisdiction may be limited to the place of intended employment and not residence of the alien beneficiary. However, the INS can amend the regulation adopting a similar policy that applies to family-based immigrant petition cases. In the family-based petition, if I-130 relative petition is filed without the concurrent I-485 filing, the jurisdiction is limited to the INS office that has jurisdiction over the resident of the petitioner, no matter where the alien beneficiary is located. However, when I-130 and I-485 filed concurrently, the regulation requires that the concurrent filing be made with the INS office that has jurisdiction over the residence of the alien beneficiary (I-485 applicant). There is no similar provision in the current INS regulation for the employment-based concurrent filing. It may be interesting to learn whether the INS will amend the regulation to follow suit of the family-based case processing practice.
  • EB-485 Filing for Pending I-140 Petition: In this situation, it appears obvious from the concurrent filing regulation and the existing INS regulation that the EB-485 will have to be filed with the Service Center that accepted the underlying I-140 petition, no matter where the alien's residence is located.
• The foregoing analysis makes it clear that the INS should resolve the jurisdiction issue as soon as possible. It appears, though, that if the alien beneficiaries are required to submit concurrent filing only with the Service Center that has jurisdiction over the place of intended employment, the EB-485 applicants may have to endure a tremendous inconvenince in dealing with medical examination and fingerprinting in the event that the alien's current residence is remote from the place of intended employment in the future. It thus seems imperative that the INS should amend the regulation very quickly making the jurisdiction issue flexible so that the alien is given an option to submit the concurrent filing with the Service Center that has jurisdiction over his/her residence.

Updated 08/08/2002: Lingering Aftermath of Anthrax and Delays in Mail Deliveries to Department of State

• The U.S. Department of State is currently experiencing delays in both front-end and back-end. In the front-end side, the Anthrax impact still persists and mail delivery to the U.S. Department of State takes a few weeks, according to the news. In the backend side, the security check became a part of the processing, delaying processing of various applications. People should give enough lead time to cope with the current delays.

Updated 08/07/2002: Foreign Investment in the U.S. Reports Down "Half"

• It is a very disturbing report that the investment by foreign countries in the United States shows a half down. :-( Read on.

Updated 08/06/2002: IBIS Check Rule and Need for Prompt Passport Stamping of 485 Approval

• AILA inquiry with the INS HQ indicates that once EB-485 is approved and people appear at the District Offices for passport stamping of temporary evidence of permanent residence and I-89 processing for plastic card production, the District Offices need IBIS check if 35 days have passed since the IBIS check undertaken by the Service Centers passed 35 days because the IBIS check is valid only for 35 days. When the stamping can not be granted because of such problem, the District Offices are instructed to give a temporary 30-day stamping so that people can continue to work and travel. It is thus strongly suggested that the people who receive the I-797 Approval Notices appear at the District Offices as quickly as possible to avoid such problem.

Updated 08/06/2002: Child Status Protection Act or Age-Out Act is Law Now !

• Today, the President signed into law this legislative bill. It is law now.
• Full Text and "Summary"of the Act
• Summary: See also our posting on July 24, 2002.

Updated 08/06/2002: List of Foreign Passports Recognized for 6-Month Extended Validity

• The U.S. Department of State has released the most recent list of foreign passports which are recognized for extended validity beyond the expiration of the nonimmigrants' passport. For the list, please click here.

Updated 08/06/2002: Social Security No-Match Letters to 800,000 Employers Costed 100,000 Immigrants Jobs

• The recent and ongoing no-match letters sent out to 800,000 employers by the Social Security Administration have allegedly costed 100,000 jobs for immigrants. Read on.

Updated 08/05/2002: Bush Plans to Nominate Maura Ann Harty as New Asst Secretary for Consular Affairs

• Bush has announced his plan to nominate career foreign service official, Maura Ann Harty, as the new Asistant Secretary for Consular Affairs. The current Assistance Secretary was the appointee of Clinton and reportedly had differences with the Secretary Powell. She was forced to retire. For the background of Ms. Harty, please click here.
• And the nominee is already under fire even before the news were reported in the national newspapers!! Read on.
• Considering the fact that visa program is destined to fall under the jurisdiction of the new Department of Homeland Security, the fireball can be a short one...Read on.

Updated 08/05/2002: State Dept Warns of J-Visa Waiver Recommendation Delays

• The U.S. Department of State warns that there will be delays in issuing J-Visa Waiver Recommendation because of the mandatory security check procedure in place for such recommendation. For the announcement, please click here.

Updated 08/05/2002: Mandatory Interviews for NIV Visa Applicants From 7 State Sponsors of Terrorism

• The nationals from the designated State Sponsors of Terrorism are subject to various restrictions for application for nonimmigrant visas. These countries include: North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya.
• First these aliens are unable to return to the U.S. from a trip to the contiguous countries (Canada and Mexico) unless they have a valid visa in the passport and automatic visa revalidation is not available.
• Now, the U.S. Department of State is taking away opportunity for State Department visa revalidation within the U.S. for these nationals by making "interview" mandatory for visa applications for these nationals. Therefore, these nationals have to apply for visa extension only through the American Consulates outside of the United States.
• The visa interview requirement does not apply to A and G visa aliens, but applies to A-3 and G-5 aliens. For the announcement, please click here.

Updated 08/04/2002: INS Adjudication Process Reform and DOL Model

• It seems to reporter that it is about time for the nation's political leaders and policy makers to look back and review the sources of current INS crisis before they work out the structural reform. This reporter remembers the old days when all the applications and petitions were filed and adjudicated in local district offices in each state and the adjudication function was not regionalized. Later, the INS restructured the service functions splitting its functions into two entities. Inherently, enforcement function should remain local just as any other law enforcement agency. From the perspectives of the INS, the family-related green card proceedings should involve "interview" process to manage potential fraud cases. To the policy makers at the time, employment-based cases were less fraud-prone and would not need interview to complete adjudication process. They then gave a birth to the four Service Centers to regionalize employment-based case adjudication function.
• One thing that the policy makers probably overlooked must be the magnitude and speed of growth of employment-based nonimmigrant and immigrant cases that followed the reform. The frist hit was the crisis of CIA clearance problem and delays and for almost one year, EB-485 cases got held hostage with no progress at all. Allegedly, the source of the problems lied with the fnger-printing process. Initially, the INS relied on local police departments to provide such services, which turned out to be a nightmare in that without proper checking of identity of the subject, the police departments took fingerprint, raising a serious issue. Then the INS stopped the local police department fingerprint contracts and the district offices themselves started taking fingerprinting duties, hiring contractors. Understandably, this caused enormous amount of workload on the local officials. With this background, the INS created a separate fingerprint office in each community, the current ASC. Since then, the INS has experienced problems involving a transition from manual handling of fingerprint clearance process to electronic processing. Interently, fingerprinting function is "local" in nature in that a human must appear and his/her fingers must be printed. It is by nature never "regional."
• Along the process, the INS experienced a surge of the number of employment-based 485 applications affected in part by 245(i) cases, taking over the green card processing function for the eligible illegal aliens from the consular offices. Prior to enactment of 245(i) legislation, the applications for all these aliens had to go through the American consulates since they were not eligible for 245 adjustment of status. Unfortunately, the Service Centers were technologically not prepared for such changes since the processing of the cases basically depended on "manual" processing.
• In hindsight, the restructuing of the adjudication functions into a regional function appeared to be premature not in pace with their enhancement of processing capacity through rapid technological reform. With the given technological capacity, it probably should have remained in local levels. Had it remained in local levels, there would not have occurred splitting of the jobs of the Service Center between the regional offices and the local offices such as fingerprinting.
• Now, time is getting ripe for either regionalization or nationalization of adjudication functions because of the technological improvement which the agency will soon witness using automation of filing in the form of on-line filing of various applications and petitions. However, this reporter suggests the political and policy makers to take one step further to permanently remove the ailing "backlog" problem once and for all. The DOL PERM reengineering or IRS Tax system will also allow automation of not only "filing" process but also "adjudication" process as well. Of course, we do realize that some proceedings require certain process which cannot be automated. However, even such cases can be partially automated other than G-325A clearance process in EB-485 applications, for instance. Most other cases that do not need G-325 clearance can be automated.
• For such automation, the system needs a reform which goes beyond structural or organizational redistribution of functions. The magic word can be defined as "enforcement-driven" process. This is what the DOL PERM or IRS Tax reporting system is about. Currently, the adjudicators apparently spend a lot of time to deal with any potential fraud and generate a lot of caseworks involving so-called "RFE" processing. In this reporter's opinion, the follow-up fraud detection, investigation, and enforcement should be left to the local units which will become part of the new Department of Homeland Security. There is absolutely no reasons why the service functions and the enforcement functions should come under the same umbrella inasmuch as the information-sharing system is completely in place. This reporter disagrees with the advocates of immigration structurral reform that brings the service function within the Department of Homeland Security which is basically a law enforcement-focused agency, just as the visa processing function should remain with the U.S. Department of State. The two Departments can coordinate sufficiently the separate services function and enforcement function with the technological improvement. It would be the last solution from the perspectives of immigrant community that the immigration services function get buried in the enforcement-focused mammoth Department. It would turn out to be a worse changing of "hat."

Updated 08/03/2002: Washington Times Reports Over 2 Million INS Mails Piling Up

• A startling news report written by Chirstopher Newton, Associate Press writer today: Accroding to the report, more than 2 million documents filed by foreigners, from change of address forms to requests for benefits, have been piling up for years and only now are being reviewed by the government.The documents have been collected by the Immigration and Naturalization Service from field offices across the nation and sent to a warehouse complex outside Kansas City, Mo. They include 200,000 change-of-address notices and more than 300,000 applications for citizenship. Reportedly, the field offices were not sure what to do with all of the documents they had not been able to look through, and they were a bit overwhelmed by the unprecedented growth. For the full details, please click here.

Updated 08/02/2002: PERM Labor Certification, 245(K) Relief, and Concurrent I-140/I-485 Filing

• One of the key differences between 245(i) relief and 245(k) relief for those who fall out of status is that the 245(i) benefit is attached to the alien on certain cut-off date and once such benefit is attached, it does not matter when the alien files 485 application. In this regard, the 245(i) has no relevance to the concurrent filing system. Meanwhile, the attachment of 245(k) benefit is not determined and fixed until the 485 application is filed. Therefore the cut-off date of 180 days of unemployment and out-of-status, which are forgiven by the 245(K) provision, depends on when the I-485 application is filed. The concurrent I-140/I-485 filing will allow the alien to bypass the period of time during when the period of being out-of-status will keep running pending I-140 petition such that more people in out-of-status will be able to get green card by taking advantage of 245(k) benefits and by filing I-140/I-485 concurrently before it reaches 180 days. In other words, the concurrent filing system will allow some people in out-of-status to adjust status to a lawful permanent resident who are otherwise unable to achieve the same.
• The forthcoming labor certification reengineering, named PERM, will help further such people by being able to obtain labor certification in less than 21 days if the labor certification application meets the PERM requirements. These changes will make 245(K) relief available to more people in out-of-status in the future and the 245(k) relief will receive increased attention in reviewing strategies for employment-based immigration for so-called short-term illegal aliens. The timing of launch of the PERM program thus becomes increasingly important. The DOL was scheduled to publish either Interim or Final Regulation (PERM) this month, followed by launch of the new labor certification procedure within a short period of time thereafter. We hope that the DOL keeps this schedule so that more people, not just out-of-state aliens, can get to the I-485 filing stage in less than a month. Is this reporter dreaming? Maybe not. Readers, please keep your chin up and go out and enjoy your Summer weekend!
  

Updated 08/02/2002: Running Out of Time of Legal Status and Concurrent I-140/EB-485 Filing

• Filing EB-485 tolls running of unlawful presence. Additionally, pending adjudication of EB-485, the alien remains in status. The concurrent filing of I-140/EB-485 gives a tool to save him/her from falling out-of-status. However, preparing and filing of I-485 require time and search of evidence, including scheduling and collection of medical examination.
• Here are a couple of rules such people may want to keep in mind. Rule #1: The filing must be "physically received" by the Service Center before the date of expiration of current legal status. Mailing and post mark are not enough. Rule #2: "Signature" of the applicant or petitioner on both I-140 form and I-485 must be there. Additionally, the checks of "correct amount" with "signature" and "correct date" must be there as well. The checks should be acceptable by the banks. Inasmuch as these two rules are kept, the Service Centers cannot reject the filing. They cannot reject the filing for the reasons of other defective documentation even though he/she should expect to receive a RFE from the Service Centers. Rule #2 is particularly important in concurrent filing because if the Rule #2 is not followed for the form I-140, the Service Centers should reject and return EB-485 application as well even the Rule #2 is followed for I-485 package, because I-485 cannot be filed without the acceptable accompanying I-140 petition. What happens if one failed to follow #Rule 2 for I-485 but followed the Rule #2 for I-140? The Service Centers should accept I-140 but reject and return I-485. If the alien's status has already expired before one can refile it, he/she cannot save legal status. It is unclear at this point whether 245(K) can be used in this context and refile I-485 application with the I-797 Receipt Notice of I-140. As people know, the Section 245(k) provision makes an alien eligible for adjustment of status to a permanent resident inasmuch as the alien's status violation does not exceed 180 days before the date of filing of I-485. This question should also be answered by the INS.
• In emergency when people do not have all the supporting documentation before his/her time is running out, he/she should consider filing a skeleton I-140/I-485 filing to keep his/her status legal!! Skeleton filing is not limited to I-485 documentation, but also I-140 documentation. Very important to remember.

Updated 08/01/2002: Confusion on Change of Employer Under AC 21 Before Underlying I-140 Is Approved

• The concurrent I-140/I-485 filing regulation currently creates a confusion on the issue whether the alien will be able to change employer after 180 days even if I-140 has not been approved. One thing clear is that the answer to this question is not a policy issue but interpretation of AC 21 Act. The other point which is also clear is that a regulation cannot change or override a statute. Accordingly it remains strictly issue of how the relevant section of AC 21 statute is interpreted.
• This needs understanding of the legislative intent of AC 21 Act. This specific provision of so-called 180-rule is, as the heading of the section indicates, to relieve the I-485 applicant from the unreasonable delay of I-485 application adjudication beyond 180 days. Accordingly, when the immigration statute mandates that I-485 cannot be adjudicated until the underlying I-140 has been approved, the starting point of "delay" will not start ticking until there is an"approved" I-140 petition. This means that either the count of 180 days cannot start until the underlying I-140 petition is approved or by the time 485 application reached 180 days, there should be at least approved underlying I-140 petition. It is one thing that the INS will accept I-140 and I-485 concurrently and it is the other whether the INS can adjudicate I-485 immediately upon filing, for which the answer is "no." No one can argue about it. When the legislative intent is that clear, people want to hear from the INS how they would resolve the issue from the policy standpoint. One cannot blame delay when one cannot act because of the legal requirement that they must have an approved petition before they can adjudicate the application. "Approved" I-140 petition is "prerequisite" to adjudication of I-485! Thus the starting point for counting of 180 days under the AC 21 Act is the date of filing of I-485 application with the "approved" I-140 petition. Accordingly, physically(calendar wise) 180 days may start running if one files I-485, but when there is no "approved" I-140 petition, legally 180 days does not run because the INS is unable to adjudicate the application because of lack of the prerequisite approved I-140 petition. The fact that the relevant provision in the AC 21 Act simply stated "petition" does not mean much in the present situation since it can cut either way: It did not say "approved" petition nor did it say "unapproved" petition. The heading of the section and legislative intent are clear as to the meaning of petition in this context. The interpretation also cannot go beyond common sense. It is hoped that the INS answers this question as soon as possible.

Updated 08/01/2002: Impact of I-140/485 Concurrent Filing on 485 Processing Times

• The concurrent filing will definitely help reducing overall backlog of the INS adjudication performance. However, initially it is expected that the concurrent filing will inflate the number of EB-485 cases that the Service Centers will receive, temporarily adding further pressure to the current backlogs and delays in EB-485 processing. People are particularly worrying about its impact on 485 processing times in the Texas Service Center which is already experiencing close to two-year of backlog. The Bush 5-year Plan promised $100 million funding for processing times reduction each year, but the state of technology of the current Service Centers, particularly TSC, may not be quite ready to accomodate additional workloads. The Service Centers have been hiring new people during the past one year, but as usual the new hires need training and initially reveal a poor performance, creating a unusual number of RFEs. The AILA should address this issue to the INS.
• We discussed yesterday two potential senarios of the processing of concurrently filed I-140/485 cases by the Service Centers: One is concurrent adjudication in one step and the other is bifurcation of adjudications, processing I-140 and EB-485 the way they have been handling upto now. However, each scenario has its own issue. For instance, one-step adjudication will help the INS to save time and workloads, but unless the processing time is reduced to six months, we have the issue of portability of I-140 after filing EB-485 180 days. On the other hand, bifurcation of adjudication of I-140 and EB-485 will not help much in reducing the workloads for the Service Centers and rather result in increasing workloads, but bifurcation will certain help in resolving the I-140 portability. This issue should also have to be addressed by the INS soon. It appears that the immigration system needs to accelerate technological improvement of processing system and increase automation of filing and processing systems as quickly as possible.
• The other two issues which the INS and immigrant community should keep eye on are the impact of DOL's PERM labor certification program which is expected to be in place in six months or less. This will add additional pressure on the INS adjudication function. The other issue to watch is the impact of the changes in the INS and DOL processing sytems on immigrant priority system. It is not likely that the EB-quota system will feel a substantial pressure to produce a massive oversubscription of visa numbers for certain countries like India and China and forced to retrogress priority dates in the near future, but at some point in the long future, the DOS' visa allocation system may have to readjust the annual/quarterly immigrant visa number allocations for certain countries.
• Well, what else we can do other than crossing our arms and watching how these issues will be unfolded and resolved. The ongoing legislative activities to reshuffle the immigration functions in connection with the Department of Homeland Security will certainly play some role in resolving these issues, additing some more wrinkles. Ahhhhh............

Updated 07/31/2002: Confusion on Rule-Making Process

• This reporter is very surprised by how much people are confused about the rule-making process. People should read the INS explanation of the rule-making process and understand first what they mean by "interim rule." Please click here.

Updated 07/31/2002: INS Released I-140/485 Concurrent Filing Regulation

• As we advised yesterday, the INS released this regulation today. For the complete text of the regulation, please click here for Text version. For PDF version, click here. In the future, people may go to the top of this page to get access to this regulation any time.
• The regulation has taken effect today and people can file I-140/485 concurrent packet starting today. Please make it sure a appropriate amount of fees are submitted, preferrably separately for I-140 petition and I-485 application and mark in magic marker "I-140/EB-485 Concurrent Filing." Good luck!!
• To understand the background of this initiative, please review the President Bush statement which was released sometime ago. Please click here.

Updated 07/31/2002: Foreign Student F,M,J Visa Applicants Must File DS-158 for Visa Application

• This form requirement is in effect. Please click here to get the form. (pdf version) In the future, please click "Government Forms" link on the left index frame of this page.

Updated 07/30/2002: Advantage and Disadvantage of I-140/485 Concurrent Filing

• The new regulation fails to provide how the concurrently filed I-140 petition will be processed and adjudicated: Concurrent Adjudication or Separate Adjudication Between 140 and I-485. In family-based cases, currently the INS District Offices adjudicate I-130/I-485 concurrently. Accordingly, I-130 Relative Petition remains unadjudicated until I-485 is ready for adjudication. The INS should soon release a memorandum to clarify this important policy issue.
• If I-140/I-485 are adjudicated "concurrently," I-140/485 concurrent filing may not fit for everybody depending on how long it takes to adjudicate the petition/application. The country is currently experiencing a terrible economic downturn and produces a very high rate of unemployment. At this time, a number of people are laid off while awaiting I-485 approval. AC 21 180-day rule is a saviour for these people. Under the AC 21 180-day rule, I-485 waiter can take a new job or a new employer after 180 days of I-485 filing if the new job is similar or same as the previous position in occupational classification. One thing, however, which people should note is that this portability provision applies to the underlying I-140 and not I-485. In other words, the AC 21 180-day rule provides that the underlying "approved" I-140 will be not affected by the alien's change of employment after 180 days of I-485 filing. Accordingly, even if the employer withdraws such I-140 petition, inasmuch as it was withdrawn 180 days after filing of I-485, AC 21 presumes that validity of such approved I-140 petition remains unaffected and the pending I-485 which was supported by such approved I-140 also remains unaffected. This 180-day rule, however, preconditions "approved" I-140 petition. Consequently, until I-140 is approved, the I-485 waiters may not be able to take advantage of AC 21 180-day rule and may not be able to change employer pending "concurent" adjudication of I-140/I-485.
• The newly launched I-140/485 concurrent filing will open a new chanpter in the American employment-based immigration history, bringing a revolutionary and powerful change in employment-based immigration, provided that the policy makers adopt two policies. First, as promised by President Bush and repeatedly confirmed by the INS itself, the adjudication time must be reduced to 180 days pursuant to the loud voice which has been heard in Congress through the various legislation including AC 21 and other immigration oversight activities. To our knowledge, the INS has been pushing ahead this plan and planning to achieve the goal in the near futue. Once this is achieved, the AC 21 180-day rule becomes irrelevant and moot and I-140/485 current filing will literally bring the fruit of what the policy is intended. Secondly, until this processing time reduction is achieved, the INS should adopt a policy of processing procedure which distinguishes it from the family-based one-step proceeding by processing the concurrently filed I-140 and I-485 separately and consecutively so that people can utilize AC 21 180 rule per the sprit of AC 21 legislation even if they choose to file the one-step I-140/485 petition/application. Then people will feel more comfortable to choose the concurrent filing regardless of the affect of downturn economy and potential need for change of employer and employment pending I-485.

Updated 07/30/2002: INS To Release I-140/485 Concurrent Filing Regulation Tomorrow

• Just as this web site reported earlier, the INS is scheduled to release this regulation tomorrow, according to the AILA. The immediate benefit of concurrent filing is immediate eligibility for EAD and Advance Parole. The biggest benefit is those whose unlawful presence has start running and may be subject to 3-year or 10-year bar unless the running of unlawful presence time is stopped by filing I-485. By filing I-485, they will be able to stop running of unlawful presence even though they cannot remove the period of unlawful presence before filing I-485. Please revisit our earlier reports on 05/13/02 and 06/13/02. This regulation was initially planned to be published in the form of "proposed" regulation, but because of delays and need for changes in processing times, the INS intends to publish it in the form of "interim" rule. It means that the rule will become effective upon being published. Thus if it is published as scheduled tomorrow, it will become effective tomorrow. Accordingly, those who are about to file I-140 may hold filing until this regulation is released so that they can file I-140/I-485 concurrently. Those who have already filed I-140 may be able to file immediately I-485 attaching I-140 Receipt Notice.
• Summary:
  • Concurrent filing will be available to all categories under EB-1, EB-2, and EB-3, and thus will not be available to EB-4 and EB-5 that need to file either I-360 special immigrant petition or I-526 immigrant investor petition.
  • Those whose I-140 petition is pending can file I-485 application without refiling I-140 petition inasmuch as they can submit "I-797 Receipt Notice" of I-140 filing at the time they submit I-485. Accordingly, those whose I-140 petitions are pending can immediate file I-485 with the I-140 receipt notice, along with I-765 EAD application and I-131 Advance Application. This will give a tremendous benefit to the spouses and children who need employment authorization.
  • Caveat: Concurrent filing is available only when visa number (priority date) is available. Currently visa number is available in the Visa Bulletin in all employment categories, but once the visa number or priority date retrogresses for whaever reasons certain nationals, some of people may not be able to file a concurrent filing.
• For the full text of "official" regulation, please visit this web site tomorrow. Contratulations to you all!!

Updated 07/28/2002: Government Reform (DHS) Road Block: Employment Security vs. Accountability of Employees

• The House passed its bill late in the evening last Friday, giving full authority to the President for personnel management of the employees of the new DHS at the sacrifice of current employees' right to civil service job security, whisle blower protection, and union membership. Depending on the decision of the Senate in the coming week, the DHS bill can be outrightly vetoed or pocket vetoed by the President. The President emphasizes his authority to fire or transfer current employees of 22 agencies to come under the umbrella of the DHS and the Republican House of Representatives supported it. The Democrat controlled Senate, however, emphasizes the employment security of these federal employees, particularly union rights and intends to pass Sen. Liberman's version with strong protection of the employees rights. The President threatens that if the Senate version comes to his desk, he would veto the bill.
• The government reform is thus in the middle of crossroad between employees employment security and government's need for flexisibility in management of the employees, particularly relating to the issues of political accountability of the current managers and officials for the current crisis. It indeed is a tough decision. Theoretically, the civil service employment security system and flexibility of personnel management run in parallel. It will be interesting to see how the conference committee of the House and Senate will mill out a compromise bill. The Congress goes into a month-long Summer recess starting from August 2. Since there is an insurmountable pressure to enact this law before 9/11, should the legislation fail to be enacted by that time, the White House and the Democrats will point a finger at each other blaming other party for the failure and seeking a political consequences in the November election. The Senate is scheduled to pass its version in the coming week. The House went into the month-long recess last Friday and any differences between the two bills will have to wait until the Congress returns in September. Will the Beltway gentlemen and esteemed ladies go dormant like a frog? No way! During the one month period, the White House and the Democrats will engage in a fierce fight in the community on this issue. It will be interesting to watch how this drama will unfold! In the meantime, please stay put and tuned to this web site. Back to Top

Updated 07/27/2002: Address Change Report Requirement and Need for Procedural Improvement

• As the INS intensifies its campaign to publicize this enforcement issue, people contact this reporter with a host of questions which deserve the INS' attention.
• Paper Filing: As the INS would appreciate it, the nonimmigrants tend to move quite frequently since they are not allowed to have a "permanent home" in this country. The current AR-11 notice in paper will create a mountain of paper works for the agency, which will not only cost a high taxpayer money but also involves a potential risk of mishandling within the agency as well as by the postal services. Paper filing under the circumstances is truly an ineffective and inefficient system. The INS was scheduled to initiate on-line filing procedures for certain applications and petitions in Octobern, and this AR-11 filing has to be its "top list" for the online filing initiative.
• Proof of Filing: Because of serious consequences of failure to file the address change notice under the statute, people are concerned how they would know the agency has actually received the notice. Since the INS is not going to issue a Receipt Notice, people are left with concerns and fears. The on-line filing will partially resolve such problem, but the agency should clarify the issue of proof in the form of memorandum.
• Identity Fraud: It may sound a paranoia, but it can be a legitimate question that somebody can prepare and mail out AR-11 for others falsely reporting change of address in order to hurt the person. This is an issue of verification of identity. Presently, there are no mechanisms to deal with such problem. Obvisouly, when it comes to the enforcement issue, the "facts" would prevail, but this can create a "black hole" in the reporting system.
• Frequent Movers: Obviously, visitors staying over 30 days are required to report the address change. How many and which address should such visitors report? What about foreign students who move quite frequently from one dormitory room to the next room or other building on the campus, or from a dormitory to an apartment? Considering the frequency of move, these nonimmigrants will indeed generate a mountain of address change notices everyday. Would the agency be able to handle the mountain of papers internally? What are the chances of mishandling? Somehow, common sense dictates that it does not make sense to apply the same notice requirement when there are a better means of tracking down address changes and report of such changes for certain groups of nonimmigrants. For instances, certain nonimmigrants such as F or J nonimmigrants, the sponsors or schools are supposed to communicate more efficiently with the agency through SEVIS. Probably, the agency will be better off mandating such nonimmigrants to report the address change to the schools with the resulting legal consequences for failure or violations and mandate the schools to forward such address change reports through SEVIS. The agency should consider utilizing the intermediaries such as schools or employers to receive the address change reports electronically with the resulting legal consequences for failure or violations. This provision in the immigration statute was enacted when the country received a fairly limited number of aliens and there were no such reporting mechanism as the today's electronic devices. The statute must be implemented reflecting the changes witnessed over time. Otherwise, implementing notice reporting system on "individual alien" basis across the board and by "paper" will turn out to be a poor management with extremely "inefficient" and "ineffective" consequences which go against the "public interest," not to mention the inconvenience imposing on the aliens. Back to Top

Updated 07/26/2002: AILA's Washington Update 07/26/02

Updated 07/26/2002: House Agreed with the President to Limit DHS Employees' Union Rights and Job Security

• The full House just voted to support the President on this very controversial issue, showing difference with the Senate. The President has threatened to veto the Senate version because of this issue. The Senate and the House will have to resolve the difference quickly. It is a big defeat for the employees of the new Department of Homeland Security. Read on. Back to Top

Updated 07/26/2002: INS Published Proposed Regulation to Enforce Address Change Report Requirement

• As a part of its efforts to force the aliens properly file address change reports, the INS will change various application/petition forms adding the alien's acknowledgement of notice of requirement of such legal obligation to report the address change and set forth the legal consequences of failure to file such report including absential hearing and decision and denial of immigration benefits in the event of failure to deliver communications to the aliens because of the alien's failure to file notice of change of address. This will become effective once the INS revises all the relevant application forms adding such acknowledgement section.
• Who is subject to the Address Change Report Requirement? All immigrants, nonimmigrants and other aliens who fall under the following category:
  • 14 years or older
  • Stay in the U.S. more than 30 days. Therefore, children under 14 years will not be subject to consequences of failure to report the address change even if they fail to report the address change. A temporary visitor who stays in the less than 30 days is also not subject to the address change report requirement and consequent purnishment.
• What are the consequences of failure? One or all of the followings:
  • Criminal Punishment:
    • Willful Failure: Imprisonment Not More than 6 Morth or Fine of $1,000 or both.
    • Simple Failure: Imprisonment of Not More than 30 Days or Fine of $200 or both.
  • Immigration Consequences:
    • Custody and Removal (Deportation)
    • Constructive Knowledge of Requirement and Absentia Hearing and Removal or Deprivation of Immigration Benefits
• People should not fail to file AR-11 within 10 days of address change! For the text of regulation, please click here.
• Caveat: "Acknowledgement" and its consequences are not in effect until new forms and final regulation are released, but address change using AR-11 and its consequences have been and are in effect now!! Back to Top

Updated 07/26/2002: Somalia TPS Designation Extension for One Year (09/17/2003)

Updated 07/26/2002: Ashcroft TIPS Plan Under Fire and Controversy

• Yesterday, Ashcroft testified before the Senate committee and faced a tense attack by the Senators on TIPS Plan, which proposes to organize millions of Americans to provide tips on others. Operation TIPS (Terrorism Information and Prevention System) is under development by the Justice Department as part of President Bush's Citizen Corps initiative, which aims to get citizens involved in homeland security. The program has been criticized by some lawmakers and civil liberties groups, who believe Operation TIPS would encourage citizens to spy on each other and bears uncomfortable similarities to surveillance programs during World War II and other conflicts. Wasn't Jews under such surveillance in Germany under the Hitler's Nazi holocaust? What about the Soviet Union under Stalin? By the way, Stalin is recently receiving another attention in Russia for his sexual life which is pornographically described by a Russian author in a nobel. Russia is attempting to prosecute the author for criminal obscenity offense, which is nothing but another way of oppressing peoples' basic right and freedom of expression and thoughts. It seems world is turning around and around in a circle. Read on. And more. Back to Top

Updated 07/25/2002: White House Veto Threat Over Difference in DHS Job Security Issues With the Congress

• There is a tense muscle match between the Congress and the White House over this issue to take advantage of the running-out-of-time for the Congress to pass the bill before August 2. This is the key issue between the two federal branches at this moment. Read on.
  • Full Text of House Bill, H.R. 5005
  • Full Text of Senate Bill, S.2452
  • Full Text of White House Bill
• The Full House is debating H.R. 5005 starting from 8:00 p.m. Back to Top

Updated 07/25/2002: Address Change Report Forms and Regulation

• Until an alien in Georgia was charged for violation of immigration laws and subject to the deportation proceedings about two weeks back, the legal provision in the immigration law book had been dormant. No one knew clearly that the INS had been developing a policy to intensify the address change report requirement.
• Now, it appears that the U.S. Department of Justice and the INS are coming out of the closet announcing that it is the policy of the agencies to aggressively enforce this law imposing civil and criminal penalties as well as deportation enforcement. In order to formalize this policy, the DOJ has developed a "proposed" regulation which is expected to be published very shortly. For this announcement, please click here.

Updated 07/25/2002: Selective Summary of Age-Out Act

• The purpose of this new legislation is to keep certain aliens continuously eligible for immigrant benefits if they otherwise become ineligible for the immigration benefits because of their reaching 21 years of age pending the proceedings. The following summarizes selective provisions to show the readers the parameters of this legislation.
• Unmarried Children of U.S. Citizen Younger than 21 Years of Age: The U.S. citizen can file "immediate relative" petition. Currently, the child must "acquire" a green card before he/she reaches 21 years of age either through consular proceeding or 485 adjustment proceeding. Should the child reach 21 years of age before the permanent resident status is approved, currently such alien turns into a status of "Son" or "Daughter" rather than a "Child" and has to go through either Family First Preference (F1) if remains unmarried or Family Third Preference (F3) if married. These preference categories are currently heavily backlogged in the Visa Bulletin. The Age-Out Act provides that for the purpose of immediate relative petition, such son or daughter remains eligible for the immediate relative status inasmuch as he/she was younger than 21 years of age at the time the U.S. citizen parent filed immigrant petition on his/her behalf. In other words, the cut-off date for immediate relative immigration benefit is "Parent's Petition Filing Date" rather than green card approval date. Accordingly, if the U.S. citizen filed immediate relative petition for his/her child of 20 years or younger, even if the child reaches 21 years pending the proceedings, the child will get immigrant status under the classification of "immediate relative" and not be subject to immigrant visa quota.
• Unmarried Children of Permanent Resident Younger Than 21 Years of Age Converting from F2A Petition Status to Immediate Relative Status by the Parent's Naturalization: This is a situation where a permanent resident parent filed a F2A immigrant petition for unmarried child of 20 years or younger. While the child is either waiting for the priority date or going through adjustment status, the parent obtains a citizenship through the naturalization process. Currently, if the child reaches 21 years of age before his/her green card is approved, his/her status is converted from F2A Preference category to F1 category and the child has to wait a long time to reach his/her priority date. Under the new law, the cutoff date for age 21 is determined by the date of parent's naturalization. Consequently, even if the child reaches 21 years of age, the child will be able to convert to Immediate Relative category inasmuch as he/she was younger than 21 years of age at the time the petitioning parent obtained the citizenship through naturalization. The benefit is obvious since he/she will be able to get a green card without being subject to immigrant quota.
• Married Children of U.S. Citizen and Affect of His/her Marriage Termination: If the U.S. citizen parent filed F3 immigrant petition on behalf of a married child who is 20 years or younger, his/her case is converted to F-1 even if he/she becomes unmarried by termination of marriage inasmuch as he/she reaches 21 years of age. Under the new law, the cutoff date is determined for the purpose of conversion of categories by the date of termination of marriage. Accordingly, if he/she was 20 or younger at the time of terminationa of his/her marriage, his case will be converted to the Immediate Relative status and he/she will be able to get green fairly quickly even after he/she 21 years of age since he/she will not be subject to the immigrant quota.
• Unmarried Children of Permanent Resident Pending F2A Petition and Aging Out: Under the current law, should such child reach 21 years of age while waiting for priority date or adjustment of status, his/her status is automatically converted to F2B. The waiting time for F2B categories is much longer than F2A. Under the new law, the cutoff date will be determined by the date when visa number or priority date becomes available. Accordingly, such F2A waiter will be able to obtain a green card under F2A category even after he/she reaches 21 years of age inasmuch as he/she applies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulletin. In counting the child's age, the number of days spent for petition approval is taken out. For instance, if the I-130 petition for the child took one year and at the time the visa number(priority date) becomes available for F-2A classification for the alien child, he/she has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for F-2A classification immigration and the child can apply for either I-485 adjustment of status or immigrant visa.
• Accompanying or Following-To-Join Derivative Children Beneficiary of Preference Family Categories or Employment-Based Categories or Immigration Lottery Category: Currently, if a unmarried child of 20 years or younger applies a green card as a dependant child of a parent who applies for green card through preference family petition or employment-based petition or immigration lottery registration, the child should complete the green card before he/she reaches 21 years of age. Otherwise, the child is unable to apply for the green card as a dependant. Under the new law, the cutoff date is determined by the date when the parent's priority date becomes available in the Visa Bulletin. Accordingly, such child will be able to obtain a green card as an accompanying beneficiary or a following-to-join beneficiary even after he/she reaches 21 years of age inasmuch as he/she applies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulltin. In counting the child's age, the number of days spent for the parent's petition approval is taken out. For instance, if the I-130 petition for the parent (in family-based immigrant petition) or the I-140 petition for the parent (in family-based immigrant petiton) took one year and at the time the visa number(priority date) becomes available for the parent, the child has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for immigration benefit as a derivative dependent child beneficiary and such child can apply for either I-485 adjustment of status or immigrant vis even if the child is older than 21 years of age.
• Accompanying or Following-To-Join Children of Asylum Applicant or Refugee Parent: Again under the current law, once a child of an asylum or refugee parent reaches 21 years of age, that child becomes ineligible for asylum and refugee immigrant benefits. Under the new law, the cutoff date is determined by the filing date of asylum or refugee application by the parent. If such child reaches 21 years after the parent filed asylum application and while it is still pending, the child will remain eligible for the benefit as a dependant. Should the child reach 21 years of age after the parent's asylum is granted, however, it appears that the child may not be eligible for the dependant benefits.
• Effective Date of the Law and Eligible Alien Children: This legislation becomes effective on the date the President signs it. As a savings clause, the legislation provides three categories of aliens who will be eligible for the benefits of this law:
  • The alien whose immigrant petition was approved before the effective date of this law and either immigrant visa or 485 adjustment of status proceeding is still pending at the time of effective date of the law.
  • The alien for whom an immigrant petition is pending on or after the effective date of the law.
  • The alien whose application is pending on or after the effective date of the law.
• The AILA is expected to release a summary soon. People should not rely on the foregoing summary as the law since it is a "selective" summary and "outline." People should wait until either the INS or other authoritative entities releases the summary. This law firm and lawyers will not be responsible for the consequences of people's reliance on this summary. Back to Top

Updated 07/24/2002: H.R. 1209 Child Status Protection Act (Nickname: "Age-Out" Act) Waiting for President's Signature

• This important piece of legislation which will have a tremendous impact on immigration of aging-out children passed the Congress and have been forwarded to the President for his signature on July 22, 2002. This site will post summary of this legislation soon. For the full text of the bill, please click here.

Updated 07/24/2002: Treasury Reinforces Regulation on Financial Institutions' Recordkeeping/Reporting Duties for Suspicious Transactions

• As part of its continuing efforts to mandate the financial institutions to participate in fight against terrorism, the U.S. Department of Treasury released today another regulation on this subject. Read on.

Updated 07/24/2002: INS Regulation Authorizing State/Local Law Enforcement Officers Deputization for Immgiration Enforcement

• The INS released today a final rule which goes into effect on August 23, 2002 authorizing the Attorney General to sign an agreement with the State and Local government for their participation in immigration law enforcement in certain circumstances. This rule provides a cooperative process by which State or local governments can agree to place authorized State or local law enforcement officers under the direction of the INS in exercising Federal immigration enforcement authority whenever the Attorney General
  determines that such assistance is necessary during a declared mass influx of aliens. This rule allows the Commissioner of the INS to enter into advance written ``contingency agreements'' with State or local law enforcement officials to explain the terms and conditions (including the reimbursement of expenses) under which State or local law enforcement officers can exercise Federal immigration enforcement authority during a declared mass influx of aliens.
• As we reported yesterday, Florida became the first state to sign such an agreement and faced angry reaction in the Hispanic group. People fear not only deputization of local and state cops for immigration law enforcement, but also and more importantly potential abuse of such delegated authority by the local/state cops. The Fed's growing trend to deputize state/local authorities and even private citizens, including driver license for aliens and one million volunteer watch program, etc. has raised some concerns not only among the civil liberty advocates but also some plain members of the society because of the potential abuse of the deputized people for their insufficient knowledge of complexity of the immigration laws and potential abuse of the law for their personal purpose. For the full text of this regulation, please click here.

Updated 07/23/2002: INS Notice to School DSOs on Student Visa/Status Processing Procedures/Requirements

• The INS released its official Notice to Schools in May 2002 that sponsors foreign students concerning termination of contractors and the procedure/requirement for handling various types of immigration application proceedings for students. For the pdf version, please click the followings:
  • Notice
  • Attachment
• This information is very helpful for the foreign students as well as the immigration practitioners who handle foreign students.

Updated 07/23/2002: Treasury To Require Banks to Check ID/Backgrounds for Opening Bank Accounts

• The U.S. Department of Treasury released a "proposed regulation" to require the financial institutions to participate in the anti-terrorism efforts by requiring ID checks for opening a new bank account as part of the USA Patriotic Act implementation. This regulation will have a broad impact not only on aliens from Arab/Muslim countries but also illegal aliens. Click here for the pdf version of the proposed regulation. This will cover entire financial and securities transaction institutions, including Brokers, Mutual Funds, and Futures Commission. Back to Top

Updated 07/23/2002: Hispanic Group Reacts To Florida Local Immigration Enforcement Agreement With Fear and Anger

• The State of Florida agreement with the DOJ to assist immigration enforcement by state/local officials faced by anger among Hispanic community. Read on.

Updated 07/23/2002: 27 Security Clearance Requirement Countries NIV Processing Delays

• It has been a while that the visa posts have been implementing 20-day security clearance procedure for the nationals of 27 countries. Reality, however, indicates that it takes much longer than 20 days and usually 10 weeks to get a nonimmigrant visa issued.
• More bad news. AILA reports that the U.S. Department of State predicted that it would take further longer for these nationals in the near future. The nationals of these countries should be prepared for such forthcoming policy changes and plan ahead their trips keeping the timeframe in mind. They don't want to be stuck outside of the U.S. Back to Top

Updated 07/22/2002: DOJ Asks DOS To Designate 9 More to Current 39 Terrorist Organizations

Updated 07/22/2002: Asylee I-485 Processing Times

• The Nebraska Service Center has the sole jurisdiction for processing of I-485 for asylees. AILA reports that as of May 10, 2002, approximately 96,600 asylee adjustment applications were pending and by September 30, 2002, the NSC will be processing applications which were received on or before June 9, 1998. In September 2002, the NSC will determine and publish the received dates to be processed between October 1, 2002 and September 30, 2003 more precisely.The NSC anticipates that the NSC will process the remaining pending applications according to the following schedule:

• Date Received Timefrme	Date to be Processed
  06/10/98-02/01/99	10/01/02-09/30/03
  02/02/99-09/14/99	10/01/03-09/30/04
  09/15/99-03/13/00	10/01/04-09/30/05
  03/14/00-08/03/00	10/01/05-09/30/06
  08/04/00-12/07/00	10/01/06-09/30/07
  12/28/00-04/30/01	10/01/07-09/30/08
  05/01/01-08/16/01	10/01/08-09/30/09
  08/17/01-11/26/01 11/27/01-02/20/02 02/21/02-Undetermined	10/01/09-09/30/10 10/01/10-09/30/11 10/01/11-09/30/12

• NSC emphasizes that these dates are APPROXIMATIONS and unforeseen occurrences may delay processing.
• NSC also advises that if people move, they should notify NSC by sending a letter or Form AR11 to PO Box 87865, Lincoln, NE 68508-7865. Please note that only address changes will be processed at this address. For all other inquiries, people shoul call the National Customer Service Center at 800-375-5283. Non-address-change inquiries received at the PO Box cannot be answered. People should also be aware that notifying the Center of an address change for a pending application DOES NOT satisfy the requirement to notify the Service of your whereabouts.
• While I-485 is pending, people are permitted to travel outside the US. However people must have a valid Refugee Travel Document to reenter the country. People can apply for a refugee travel document by filing Form I-131. Due to new security procedures, people should allow for 90 to 120 days prior to beginning travel to obtain a travel document.
• If people with to receive a document from the INS that can serve as evidence of both your work authorization and identity, people should file Form I-765 with the service center that serves their location. Allow for a 90-day processing time. (Courtesy of AILA) Back to Top
  
  
  Updated 07/21/2002: How the Immigration Rules and Petitions/Applications Will Be Affected During Transition To DHS
• People wonder how the rules and pending proceedings be affected during the period of transition to the DHS.
• This question evolves in relation to the transition of INS enforcement functions which will be transferred to the DHS. As we have already reported, the immigration service function will remain with the U.S. Department of Justice. However, the details of organization change for this immigration function within the DOJ have yet to be developed and released.
• Generally, when there is an organizational change, the law provides so-called "savings clause" to stipulate how things will be handled during the period of transition. The following savings clause in the Homeland Security bill of the President gives people glimps of the picture on this issues:
  • SEC. 804. SAVINGS PROVISIONS:
  • (a)(1) Completed administrative actions of an agency shall not be affected by the enactment of this Act or the transfer of such agency to the Department, but shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law.
  • (2) For purposes of paragraph (1), the term "completed administrative action" includes orders, determinations, rules, regulations, personnel actions, permits, agreements, grants, contracts, certificates, licenses, registrations, and privileges.
  • (b) Subject to the authority of the Secretary under this Act-
  • (1) pending proceedings in an agency, including notices of proposed rulemaking, and applications for licenses, permits, certificates, grants, and financial assistance, shall continu, notwithstanding the enactment of this Act or the transfer of the agency to the Department, unless discontinued or modified under the same terms and conditions and to the same extent that such discontinuance could have occurred if such enactment or transfer had not occurred; and
  • (2) orders issued in such proceedings, and appeals therefrom, and payments made pursuant to such orders, shall issue in the sam manner and on the same terms as if this Act had not been enacted o the agency had not been transferred, and any such orders shall continue in effect until amended, modified, superseded, terminated, set aside, or revoked by an officer of the United States or a court of competent jurisdiction, or by operation of law.
  • (c) Subject to the authority of the Secretary under this Act, pending civil actions shall continue notwithstanding the enactment of this Act or the transfer of an agency to the Department, and in such civil actions, proceedings shall be had, appeals taken, and judgments rendered and enforced in the same manner and with the same effect as if such enactment or transfer had not occurred.
  • (d) References relating to an agency that is transferred to the Department in statutes, Executive orders, rules, regulations, directives, or delegations of authority that precede such transfer or the effective date of this Act shall be deemed to refer, as appropriate, to the Department, to its officers, employees, or agents, or to its corresponding organizational units or functions. Statutory reporting requirements that applied in relation to such an agency immediately before the effective date of this Act shall continue to apply following such transfer if they refer to the agency by name.
• Too legalese to read? Basically, it says that anything done is taken as done including rules, and all the pending business will be handled the way it has been handled with the agency name change and until there is a change by the new boss. The bill sets forth one year for the period of transition. Without doubt, the new boss may change policies and rules, but it will take a while and the immigrants' cases will not experience any drastic overhaul or change over a short period of time. Hope this posting gives people at ease on this question. Back to Top

Updated 07/20/2002: Florida Signed Agreement W/DOJ to Assist Enforcement of Immigration Law at State/Local Levels

• Report indicates that the State of Florida became the first state in the United States to sign an agreement with the U.S. Department of Justice to assist the federal agency to enforce the immigration laws at the state/local levels. A few states and local governments have already declined to sign such agreement. Immigrants in Florida, don't look at the cops in your community as a simple local police or sheriff. They are quasi deputized as the INS law enforcement officers?! Hewwwwwwww.........

Updated 07/20/2002: Unresolved Issues of Job Security for Employees of DHS in the House DHS Bill H.R. 5005

• Yesterday, the Dick Armey's Special Committee for Homeland Security passed this bill and sent to the full House for debate and action as early as next Wednesday, when the Senate Committee will also draft and release its version.
• As reported, the INS will be broken up and split into two different federal departments in the House version: Enforcement to DHS and Immigration Services to DOJ. This part of the bill will not face any serious challenge on the House floor. This should be taken as a good news to the immigrants and immigrant community who are and will be going through the nonimmigrant and immigrant proceedings in the U.S.
• The current employees of the INS have a personal stake at this part of the bill in that the employees to remain with the DOJ (immigration service function) are not likely subject to the controversial part of the bill that fails to guarantee protection of whistle blowers, civil service merit system and union right for the new employees of DHS. The President told the 3,500 representative employees of to-be-merged agencies a few days ago that he would guarantee, but it does not have a force of law and unless the statute guarantees these rights, the job security of these employees will lose a legal protection. The current employees of the INS in enforcement duties face this challenge in the bill since it is almost certain that they will become the employees of DHS. For this burning issue, read on.
• Readers may compare the House plan with the to-be-introduced Senate plan. Back to Top

Updated 07/18/2002: Survival of H-1B EB-485 Waiters and Their Employer in the Nose-Down Economy

• While EB-485 filers wait for the application approvals, they usually have two options for working for the petitioning employers (same employers): One is in H-1B status and the other is EAD. Generally, H-1B option is pro-alien and EAD option is pro-employer. We will briefly review the advantages and disadvantages in this downturn eonomy. In this discussion, H-1B advantage is disadvantage for EAD option, and vice versa.
• The most noticeable advantages of H-1B option are two-folds: (1) Assuming that the 485 waiter spent more than 365 (Oops, typo!) days from priority date and still in 485 stage, AC 21 gives the benefit of indefinite extension of H-1B status in one-year increment. According to the INS interpretation, the same rule applies even after the alien changed the employer inasmuch as the new employer filed a new labor certification application. This is so-called "alien-based" benefit of 7th or more years of H-1B extension in the context of change of employers. For this advantage, the alien has to maintain H-1B status without any violations. (2) For whatever reasons, should the EB-485 is denied, the alien can continue and complete the H-1B employment and extend H-1B status inasmuch as it does not extend beyond the 6-year limit.
• The most notceable disadvantages of H-1B option is the financial burdens on the employers and inflexibility of employment terms and conditions in the present business environment. Should the alien work on EAD, there is no restriction for employers to relocate the employee around geographically, of course temporarily. Employer can also adjust working conditions and employment terms either from full-time to part-time or even place the employee on the bench without violating any laws, of course again temporarily. Consequently, EAD option frees the employers from all the nasty H-1B and LCA regulations and laws. In the present economy, it can help both employer and employee. Employer is benefitted from being freed from financial burden and gains flexibility of employment terms until the alien's 485 journey reaches the final stage. The alien's benefit is that employer keeps the alien's employment rather than taking a drastic action of outright layoff, and the alien's 485 journey can survive. Working on EAD will have no affect on the alien changing employer after 180 days of 485 filing using EAD. The other critical disadvantage of H-1B option is the employer's obligation under the immigration regulation and labor condition application regulation to notify the INS of termination of employment, should the alien be laid off. This can have a deadly consequence since the Service Center keeps only one file for each alien and the agency can immediately notice the alien's status change or loss.
• How these advantages and disadvantages should inter-play in each individual case remain strictly the unique circumstances of each case and every case should be handled differently considering the different circumstances of the employer, the employee, and change of labor market conditions. There are so many variables to consider that it is impossible to generalize and fix any general categories of cases. For instance, the period of EB-485 waiting time, distance from the 6-year H-1B cap limit, new employer's willingness to spend tons of expense to file a new H-1B petition with accompaying legal restrictions and potential legal punishment including audits when the alien changes employer, etc. etc.
• People should consult with their legal counsel to analyze the circumstances in his/her case and the desirable option for him/her. It will be absurd to take out any one part of this posting and attempt to apply it to his/her own situation. Believe me, every single case is different when it comes to the facts and different rules and solutions will have to apply. Never take this posting as a legal advice!!! Back to Top

Updated 07/18/2002: Bad News for Mexican Illegal Aliens

• AILA has just reported that the U.S. Department of Treasury is scheduled to release a regulation mandating banks and financial institutions to check the aliens' ID to open a new account. Currently, large banks in the U.S. have been helping the illegal Mexican aliens with the consular ID to open an account and to wire funds to their family members in Mexico. See the NY Times report of July 5, 2002. The details of the regulation have yet to be released, but it sounds these Mexicans may be affected by the upcoming new rule.
• This is indeed a bad news for the illegal alien Mexicans who have already been suffering from the recent state practice of issuing Driver License only to legal aliens. Please stay tuned to this web site for the release of the Treasury regulation. Back to Top

Updated 07/18/2002: Closed-Door Secret Alien Hearings Record 600

• The news goes that the secret hearings involving aliens related to the terrorism issues (either as witnesses or suspects) number more than 600. Read on. Back to Top

Updated 07/18/2002: Homeland Security State Contact List and Map

Updated 07/17/2002: Alien's W-2 and Proof of Employer's Ability to Pay in Green Card Proceedings

• The economic downturn has definitely affected the financial picture of the U.S. employers, particularly small companies. In I-140 immigrant worker petitions, the Service Centers have been growingly demanding the proof of employer's financial ability to pay. The U.S. employers and their immigration lawyers have been struggling to deal with this issue and a number of their cases have been denied.
• One of the arguments the U.S. employers have been advancing in dealing with the Service Centers was that the alien was currently "employed and paid salary." However, some adjudicators have denied despite such evidence if they saw poor financial picture for the company either in business tax returns or financial statement.
• The INS HQ says "no more!" It confirmed to the AILA in a liaison meeting that the alien's W-2 with the employer should be enough to prove the financial ability to pay the salary for the green card proceeding and reminded the AILA that should any ignorant adjudicator argues otherwise, the employers should telll the officer that the INS HQ said that W-2 is a good enough evidence.
• Isn't it a beauty? Back to Top

Updated 07/17/2002: One-Year Extension of TPS Program for Montserrat

• The INS has released regulation extending TPS programs for 12 months for the nationals of Montserrat (until 08/27/2003). Click here for the release.

Updated 07/17/2002: U.S. Sees Surge in Citizenship Applications With INS Slow-Down of Citizenship Processing

• News indicates that since 9/11, there has been a surge in citizenship applications, while the INS processing of citizenship application has been slowing down because of the security. Please click here for the news. See also the INS report.

Updated 07/15/2002: INS HQ Clarifies Address Change Requirements

• The AILA liaison minute with the INS HQ (ISD) reflects that the alien's report of change of address as part of any pending application or petition proceeding does not satisfy the requirement of filing of AR-11. Accordingly, people need to notify the INS of the change of address in each pending application/petition proceedings and also mail out the completed AR-11 form for each individual. For instance, if the EB-485 filer moves, he/she should notify the Service Center of the address change and apart from such notification to the Service Center, he/she should also complete and mail AR-11 to the address which is printed on the form. For the INS online fillable AR-11 form and instruction, please click here. Back to Top

Updated 07/15/2002: Consular Return of Petition to INS for Revocation and Procedural Change

• The U.S. Department of State released a cable to advise visa posts to use the new Form DS-3096 for the subject matter in order to return the petitions to the INS for revocation or other INS actions.

Updated 07/15/2002: Humanitarian/Public Interest Parole Procedure Change and DOS FAM Revision

• The U.S. Department of State released a cable revising the Foreign Affairs Manual on this procedure effective immediately. Back to Top

Updated 07/15/2002: Review of Visa Waiver Program for Certain Countries

• The U.S. Department of State regular briefing indicates that the Joint INS/Department of State teams revisited the Visa Waiver Program for Argentina, Belgium, Italy, Portugal, Slovenia and Uruguay in November and December. Argentina was removed from the program under the Attorney General's emergency authority. DOS is awaiting INS to finish its report and present it to the Department for formal consultations. Hmmmm........... More than Argentina? Read on. Back to Top

Updated 07/14/2002: Visitors Restriction, Tourism Industry, and Mounting Pressures Against the Proposed INS Rule

• International tourists spend about $80 billion a year in the United States, according to the Travel Industry Association of America, and help employ 1 million Americans. The travel association estimates the proposed visa rules could slice foreigners' spending in this country by $2 billion. Aware that international travel has dropped 10 percent to 15 percent since Sept. 11. Because of the chilling effect of the proposed regulation, the INS is increasingly pressured by Florida Gov. Jeb Bush and other politicians from tourism-heavy states to revise the proposed regulation loosening up the restrictions. Read on. Back to Top

Updated 07/12/2002: Federal Judge in New York City Ruled 9/11 "Witness Alien" Can Be Held in Jail Without Charge or Crime

• Reportedly, the federal judge ruled yesterday that an alien who is a suspected material witness of 9/11 could be held in jail without any charge and without any crime committed, just for the purpose of a material witness. The judge also supported the government contention that the illegal alien's demand for deportation could be denied and the deportation could be delayed pending the investigation. Back to Top

Updated 07/12/2002: New Homeland Security Dept, and Resignation of DOS Asst Secretary of Consular Affairs

• The new Homeland Security Department proposal is sailing a tulbulent navigation within and without the Administration. Read on.
  

Updated 07/11/2002: Alarm! Alien Faces Deportation For Failure to Report Address Change in Atlanta

• The Atlanta Journal-Constitution reports on July 10, 2002 that the INS brought an alien to the immigration court to enforce this provision in the immigration statute and the alien faces deportation now.
• This website has reminded readers of the importance of compliance with the legal requirement to carry a legal-status document with him/her all the time and to report address change within 10 days by mailing form AR-11. Since these legal provisions have not been enforced, people have ignored our advisory. Such ignorance must have been particularly noticeable among male aliens relating to their male macho-ego. No more! Read on. Back to Top

Updated 07/10/2002: One-Year TPS Extension for El Salvadorans

• INS News Release in English
• INS News Release in Spanish
• INS Fact Sheet
• Regulation

Updated 07/10/2002: Homeland Security Dept, 170,000 Affected Federal Jobs, Job Security Concerns

• Report indicates that the Homeland Security Department bill faces unpublicized political struggle involving the job security of 170,000 employees of approximately 22 federal government agencies who will be affected by the mammoth reorganization. Alledgedly, out of 170,000, only 50,000 have union representation and 120,000 employees are not organized work forces. Apparently there is an unnoticeable provision which is buried in 30-page documents which authorizes the Department to bypass the "civil service" legal protection for some employees, raising concern among the affected employees for their job "security" and threat to Democrats who had a political stake at the organized and job secured work forces in the federal government.
• As a move to quell the worries and concerns of these federal employees, according to the report, today the President invited 3000 representative employees of these 22 affected agencies to the White House to solicit their support for the legislative bill. In the Congress, the Democrats are fighting against this provision. Hmm..... Read on. Back to Top

Updated 07/09/2002: Special Immigration Laws for Vietnamese, Laotian, and Cambodian Refugees

• The INS published a proposed regulation today setting forth specific standards and evidence for those refugees from Vietnam, Laos, Cambodia under ODP Program prior to 1997.
• This rule is published to provide for the adjustment of status to that of lawful permanent resident for certain aliens from Vietnam, Cambodia, and Laos. On November 6, 2000, Public Law 106-429, the Foreign Operations Appropriations Act of 2001, was signed into law. Section 586 of Public Law 106-429 provides for the adjustment of status for certain aliens from Vietnam, Cambodia, and Laos. Eligible applicants must have been physically present in the United States both prior to and on October 1, 1997, and inspected and paroled into the United States before October 1, 1997, either from Vietnam under the Orderly Departure Program, from a refugee camp in East Asia, or from a
  displaced persons camp administered by the United Nations in Thailand. This rule proposes to add regulations governing eligibility, evidence, and application and adjudication procedures, and also to add a new section in the regulations that lists the types of evidence an alien may use to demonstrate his or her physical presence in the United States on a specific date. Finally, this rule proposes a general amendment to the regulatory standards for waivers of the criminal grounds of inadmissibility under section 212(h) of the Act. Written comments must be submitted on or before September 9, 2002. For the proposed regulation full text, please click here. Back to Top

Updated 07/08/2002: State Department Reverses Prior Interpretation of "Child" Under U.S.Patriot Act Section 424

• The U.S. Department of State has issued a cable to reverse its prior interpretation of the definition of "child" for the purpose of "age-out" under the Section 424 of U.S. Patriot Act.
• The new interpretation: With respect to the second paragraph of section 424, which gives age-out protection to aliens whose 21st birthdays occur after September, 2001, and effective immediately, an alien beneficiary of a petition or application filed prior to 9/11/01, whether or not such petition or application was adjudicated by that date, whose 21st birthday occurs (or has occurred) after September 2001, shall be considered to be a child for 45 days after the alien's 21st birthday for the purpose of visa issuance based upon such petition or application. There is no time limit as to when the 21st birthday may occur, so that consular officers may see such cases as much as 20 years into the future. In practical terms this means that any alien beneficiary of an immigrant visa petition that has a priority date on or before 9/11/01 must be accorded the 45 day age-out protection regardless of the date their visa application is filed. Aliens with priority dates after 9/11/01 receive no benefit whatsoever. Back to Top
  

Updated 07/08/2002: State Department Partially Revoked American Hospitality Academy J-1 Training Program

• The U.S. Department of State has issued a cable to clarify the status of loss of American Hospitality Academy's J-1 training program. It was "partially" revoked and some programs are still available.

Updated 07/07/2002: A New Industry Named Homeland Security and Economy

• This Los Angeles Times article reviews the impact of this new industry on the country's economy.

Updated 07/07/2002: Planning, Transition, and Implementation Process of Homeland Security Department

• According to the White House plan, the planning process for the new Department has already begun. During this period, the Office of Homeland Security will continue to coordinate the other federal agencies involved in homeland security. Until the Department of Homeland Security becomes fully operational, the proposed Department’s designated components will continue to operate under existing chains of command.
• The formal transition process would begin once Congress acts on the President’s proposal and the President signs it into law. Under the President’s plan, the new Department would be established by January 1, 2003, with integration of some components occurring over a longer period of time. To avoid gaps in leadership coverage, the President’s proposal contemplates that appointees who have already been confirmed by the Senate would be able to transfer to new positions without a second confirmation process.
• For the shape of each component of the new Department, click here.
• On June 20, the President issued Executive Order and organized the Transition Office. It is unclear how and when the INS will be totally merged into the new Department. It seems to be obvious, though, that the INS might be undertaking its policy making activities in coordination with this Office and the White House as part of the transition plan. Educated guess indicates that it may affect the pace and process of policy-making and other functions one way or another, not to mention the potential change in substances or direction of policies. It is hoped that the Wednesday meeting of the President with the agencies shed some light on the on-going transition and other details. Back to Top

Updated 07/07/2002: Minnesota Alien Driver License Rule Effective 07/08/2002 (updated)

• Despite the strong opposition from the immigrant community, Minnesota implements the controversial rule beginning from Monday. This web site reminded the government officials and public of importance of distinction between the "status" and "visa" for the purpose of determining aliens' legality in the U.S. Reportedly, the driver license for aliens will add "Status Check" stamp in addition to the visa expiration date. At least such "Status Check" stamp will warn the law enforcement authorities and other officials that they should check not only the visa expiration date but also the "status check" to protect the legal aliens whose visa or I-94 expired but still maintain a legal status. We will keep an eye on how this "status check" is implemented by the authorities and the public. At least, this is a small consolation. Read on the news.
• For those whose visa and I-94 have expired and whose application for extension of status are pending will be eligible for a temporary six-month driver license extension only if they can produce the INS Receipt Notice for such application/petition. When the application/petition is approved, they will have to return to the Driver License office to get an extended period license. Consequently, it is extremely important that the aliens receive the Receipt Notice from the INS promptly. One more point to reminder: The INS sends receipt notices to the attorney of record in represented cases, especially in I-129 proceedings. The attorneys should thus send a copy of such Receipt Notices to their clients who are located in Minnesota. The State is scheduled to update its web site and post the rules. Please visiti its website, www.mndriveinfo.org. Back to Top

Updated 07/05/2002: INS Sued To Stop Premium Processing

• The Wall Street Journal reports that the H-2B non-professional workers' employers in Michigan filed a lawsuit against the INS for its premium processing practice on the ground that people should not be forced to pay $1,000 for the government services which the agency was supposed to undertake under the law and that because of the premium processing practices other non-premium processing applications/petitions were suffering more delays. The report indicates that the agency is required to submit answers to the complaint by the end of this month. Read on the news.
• This is a classic case of conflict of interest among different immigrant groups in immigration policy and practice. Currently, a huge number of aliens, mostly professionals, and their business employers get the benefits from the nonimmigrant Premium Processing practice of the INS. Furthermore, this high-income group, particularly healthcare professionals such as foreign medical doctors, nurses, and other allied healthcare workers and their employers have been anxiously looking forward to the INS policy extending the premium processing services to the I-140 immigrant petitions. It is unclear how this type of lawsuit will affect the INS schedule to start the premium processing services for I-140 petitions.
• As the news reported, no information is available about how much the premium processing practice of the INS has slowed down processing of other cases, which the INS has been adamantly denying. There are also a group of people who are skeptical of such lawsuit in that it will do more damages than benefits to the immigrant community because suspension of premium processing services will not benefit the nonprofessional worker groups as it may not affect too much the processing times of their H-2 cases and it would rather result in tremendous damages to other professional groups and their employers such as high-tech industry, healthcare providers, etc. It indeed is a difficult question. Please stay tuned to this website for this important development. Back to Top

Updated 07/04/2002: Dual Nationality - Important To Know

• Today, a number of permanent residents will be sworn into a citizen of the United States. All the citizens of the United States, whether born in the U.S. or naturalized into a citizen, must understand the laws that apply to the U.S. citizen of dual nationality. This is a good time to read the U.S. Department of State summary on the dual nationality.
• Caveat: There is a wide-spread confusion and misunderstanding on the concept and laws of dual nationality. The nationality of a person is governed by the nationality law of each country. Accordingly, dual nationals are governed by two different laws of two different countries. Consequently, the rules and laws of the U.S. that apply to a U.S. citizen of dual nationality applies and affects "only" U.S. citizenship and has no affect on the person's foreign nationality. The same goes to the rules and laws of a foreign country that apply to a U.S. citizen affects "only" the foreign country citizenship and has no affect on the person's U.S. citizenship. In this regard, when one talks about dual nationality, one should clarify which country rules and laws one refers to. For instance, the foregoing U.S. Department of State summary refers to rules and laws that can affect the U.S. citizenship of a person by certain conduct of the person. These rules and laws should have no bearing on the affect of the conduct on the foreign citizenship of the dual national. For the latter issue, one should check with the foreign rules and laws to learn how certain conduct will affect his/her nationality of the foreign country. The same conduct may bring a different consequence on the nationality in the two countries involved depending on the rules and laws of each country.
• A person who is recognized as a dual national under the laws of the U.S. may not be recognized as a dual national under the laws of a foreign country. Back to Top

Updated 07/03/2002: Expedite Naturaliztion of Aliens Serving in an Active-Duty Status During the War on Terrorism

• The President issued today an Executive Order to give a special privilege for those aliens in military servicessince September 11, 2001 to apply for citizenship without serving in duty for 3 years which the current immigration statute requires. The President has an authority to issue such executive order during the war times. This executive order will remain in effect until the President terminates the Order. Please click here for the Executive Order. White House Fact Sheet. Federal Register. Also read on for the news report.

Updated 07/03/2002: School SEVIS Enrollment: INS News Release/Fact Sheet

Updated 07/03/2002: J-1 Waiver Review Application Form, DS-3035 (DOS)

Updated 07/02/2002: AILA Washington Update of 07/01/02

Updated 07/01/2002: INS Published Regulation for Preliminary Enrollment of Schools in SEVIS

• Today, the INS published "interim rule" to allow eligible schools to enroll in Student and Exchange Visitor System until August 16, 2002, from which date the INS initiate the certification process. See the regulation. (pdf) For the text version, please click here.

For Pre-07/01/2002 News, Please Click Here