Dedicated Professionals in Immigration Law

Reported by Matthew Oh, Esquire.

(03/01/2002 - 06/30/02)

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[01/01/2007 - Present]/Archive XIV[06/15/2006 - 12/31/2006]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 [03/01/00 - 06/30/01]/Archive I [through 02/29/00]

Updated 06/30/2002: 2002 Election Political Landscape: Who Will Listen to Immigrants?

• n politics, election season cuts both ways when it comes to immigration lobbies. November 2002 election is a mid-term election and immigrants may neglect its importance. However, this mid-term election will determine the fates of Democrats and Republicans in that the election of Senators will determine who will control the U.S. Senate. Currently, one seat of independent Senator gives the majorty power to the Democrats in the upper house, the U.S. Senate. There is thus a heated and fierce fight taking place in this country to grap or keep one seat by either party. The result of this election will seriously affect the future of immigration and immigrants and people should be aware of what the landscape looks like to let your voice heard in favor of immigration.
• Can immigrants have a power to influence the elections or political process? Of course, they can. How? They have no right to vote!? Of course, they don't. However, don't they carry a "mouth" with them? Don't they have a power to communicate in writing or through electronic medium? Of course, they do. Communication affecting the political candidates or politians and their reputation is something the politicians fear most, because it has a power to influence the voters "indirectly." "Indirect" influence by mouth and communication can be effective, even though it may not be as effective as "Direct" influence by vote. Read on. Back to Top

Updated 06/28/2002: U.S. Supreme Court Permits Closed Immigration Court Hearing Pending Appeal

• Today, the U.S. Supreme Court issued an order of stay of federal district court decision which ruled that the closed immigration court hearing was unconstitutional, See Ashcroft v. North Jersey Media Group, A-991. The government moved for the stay before the U.S. Supreme Court pending its appeal of the district court decision before the 3rd Circuit Court of Appeals. The stay order will temporarily stop the lower court's decision and the immigration courts will be able to proceed in the closed hearings the terrorism suspect or related aliens' cases. Even though it is temporary, it is a big win in the court battles for the U.S. Department of Justice and the INS and a big loss for the civil liberty advocates. Should the Court of Appeals sustains the lower court's decision, the case will go back to the U.S. Supreme Court for its final rule on the issue.
• Immigration court practitioners, please be aware that the Creppy memo on this issue is revived and you should be prepared for the closed court hearing if your client is accused of suspect of terrorism or a witness for such terrorism activities. For the news, please click here. Back to Top

Updated 06/28/2002: U.S.-Canada Joint Statement: Progress of the Border Security

Updated 06/27/2002: Proposed J-1 Program Change for Professors/Research Scholars

• The U.S. Department of State is proposing a regulation to extend the duration of program participation from 3 years to 5 years and eliminate program extensions beyond the 5-year period. Limitations governing the eligibility for program participation of professor and research scholar participants are also included. Comment should be submitted by 07/29/2002. For the text of the proposed regulation, please click here (pdf).

Updated 06/27/2002: House Passed Federal-Local Information Sharing Bill

Updated 06/26/2002: House Passed Bill To Increase CONRAD 20 FMG Sponsorship Quota

• Yesterday, the House passed the following H.R. 4858 which will increase the number of Foreign Medical Graduates NIW sponsorship for each state from 20 to 30. The bill also extends the Conrad 20 program which expired on June 1, 2002, for two more years. The bill as passed is as follows:
  • AN ACT To improve access to physicians in medically underserved areas.
  • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
  • SECTION 1. WAIVER OF FOREIGN COUNTRY RESIDENCE REQUIREMENT WITH RESPECT TO INTERNATIONAL MEDICAL GRADUATES.
  • (a) INCREASE IN NUMERICAL LIMITATION ON WAIVERS REQUESTED BY STATES- Section 214(l)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(l)(1)(B)) is amended by striking `20;' and inserting `30;'.
  • (b) EXTENSION OF DEADLINE- Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) is amended by striking `2002.' and inserting `2004.'.
  • (c) TECHNICAL CORRECTION- Section 212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e)) is amended by striking `214(k):' and inserting `214(l):'.
  • SEC. 2. EFFECTIVE DATE.
  • The amendments made by this Act shall take effect as if this Act were enacted on May 31, 2002.
    Passed the House of Representatives June 25, 2002. Back to Top

Updated 06/26/2002: INS District Office Processing Times Updated

Updated 06/25/2002: INS Commissioner Testimony 06/19/02 Before House Committee on Proposed Visitor Regulation

• On June 19, 2002, the INS Commissioner testified before the House Committee of Small Business on B-visa Proposed Regulation. The INS received approximately 10,000 comments! Wow!

Updated 06/24/2002: DOS Launches J-1 Waiver On-Line Status Check System

• The U.S. Department of State has launched the On-Line J-1 Waiver Status Check System to help the waiver applicants to check his/her case status from time to time. Wonderful!

Updated 06/24/2002: Homeland Security Dept Transition Planning Office in OMB

• The President issued an order setting up Transition Planning Office in Office of Management and Budget to plan for transition of agencies into the proposed Department of Homeland Security. For the document, please click here. Back to Top

Updated 06/22/2002: Senate Judiciary Passed DREAM ACT (nick name=Student Adjustment Act)

• The U.S. Senate Judiciary Committee passed a bill to relieve certain undocumented alien children from deportation and to grant a green card. The qualified undocumented alien children will be initially granted a conditional permanent resident status until the children complete a 4-year bachelor's degree program within 6 years or a 2-year post-hight school program within 4 years from the date this law is signed into law. Upon graduation, the children should apply for a removal of the condition within 90 days to become an unconditional permanent resident. The eligible undocumented alien children should satisfy all the following conditions:
  • Younger than 21 years of age at the time this bill becomes a law;
  • Attending an institution of higher education (post-high school institutions);
  • Physically continuously present in the U.S. for not less than 5 years at the time this bill becomes a law;
  • Physically present in the U.S. at the time this bill becomes a law.
  • Good moral character and no criminal record
• Such conditional resident children will be stripped off of a green card status should the children fail to maintain good standing in the college. Thus good standing in school and successful graduation from the accredited attending college will be absolute preconditions for maintaining a conditional resident status and removal of the conditional status to become a unconditional lawful permanent resident. Additionally, throughout the college period of either 4 years or 6 years, such children should be physically continuously present in the U.S. and maintain a good moral character without committing a crime.
• This bill also gives states an option to grant "resident tuition" benefit to such qualified undocumented alien children.
• This bill is supported by both the Republican and Democratic party members of the Senate and has a good chance to pass the Congress. For the text of the bill, please click here.

Updated 06/21/2002: Germany Welcomes Hi-Tech Professional Immigrants

• News report indicates that German President Johannes Rau signed into law Thursday an immigration bill aimed at attracting high-tech experts to boost Germany's stagnant industrial sector. Considering the fact that high-tech professionals are currently not necessarily welcome in the United States, this should be taken as a wake-up call to this nation that is also after all a part of international competition in the cyber age. Back to Top

Updated 06/21/2002: Planned INS Rule-Making on Key Issues in Next Two Months

• Currently, there are breath-taking legislative activities under way in the Beltways including the White House and the Congress to see the Department of Homeland Security born before 9/11. The fate of INS is thus indeed on the brink and no one knows how this reorganization will affect the immigration policies.
• However, assuming that policies may not be totally overhauled over night, it is worthwhile to learn what the INS was planned to initiate during the next two months. There may be some adjustment along the way but sources indicate that these rule-making plans are still alive:
  • SEVIS Regulation: The proposed rule was announced and the comment period is expected to expire this month. The INS is scheduled to release the final regulation within next month. This will affect the higher learning institutions with the burden of electronic reporting of F.J.M foreign students.
  • B-Visa Visitor Restriction Regulation: This proposed regulation is expected to be finalized within next month as well. It is unclear how the final regulation will deal with the controversial 30-day limitation rule, but unconfirmed sources indicate that this may be somehow loosened up because of its serious impact on hospitality and tourism industry, particularly the State of Florida where the brother of President Bush works as its Governor. This regulation is scheduled to be wrapped up within next month as well.
  • I-140/I-485 Concurrent Filing Regulation: Originally, this proposed regulation was scheduled to be released in June, but the INS policy maker indicates that the release was held back one time. The authority, however, confirms that it will be released soon. The regulation will be released in the form of "proposed regulation" with the 60-day comment period.
  • I-140 Premium Processing Regulation: This regulation is planned to be released in August.
  • AC 21 Regulation: Enactment of this regulation is indeed long overdue. It is expected to be released in August with the 60-day comment period. Accordingly, the final rule is still some distance away.
  • 2-Year EAD for EB-485 Filers: The INS was scheduled to release this regulation last month as a proposed regulation with the 60-day comment period, and currently in snag. This proposed rule was to issue two-year EAD rather than one-year EAD for the I-485 applicants.
  • 245(k) Regulation: 245(k) is a provision which allows an alien who has approved I-140 petition and has been out of status for less than 180 days to apply for EB-485 without paying $1,000 penalty. This regulation is scheduled to released in the form of a proposed regulation with the 60-day comment period in August.
• Please stay tuned. Back to Top

Updated 06/21/2002: Foreign Medical Graduates CONRAD State Programs Extension Bill

• The House Judiciary Committee passed a bill to extend the CONRAD program for another two years and to increase each state sponsorship number from 20 to 30. The text of the bill is as follows:
  • SECTION 1. WAIVER OF FOREIGN COUNTRY RESIDENCE REQUIREMENT WITH RESPECT TO INTERNATIONAL MEDICAL GRADUATES.
  • (a) INCREASE IN NUMERICAL LIMITATION ON WAIVERS REQUESTED BY STATES- Section 214(l)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(l)(1)(B)) is amended by striking `20;' and inserting `30;'.
  • (b) EXTENSION OF DEADLINE- Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) is amended by striking `2002.' and inserting `2004.'.
  • (c) TECHNICAL CORRECTION- Section 212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e)) is amended by striking `214(k):' and inserting `214(l):'.
  • (d) EFFECTIVE DATE- The amendments made by this section shall take effect as if this Act were enacted on May 31, 2002.

Updated 06/20/2002: House and Senate Target Passage of Homeland Security Act Bills Next Month

• Report indicates that the leaders of the House and the Senate are targeting to act on the bill within next month so that the final bill goes to the President for signature after resolving differences between the House version and the Senate version by September 11, 2002. Please stay tuned to this web site. The President bill is very sketchy when it comes to the immigration and immigration enforcement as part of the new Department and people feel nervous about a potential quagmire during the process of transfer from the INS to the new Department. There is also concern with its impact on the affected employees of the agencies, and the Homeland Security Director promises that the government would honor the existing bargain agreement. Consequently, those holding political positions are expected to be affected most by the change, and it will in turn affect the policy and operation of immigration business. Back to Top

Updated 06/19/2002: "Homeland Security Act of 2002" Analysis and Full Text

• The White House officially presented to the Congress this legislative bill to create a new mammoth Department of Homeland Security. This web site has already reported the graphic outline of the structure of the proposed Department as well as summary of the proposal. Today, we are posting the full text and analysis in the form of a legislative bill.
• News reports indicate that this proposal is getting a strong bi-partisan support and the Congress is likely to wrap it up before September 11, the anniversary of the terroristic attack in New York, D.C., and Pennsylvania last year. Without doubt, the White House version may be revised in a number of areas before the Congress passes the bill. The immigration and enforcement functions will become a part of this new Department and so is the visa function. The INS Commissioner has come forward supporting the change despite the fate of INS, but reportedly the Secretary of State strongly disagrees with the President on visa functions to be taken away from the Department of State. Please stay tuned to this web site for the development of this legislative bill.

Updated 06/18/2002: Karachi American Consulate Resumed Normal Operation Today

• The U.S. Department of State and the American Consul General released a notice that the American Consulate in Karachi started and resumed the normal operation on June 18, 2002. People will remember that the American consulate in Karachi was hit by a suicide bomber. Read on. Back to Top

Updated 06/18/2002: List of Nationals Subject to Registration Requirement Under Proposal

• On June 13, 2002, the U.S. Department of Justice published a "proposed" regulation on the registration requirement for certain nonimmigrants. We posted this on June 13. Read on for the proposed regulation.
• The registration requirement covers two groups of nonimmigration, one is "mandatory" and the other is "non-mandatory." Those who are not listed in the mandatory list will normally not be subject to such requirement unless the immigration inspector or the conoff pick them for such requirement during the process of a visa issuance or immigration inspection at the port of entry.
• The mandatory list is, under the proposed regulation, to be selected by the Attorney General after the regulation is enacted. It is unknown at this time as to which nationals will be covered. However, unconfirmed sources indicate that the list will cover the 27 existing list plus possibly 8 additional list, altogether 35. Please stay tuned to this web site for the development of this news. Back to Top

Updated 06/18/2002: Name Check Hit and Visa Revalidation Application

• We trust that some of our visitors have already experienced return of passport from the visa revalidation office in the U.S. Department of State without issuing a visa revalidation. The visa revalidation is not a mandatory but a discretionary proceeding. According to a responsibile DOS official, whenever the visa revalidation office faces a situation that needs "interview," that office has refused and will continuously refuse to process the visa revalidation application and the passport and revalidation application will be returned to the applicant. Obviously, majority of such applicants will turn out to be those 27 nationals who are subject to 20-day mandatory security clearance. Similar or identical names for Arabs and Muslims certainly present a problem.
• Unconfirmed sources indicate that the list of 27 nationals will increase to 35 soon, but there is no information available about the specifics of additional list. Educated guess may indicate that the countries where a large number of Muslims may become a target. Back to Top

Updated 06/17/2002: Termination of Automatic Visa Revalidation and Conoff and INS Inspector Actions

• According to the U.S. Department of State recent cable to visa posts in the contiguous countries, the following steps should be taken by the officers to ensure that the termination of automatic visa revalidation is strictly enforced for those who go to the American Consulates in Canada or Mexico with a valid I-94 but without a valid visa and apply for the visa. Once the visa application is denied, such person is not supposed to be admitted to the U.S. The two steps are as follows:
• When the visa is denied, the Conoffs place a "Application Received" stamp at the end of the passport. However, the immigration inspectors can overlook this stamp in haste. To help ensure INS inspectors at the port of entry do not overlook the "Application Received" stamp and inadvertently apply the revalidation regulation to aliens who are in fact not qualified for such treatment, INS has requested, and the U.S. Department of State has agreed to, the following two additional steps:
• -- First, consular officers are required to collect any valid I-94 in such cases, mark the back of the I-94 with the date and post name (the "Application Received" stamp can be used for this), and return the form to INS.
• -- Second, if the consular officer is unable to collect the I-94 because the applicant claims it was lost, stolen, or turned in to INS, the "Application Received" stamp should be placed next to the expired visa or, in the case of a prior change of status, next to the most recent unexpired visa in the different category that might otherwise be erroneously converted and revalidated if the INS inspector were unaware of the alien's intervening visa application. This stamp is in addition to the stamp that must be placed in the back of the passport, as required for all visa refusals. Back to Top
  

Updated 06/14/2002: News Report from AILA Annual Conference

• Good News and Bad News.
• Good News First: INS officers confirm our report in May on release of the following regulations before the end of the calendar year 2002:
  • I-140 Premium Processing (Very shortly): It will be initiated from the labor certificattion based petitions and move on to those that need more complicated analysis of the facts and issues like EB-1 and eventually the cases like National Interest Waiver which require very high level expertise in adjudication.
  • I-140/EB-485 Concurrent Filing (Very shortly with the comment period ending 10/02?)
  • 245(k) relief for certain EB-485 application filers(o8/02 with the comment period ending 10/02?)
  • 245(i) regulation on various complicated grandfathering issues of confusion
  • Electronic filing will be launched from I-90 and I-765 by the end of this calendar year and soon over 50% of cases will be electronically filed in the near future.
• Bad News: The U.S. Department of Labor previous released that the agency was considering "expedite" in aged-out and maxi-out (H-1B 6-year approaching) cases. However, the head of Foreign Labor Certification states that it is not likely that the DOL will adopt "expedite" policy at all, reflecting its change of direction. It is very disappointing. Currently, such expedite is totally upto the decision of the Certifying Officers and State Officers in each jurisdiction.
• Another Bad News: The FY 2003 budget proposal of Bush Administration allocated total H-1B fee funds to be switched to the permanent labor certification application backlog reduction purposes and the Regional Certifying Offices and State Offices were hoping to get the fund for quite some time. However, the DOL official reports that such diversion of funds from U.S. worker training purposes to such foreign labor certification backlog reduction appears to require legislation and the Congressional action and at this time, the chance of such legislation in the near future is at best "suspicious." This is indeed a bad news for those in the pipeline who have been suffering for a very prolonged period of time "backlogs." The situation got worse recently as affected by the so-called Ziegler Memo relating the layoffs and the labor officers' duty to tighten up the process. Lately, there are reports of a large number of RIR denials or request for information which can end up with the denial. Back to Top
  
  

Updated 06/13/2002: State Department Cable of SEVIS and New and Exchange Visitor Form

• U.S. Consular Posts are not linked to the SEVIS system, but the INS starts implementation of SEVIS. Accordingly, the DOS issued this cable to the visa posts to give instruction pending SEVIS system implementation of DOS.

Updated 06/13/2002: INS Published Proposed Certain Nonimmigrants Registration Regulation Today (pdf)

• As we predicted, the INS published this proposed regulation today. Read on.

Updated 06/11/2002: Registration and Monitoring of Certain Nonimmigrants Rule Expected Publishing 06/13/2002

• The Attorney General announced a few days ago that this rule will be enacted. The regulation is expected to be published on June 13, 2002 as a "proposed" regulation with the comment period of 30 days from the date of publication. This regulation proposes to register, fingerprint, and even to take photographs, followed by monitoring for certain nonimmigrants. Please stay tuned to this web site for the proposed regulation. Back to Top

Updated 06/11/2002: Visa Posts Are Required Spot Check of Visa Approvals by Chief Consul

• On June 8, 2002, the U.S. Secretary of State, Colin Power, issued a cable to all the visa posts to inform that effectively immediately, the chief of visa sections should regularly spot check the approved immigrant and nonimmigrant visas as the DOS' official policy. Please click here for the full text of the cable.

Updated 06/10/2002: INS Information Sharing With Other Agencies

• On June 7, 2002, INS testified before the Congress on the subject of how the INS and other federal and state agencies share information on aliens. Read on.

Updated 06/09/2002: Department of Homeland Security: What Happened and What Will Happen?

• What happened: How was it milled out in such a secret?
• What will happen: Will it indeed pass in three months in Congress? In time for 09/11 Anniversary? Read on. Back to Top

Updated 06/08/2002: AILA Washington Update of 06/07/02

Updated 06/07/2002: Bird's Eyeview of the President's New Department Proposal

Updated 06/07/2002: E-Visa Application/Renewal Unavailable for Third Country Nationals in Visa Posts in Canada/Mexico

• Visa Office advises that none of the border posts will accept applications for "E" visas from third country national applicants who are not resident in their consular districts.

Updated 06/07/2002: INS Restructuring Efforts and Detention Authority Delegation

• As part of the ongoing restructuring of the Immigration and Naturalization Service (Service or INS), the chain of command for many functions related to the detention and removal of aliens, including the detention, care and custody of juveniles, will be centralized. Currently, these functions are overseen by Service districts and regions which report to the Executive Associate Commissioner for Field Operations. Under the reorganization, the daily oversight of overall detention and removal functions will transfer to the Deputy Executive Associate Commissioner for Detention and Removal who will still report to the Executive Associate Commissioner for Field Operations. The daily oversight of functions relating to alien juveniles in the custody and care of the Service is transferred to the Director of the Office of Juvenile Affairs who reports to the Commissioner of the INS. This rule ensures that the appropriate immigration officials will have the necessary authority to carry out the daily oversight of the detention and removal of aliens consistent with the changes in responsibility. This rule is effective June 7, 2002. Back to Top
  

Updated 06/06/2002: President Bush Proposes New Cabinet Post Security Department

• The President announces a new cabinet post (Department of Homeland Security) which will take over various current federal agencies including the INS. See the Washing Post news. The White House has also released the President's statement. It is unclear at this moment how the House and Senate will react, but initial information indicates that the responses may be positive. Please stay tuned to this website for this developing important news.
• Full Text of the proposal (pdf) Those who do not have access to pdf version, please click here fore text version.
• Organization Chart of the new Department: Go to page 8 of the foregoing Full Text pdf version.
• Under the proposal, the INS will be absolved into the new Department and the current INS functions will come under "Border and Transportation Security" division. Just like any other immigration restructuring plans, this proposal also separates the enforcement function and the immigration services function. The proposal anticipates setting up of a separate unit for the immigration services function, but no specifics have been worked out in this proposal. The immigration enforcement function will remain as part of the entire enforcement responsibilities of security.
• From the perspectives of immigration business, this proposal is worse than the House bill in that the immigration functions will be managed at the lower level within the new Department. The services function will become an "illegitimate child" within the "security" and "enforcement" focused organization.
• CIA and FBI will continuously remain intact, not being merged into the Department of Homeland Security.
• The President demands the Congress to enact a legislation for this new Department before the end of this year when the 107th Congress will sunset.
• Everyone involved in the process, including the President, agrees that it will take some time before this new Department operate in normal fashion as planned, and there is a concern in the immigrant community that the immigration business may experience some confusions and snags at the beginning of the new organization. Please stay tuned to this web site. Back to Top

Updated 06/06/2002: DOS J-1 Waiver Form DS-3035

• U.S. Department of State has just announced that effective immediately, those who apply for J-1 home residency requirement waiver must use this new form. For the details, please click here.

Updated 06/06/2002: Certain Nonimmigrants Registration/Fingerprint Proposal Stirs Controversy

Updated 06/05/2002: Attorney General's Announcement of Certain Nonimmigrant Fingerprint Requirement & Angry Reactions

• As we reported yesterday, the Attorney General announced that certain nonimmigrants will be required to be registered and fingerprinted, and the violators will be put in the criminal database of the government enforcement system. This announcement has drawn negative reactions from various political, legal and community groups. Read on.
  • AG Announcement Full Text
  • Fact Sheet in PDF or in Text Version

Updated 06/05/2002: Missouri Service Center Processing Times of 06/01/02

Updated 06/05/2002: Board of Immigration Appeals Reform Proposal Final Action Due August 2002

• This very controversial proposed regulation is planned for final action in August 2002. Immigration lawyers community voiced a strong opposition to the proposal for unreasonable compromise of right to due process. Back to Top

Updated 06/04/2002: LIFE Filing Deadline Extended

• The INS published the LIFE regulation today as announced by the INS. The filing deadline is as follows:
• The application period began on June 1, 2001, and ends on June 4, 2003. To benefit from the provisions of LIFE Legalization, an alien must properly file an application for adjustment of status, Form I–485, with appropriate fee, to the Service during the application period as described in this section. All applications, whether filed in the United States or filed from abroad, must be postmarked on or before June 4, 2003, to be considered timely filed.
  (1) If the postmark is illegible or missing, and the application was mailed from within the United States, the Service will consider the application to be timely filed if it is received on or before June 9, 2003.
  (2) If the postmark is illegible or missing, and the application was mailed from outside the United States, the Service will consider the application to be timely filed if it is received on or before June 18, 2003.
  (3) If the postmark is made by other than the United States Post Office, and is filed from within the United States, the application must bear a date on or before June 4, 2003, and must be received on or before June 9, 2003.
  (4) If an application filed from within the United States bears a postmark that was made by other than the United States Post Office, bears a date on or before June 4, 2003, and is received after June 9, 2003, the alien must establish that the application was actually deposited in the mail before the last collection of the mail from the place of deposit that was postmarked by the United States Post Office June 4, 2003.
• The filing fee has also been reduced from $330 to $255. Back to Top

Updated 05/31/2002: Labor Certification Backlogs and Funding Rescue on Horizon

• Despite the efforts of the U.S. Department of Labor to reduce the backlog, including RIR conversion regulation, the permanent labor certification application backlogs have been mounting as people noticed on the DOL' Processing Times Report. Reportedly, there are currently approximately 315,000 backlogged cases. It appears that the factors contributing to the backlog were massive filing on or before 04/30/2001 for the benefits of 245(i).
• When RIR conversion regulation was released, it was hoped that it would help to remove the backlogs. And then came the economic slowdown and massitive layoffs in the labor markets. This changing labor market environment affected the officers at both state and federal level with mounting negative attitude over the labor certification applications and with all different demand for evidence and requests by each state office and each DOL Region.
• In the midst of such confusion, the DOL HQ released Memorandum on March 20, 2002 which was intended to give a uniform guidance to all 50 state offices and 10 federal Regional offices as to how they should process labor certification applications facing layoffs in the industry or by the specific employer. Unfortunately, this Memorandum has been interpreted differently by each office, adding confusion to the process. The Memorandum did not appear helpful for reduction of backlogs and uniformity in processing. It rather appears that the pace of processing has slowed down because of the additional jobs that the state and federal officers must undertake to deal with the layoff problems. The ultimate blame for the staggering backlogs should not be directed to the DOL but to the continuing economic recession and layoffs.
• Report indicates that DOL has already received a portion of the H-1B fund which this web site reported earlier and is waiting for permission to use some of the money to alleviate state backlogs. This is certainly a good news for the state offices. However, the state offices' burden is extremely heavy as under the PERM program, the states should complete all the backlogged cases by September 30, 2003 and be phased out of the permanent labor certification process. We hope that the soon-to-be-initiated new labor certification system (PERM) help achieving this goal. It is, however, this reporter's opinion that the DOL may fail to achieve the plan unless it revises "substantially" the proposed PERM regulation as there are many poisonous elements that contradict the intent of the program. For instance, the proposed PERM regulation will allow a new filing without losing priority date, but not too many cases in the pipeline may attempt to convert to the PERM case because of the risk involved in the proposed PERM application in that once it is denied, the applicant loses everything after waiting for years. Visibly missing is the safety valve which was incorporated in the RIR conversion regulation which allowed such denied cases to continue even after denial of RIR, even though it will go through a regular application. This illustration is just a tip of iceberg that are inherent flaws in the proposed PERM regulation. Back to Top

Updated 05/31/2002: Social Security Number Processing Procedures & Times

• At the recent AILA Liaison Meeting, Social Security Administration disclosed why the issuance of Social Security Numbers takes a short time for some people, while it takes a long time for others. This discussion is limited to those aliens who are eligible for a social security number.
• Basically, it is affected by the two factors: One is when he/she was admitted to the U.S., and the other is whether or not the INS opened a file and created "A" number for the alien. Let's find out how these two factors affect the processing procedures and processing times.
• Impact of "A" number: The INS Systematic Alien Verification for Entitlements (SAVE) program has injformation for over 25 million aliens with "A" numbers and their information can be verified on-line fairly quickly without direct involvement of the INS verification.
• Impact of "When Admitted to the U.S.": The longer the alien was admitted to the U.S., the government has sufficient time to enter their data into the INS system and the INS verification is available electronically or manually (written communication). Combination of these two factors produces the following different procedures and processing times:
• (1) There is "A" Number and the alien has been in the U.S. 30 days or longer: The SSA queries the SAVE online database at the time the application is received. (a) If the status is verified online, the SSN is processed immediately. In this case, the card is issued in about 2 weeks. (b) If the status fails to verify online, SSA manually request the INS to verify status. Because of the period of time the alien has been in the U.S., however, the alien's information is developed in the INS System and the INS can verify the status in this case. However, since it is handled manually (written communication), it takes longer. Until responses are received from the INS, the SSN application remains on hold. Thus in this case, processing times take longer, approximately 6 weeks.
• (2) There is no "A" Number and the alien has been in the U.S. 30 days or longer: In this case, the INS SAVE online verification system is not available and the SSA has to request manually the INS to verify the status just like the foregoing explanation in (b). It usually takes approximately 6 weeks.
• (3) There is no "A" Number and the alien has been in the U.S. less than 30 days: In this case, the INS did not have sufficient time to develop the data in its system and SSA has to rely on its own visual examination of the documents. (a) If the INS documents which the alien submitted appears valid on visual examination, SSA processes the SSN application immediately. It thus usually takes about 2 weeks just as the situation in foregoing discussion in (1)(a) above. (b) If the document does not appear valid based on the visual examination, the SSA requests manually INS to verify the documents. Since it is handled in written communication between the two agencies, it takes time just as (1)(b) above.
• It is hoped that this information helps the work authorized aliens to understand better the processing procedure and processing times for his/her case and prepare him/herself to deal with the delays in obtaining the SSN in certain circumstances.
• One good news: The SSA states that the Social Security Act does not require a work-authorized person to have an SSN before commencing employment, and if the employer is satisfied that the individual has permission to work, then the alien can be placed on the payroll even if he/she does not have a SSN. In this case, the employer must have the SSN at least by the time the Form W-2 is prepared annually. It is not made clear, though, how the employer should handle tax withholding pending the issuance of SSN. Employers should contact and seek guidance from the SSA on this issue, probably through their accountants.
• Caveat: People should always confirm the SSA rules before they act on the internet information. This reporter or the Oh Law Firm will not be responsible for consequences of relying on this information. Back to Top

Updated 05/30/2002: Canadian/Mexican Part-Time Commuting Student No Longer Allowed

• AILA has reported the INS news release that effective 05/22/2002, no part-time students commuting from the contiguous countries are allowed and such applicants for admission should not be admitted on a visitor status. Those who started such part-time commuting classes may continue to commute and be allowed to enter the U.S. on a humanitarian parole. They will have to apply for a humanitarian parole at the port of entry each time to return to the U.S.
• Traditionally, this country did not allow any foreign students to enter the U.S. on a student status unless they come to attend a school on a full-course of study. There is no such student visa status for a part-time study.
• However, the country has been admitting the people from the contiguous countries to commute to the U.S. for a part-time study without a student visa status. The INS terminated this practice as of May 22, 2002 and no one will be allowed to enter the U.S. for a part-time study except those who were aleady permitted such privilege before May 22, 2002. Read on CNN report. Back to Top

Updated 05/30/2002: Academic Honorarium for Visitors: INS Regulation

• The INS released a proposed regulation today to implement the honorarium rule for visiting scholars in B-visa status which was enacted in 1998 by so-called ACWIA legislation. This is a proposed regulation and will not go into effect until either interim or final regulation is enacted after receiving comments. Read on.

Updated 05/30/2002: Form Letters/Affidavits and Evidentiary Value

• There are growing trends for people to use a form letter or affidavit of birth or marriage as part of supporting documentation for applications and petitions. These are supposed to be a voluntary and impersonal statement/testimonial of a third party attesting to certain facts which is made in most cases on oath. When there is any sign of influence or personal involvement of a person for whom such attestation is made, obviously it should lose the credibility and evidentiary value.
• In employment-based nonimmigrant/immigrant proceedings, people bring to the lawyers' offices former employer letters which reflect an identical format and even similar language. Apparently, these letters were drafted by the aliens and have the former employers to sign it. The same is happening in affidavits of birth or marriage. Most of the people who execute such documents are already related to the aliens and personally involved, raising some question of credibility of the attestations. When the documents reflect, on top of such problem, that the statements were prepared by the aliens or parties involved, and the third party just signed it, it does not need a lawyer's expertise to tell that the credibility and weight of such document for evidentiary value will be substantially reduced from the standpoint of the adjudicators. People should exercise caution in using forms which they obtain on the net. Back to Top

Updated 05/29/2002: Chicago DOL Region Processing Times of 05/24/2002

• RIR=02/02, LRP=02/02, Regular=11/01

Updated 05/28/2002: EOIR Authority to Protect/Seal Record

• The U.S. Department of Justice released a regulation that authorizes EOIR to protect and seal certain record and information, effective May 21, 2002. Certain violation will result in the aliens being denied of discretionary relief and the attonrey being disbarred from appearing in immigration courts. Back to Top

Updated 05/25/2002: H-1B "Visa" Application and Employer Corporate Changes

• This is posted for those who are in H-1B status and need to apply for a visa stamp either at the American Consulate or visa revalidation through the U.S. Department of State, but the employer company has just gone through corporate restructuring. Since the H-1B professionals in the qualified corporate restructuring do not need an amended H-1B petition inasmuch as they follow the U.S. Department of State guidelines, they should read the DOS cable dated 01/25/2002.
• Before this changes in the laws and policies, the H-1B aliens undergoing the employer's corporate structure changes had to file a new labor condition application with the DOL and an amended H-1B petition with the Service Center "if" the restructured corporation has a new federal tax ID number or fails to prove that it is an entity of successor-in-interest to the company before being restructured. This old rule no longer applies.
• However, the law still requires a proof that the restructured entity retains the same interest and obligations of the company before being restructured. The "interest and obligations" have been recently very broadly interpreted by the INS and the DOL such that inasmuch as the restructured new entity takes over all the H-1B employees in the same LCA terms and also make a commitment to abide by all the LCAs which were filed by the employer before restructuring, the employer is considered to keep the same obligation and the new company does not have to prove that it had taken over all the other legal liabilities including commercial contracts, debts, etc. Thus even if a company just purchases "only" the assets of another company without taking over the legal liabilities, the H-1B employees of the acquired company do not need amended H-1B petition inasmuch as the acquiring company took over all the H-1B employees of the acquired company in the same H-1B employment terms and the company also takes over the commitment to the labor condition applications which have been filed by the acquired company. Additionally, DOS, INS, and DOL are interpreting "corporate structuring" very broadly to cover a wide range and forms of corporate changes, and people should consult the employer's lawyer, should any corporate changes take place and there are some areas of changes which cast doubt on the eligibility under this DOS cable before he/she submits a H-1B visa stamping application.
• This is a Memorial Day holiday weekend in the U.S., and this web site takes this opportunity to pay tribute to all the men and women who sacrified their lives to defend this nation, and most importantly the freedom, democracy, and Constitution. Back to Top

Updated 05/24/2002: Falling Mexican Border Crossers

• The INS Commissioner reportedly disclosed to the news reporter on telephone interview that the border crossing Mexican illegals have been falling in number and it will remain so. Can anybody guess why? Without doubt, the INS has been doing a good job at the borders. It may also be true that our country is getting less attractive to them because of failing economy, growing hostility against immigrants, and ongoing tension and stress relating to terrorism and security actions. Back to Top

Updated 05/24/2002: Tips for Nonimmigrant Travellers

• Since 9/11, the immigration inspection for nonimmigrant international travellers has witnessed a number of changes and substantial tightening up. Whether one is the first time traveller to the U.S. or a traveller returning to his/her home in the U.S., refusal of admission to the country at the airport by the immigration officers creates a confusion, panicking, fear, and helplessness. This is particularly a difficult experience if one is refused to entry because of insufficient travel document such as a valid visa or passport. Here are a few tips of information that the international travellers may want to remember. This information is limited to nonimmigrant travellers and does not apply to immigrants or U.S. citizens.
• Before 9/11, when one arrives at the airport, the immigration inspectors at the airport were able to take one of four actions: Deferred inspection/parole, waiver of documents, removal with or without a hearing before a immigrant judge, or permission to withdraw application for admission to the U.S. Deferred inspection means that the inspector will allow him/her to physically come into the U.S. for an immigration inspection at the local INS office rather than at the airport. This gives a relief if one can come up with or correct the deficiency in the travel document. One is then admitted to the country after the deferred inspection. Waiver of travel document is a discretionary action of the inspection officers in certain circumstances. However, these two options have lately been tightened up such that the inspectors no longer have such discretionary authority unless they first get approval from their Directors or higher-ups. Because of this procedural change, these two options have been rarely exercised and in most cases, are not available.
• Consequently, one is given in most cases one of two options: Either to withdraw his/her application for admission to (entering) the U.S. and return to his/her point of departure in a foreign country voluntarily and at his/her own expenses, or removed by the immigration inspector at the airport with or without a hearing. Permission to withdraw is not a right and still subject to exercise of discretion by the immigration inspectors. However, two decisions have miles of different consequences for his/her future. If one is allowed to withdraw admission, it is not considered a removal or deportation, and will not prejudice his/her future application for a visa back home and returning to the U.S. On the other hand, if he/she is removed, he/she will not be able to apply for a visa and return to the U.S. for a period of time unless one is eligible for a very rare waiver. Accordingly, it is critically important that the traveller learns exactly on which of these two options the immigration inspectors are allowing him/her to return to the foreign country from the U.S. airport. Since he/she will experience an extreme state of confusion, it may be very difficult to pay attention to these details, but people should remember this and act properly.
• The foregoing information does not constitute a legal advice in that many different factors can affect one's admissibility to the U.S. It is thus critically important that one seek legal counsel, if accessible, when one faces such refusal to admission to the U.S. at the airport. People should not rely on this information. Which option one has to choose needs an assistance from a legal counsel in each individual situation and there is no general rule one can apply in all situations. Critically important to remember. Back to Top

Updated 05/23/2002: Tearful Struggle Against Alien Driver License Restriction

• There are legislative movements at both federal and state level to restrict the immigrants' driver license privilege and use the driver license as symbol for an alien.
• The legislature in Minnesota introduced Anti-Terrorism Bill which included limitation of validity of driver license to the period of visa and color coding on the immigrants driver license so that people can identify the carriers as aliens. Immigrant community has been tirelessly fighting against the bill. Immigrants' eyes got wet on the news yesterday that the State Senate dropped this provision from the bill.
• Guess what? News follows that the State Commissioner of Public Safety is enacting a state rule to limit the driver license for the aliens to the validity period of visas! Allegedly, the State government is doing this to beat the legislative action. How outrageous!!!
• Ongoing fight against terrorism has produced a fallout of widespread "alien profiling" and deprivation of rights and privileges which should be protected by the constitutions. Immigrants are staunch fighters against the terrorism just as the mainstream members of this society. When the World Trade Center collapsed, they all wept together with the "mainstreams." It is despicable and deplorable that there are some people out there who try to take advantage of the world's tragedy for their personal agenda against immigrants. Remember that the fight against the terrorists needs strong support from immigrants and their relatives and friends! The madness should stop! Back to Top
  

Updated 05/22/2002: Continuing Struggle in Economy, Layoffs, and EB Aliens

• The country's economy shows no light at the end of tunnel for recovery as affected by the constant terrorist threat warnings and the system's helpless loss of confidence in its economic future. Layoffs are continuing. The aliens in various stages of immigrant proceeding should be aware of the legal implication and options when they are laid off. This discussion is focused on the alien's perspective only.
• Aliens in Labor Certification Stage: Unless the employer promises not to withdraw and promises to rehire for permanent position once the green card is approved, the labor certification filed by the employer is gone. Is there any way to salvage the pending labor certification application? There is a decision of the U.S. Department of Labor appeal board, called BALCA, which says that if another employer of same area of intended employment is willing to take over the application with the same job and qualification requirements, the labor certification can be amended and will continue with the new employer without losing priority date. This option is not working well with the current RIR proceedings, but good with the regular labor certification application. The most typical such new employer will be either client company in the case of consulting jobs or employer's restructuring or taking over the employer's assets by another company that do not satisfy the successor-in-interest threshholds, or even any other business, for that matter, in the same area of intended employment. Such substitution of employer may be sought both at the SWA level and at the Certifying Officer's level. Such amendment may be available on the two conditions: (1) Employer should not have withdrawn the application. (2) The application is pending and not yet certified. Once certified, the Certifying Officer cannot amend and certify the amended application. Unless such sort-of substitution of employer option becomes available, the alien loses priority date and will have to start all over again with another employer. Additionally, these people will not be able to apply for 7th year H-1B petition extension even if he/she has been waiting for certification for more than 365 days. The color of attractiveness of this option will fade away once the new PERM is launched in light of the short processing time of the labor certification application.
• Aliens in I-140 stage: There may be many different groups of people falling under this category. The first group is those who filed I-140 after spending more than 365, and before I-140 is approved, they get laid off. Under the recently released opinion of the INS HQ responsible officer, they will be able to file 7th year H-1B petition with another employer if the new employer has filed a new labor certification application (please read back our previous posting on this issue). Another question is whether another employer in the same area of intended employer may be able to file I-140 using the certified labor certification application by the employer that laid him/her off. There are no published rule of the INS on this issue. There may be some instances where the petitioner misleads the INS to take the BALCA decision as a binding rule for the INS as well and attempts to obtain I-140 approval. However, the BALCA decision appears to be a very fact-specific decision and should apply only to those cases which were pending and the Certifying Officer was able to amend the labor certification application. Once certified, the Certifying Officer has no authority to amend the application and the INS will not be able to use it for the same alien with the same job unless the new employer is a successor-in-interest to the old employer. Therefore, such alien will lose the priority date and certified labor certification application will not mean much for him/her. to be continued...

Updated 05/21/2002: List of Documents Required for Trip to Mexico

• The INS gives a good laundry list of documents people should carry with them to travel to Mexico. It is a timely posting in that soon Summer vacation will start and people will be planning on travelling in Mexico. Read on. Back to Top
  

Updated 05/21/2002: Reminder of Consular Fees Increase

• The Chennai American Consulate reminds people that the U.S. Department of State has revised the Schedule of Fees for Consular Services. The new schedule will be effective June 1, 2002, at which time fees for consular services, excepting passport services, provided by the Department of State and by U.S. embassies and consulates abroad will change. the nonimmigrant visa application fee will increase to $65(from $45). This increased fee will recover the actual cost of the service, including the Machine Readable Visa and processing through our sophisticated name-check technology. Immigrant visa fees will rise to $335 (from $325). Adjustments to fees of services for American citizens overseas include the Consular Report of Birth Abroad documentation fee, which will be raised to $65 (from $40), while the fee for performance of notarial services will be lowered to a two-tiered schedule costing $20 to $30, depending on service rendered (from $55). Click here for the full text of fee changes . Back to Top
  

Updated 05/21/2002: Attorney General's Response to Inspector General's Report

• The Attorney General responded to the very negative report on the INS by the Inspector General of the U.S. Department of Justice. Please read on.

Updated 05/20/2002: DOJ Inspector General Report - Critical of INS Failures

• The Inspector General of the U. S. Department of Justice has issued a 188-page report citing the INS critical failures on 05/20/2002. Read on DOJ Press Release, Executive Summary of the Report, and Full Report (pdf). Back to Top

Updated 05/20/2002: Boston DOL Region Processing Times of 05/17/2002

• RIR=10/01/01, Regular=09/01/01, H-2B=10-20 days, H-2A=7 days.

Updated 05/19/2002: Reminder of Expiration of Special Immigrant Petition for Religious Workers Other Than "Minister" Category

• Current law for special immigration for religious workers other than "minister" will sunset on September 30, 2003. However, people will notice that the processing times for I-360 for this special immigrant petition has been increasingly experiencing delays. Additionally, I-485 adjudication at the Service Centers still takes about one year. Apparently, the one-step filing for I-140/I-485 will not include I-360. Since the religious workers should obtain I-485 approval before October 1, 2003, they may face a problem unless the I-360 petition is filed as promptly as possible.
• This special provision has been extended every 3-year. It is one thing that there is a likelyhood that the law may be extended again, and it is the other that one may be able to adjust the status even after 09/30/2003. Back to Top
  

Updated 05/19/2002: Renunciation of U.S. Citizenship and Inadmissibility

In October 2002, the INS is scheduled to release a "proposed" regulation that an expatriate alien is inadmissible to the United States under section 212(a)(10)(E) of the Immigration and Nationality Act. This ground of inadmissibility relates to former U.S. citizens who renounced U.S. citizenship on or after September 30, 1996, and the Attorney General has determined that such renunciation was done for the purpose of avoiding taxation by the United States. Back to Top

Updated 05/19/2002: 245(k) and Proposed Adjustment Procedure

• The INS is scheduled to release a "proposed" regulation in August 2002 with the comment period ending in October 2002. This rule proposes amending Service regulations for persons using section 245(k) of the Immigration and Nationality Act to adjust status to that of lawful permanent resident (LPR). Section 245(k) of the Act allows an alien with an approved employment-based petition to adjust status to LPR despite violations of status if those violations have lasted no longer than 180 days since the alien's last entry. This rule proposes eligibility criteria and adjustment procedures for persons wishing to use this section of the Act to become an LPR without leaving the United States.
• Even now, people can use 245(k) rather than 245(i) and save $1,000 penalty if he/she is eligible under 245(k). Back to Top
  

Updated 05/19/2002: Visitor Restriction Regulation to Finalize in July 2002

• The proposed regulation to limit the visitor's period of stay in the U.S. is planned to be finalized in July 2002, according to the INS schedule. The comment period expired on 05/13/02 and everyone has been waiting for the INS decision. The AILA has presented a total opposition to this proposal.
• This rule eliminates the minimum admission period of a B-2 visitor for pleasure, reducing the maximum admission period of B-1 and B-2 visitors from 1 year to 6 months, and establishing greater control over a B visitor's ability to extend the status or to change status to that of a nonimmigrant student. These changes will enhance the Service's authority under sections 214(a) and 248 of the Immigration and Nationality Act (Act) and will help lessen the probability that alien visitors will establish permanent ties in the United States and thus remain in the country illegally. Back to Top
  

Updated 05/19/2002: INS New Rules on 3/10 Year Bar and Visa Revocation

• Next month, June 2002, the INS is scheduled to release a new proposed rule that defines the categories of aliens who are not eligible to be issued a visa or be admitted if: they are in the U.S. illegally because they entered without proper inspection at a port-of-entry (section 212(a)(6)(A) of the Act); they accumulated certain periods of unlawful presence because they entered the U.S. illegally or stayed in the U.S. longer than authorized (section 212(a)(9)(B) of the Act); or they entered the U.S. illegally (or attempted an illegal entry) after they accumulated unlawful presence or after they were removed (section 212(a)(9)(C) of the Act). This proposed rule also describes how a nonimmigrant visa becomes automatically void, as provided under section 222(g) of the Act. This proposed rule also explains when the provisions for unlawful presence (sections 212(a)(9)(B) and (C) of the Act) do not apply, and the legal and documentary requirements for a waiver. Back to Top
  

Updated 05/19/2002: Regional Center Investor Immigration Petition Procedure to Change

• The INS is to release a regulation on November 2002 changing the location for the filing and adjudication of proposals to participate in the Immigrant Investor Pilot Program from Headquarters, Adjudication, to the Texas and California Service Centers. This change is necessary to ensure the uniform and effective adjudication of these complex proposals related to economic development, export trade, and job creation. It will be an Interim Regulation and will go into effect upon the date of release or certain effective date the regulation will provide. Back to Top
  

Updated 05/19/2002: Two-Yr Bar to Immigrant Benefits for Marriage to Citizen Pending Removal Proceeding and Good-Faith Exception Rule

• Under the current immigration law, any alien who is in removal (deportation) proceeding, but marries to a U.S. citizen is prohibited from immigration benefits through the U.S. citizen spouse until the alien completes two-year residency in the home country. The statute provides certain exceptions, but the INS has yet to enact the specific standards for such exception.
• In June 2002, the INS is scheduled to release such regulation to provide an exception from the
  general prohibition against approval of immigration benefits based upon a marriage entered into during removal proceedings. The rule creates a good faith exception to the prohibition. Please stay tuned to this web site for the forthcoming regulation. Back to Top
  

Updated 05/17/2002: INS Schedule of I-140-485 Concurrent Filing Rule

• The INS is scheduled, according to their plan, to publish this regulation in June 2002. The rule is expected to be published in the form of "final interim" regulation with the comment period ending in October 2002. It is not a proposed regulation and the regulation will go into effect upon the date of release or certain date which is provided in the regulation.
• This regulation will allow the Forms I-140 and I-485 to be filed concurrently "in certain circumstances" when a visa is immediately available, thereby improving the efficiency of the system, as well as customer service This rule will also allow the alien worker to apply for employment authorization (Form I-765, Application for Employment Authorization) and advance parole authorization (Form I-131, Application for Travel Document) while the Form I-485 is pending. Please stay tuned to this web site for the development of this news. Back to Top
  

Updated 05/17/2002: DOS Summary of Border Security Bill Cabled to Visa Posts

• On May 15, 2002, the U.S. Department of State sent a cable to all the U.S. visa posts section-by-section summary of the Border Security Bill which the President had signed into law on May 14, 2002. Please read this summary.
• The cable advises visa posts that the consular officers should not implement this legislation until the regulation is published. Back to Top

Updated 05/17/2002: NSC EB-485 Delays and Good News Ahead

• People have been wondering why EB-485 processing times have not progressed for the last month. As we posted earlier, the INS has been conducting Interagency Border Inspection System checks on all cases, including EB-485 applications. With limited number of adjudicators, it has caused delay in processing.
• NSC has reported to the AILA that now the employment-based I-485 adjudication team has expanded, and has 2 to 3 more adjudicators, and approximately 4 to 5 more adjudicators are expected to join the team. Accordingly, it is expected that the NSC will achieve a higher rate of EB-485 completions in the coming month. Please stay tuned to this web site. Back to Top

Updated 05/17/2002: 7th Year H-1B Extension Under AC 21 and Change of Employer

• AC 21 Act involves a number of areas that need interpretation which can affect a large number of H-1B professionals and employment-based immigration applicants. The enactment of the AC 21 regulation that should give a guidance to the employers and the aliens has been long overdue, but we are glad that the INS may finally release the regulation within this year.
• Pending the release of this regulation, people heavily rely on the reponsible officer's interpretation and view on various AC 21 issues. Even though such opinion does not have a legally binding force, people usually follow such opinion, including the INS adjudicators.
• A couple of days back, we discussed the view of the responsible officer on the usability of the "dormant" H-1B petition (either former H-1B employer or multiple H-1B employers for the same alien). Today, we would like to focus on the issue whether 7th year H-1B extension is available for those who became "qualified" for 7th year H-1B extension by having obtained the labor certification application and filed I-140 petition, which took more than 365 days, and started a new labor certification application with a new employer but not quite reached 365 days.
• The officer expressed an interesting view in his response to an attorney's inquiry that once one got qualified for the 7th extension, the alien will carry that qualification with another employer. We call this "alien-based" benefit. This concept was initially adopted in the interpretation of 245(i) provision such that the INS views that once the alien is qualified for 245(i) benefit, the alien carries with him/her the benefit of 245(i) inasmuch as the underlying labor certification application or immigrant petition was not frivolous, no matter whether the labor certification is later denied or withdrawn. Even though there may be some difference when it comes to the details, apparently the officer gives a very liberal view on 7th year H-1B extension issue adopting a similar concept of "alien-based" benefits.
• People who are in a similar situation should consult with their legal counsel to learn whether they will be eligible for the 7th year extension of H-1B extension. You should not dare to attemp to apply this information as the law or legal advice. Very important. Back to Top

Updated 05/16/2002: Planned Date of Final Rule of PERM

• The Semi-Annual Plan for the FY 2002 of the U.S. Department of Labor indicates that the proposed PERM regulation was planned to release in May 2002 and the final rule is supposted to complete in August 2002. It is unclear whether the DOL will stick to this plan, but people should not rely on this information to set up a strategy. Please wait for the DOL announcement before you jump into the recruitment activities. Back to Top

Updated 05/16/2002: Consular/Visa Fees Increase in Effect 06/01/2002

• The U.S. Department of State published a proposed regulation to increase the consular service fees, including visa application and passport application fees.
• Today, DOS published the final regulation making the regulation in effect on June 1, 2002.

Updated 05/16/2002: INS Proposed Regulation on SEVIS Electronic Reporting

• The Attorney General announced the plan requiring the schools sponsoring foreign students of F, J, and M visa status to launch electronic reporting systems on the status of foreign students.
• Today, INS published "proposed" regulation with the comment date of 06/17/2002. The regulation proposes schools' participation in this program initially "voluntary" until 01/30/2003, when it will become "mandatory." Please click here for the regulation(pdf). Back to Top

Updated 05/15/2002: Tips for Employers Receiving "No Match" Letters from Social Security Administration

• National Employment Law Project in New York (NELP) reports that SSA has been sending out "no-match" letters to the employers hiring alien workers, frustrating and scaring employers. They are giving some tips to the employers as to what they have to do. Please click here (pdf) to the site. Back to Top

Updated 05/15/2002: Correct Understanding of Aging-Out Expedite Process

• This message is posted because apparently there are some people who are still confused with the aging-out process. Attorneys may also be liable for failure to request aging-out expedite and the child gets "aged out (21 years old)" because of attorney's such failure.
• One of the highest value in this society is family unity, and the immigration system in the U.S. has taken into consideration such fundamental principle. Thus currently, if one of dependent child is about to reach 21 years of age and seeks immigrant status as the dependent beneficiary of either family-based or employment-based or for that matter, any other basis, it is the agencies practice to take such case as the "top priority" case and expedite the process so that the green card applications for the entire family are adjudicated before the child reaches 21 years of age. Consequently, not only the aging out child but also the parents and other siblings receive "expedite" processing and cases are approved in a fairly short period of time.
• This aging-out expedite process has been available in the INS and DOS proceedings. At this time, the U. S. Department of Labor does not recognize the aging-out process in the labor certification application proceedings. However, report indicates that the DOL has also been considering the aging out expedite processing. We look forward to such policy announcement from the DOL.
• Currently, aging-out expedite works extremely well in the family-based or other non-employment based proceedings. Most typically, such aging-out expedite works at the INS local district office one-step I-130/I-485 proceedings. The district offices approves I-485 applications for the entire family members in the event that a child will reach 21 years of age in a few months, such as three to six months. They also expedite the parent's 485 applications if such aging-out is located outside of the U.S. and needs to apply for folllowing-to-join immigrant visa application at the American consulate. Aging-out process will however be of no help if the INS cannot approve because of the unavailability of priority date for the family.
• In employment-based cases, aging-out process becomes available from the stage of I-140 petition. Currently one-step I-140/I-485 is not available and even if it is the aging-out case, people need to go through the two-tier processes, I-140 and I-485. The INS is very conscious of such problem and they make it their practice to expedite in both stages. Thus, generally, when one files I-140 with an aging-out child in the family who will reach 21 years of age within the next 6 months to 12 months, the Service Centers expedite I-140 processing so that the family can file I-485 generally within 6 months before the child reaches 21 years of age. Additionally, even if one has less than one year remaining for such child to reach 21 years of age at the time the labor certification is granted, the Service Centers accomodate such exigent circumstances and complete I-140 and I-485 proceedings in a very short period of time.
• When such child is located outside the U.S. or the whole family is applying for immigrant visas outside the U.S., the INS generally expedite the processing of I-140 as well as forwarding approvals to National Visa Center. Then, aging-out processing is also in place at the stage of National Visa Center and the American consulates in the jurisdication where the people apply for immigrant visas, and immigrant visas are quickly issued to such applicants. In the consular proceedings, people should remember that the aging-out child should not only be issued an immigrant visa before he/she reaches 21 years of age, but also be admitted to the U.S. with the inspection before he/she reaches 21 years of age.
• Lastly, the aging-out process is not a statutory or even regulatory mandate. It is strictly agencies' practice. Thus, it is incumbent upon the aliens to request such expedite process and not the INS. Back to Top
  

Updated 05/14/2002: President Signed Today Border Security Bill, H.R. 3525

• The President signed into law today the Border Security bill. Please read back our previous report on this on May 9, 2002. Please read President's signing statement. Back to Top
  

Updated 05/14/2002: INS Says H-1B Can Return to Former H-1B Employer

• In response to an inquiry addressed by an attorney, the INS official writes that H-1B people can return to the old H-1B employer inasmuch as he/she "maintained status" and the former employer's H-1B petition is still valid and not withdrawn nor revoked. In the same line of logics, the officer also opined that if each of multiple employers filed H-1B, all those H-1B petitions would remain valid until withdrawn or revoked and the H-1B alien would be able to move from one such H-1B employer to another such H-1B employers. The officer's view is grounded on the theory that once H-1B petition is granted, that petition is good until end of the period unless it is withdrawn or revoked.
• Caveat: This is an opinion of an individual officer and should not be taken as law. It can change any time. Besides, unless you are a fool, you will not act on the information unless you seek legal counsel as each situation can differ. This is not a legal advice.

Updated 05/13/2002: INS Rule-Making Agenda Spring 2002

• The following INS rule-making agenda shows some interesting regulations forthcoming:
• Proposed Rule Stage:
  (1) Certification of Certain Health Care Workers
  (2) Adjustment of Status Under Section 245(k)
  (3) AC 21: American Competitiveness in the 21st Century Act of 2000 and Other Related Bills, American Competitiveness and Workforce Improvement Act (ACWIA)
  Final Stage:
  (1) Elimination of Immigration and Naturalization Service-Issued Mexican and Canadian Border Crossing Cards
  (2) Registration and Fingerprinting of Aliens in the United States: Control of Employment of Aliens
  (3) National Interest Waivers for Second Preference Employment-Based Immigrant Physicians Serving in Medically Underserved Areas or at Department of Veterans Affair Facilities
  (4) Petitioning Requirements for the H-1C Nonimmigrant Classification Under Public Law
  (5) Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the North American Free Trade Agreement
  (6) Allowing for the Filing of Form I-140 Visa Petition Concurrently With a Form I-485 Application in Certain Circumstances
  (7) Establishing Premium Processing Service for Employment-Based Petitions and
  Applications

It is interesting to learn that AC 21 regulation will be released in the form of "proposed" regulation, while concurrent Filing of I-140+I-485 Regulation for certain cases will be released in the form of "final" regulation. Caveat: These are the agenda released today, but who knows, some of them can be dropped.
Back to Top

Updated 05/12/2002: Ages 18-26 Yrs Males: Selective Service Registration Advisory

• This is a reminder that the Immigration and Nationality Act requires certain aliens to register for the Selective Service with the attendant negative consequences for the failure. If you are in this age bracket or one of any members of your family are males in this age bracket, you should review the requirement in the two government sites: Selective Service site and INS site. For those who were in the U.S. in this age bracket and were required to register but failed to register, they may want to inquire the INS of its consequences on citizenship application if they are still in the age bracket of 26-31 years of age. Back to Top

Updated 05/11/2002: Important Reminder of Child Born Abroad for Permanent Residents

• This web site has posted twice this important rule, but apparently there are some people who are still not aware of this important rule, facing unexpected crisis. Choice of a citizenship is one's decision and some permanent resident parents opt to deliver their babies in their home countries so that their children acquire the homeland citizenship rather than U.S. citizenship. Since a baby becomes a U.S. citizen automatically if they were born in the U.S., such parents make a special trip to home country and deliver a baby there. The problem is that most parents bring the baby with them when they return to the U.S., but some parents return alone leaving the baby to their parents for the obvious reasons of difficulty in raising an infant when the mother works full-time. It is a big mistake, though.
• People should remember the following rules:
  (1) A child born abroad of legal permanent resident parents may enter the U.S. without a visa provided the child is accompanied by a parent upon that parent’s initial return to the U.S. within two years of the child’s birth with documentation showing the parent-child relationship.
• (2) If the permanent resident parents leave the child abroad with family members and return to the U.S. without the child, the child must have an immigrant visa to enter the U.S. The child cannot apply for an immigrant visa unless the permanent resident parent(s) file a FB 2-A preference petition with the Immigration and Naturalization Service. It will take a number of years. Just look at the Visa Bulletin! People should never do this. If people need grandparents' help back home, they should first bring the child with them to the U.S. when they return to the U.S., and make another trip back home to leave the baby with the grandparents. Important to remember. For other details, please our prior posting of this news on July 31, 1999 in the Archive. This is a Mother's Day weekend. Happy Mother's Day, mothers! Back to Top

Updated 05/11/2002: DV-2003 Lottery Applicants: Watch Your Mail!

• The winners are being notified by the DOS in May and June, 2002. If you do not receive the notice, you failed to make it. Only winners are notified. DV-2004 Lottery is scheduled to be announced in July or August, 2002.

Updated 05/10/2002: School Foreign Students Status Reporting Rule to Intensify

• As the Congress passed and the President is about to sign the Border Security Bill, the U.S. Department of Justice is about to intensify the schools' obligation to report on the foreign student. The reporting system will launch on July 1, 2002 on a voluntary basis, but it will turn into a mandatory reporting system beginning from January 30, 2003. For the DOJ announcement, please click here. The data that must be reported includes:
  • A student's enrollment at the school;
  • •The start date of the student's next term or session;
  • •A student's failure to enroll;
  • •A student dropping below a full course of study without prior authorization;
  • •Any other failure to maintain status or complete the program;
  • •A change of the student's or dependent's legal name or address;
  • •Any disciplinary action taken by the school against the student as a result of the student being convicted of a crime; and
  • •A student's graduation prior to the program end date listed on the Form.
• This regulation will be published soon. For the Attorney General News Conference, please click here. Back to Top

Updated 05/10/2002: Patience Needed for TSC 485 Waiters

• Report indicates that the Texas Service Center is currently processing about 1,500-2,000 cases per week. Why then TSC 485 cases are not moving in the TSC report? TSC reports that they are focusing on scheduling the older cases from 1999 and 2000 for fingerprints so that these cases can be completed. Accordingly, the 485 cases are currently held at March 2000 so that the TSC can clear out the older cases. For the later filers, patience is needed. Back to Top

Updated 05/09/2002: New 245(i) Introduced in Senate by Sen. Daschle

• AILA reports that the Senate majority leader Tom Daschle has just introduced a new 245(i) bill, Uniting Families Act of 2002. Reportedly, this bill provides the filing deadline for the eligibility at 04/30/2003 and additional requirement of physical presence in the U.S. as at 12/21/2000. This is a fairly accomodative legislative bill and the immigrant community should start working with the legislators to solicit their strong support. AILA reports that the House takes a much more conservative and narrower view on 245(i) and it is going to be a upbill battle.
• Please roll up your sleeves and start your own part of fight to make this bill come to reality. The participation of Hispanic community in this fight will be extremely crucial. The first step is to let the community know about this bill by spreading out the information and mobilize community resources! Back to Top

Updated 05/09/2002: Brief Summary of Proposed New Labor Certification System

• This information is posted to outline the new labor certification system (PERM). It is not intended to cover entire items, and readers are cautioned that there will be many items which are not covered in this summary. This posting touches only key points that readers may need to know at this point. It is expected that the AILA may prepare and release the full summary at some point in the future and people should wait for the AILA summary.
• The Prelude: Background of Labor Certification System Reengineering: The primary force that has pushed the U.S. Department of Labor to reshuffle the labor certification procedure and system was the budgetary constraint: Continuing slash of funding by the Congress for the alien labor certification program. Operating a two-tier labor certification program was very expensive because the federal funding had to support the state (SESA) program that played the role of initial "processing" of the applications. Covering the programs in 50 states amounted a huge appropriation.
• The initial response of the DOL to the funding cut was to reduce the size of each office, resulting in a massive layoff of officers at both federal and state level. When the number of applications constantly was increasing, such action created a mounting backlogs and subsequent political pressures.
• DOL thus developed a long-range strategic plan to keep the labor certification alive under the limited funding constraints. The strategic plan included two main components: One was to reduce the backlogs through (1) encouragement of RIR filing rather than the labor-intensive supervisory process of traditional labor certification application for future filing as supervising the employers' recruitment and labor market test demanded involvement of huge human resources and expenses at the state and federal offices. (2) Along with such action, DOL launched the RIR conversion regulation to reduce the backlog in the existing pipeline.
• However, such backlog reduction was devised as a transitional measure and the goal was to restructure the entire labor certification system by removing involvement of the state agencies in the permanent labor certification process. Thus shifting from two-tier (state-federal) to one-tier (federal only) was the second component under the strategic plan and it was indeed the ultimate goal. The one-tier system is similar to the IRS Income Tax filing system in that people file only application without supporting evidence, to be followed by selective audit by the agency. In order to guarantee against fraud, the application incorporates certain device such as attestations.
• The new system anticipated the audit activities and shift of the labor certification focus from a labor market test process to enforcement (audit) process. The DOL at one time planned to get rid of ETA (the service arm of the DOL) and move the labor certification responsibility to ESA (enforcement arm of the Department) as a preparation for launching the new labor certification system.
• Such plan did not materialize, but no one will doubt that DOL will strenthen audit and enforcement activities, and ESA is expected to play an increasing role in the future.
• Along with the foregoing structural change and procedural change in the proposed new system, the DOL also planned an additional device to deal with the funding problem. It was a user fee charge to make the labor certification program very much financially self-sufficient. In FY 2001, the DOL proposed the filing fee system in its budget proposal, which was not acted on right away by the agency as well as the Congress in introcing a user-fee legislation. DOL is at this time expected to work on this legislation.
• With this background in mind, we will review the proposed new labor certification regulation in the next several days. Please stay tuned to this web site. Back to Top To be continued.....

Updated 05/09/2002: Border Security Bill (H.R. 3525) Heading for White House

• Yesterday, the U.S. House agreed to the amendments made by the U.S. Senate on the House bill H.R. 3525. Now the bill is heading for the White House for the President's signature who strongly supports it. For the Senate Amendments, please click here. For the text of the bill as passed by the House, please click here. As soon as the President signs it into law, this web site will post it at the top of this Breaking News page.
• The bill will increase the number of immigration inspectors and investigators, require higher learning institutions to keep better track of foreign students, and heighten scrutiny of visa applications from countries listed as sponsors of terrorism. Additionally, the FBI and CIA will be requirfed to share more information with the DOS which issues visas. The travel documents including visas will be produced in machine-readable and tempter-resident and imprinted with identifiers such as fingerprints or retina scanes. Back to Top

Updated 05/09/2002: DOJ Proposed Rule Change on Surrender of Final Removal Order Aliens

• Today, the U.S. Department of Justice released a regulation changing the rules on effects of failure to surrender for departure from the U.S. for those aliens who are subject to a final order of removal or deportation. The changes in this proposed regulation include (1) "retroactive" application of the rules, and (2) deprivation of discretionary relief in the court proceedings and afterwards for 10 years from the date of a forced removal. Deprivation of discretionary relief includes, among others, asylum, application for adjustment of status to lawful permanent resident, change of nonimmigrant status, etc. Please click here for pdf version of the proposed regulation. For those who do not have pdf access, please click here for the text verson. Back to Top

Updated 05/08/2002: Thoughts on Real Benefits of PERM or Electronic Auto Processing

• The most advanced form of electronic filing, screening, and processing is the current online filing of Labor Condition Application for H-1B. People know that filing and certification truly takes less than 5 minutes.
• The proposed PERM will eventually adopt the same system, but even before online filing is available, electronic filing via fax and electronic screening and processing will bring a revolutionary change in processing times.
• However, the real benefit of electronic filing, processing, and certification reaches way beyond the reduced processing time. It is "achievement of geographical uniformity and fairness." No one will deny that there are at this time at least 50 different standards, procedures, and processing times at the state level, and on top of these 50 different practices and policies at the state level, there are again 10 or more different practices, standards, procedures, and processng times at the federal level. These geographical differences are brought about by human factors. Therefore, the identical set of facts are treated different depending on the geographical locations, resulting in unfairness to those who happen to work and file cases at that location.
• The electronic processing and certification, by eliminating affect of human factors of all different types and characterics, will bring only one result for the identical set of facts no matter where the job is located and where it is filed! The resulting "fairness" to "all" is the obvious fruit of the change.
• The federal government is currently pushing ahead a policy of automation of processing of all different types of legal proceedings, including the INS proceedings. When a similar automation processing with the resulting geographical uniformity and fairness is in place, another potential evil can also be eliminated. It is unequal treatment of the same set of facts and cases as affected by human factors and influences. When personal factor one way or another affects the adjudication, the adjudication can turn into arbitrariness. It can also create an environment where influence peddlers mushroom. The electronic automation, by removing the human factors, will completely eradicate or block evils.
• Sometimes, we are concerned where the world and human beings will be driven to by the technology. But dehumanization can help blocking of play of individual ideosyncrasy in the government process and mushrooming of influence peddlers surrounding the government process. Believe it or not, it is a road to true justice, fairness, and due process. Back to Top

Updated 05/08/2002: Sen. Kennedy Immigration Restructure Bill

• As this web site reported, the U.S. Senator Edward Kennedy introduced a bill in the Senate Judiciary to break up the INS. All the bills start from a similar "internal structure" separating functions within the organization between immigration services and enforcement. This bill is no exception. So far, both Senate proposal and House proposal propose the INS abolition. However, the House bill proposes to move the functions into the U.S. Department of Justice rather than a separate outer agency, while the Senate bill proposes to create a new agency outside the U.S. Department of Justice. In this regard, the Senate bill is similar to the INS proposal to keep the organization as an outer arm of the U.S. Department of Justice. Additionally, Senate bill proposes to keep the Commissioner of the INS as the interim head of the new organization. The Senate bill and the INS proposal are justified by the Senate and the INS with the arguments that their proposals will keep a strong authority for immigration business and will assure in-house a better coordination of the two related functions of immigration and enforcement. This web site will keep track of the Senate bill, S. 2444 and all other bills. Please stay tuned to this web site. Back to Top

Updated 05/08/2002: Further Clarification of Conversion Under the PERM

• The body of the text of proposed PERM is not clear, but the proposed new application form indicates that the alien whose labor certification is pending at the time of effective date of the new labor certification system will be able to maintain the priority date only when he/she file a new application with the request for conversion and for the purpose of the conversion and retention of the priority date, the application must show the same job title, job description, and job requirements. Unless this is revised in the final regulation, it appears that this differs from the current RIR Conversion Regulation which allows some adjustment in the application inasmuch as it does not involve a "material" change affecting the classification of occupation.
• Caveat: People are reminded that the conversion will not fit for everyone who is currently waiting for determination of regular application in the 10 big states. Conversion will just give an opportunity to submit the application without losing priority date, but there is also a substantial risk involved because of the changes in the new labor certification system. Under the current system, if RIR is denied, it is remanded for continuous processing as a regular application and he/she can retain the priority date and the labor certification application. However, there will be no separate application such as RIR under the new proposed system, and once conversion request is filed, one can expect only one of three decisions: Either (1) certification or (2) denial or (3) order for supervised recruitment. The supervised recruitment sounds very similar to the current regular application "on the surface," but close review and analysis of the proposed new regulation reflect that the definitions, standards, requirements, and procedures will be much more restrictive and narrow, and the chance of success will be slimmer than the current regular labor certification. Besides, even for the supervised proceedingl, the Certifying Officer may not permit such supervised recruitment unless the only issue involved is "insufficient" recruitment. Since there are many other new issues that the applicant will have to deal with under the new labor certification system, the chance of denial is much greater when the conversion request is filed. Denial may not result in loss of 245(i) benefit unless it was a frivolous filing, but he/she will lose priority date and application itself after all these years!! Please seek legal counsel before you even think about such conversion. Important! Back to Top

Updated 05/07/2002: VWP Aliens Denied Admission Not Admissible in Future W/O Visa

• Effective today, May 7, 2002, an alien denied admission under the Visa Waiver Program by
  virtue of a ground of inadmissibility described in INA section 212(a) that is discovered at the time of the alien's application for admission at a port of entry or through use of an automated electronic database may apply for a visa as the only means of challenging such a determination. A consular officer must accept and adjudicate any such application if the alien otherwise fulfills all of the application requirements contained in Part 40, Sec. 41.2(l)(1). For the change of the U.S. Department of State regulation, please click here. Back to Top
  

Updated 05/07/2002: Importance of 45-Day Rule for P/D and 245(i) Preservation

• In the labor certification process, there is one very important rule which people of ten neglect to realize, especially in unrepresented cases. It is called 45-day rule. What it means is that whenever the employer receives a letter from the labor department with the request for additional information or action, the employer needs to respond within 45 days. Failure to respond will result in a deadly consequence: Loss of Priority Date and Loss of 245(i) Benefits!!!
• This information is posted as people may realize that after all the waits, preservation of priority date and 245(i) benefits will have an increased importance for the final journey to the Green Card. This is particularly true because the Congress failed to pass a legislation to extend the 245(i) benefits. Additionally, even if it had, such failure would have resulted in a deadly consequence because of all those restrictive cut-off dates weaved into the fabrics of 245(i) extension benefits.
• The RIR Conversion Regulation provides converstion of a regular application to RIR application. The proposed new labor certification system (PERM) will also permit a new filing for conversion without losing priority date. Such conversion will be meaningless unless one can preserve the priority date. Most importantly, if priority date is preserved, then the 245(i) benefit will also survive. However, priority date is not preserved if the employer fails to comply with the labor department written inquiry or demand within 45 days. Such failure is considered an abandonment and the labor department has kept the rule that the priority date is not preserved in such cases. The INS also very recently opined in response to the AILA's inquiry that such failure of preservation of priority date would also result in the consequence of loss of 245(i) benefits. Importance of duty to comply with the 45-day rule cannot be overemphasized while we go through the transition from one labor certification system to another labor certification system!
• The law does not protect a right for an individual who sleeps on his/her own right. This has been a centuries-old golden rule in the common law system. People may find an analogy in the INS proceeding. If one receives a Request for Evidence (RFE) from the INS and fails to respond to such RFE "timely," the legal proceeding is automatically terminated under the INS regulation. Keep your eyes wide open! Back to Top

Updated 05/06/2002: Winners/Losers After PERM Program

• The new labor certification system is indeed a sweeping change in favor of the employers and alien employees, particularly in terms of processing times and filing procedures. However, there are many poison pills in the proposed regulation that will make certain aliens ineligible for the labor certification under the new system, when otherwise they would have been eligible under the current system. Accordingly, people should analyze the proposed regulation carefully, and if they find any changes in the new system which will make them ineligible or difficult (rather than easy) to obtain the labor certification, it may be better off for them to intitiate and file applications under the current system before the new program takes effect. Once the new system is launched (which can be as early as the beginning of the new fiscal year), people will not be able to file current RIR or regular applications. To the best knowledge of this reporter, DOL policy is to leave all the cases that were filed with SWAs and pending at a SWA or Certifying Officer's will be finished up by the SWA and Regional Certifying Officer. The SWA is then required to cease taking in any new cases at the certain given point of time so that PERM program will start to run and take it over smoothly. There may be some people who may take advantage of the current system rather than the new system, even if it will take a longer processing time. The cases pending before the commencement of the new program were planned to be finished up by 09/30/2003, according to the strategic plan and the budget proposal.
• This web site will develop a special site to post our analysis and assessment in the form of Questions and Answers. People are encouraged to send questions to us via e-mail, OhLaw@Immigration-Law.Firm. We will not respond to each e-mail individully, but will try to accomodate as many questions answered as possible in the form of Q&A. Back to Top

Updated 05/06/2002: PERM: What Procedures Will Be Removed From Current Law?

• The PERM will bring sweeping changes to the current aged-old labor certification system. Other than the fact that it is one-tier filing system and there will no longer be different types of cases such as RIR, Limited Review, Regular application, but also the followng, among others, will be removed from the current practice:
  • No special handling procedures for Schedule A cases.
  • No Schedule B. Applications can be filed for any kinds of occupations.
  • No alternative requirement allowed.
  • No business necessity.
  • No experience/skills gained with the petitioning employer allowed with no exception, plus expansion of the definition of "employer" for this purpose.
  • No Notice of Finding (NOF) and Remand procedures.
  • No 95% of prevailing wage allowed. Only 100% wage.
  • "Mean" wage will no longer be the rule. Median wages will be acceptable in some instances.
• Additionally, the PERM adds numberable new requirements, procedures, and standards to the existing alien labor certification system. Please read the proposed regulation. PDF

Updated 05/06/2002: Proposed New Labor Certification Systems (PERM) Released

• As reported, the USDOL today released the PERM Regulation. The Comment Period will end on July 5, 2002. For the full regulation, please click PDF. or TEXT. You need a patience to open this file because it is a long file. Back to Top

Updated 05/05/2002: EB-485 On the Move Again?

• Ever since the INS launched a procedure of security check for all the pending applications and petitions, the processing times noticeably slowed down. The INS informed the AILA that because of the security check, people should expect a delay of 30 days from the previous processing times.
• The proceeding which sufferred most was EB-485 applications. As people must have noticed, the latest official processing time releases reflected that all the four Service Center for some reasons had not moved an inch in EB-485 processing. This stirred a speculation that the delay was caused by security check plus something else. The delay somehow coincided with the information that the INS adopted a zero tolerance policy.
• Well, it appears, though, that EB-485 may start moving again. There is some symtom that it indeed started moving again. Let's wait and see the next monthly release of processing times by the Service Centers. Back to Top

Updated 05/04/2002: PERM Removes Schedule B Procedure

• The proposed PERM regulation removes Schedule B. Accordingly, if this amendment is adopted, there will be no occupations which are precertified as "U.S. worker available" and employers will be able to file the PERM labor certification applications for any occupations without obtaining waiver. This change is not effective unless the DOL keeps this proposal in its final regulation. Back to Top

Updated 05/04/2002: PERM Non-Audit Cases To-Be-Approved in 21 Days

• The DOL proposes in the PERM regulation that the alien labor certification application be approved within 21 days of filing unless his/her case is selected for audit which needs to go through a process which will be similar to the current "regular" labor certification application and supervised recruitment process. The DOL projected that such non-audit cases which would be approved in 21 days would consist approximately 80% of total cases to be filed under the PERM program.
• This change is not effective unless the DOL keeps this proposal in its final regulation. Back to Top

Updated 05/04/2002: PERM Reg Allows New Application/Conversion W/O Loss of Priority Date

• Very good news for thousands of current labor certification application waiters. The PERM regulation which will be published Monday allows those whose applications are currently pending to refile under the new PERM regulation "without losing priority date!!!!!"
• Consequently, those whose "regular labor certification applications" have been stuck for the last several years, particularly those in large states like New York, New Jersey, California, Texas, etc, etc. will be able to refile the labor certification application inasmuch as the PERM regulation is finalized as proposed and the DOL launches the PERM program, and the employer can establish that they are eligible for "non-audit" application under the PERM program.
• If this rule is kept in the final regulation, the current RIR Conversion Regulation which imposes cut-off dates and certain conditions for eligibility will become practically meaningless, since the PERM regulation does not provide such cut-off dates and conditions for conversion.
• Refiling will not be available until the interim or final PERM regulation is enacted and the PERM program goes into operation, which will take a while.
• What a marvellous news for thousands and thousands of people out there! Back to Top

Updated 05/04/2002: Summary of Proposed PERM Regulation

• The "proposed" regulation (174-page document!) will not go into effect immediately, and as this web site reported yesterday, it is uncertain exactly when the DOL intends to finalize the regulation and launch the revolutionary change in the permanent labor certification application process which will allow a huge number of aliens to get the labor certification approval within a month or less. Yesterday, we reported that the DOL may take one of two options: Either launch the program before the end of this fiscal year, 09/30/2002, or within the second quarter of the next fiscal year, 01/01/2003 - 03/31/2003. It boils down to the decision of anticipated legislation to charge filing fees. As we reported while back, the DOL budget indeed one time proposed user fee of $1,500 a couple of years ago.
• However, understanding this proposed regulation is critically important even at this early stage because the regulation provides that the only recruitement evidence employers will be allowed to use are those less than 6 months. Thus, should the DOL commence the PERM program before the end of this fiscal year, the employer may have to schedule their recruitment process accordingly.
• This web site will prepare and post a summary of this proposed regulation (174-page) to help the employers and immigrant community to set up a strategy. Until the complete summary is posted, people may want to go back to our previous posting on April 21, 2002. Please stay tuned!! Back to Top

Updated 05/03/2002: "Proposed" PERM LC Regulation Due on 05/06/2002

• AILA has reported that the long awaited DOL PERM proposed regulation will be released on Monday, 05/06/2002.
• The advanced copy reflects that it is 174-page voluminous documents and is somewhat similar to this web site's earlier summary which was posted a few days back. People may want to refer to our previous report.
• It will be a "proposed" regulation with 60-day comment period and it is undetermined exactly when the regulation will be finalized into a regulation with a force of law. However, considering the fact that DOL intends to propose a legislation to charge user fees, it may not be before the end of this calendar year. If DOL decides not to charge fees at the initial stage, it can be launched before the end of this Fiscal Year, September 30, 2002. The latter option cannot be brushed aside considering the fact that the federal departments are mandated by the GAO to launch some electronic processing systems before the end of this fiscal year. It is unclear whether the permanent labor certification application is included as one of such proceedings.
• The employer will file with one of the two Application Processing Centers two forms: ETA 9089 Application (4 pages) and ETA 9088 PWD (Prevailing Wage Determination Request) form, either via fax or by mail initially. It anticipated the online filing system down the road. No documents what-so-ever will be submitted as part of the filing, but the employer, by signing the forms, will attest to the truth of the anwers to a number of questions which are incorporated in the form in machine readable features. The supporting evidence will be required when the DOL decides to conduct "audit" at some point in the future either by random selection or by other reasons. People may want to think about the Income Tax Filing System! It thus appears that the new labor certification system somewhat anticipates a large number of audits for those cases that have been certified for either a civil or criminal penalty. Please "Beware."
• The recruitment evidence differs depending on occupations, but the regulation will require two sets of recruitment records: One set is mandatory and the other set is nonmandatory.
• With respect to the standards, the regulation will go beyond what the current RIR requires. This web site already reported this change as well.
• On Monday, this web site will report the regulation as soon as it is published. Please stay tuned to this web site. Back to Top

Updated 05/03/2002: INS Comm'r Confirms On-Line Case Check Launch Schedule

• The INS Commissioner, James Ziglar, has just confirmed on the INS web site this web site's earlier report that the INS was scheduled to initiate on-line Service Centers cases status check system and on-line address change system before the end of this Fiscal Year, September 30, 2002. Accordingly, people will soon get official and reliable status check. For his promise, please click here. Back to Top

Updated 05/03/2002: AAO Processing Times

• The employment-based immigrant and nonimmgrant petitions which are denied by the Service Centers are appealled to the Administrative Appeal Office (AAO) in the Washington, D.C. AILA reports that the current processing times of appealled cases in AAO are as follows:
  • EB-11 Extraordinary Worker Petition Category: 1 year
  • EB-12 Outstanding Professors/Researchers Category: 1 year
  • EB-13 Multinational Corporate Executive/Manager Category: 1 year
  • EB-2 all categories: 22 months
  • EB-3 all categories: 5 months
  • H-1B cases: 6 months
  • L-1 cases: 18 months
  • All other cases: 3 months or less. Back to Top

Updated 05/03/2002: Federal Registers for Hon/Nicaraguans TPS and EAD Extension

• We reported yesterday the U.S. Department of Justice to extend one year TPS to Hondurans and Nicaraguans. The INS released the federal register today on this Employment Authorization extension. Please click here.
• For Hondurans, please click here for their specific eligibility requirements.
• For Nicaraguans, please click here for their specific eligibility requirements. Back to Top

Updated 05/02/2002: Visa Revalidation Procedure Change Notice

• The following is the Visa Office notice on DS-157: Attention! Effective immediately, all male nonimmigrant visa applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply, must complete and submit a form DS-157 in addition to the Nonimmigrant Visa Application (DS-156). Applications submitted without the required forms will be refused. Don't forget to send in DS-157!!! Back to Top

Updated 05/02/2002: Severe Nurse Shortage and Need for Congress Action

• The shortage of nurses has reached such level in this country that the healthcare for the elderly and certain group of population in the urban cores and rural areas is unacceptably compromised and the Congress has remained dormant on this important issue. Currently, the H.R. 2705, Rural and Urban Health Care Act of 2001 is stuck at the House Judiciary Subcommittee of Immigration and Claims without any action since September 10, 2001, and a similar bill, S. 1259, Rural and Urban Health Care of 2001 is stuck at the Senate Judiciary Committee without any action since July 27, 2001.
• Maybe, the Congress gentlemen and gentleladies, particularly the members of the Judiciary Committess in the both Houses, need to hear a loud voice from these constituents to wake them up before the mid-term national election this year. Back to Top

Updated 05/01/2002: DOS V & K-3 Visa Guidance Cable to Visa Posts

• On April 26, 2002, the U.S. Department of State sent out a cable to all the U.S. visa posts throughout the world, laying down the details and specific guidance for consular officers handling V visa and K-3 visa. Please read on. Back to Top

Updated 05/01/2002: INS Comm'r Announces Entry-Exit Program Priority

• INS Commissioner has announced that the INS plans to procure the services and supplies to develop, deploy, and sustain an Entry-Exit program. The Entry-Exit Program Team will be responsible for implementing an integrated Entry-Exit program, including an automated system, which would use available data to record alien arrivals and departures. By implementing an Entry-Exit program, the INS will be able to record overstay information and take steps to ensure that visitors to the United States comply with immigration laws. In addition to strengthening our borders, the Entry-Exit program will facilitate legitimate cross-border traffic and trade to ensure the continued economic viability of the United States. Currently, the INS inspection process does not issue "exit" stamp in the passport. Back to Top

Updated 05/01/2002: 800 Number INS Doctors List

• The INS National Customer Service Center is providing the INS doctors information in your area. People may call 1-800-375-5283 and follow the prompts of 1+2+3+Your Zip Code. A very user friendly automatic phone information service!! In the future, check this information at the top of this Breaking News site. Back to Top

Updated 04/30/2002: INS Zero Tolerance Policy

• According to the AILA, the INS has instituted "zero tolerance" policy and does not exercise discretion for those who fall out of status, unlike previous practice. Apparently, this hardline policy is instituted because of the ongoing pressure from the Administration, the Congress, and other political forces. This is a wake-up call to those who have relied on so-called "liberal views and interpretation" of the laws and regulations by some employers and their legal counsels. Please remember that all those liberal views are never blessed by the INS either in the form of policy memorandums or the required regulations. As people know, this is a very difficult time and the INS is under a tremendous political pressure within and without the agency. Back to Top

Updated 04/30/2002: Alien Detention as Witnesses Held Illegal by Fed Court

• The U.S. Department of Justice has been detaining certain aliens not because they were involved in any terrorism organization but because the U.S. government wanted to collect information relating to the 9/11/01. This act of the U.S. government is facing a crack in federal courts, holding such act illegal. Please read on, additional news,.and another news. Back to Top

Updated 04/28/2002: Status of Online Service Center Case Status Check System, Online Address Change Report System and Online Filing System

• According to the INS release in February 2002, people will be able to check general case status on applications filed at a Service Center using the INS website by 09/30/2002 (end of FY 2002). People will also continue checking status via telephone call, but by 09/30/2002, the phone calls will be answered "not" by the Service Centers "but" by the National Custom Service Center (NCSC). As people know, currently contact with the NCSC for inquiries usually goes nowhere. However, around the time this new phone inquiry system, it is expected that the NCSC services will change because the INS has changed the contractor and a new contract through the Veterans Administration will be in operation in full swing.
• The INS will also initiate the same changes with the address change report system. By 09/30/2002, people will be able to report change of address either through the INS website or telephone to the NCSC. At this time, the address change is something which confuses people most because depending on the application/petition types, people are required to report to different offices.
• The INS is under the mandate of the General Accounting Office (GAO) to commence the online filing for at least two types of application by 09/30/2002. Accordingly, the INS has already contracted with the KPMG to implement e-filing. The INS has yet to release the information on which types of applications they will start first. For the details of the foregoing information, please click here.
• It is hoped that this plan be not affected by the ongoing immigration restructuring, no matter what the new structure will be. Back to Top

Updated 04/27/2002: Fed Employees Frequent Flight Mileages Usable for Personal Use

• This message is posted for the visitors who work for the federal government. The regulation which was released on 04/12/02 allows federal employees to use the frequent flight mileage which one gained from the official travel for private travel purpose. The regulation is retroactively applicable so that he/she can use all the frequent flight mileages accumalated from the official trips before or on or after release of this regulation can be used for private purposes now. The underlying law was enacted quite some time back but pending the regulation, it was in limbo. Until the law was changed, the federal employees were allowed to use the frequent flight mileage only for official travel and not for private travel. This website's federal employees constituents (INS, DOJ, DOL, DOS, etc) who provide public services to our alien immigrant visitors may want to read this regulation. This is posted to return "thanks" to their dedicated hard work and good public services for immigrant community. Back to Top

Updated 04/26/2002: Immigration Service Restructure: Heading Where Now?

• After the loud thunder in the lower chamber of the U.S. Congress, question remains where the immigration service restructure marching will end up to. No one knows. However, a few things seem to be somewhat certain from the information released in the past three days: First, the replacement of the current INS appears to be accepted by all the parties. The White House and Attorney General Ashcroft conceded this. Accordingly, the chapter of Justice Department INS agency may be over soon after a history of all the ups and downs since 1940. The only question which needs to be resolved is the difference between the House version of restructure and the Senate version of restructure. The so-called Kennedy-Brownbeck bill to be introduced in the Senate Judiciary on May 2 reportedly retains the immigration/enforcement business as an outiside agency of the U.S. Department of Justice and to be headed by a "Director" just like the FBI. Within the agency, though, immigration function and enforcement function will be structured as two separate Bureaus with clear separate lines of command. It is unclear to this reporter how this plan differs from the current INS restructure plan, but will find it out soon. Second, the Attorney General expressed his support for the INS Commissioner, James Ziglar, being continuously involved in the leadership with the restructured new organization. However, one of the loud voices that thundered the House chamber yesterday was the express of the House to seek accountability for the current INS crisis. The House was somewhat targetting at the people of lower level than the Commissioner himself, but it is unclear whether Mr. Ziglar himself wishes to remain with the immigration business after all this fuss. Reportedly, Mr. Ziglar is not returning the phone calls of reporters. There was some indication that there would be some changes of people within the INS to deal with the accountability for the current problems. For other details, please read the Post article.
• The on-going immigration restructure process raises many questions unanswered not only for the policy makers, but also for the innocent thousands of INS employees and their families as well as immigrants whose cases are in the current INS pipeline or who need to file certain applications and petitions. It is obvious that whatever the new structure the legislature eventually creates, there will be some type of mechanisms that somehow assumre a smooth transition. In the House yesterday, there was an amendment proposed to make INS officials "at will" employees rather than civil service positions so that employees be terminated easily when the employees are accountable for any problems. However, this amendment was rejected by the full House. Thus the jobs of most of the current INS employees appear to be somewhat assured, unless it is a political position or a temporary position. However, the House bill sponsor was taking a very hardline position against the INS and its employees, asserting that the INS should be changed from the top to the bottom. Please read on.
• The big question is the impact on the millions of immigrants, their families, the business employers. The most and foremost important issue will be the impact on processing times. One of the key discontents that were loudly and repeatedly voiced and heard in the House chamber was the INS backlog problem. Thus in the long run, immigration applicantsor petitioners will get benefits from the changes one way or another in the long haul, but there may arise some time lapse during the transitional period which may or may not affect the processing times in the beginning of the restructured immigration/enforcement businesses. It is hoped that everything be handled smoothly such that millions of innocents immigrants are not affected negatively, even if for a short while. Reportedly, the Bush White House originally anticipated to complete the restructure in two years, but since that plan has been now sraped, the restructuring is expected to come earlier than anticipated. Once the Senate passes its versions, the House and Senate bills need to be compromised in the Senate or in the joint conference, but it appears that the pace of legislative activity for immigration restructure is marching rather swiftly. We will keep a close eye on the Hill and the White House. Presently, the AILA opposes the House version and supports the upcoming Kennedy-Brownbeck version for the reasons of independent and stronger authority to be granted to a new agency and one top authority assurming the authority for coordination between the immigration function and the enforcement function. Back to Top

Updated 04/25/2002: H.R. 3231 Voting Record

• The bill was passed by the absolute majority of 405 yeas and 9 nays.
• It is interesting to note that out of 9 nays, 7 are Democrats, 1 is Republican, and 1 is Independent. Considering the fact that Senator Kennedy disagrees with the House bill, the Democrats tend to support the INS. The 7 Democrats are: (1) Melvin Watt, NC (2) Zoe Lofgren, CA (3) Patsy Mink, HI (4) Neil Abercrombie, HI (5) Earl Pomeroy, ND (6) Eva Clayton, NC (7) Mike Honda, CA. The lone Republican is Jim Kolbe, AZ. The Independent Congressman is Bernie Sanders, VT.
• Isn't it interesting that the Republicans more opposed to his own Administration's proposal than the opposition party members, Democrats? No wonder why the White House came forward, backing out of the Administration plan and instead, supporting the House proposal! Remember, though, that the House is controlled by the Republicans and the Senate is controlled by the Democrats. People may thus end up seeing a sort of abnormal phenomenon of Republican legislators oppositing Republican Administration proposal and Democrats support the opposite party Administration proposal. It is obvious, though, that the two bed fellows may sleep in the same bed dreaming something quite opposite each other. What would that be? Hmmm....... Interesting !?!...................................Back to Top

Updated 04/25/2002 03:25 EST P.M: House Just Passed H.R. 3231

• The U.S. House just passed H.R. 3231 proposing to abolish the current INS. The bill will now move to the U.S. Senate. But Sen. Kennedy is anticipated to introduce a bill which proposes to keep the INS with the two separate bureaus within the INS. This Senate proceeding will start on May 2 at the Senate Judiciary and this web site will monitor further development.
• The House amended the title of the bill and made a few amendments to the bill which was passed by the Judiciary Committees. For the original bill, please click.

Updated 04/24/2002 Midnight "Special Breaking News" Report: White House Backs INS Abolishment Bill!!!

• The INS' fate appears hanging at the brink because of the dramatic turn of the White House, according to CNN, to support the H.R. 3231, abolishing the INS. Please read on this dramatic news! Oh My My.........It will make tomorrow's House decision on H.R. 3231 a historical event for the American immigration chapters. Reportedly, the Attorney General has also given up its own restructuring plan and is expected to announce the changed policy on tomorrow's news conference immediately before the passage of the bill in the House. The bi-party vote count is reportedly assured in favor of this bill, and with the change of policy of the Bush Administration, abolishment of the INS appears a "done deal." The INS problem has angered the Republicans in Congress as it will pose a liability for the upcoming mid-term national election. Please stay tuned to this web site for the development of historical news. Back to Top

Updated 04/24/2002: No Signature Card Needed for EAD Application

• AILA has confirmed from the INS HQ that the Service Centers no longer require or use a signature card to produce Employment Authorization Card. One time the procedure requiring the signature card as part of EAD application with the Service Centers was a big headache. Not any more. The Service Centers will scan the signature from the application form I-765 itself. Accordingly, the INS advises that people sign the I-765 form in "black color" pen and not blue color pen. Back to Top
  

Updated 04/23/2002: INS Developing Various Alien Address Change Report Forms

• The INS is currently developing various forms of address change report for the aliens, reflecting the INS' growing attention to the requirement for aliens to report change of address within 10 days. The obligation of report includes immigrants as well as nonimmigrants. People may also start paying attention to this legal requirement and try to comply with the law as best as they can, since people have nothing to lose from reporting change of address. Apparently, this heightened attention to the locations of the aliens is related to security issues, facing a political heat post security check lapse related to the Atta saga. Back to Top

Updated 04/22/2002: INS Released Regulation on Detainees Info Release

• This morning, the INS released a regulation forbitting the non-federal providers (state and local law enforcement agencies and half-way houses) of the immigration detainees from releasing information on the detainees. This is a very controvertial regulation in that it defies a recent federal court decision to release the detainee information. For the full text of the regulation, please click here. For the INS announcement, please click here. Back to Top

Updated 04/21/2002: PERM Labor Certification Program Regulation Imminent?

• The DOL was initially planned to release the PERM regulation in June, 2002. However, there is some indication that the regulation may be released somewhat earlier than initially planned. Sources indicate that the regulation will be released in the form of "proposed" regulation with the 60-day comment period. Proposed regulations do not take effect until the comment period passes and the agency releases either "interim" or "final" regulation. Agency is not required to release either interim or final regulation immediately after 60-day comment period. Accordingly actual implementation of the PERM program may still take awhile, certainly not before the end of this fiscal year nor maybe not even the first quarter of next fiscal year( October-December 2002).
• What should employers do in preparation for the new labor certification process? First and foremost, they should understand what PERM permanent labor certification procedure is about. PERM procedure is somewhat a mirror image of the current H-1B labor certification application filing system. It is called one-tier system in that the application will be filed directly with the federal agency. Currently, the labor certification application is first filed with the state offices (SWA), which then forward the applications to one of the six DOL Regional Offices when the state completes its processing. The DOL will again use same concept of the Service Centers (San Francisco and Philadelphia) just like H-1B LCA. PERM application may be filed via fax or mail addressed to one of these two Service Centers depending on where the job is located.
• The two Service Centers will just paper-process the applications and probably scan the applications to one of the current 6 Regional Offices for final adjudication of the applications. DOL predicts that about 80% will then be approved within one week to two weeks and certainly within one month. The remaining 20% cases will be handled as cases which are similar to the current "regular" labor certification process, which is called "supervised" recruitment process. However, the supervision is expected to be undertaken by each Region's Certifying Office rather than state offices. Again, state offices are limited to processing of "prevailing wage determination" and "temporary"alien labor certification applications, such as H-2B, H-2A, etc.
• How 80% vs 20% cases will be determined? It will be determined mostly by the machine readable features of the PERM application. Currently, H-1B LCA form has a very limited number of machine readable features, but the PERM labor certification application form is expected to incorporate 20 or more machine readable features which will give the Region's Certifying Officers a series of points for each machine readable feature and allow them to make a decision quickly. Therefore, these 20-some criteria will form the center and backbone of the new permanent labor certification procedure.
• What are these 20-some factors? The DOL will lay out these criteria in the upcoming regulation. Initial indication reflects that the criteria will focus on determination of "bona fide" and "good faith" employer in looking for "U.S. workers" during the six months period. Accordingly, it will go beyond the current RIR standards which just focuses on the "bona fide" and "normal" test of the local labor market and the "result" of the recruitment process. For instance, the employers employing mostly H-1B foreign workers, particularly the H-1B dependent employers, are likely to lose some points for the 80% vs. 20% category determination, as the DOL's perception will be that H-1B dependent employers may have less likelihood of hiring U.S. workers. It is unclear whether the Master's degree exception and $60,000+ salary exception for H-1B dependency determination will be incorporated into the PERM criteria. It is almost certain, though, that the PERM labor certification form may ask question on the number of H-1B employees and other information on the emplolyees of the employer.
• What should employers do in the meantime? It may be premature for the employers to start recruitment process before the proposed regulation is released if the regulation will accept only the past 6-month recruitment evidence. The key is when the actual PERM program will be launched and effective what date. There is no clear-cut answer to this question at this time. There are, however, something the employers may want to build step by step: Build the evidence of a "good-faith and bona fide" employer and other evidence similar to the current RIR recruitment process and result. Employers should use the "scale" the lawyers use all the time to build a case. The heavier the adverse factors on one side of the scale is, the heavier favorable evidence emplolyer should build and develop to tip the scale to either "even" or "favorable" side. For the details of development of the evidence, the employers should start seeking legal counsel. Good luck! Back to Top

Updated 04/21/2002: U.S. Loses Cutting Edge in Supercompuer Competition

• Report indicates that Japan has developed a supercomputer technology which is twice faster than two leading supercomputers combined in the U.S. Until now, the U.S. supercomputer has been the fastest in the world. Should it be a wake up call to the U.S. leaders and policy makers? The nation should not lose sight of importance of international competition not only in the political power but also other critical infrastructure which will have a long lasting impact on the country's economy and leadership in the world. Back to Top

Updated 04/20/2002: 245(i) Bill Failure: Mixed Bag News

• The U.S. Senate's failure to pass 245(i) bill as part of H.R. 3525 is a news of mixed bag. The 245(i) bill was particularly of little value and meaning for the employment-based immigrants by requiring that the labor certification should have been filed before 08/15/2001 to be eligible for the benefit. Additionally, it also required that he/she should have been physically present in the U.S. as at December 21, 2000. These two conditions practically made the bill useless. The bill was supposed to help family-based immigrants, though, as it just required familial relationship before 08/15/2001. Mexican illegals should have benefitted to a great extent from the bill.
• Well, it is gone now. However, the AILA reported that the Congress might introduce again another 245(i) extension bill down the road. Remember that this is an election year for U.S. Senators, Congress People, and State/Local elected officials. It is hoped that any new 245(i) bill that will be introduced remove those nasty restrictions. Businesses, immigrant community, and the AILA should work harder to achieve the goal. Who knows? Back to Top

Updated 04/20/2002: INS Massive Hiring of Patrols/Inspectors on the Way

• News report indicates that by the end of September, the INS hopes to have 8,000 new employees, with 6,000 headed to work on the borders. By September 2003, the INS hopes to hire an additional 4,000 people, according to the news. The new employees will reportedly increase the INS work force by about a third, to 49,000. Most of the new employees will reportedly end up working on the northern border, approximately doubling the number of Border Patrol and immigration inspectors there. Back to Top
  

Updated 04/19/2002: Security Check for All Applications/Petitions

• INS reports that the INS is undertaking security check and clearance for all the applications and petitions that they receive. Reportedly, setting up of the security clearance systems within the INS offices has caused some delays or backlogs, particularly Missouri Service Center. It is also not known how much such security clearance procedure will cause delay in processing of applications and petitions. Please stay tuned to this web site for additional information. Back to Top

Updated 04/19/2002: Disappointing News for I-140 Premium Processing

• The INS has disclosed that the INS will not start premium processing for I-140 petition now, according to the AILA report. The news of I-140 premium processing has been on and off from various INS sources for the last one year. It appears, though, that eventually the INS may start it at some point down the road. The news of delay is indeed disappointing. Back to Top

Updated 04/19/2002: Senate Passed H.R. 3525 Border Security Bill W/O 245(i)

• Last night, by 97-0 votes, the U.S. Senate passed this bill unanimously. In order to get the border secruity bill passed, overcoming Sen. Byrd's opposition, the Senate had to drop 245(i) legislation. For the bill originally introduced, please go back to our report on 04/12/2002. Please read on. Back to Top

Updated 04/18/2002: Full Text of AG News Conference on INS Reform

• The Attorney General had a news conference yesterday to announce and launch the INS reform. The transcript of the news conference covers more than reform plan and people may want to read it. Back to Top

Updated 04/17/2002: USDA to Process Pending FMG J-1 Cases

• As the foreign physicians are well aware, the USDA suspended its IGA program in February this year on the ground of security risks. AILA reports that for the pending 86 cases only, repeat only 86 pending cases, the USDA reverses its February suspension and has decided to continue processing J-1 waiver program. What a fantastic news for these foreign medical doctors!
• More good news. Reportedly, the Bush Administration remains committed to ensuring that physicians are available to the maximum extent possible to provide service to medically underserved areas. For these reasons, the White House has formed an interagency task force to review the J-1 visa program for foreign physicians. Please stay tuned to this web site for the development of this news. For the full text news release, please click here. Back to Top

Updated 04/17/2002: INS Commenced Internal Restructuring Per Its Plan

• Effective today, the INS has restructured the line of command for enforcement function following its Restructuring Plan which was announced earlier. Today's action is a first step of implementation of its plan and involves mostly District Offices, Border Patrol, Detention Facilities, and Regional (administrative) Offices, relating to the INS enforcement function, not including the 5 Service Centers for immigration benefit services functions. Each of the affected offices will be directly commanded by the INS HQ from today. For the details, please read the INS Fact Sheet. Back to Top

Updated 04/17/2002: State Dept Cables Alternative Affidavit Rule to Posts

Updated 04/16/2002: Flexibility of New Visitor-Student Rule Operation

• INS has released a note clarifying some of the issues that caused confusion in immigrant community. The note focuses on flexibility of implementation of the newly enacted regulations and excemption of those who are or will be already in the U.S. at the time of effective date of these regulations. Please read on.
• Before these regulations were released, this web site had expressed a concern of potential different treatment between those who will enter on a B visitor's visa and those who will enter on visa waiver program. The newly released regulations exemp visa waiver countries from these regulations, but this web site is satisfied that there is no different treatment between the two groups because of the way the regulations have been written and the INS' policy of implementing the regulations flexibly. Viewed from the perspectives of consequences of the two policies for these two groups, this web site sees no different treatment. We commend the INS for its job well done in drawing up the regulations. Besides, wisdom always lies not in the printed rules but in how rules will be operated. Back to Top

Updated 04/13/2002: Understanding Immigration Restructuring Plans

• Currently, there are three types of INS restructuring plans: (1) White House plan (2) INS plan (3) Congress plans. All these plans start from the same sense of the fundamental sources of the current INS problems: Serious problem in the line of command in the agency's administration. Accordingly all these plans agree on one concept: split of the two functions of immigration services and enforcement into separate divisions.
• The differences come from sense of policy makers as to how much these functions should be given for independent operation. Both of Congress bills, H.R. 3231 and H.R. 1562, propose to turn the immigration and enforcement functions into two of the lower levels of divisions within the internal organizational structure of the U.S. Department of Justice and abolish the current semi-independent agency outside the U.S. Department of Justice structure. Meanwhile, the INS understandably proposes to improve chain of command within the current INS structure by separating the two functions under the direct command of the Commissioner. Additionally, the INS plan proposes to remove the position of directors of field INS Offices, including all the INS District Directors and the Regional Directors, making these field offices under the direct command of the INS HQ. The White House plan has yet to see further development, but reports indicate that it favors the INS plan, except that it proposes to reenforce the security functions by merging the Customs Office into the enforcement division of the INS.
• Thus there is a difference of opinion on resolving the line of command problem in the immigration business between the Bush Administration and the Congress. Thus at some point, the Bush Administration and the Congress will have to produce a compromise plan. Otherwise, there will be a collision course ahead of us between Bush and the Congress as it is somewhat obvious that the Congress is most likely to pass a legislation to abolish the INS. It is too early to assess the impact of the immigration business restructuring on the lives of immigrants in terms of processing times and policy changes. One thing is clear, though. The result will have a profound impact on the immigrants and we should keep a close eye on the development of this news! Back to Top
  

Updated 04/12/2002: 245(i) BILL: Senate Judiciary Subcomittee Killed?

• Today, the Senate Judiciary picked up the H.R.3525, so-called "Border Security Bill" which includes 245(i) extension bill. This bill has encountered a strong opposition from the powerful Senator Byrd and delayed for over months.
• Report indicates that in order to smoothen the Senator's opposition to the border security portion of the bill, the Senators dropped the immigration portion, which apparently means 245(i) and are expected to vote sometime next week, apparently without 245(i) bill. Senator Feinstein of California indicated that 61 yeas would vote for the bill. Please click here to read the CNN report. Also click here for the text of the bill as originally introduced in the House and sent to the Senate.
• The report is still sketchy and please stay tuned to this web site for the dramatic turn of the fate of 245(i) in the Senate next week. Back to Top
  

Updated 04/12/2002: AG Orders Sharing Info Between Feds and Local Agencies

• Attorney General has issued an order that the federal agencies, including INS, FBI, etc. shares the datebase. Additionally, the AG also orders that the feds share the database and other information with the local and state law enforcement agencies. Read on.

Updated 04/12/2002: INS "Proposed" Rule: Visitor(B) Period Limit Change

• As predicted, the INS released this "proposed" regulation requesting public's comment until 05/13/2002. Thus until the comment period is over and a final rule is published, this proposed rule will not go into effect.
• This proposed regulation limits the maximum period of stay, including extension, to 6 months. At the time of entry, the immigration inspector will determine a fair and reasonable period for each visitor and where there is any ambiguity whether a shorter or longer period of admission would be fair and reasonable under the circumstances, a B-1 or B-2 non immigrant should be admitted for a period of 30 days. This period is neither a minimum nor a maximum, and the inspecting Service officer will be authorized to admit a B nonimmigrant for a shorter period or for a longer period (not to exceed 6 months), depending on the circumstances and the stated purpose of the alien's visit to the United States.
• Change of B visa visitor to a student (F-1 or M-1) status will not be granted unless the immigration inspector noted on I-20 such purpose at the time of entry. This limitation to change of status for B-visa visitors applies only to a student visa status and not, repeat not, to change of status to other nonimmigrant status. However, because of the INS rule of 60-day presumption of misrepresentation, those who are admitted on a 30-day stay permit will experience difficulty in getting a change of nonimmigrant status. The presumption rule presumes that if a visitor attempt to change nonimmigrant status within 60-day of entry, he/she made a misrepresentation of purpose of the trip at the time of entry or at the time of B visa application.
• For other details, please read this proposed regulation. Back to Top
  

Updated 04/12/2002: INS Rule: No School Attendance Before F/M Change

• The INS published this interim regulation today. This regulation goes into effect as of today, 04/12/2002. Thus anyone who enters today on a B-1 or B-2 visa will be subject to this rule.
• This rule prohibits B-1 and B-2 visitors from pursuing a course of study until the application for change of status to F-1 or M-1 is filed and approved. The consequences of violation of this new rule will be very harsh. Back to Top

Updated 04/11/2002: INS Clarifies Visitor/Student Rule Changes

• INS has released a note clarifying some of the issues which have caused confusion in the community. People should note that this interpretation of INS is consistent with this reporter's summary posted yesterday. Please read the INS note. Back to Top

Updated 04/10/2002: FAQ re: Visitor/Student Restriction Regulations

• AILA has reported that the regulations will be published on 04/12/02, Friday. The following are answers to a few FAQ. People should wait for release of the regulations to get the correct information.
• Effective Dates: Regulation prohibiling visitor to attend schools pending application for change of status to a student will become effective, the date of release, most likely 04/12/02. The following rules and discussion are limited to the so-called 30-day rule. The regulation limiting visitor status from 30 days to maximum six months will not become effective at least for 30 days from the release of the regulation. This second regulation will be published in a form of "proposed" regulation which needs at least 30-day comment period before the agency releases a final regulation which has a legal binding force.
• Period of Stay: Maximum is six months and inspectors will be instructed to issue 30 days in most cases. But the inspectors have a discretion to issue either a shorter or longer period considering the circumstances. The 30-day limitation is not, repeat not, absolute rule.
• Extension of Stay: Unless humanitarian concern or emergency or other factors which are beyond his/her control is proven, no extension will be allowed.
• Change of Status to a Student: Will not be permitted unless it is disclosed to the inspectors.
• Affect on Existing Visitors Who Entered Before Release of "Final" Regulation: The period of stay granted prior to the effective of this new regulation (30-day rule) will not be affected and they will be able to complete their stay. Extension filed after effective date of this 30-day regulation by the existing visitors will be strictly restricted and limited to the rule of maximum 6 months. Back to Top

Updated 04/10/2002: Mexican Senate Rage Over U.S. Immigration Policy

• As this web site reported, the U.S. immigration policy on Mexican immigration is not only an issue which is deeply embedded in the politics in the U.S., but also an issue that affects the future of Mexican President Fox and his party. Today, CBS Morning News reports that President Fox intended to visit the U.S. and Canada for a series of summit meetings but the Mexican Senate blocked it for the reasons that his trip would not worth anything because of the U.S. immigration policy. Uhuhhh....... Back to Top

Updated 04/09/2002: INS Commissioner Testimony Before House Judiciary

• Today, the INS Commissioner appeared before the House Judiciary Committee and testified on the INS restructuring and related issues. For the full text, please click here. Back to Top

Updated 04/09/2002: 30-Day Mandatory Surrender Upon a Final Removal Order

• INS is expected to publish a proposed rule which make surrender within 30 days of final removal order "mandatory" and failure to surrent will face a bar to the future immigration benefits. For the INS announcement, please click here.

Updated 04/09/2002: Deputize Local Police Officers for Immigration?

• On April 4, 2002, the Washington Post reported another extremely controvertial opinion of the Legal Counsel of the U.S. Department of Justice that the local law enforcement officers are authorized under the constitution to enforce the immigration laws. It is controvertial in two points, among others. First, the fundamental principle of separation of powers between the federal and state governments under the U.S. Constitution will be seriously threatened. Second, there is a question of how far the federal government can deputize private citizens and local law enforcement officers for the federal law enforcement. The concept of deputizing local law enforcement officers is indeed a very novel opinion which is something to watch very carefully. Back to Top

Updated 04/09/2002: INS Announces Visitor/Student Restrictions

• This website reported that after the Atta blunder, the INS Commissioner testified before the Congressional committee that the INS was working on regulations to restrict visitors' entry to 30 days and restrictions to change of status to student or attending schools while waiting for approval of change of status. For the INS announcement, please click here. Read also fact sheet.
• Yesterday, the INS announced that the INS would implement such policy by releasing regulations. Such regulations have yet to be published. It is not clear whether the regulations would apply only to visitors from countries of non-visa waiver program. It will stir political controversy, should the new policy discriminate against certain nationals. Please read on for the news report. Back to Top

Updated 04/08/2002: Step-Up of Northern Border Security

• Report indicates that hundreds of Border Patrol agents, immigration inspectors and Customs Service personnel have been shifted north, and more are on the way. By year's end, the Border Patrol will have more than 600 agents along the northern border, and the Bush administration wants to add 285 more in fiscal 2003. For the details of other arrangements for other security measures, please read the report. Back to Top
  

Updated 04/06/2002: INS Inspectors Retirement Age 5-Year Shortened?

• The INS Inspectors are currently not considered as Law Enforcement Officers for the purpose of retirement. They have to work for 25 years before they retire.
• The legislative bill, S.1935, will allow them to retire after 20 years of service rather than 25 years if this bill is legislated. The bill is at the U.S. Senate Committee on Government Affairs.
• Officers, are you tired of working at the International Airports or Land or Sea Borders? Then, you may want to keep track of this bill to find out whether you can retire five years early! If any of you need the full text of this bill, please send this reporter email. Back to Top

Updated 04/05/2002: Expanded Visa Posts for Prepayment of IV Fees

• As this website reported earlier, the U.S. Department of State has been transforming the immigrant visa application procedure, requiring prepayment of immigrant visa application fees and fees for advance review of I-864 affidavit of support. Currently, the list focuses on the immigrant visa posts in Africa.
• Effective May 1, 2002, additional visa posts in Asia, incluidng New Delhi, India, Seoul, Korea, Tokyo, Japan, Taipei, Taiwan, Hong, Singapore, Manila, Philippines, and other immigrant visa posts designated by the regulation which is released today will require immigrant visa application fee payment when visa application is filed rather than at the time of visa interview and will initiate advance review of I-864 affidavit of support on payment of special fees. Please click here for the details.

Updated 04/04/2002: Closed Immigration Hearing Ruled "Unconstitutional"

• Yesterday, a federal judge in Michigan reportedly ruled a closed immigration court hearing against one of the Middle Eastern detainees arrested in the recent sweep of Arab/Middle Eastern illegal aliens in the Detroit area "unconstitutional." The immigration judge in the case closed the hearing based on the memo of the Chief Immigration Judge, Creppy.
• The Justice Department's policy limiting the constitutional right to due process and civil liberty of the aliens on the ground of security is growingly under attack in several fronts, particularly ACLU. For this important judicial development, please read the Washington Post news. Back to Top

Updated 04/03/2002: U.S. Passport No Longer Issued Abroad

Updated 04/03/2002: New Digitized U.S. Passport & Visa Stamp

• CNN reports that the U.S. Department of State is scheduled to issue a U.S. passport on April 8, 2002 using digital technology for enhanced security against terrorism. These new passports will be issued to those U.S. citizen applying for the renewal of their passports, and those who still have a valid visa do not have to apply for a new passport until they need renewal. Reportedly, the U.S. Department of State will also issue a new visa stamp named "Lincoln visa" beginning from next week which also incorporates the digital feature for the identical purposes. For the U.S. Department of State announcement, please click here. Back to Top

Updated 04/02/2002: Advisory to Incoming V-Visa Holders

• Please ensure that the V-Visa holders entering the U.S. ports of entry or airports get the "medical" packet ready for the immigration inspectors. Soon, those who fail to comply with this advisory will be detained and experience a so-called "medical hold" at the airports pending the medical quarantine or clearance by the government physicians. It will be a very embarassing experience!
• The U.S. Department of State announces that: All V visa holders, including those with "normal" medicals, should be reminded to have their medicals readily available for INS upon arrival at the port of entry. INS field guidance currently being revised will instruct INS inspectors at ports of entry to notify appropriate quarantine (PHS/CDC) personnel when a V nonimmigrant arrives at a POE to apply for admittance to V status without any medical documents or without a waiver (if one is required to overcome a Class A medical condition). PHS/CDC will place a "medical hold" on V visa holders who arrive at POE without their medicals. "Medical Holds" require that INS defers the applicant until he or she is examined by a civil surgeon and submits completed medical documents and/or a waiver application.
  Back to Top

Updated 03/31/2002: Terrorism and High-Tech Firms' Vie for Govt IT Money

• The Washington Post reports that the Homeland Security Office is flooded with contacts by the IT firms to grap the federal money. Bush's proposed 2003 federal budget reportedly includes $52 billion for government information technology, $2.4 billion for anti-bioterrorism research and development, $4.8 billion for airport security. The homeland defense budget is $37.7 billion. It is a big money all right. The questions for our visitors are: Is the high-tech a solution for terrorism? Really? Secondly, will foreign IT workers be allowed to be involved in the projects? You be the judge of it. Maybe, the creation of the government project IT jobs can somewhat dry up the IT U.S. worker workforce pool and the overall demand for IT workers may increase, helping(?) foreign workers as well. Something to wait and see. Please read on. Back to Top

Updated 03/29/2002: DOL FY1999-FY2004 Labor Certification Strategic Plan

• In order to understand the DOL's labor certification reengineering process, it is important to review the DOL's 5-year strategic plan to figure out where the DOL is heading at this time and is expected to move to which directions. In fact, the DOL prepared "Strategic Plan FY1999 - FY2004" in Semptember 2000 and has been implementing the plan step by step each year. After reading this plan, people will realize that it was no coincidence that the DOL HQ recently developed and released various alien labor certification processing times. It was to implement the 5th strategic plan in the following 5-year alien labor certification reengineering process.
• The five strategic plans of alien labor certification are as follows:
  • (1) Backlog Reduction: Continue to employ the backlog reduction strategy used in 1999 and 2000 involving additional funding for overtime for staff in the 10 large states with largest backlogs and improved, streamlined processes which will be elaborated next.
  • (2) Reengineered Streamlined Processes (PERM Program): In 2001, phase out the two-tier certification process in which SESAs first review employers' certification applications, confirm that the employer is paying a "prevailing wage" and help advertise the opening to ensure there are no domestic applicants for the job opening. The DOL Regional Office then reviews the cases and if it determines there will be no adverse impact, allows the employer to seek the alien's admission from the INS. In the streamlined process, employers will apply directly to either of two DOL Regional Office sites (San Francisco and Philadelphia).
  • (3) RIR Focus (RIR Conversion): Issue a regulation in FY 2001 which permits greater use of the RIR procedure which relies more on employers' previous recruitment efforts to establish the lack of available domestic workers for the positions to be filled by foreign labor.
  • (4) User Fee Charge: Seek legislation which will permit charging of fees which can be used to fund additional staff positions.
  • (5) Processing Times Tracking System: The Regions are implementing a data system which will enable tracking and reporting the time required to complete each application. Under the current old "two-tier" system, only the number of cases on hand is available. The new data will enable the process to be managed not only by the number of cases on hand but also by the speed of the service being provided, permitting monitoring of overall timelines and the identification of types of applications which require additional attention. The DOL website has already started the initial phase of this reporting system, which was scheduled to update monthly.
• So far, this 5-year strategic plan has been progressing as scheduled. As this reporter reported earlier today on this Breaking News, the foregoing plan (2) will be launched starting from release of the PERM regulation in June or July, followed by the launch of PERM alien labor certification filing directly to either San Francisco Service Center or Philadelphia Service Center in the second quarter (Jan-March, 2003?). The SESAs will be phased out except the business of wage determination and temporary nonimmigrant alien labor certification programs. The tracking report will be continuously improved to reflect correct processing times at each office. Sooner or later, it is anticipated that the DOL will introduce a legislation on user fee charge system. Indeed, the user fee concept was first reflected in the DOL budget proposal a year back, but has been delayed. Without doubt, the DOL will push forward this plan (4) soon as planned. Please stay tuned to this web site for the development of implementation of these plans. Back to Top
  

Updated 03/29/2002: DOL Alien Labor Certification Budget FY 02 vs. FY 03

• The following is the comparison of DOL Alien Labor Certification funding between FY 2002 and FY 2003. FY 2002 is the appropriation figures and FY 2003 is the requested figure which the Congress has yet to approve.
• Alien Labor Certification: 26,100,000 5,540,000 (20,560,000)
  H-1B Fee Revenues: 0000000000 137,500,000 137,500,000
• In FY 2002, the total funding was $26,100,000 and no H-1B fee was diverted to the permanent alien labor certification budget. In FY 2003, the alien labor certification request will be reduced to $5,540,000, losing $20,560,000. However, in FY 2003, $137,500,000 H-1B fee revenue will be diverted to the alien labor certification program for permanent alien labor certification backlog reduction. Accordingly, the net gain in the FY 2003 funding will turn out to be $111,400,000. For the full details, please click here.
• It thus appears that in FY 2003, the DOL will heavily focus on the permanent alien labor certification reduction jobs, while other alien labor certification programs will shrink dramatically. FY 2003 starts on October 1, 2002. All the federal and state (SWA, formerly SESA) alien labor certification offices and programs are funded by this financial resources. Do you get the meaning of changes in funding?
• By the way, the latest DOL HQ news indicated that PERM regulation would be published in June or so this summer with the expectation of actual launch of the PERM alien labor certification process in the early second quarter (January-March) of FY 2003.
• Hmmm.........Doesn't it sound exciting?! But wait and see! .Back to Top
  

Updated 03/29/2002: Scope of Visa Automatic Revalidation Unavailable Countries

• It appears that there are some confusions as to which nationals other than the listed seven countries, Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba, are or will be affected by the new rule. It appears that the confusions stem from various announcements by government agencies on the list of terrorist organizations and groups or designation of 27 countries, mostly in the Middle East or Arabs, whose nationals are subject to the 20-day security clearance procedure before a nonimmigrant visa is issued or denied.
• The DOS cable which we posted yesterday clearly indicates that the automatic revalidation black-out countries in the regulation has nothing to do with all of these groups or 27 countries. The regulation itself defines how these countries are designated under what laws. Accordingly, unless the U.S. Department of State designates and reports to the Congress under the cited laws, the nationals of a country which is listed as of the so-called "27" but not one of the 7 countries in this regulation should not be subject to the automatic visa revalidation black-out list at least until the time when the Department announces such designation. Back to Top

Updated 03/28/2002: Visa Revalidation Application Filing Advisory

• As people are aware, the U.S. Postal Service mail processing in postal stations in Washington, D.C. is still experiencing problem as affected by the previous Anthrax attack. It is thus prudent, according to the office, to use commercial overnight delivery services rather than U.S. Postal Service until this problem disappears. Failure to follow this advisory may create a substantial delay in getting the revalidation stamp from the U.S. Department of State. Please stay tuned to this website for the development. Back to Top

Updated 03/28/2002: DOS Cable to Visa Posts: Implementation of Revised Automatic Visa Revalidation Rule

• The Secretary of State has sent out a cable to the visa posts throughout the world to implement the changes in automatic visa revalidation rule and restrictions. The cable elaborates a few points which are not clear from the regulation. Please read on. Back to Top

Updated 03/27/2002: Visa Revalidation Processing Times

• The Revalidation Office reports to the AILA that currently it takes from 6 to 8 weeks and it keeps improving. Good!

Updated 03/27/2002: "Big" Reminder to Canada/Mexico Travellers

• Somehow, the U.S. Department of State web site has failed to post this critical "advisory" to the web site visitors. Regardless of the government web site message, these travellers should be aware of the fact that this new rule takes effect on Monday, April 1, 2002. If any of you have a schedule to appear at one of the American Consulates in these countries and are scheduled to return to the U.S. on or after Monday, you should reconsider it if you do not have a valid visa in your passport. Even if you have a valid visa, you will not be able to return to the U.S. on that visa if you applied for a change of status, for instance, from F-1 to H-1B in the U.S.and you are no longer in school. People who obtained a change of nonimmigrant status within the U.S. should review his/her situation before he/she leaves the U.S. If any of you are still in Canada or Mexico to obtain a new visa stamp but do not have a valid visa stamp in the passport, you may want to return to the U.S. before Monday, especially if you think that you have some chances of denial of visa issuance by the American Consulates in Canada or Mexico. Remember that a valid I-94 is not, repeat not, enough to return to the U.S. if you travelled over to the contiguous countries and applied for a U.S. visa, unless you have a valid visa in the passport.
• The people from the countries which are listed in the regulation as terrorism sponsoring countries should not, repeat, not travel over to Canada or Mexico, unless they have a valid visa in the passport. For these people, the new rule applies even if they did not apply for a visa at the American Consulate in Canada or Mexico. Several laws require the Department of State to designate a foreign state as one sponsoring terrorism. They are: Section 620A of the foreign Assistance Act, Section 40 of the Arms Export Control Act, and Section 6(j) of the Export Administration Act. Consequently, the Department periodically publishes a report, Patterns of Global Terrorism, updating such designations. Currently, the designated countries are Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba.
• Special Warning to F-visa and J-visa Holders: Before this regulation becomes in effect, you were able to travel on advacent islands without a valid visa and with a valid I-94, but not, repeat not, any more after this Sunday, if you came from one of those countries listed in the regulation. This is a Spring Break time and you may plan on travelling these islands. Watch out if you came from the terrorism sponsoring countries which are listed in this DOS regulation. Back to Top

Updated 03/26/2002: Growing Interest In E-Visa and List of Treaty Countries

• Ever since a new legislation was enacted recently, giving employment authorization status to the accompanying or following to join spouses of the E-1(Treaty Trader) or E-2(Treaty Investor) aliens, people have started showing a growing interest in these types of visas.
• The first threshold for E-1 or E-2 visa is existence of E-1 or E-2 treaty between the United States and the alien's country. There are a substantial number of countries that have not entered into such treaty with the United States. Please check the DOS list of the treaty countries to see whether such visa options will be available for him or her. Back to Top

Updated 03/26/2002: J-Visa Waiver Application Processing Times of 03/2002

• The U.S. Department of State has updated the processing time for the month of March 2002 as follows:
• No objection - 4-8 weeks
  Interested U.S. Government agency - 4.6 weeks
  State department of health - 4-6 weeks
  Exceptional hardship - 3-4 months
  Fear of persecution - 3-4 months
  Advisory opinions - 4-8 weeks Back to Top

Updated 03/25/2002: Advisory to COS/EOS I-539 Filers

• In order to extend nonimmigrant status, people file I-539 with the INS, except certain employment-based aliens. The spouses and children always file this form to apply for extension or change of status.
• Please beware that the current form dated 10/13/1998 will expire this Saturday, 03/30/2002 and the INS will reject such application form. Please check the date of the form at the bottom of the form to confirm that it is "not" 10/13/1998. The only form the INS will receive beginning from April 1, 2002 will be that with the date of 09/04/2001! For the INS form, please click here. Back to Top

Updated 03/24/2002: Layoffs and Survivability of Alien Labor Certification

• The DOL HQ released the guidelines on this issue on March 20, 2002. The guidelines say to the Certifying Officers that "Yogi Berra 'It Ain't Over Till It Is Over.'" The country's poor economy and high unemployment rate change the job of the Certifying Officers as follows:
• Employer's Layoffs During the 6-Month After Submitting RIR: The Certifying Officers are directed to send a letter called Notice of Finding demanding to submit and explain the situation within 35 days, if the employer indeed laid off the employees in the specific occupation that the employer has submitted RIR application. If it is explained satisfactorily, the Certifying Officers will approve the application. Otherwise, the Certifying Officers will deny the application. Accordingly, the practice of some Certifying Officers who denied RIR strictly based the company's layoff record after 9/11without giving an opportunity to the employer should stop such practice.
• General Layoff by Other Employers in the Industry in the Area: Even though the employer did not layoff similar occupation employees, the Certifying Officers are required to take additional action, should they gain the information that there was a general layoff by the employers in the specific industry and in the specific area for the occupation. Employer will be given an option to place one more ad and submit the recruitment result after two weeks. Based on the result, the Certifying Officer should make a decision. Employer may decline to take such option and request the Certifying Officer to convert it to a regular application.
• Emplolyer's Layoff plus On-Going General Layoff in the Industry in the Area: The Certifying Officers are then mandated to collect information and data on their own initiatives using basically three sources: (1) Region's own experience and record of regular labor certification applications received; (2) State offices (SWA) record including unemployment compensation claims, job banks, etc.; (3) News and reports of various current articles on unemployment. After reviewing all these sources of data, should the Certifying Officers be convinced that there were qualified workers available in the industry and in the area, the Certifying Officers should deny the RIR application and remand to the state offices for further processing as a regular application.
• Thus bug does not stop at the submission of RIR application any more. The days are gone that when RIR applications were successfully forwarded to the Certifying Officers, such applications were more or less rubber stamped by the Certifying Officers. The agencies will from here on be proactive in investigating the job market conditions and determine availability of U.S. workers for the job. Generally, the jobs which were hit hardest will face rough road ahead in labor certification application. Back to Top

Updated 03/20/2002: Second Phase of 3000 More Voluntary Interviews

• The Attorney General more or less completed 5,000 voluntary interviews of certain aliens for the purpose of gathering information on terrorism.
• Today, the Attorney General has announced that the DOJ initiates a second phase of such interview of aliens that will number additional 3,000. For the details, please read the announcement.

Updated 03/20/2002: Obligation of Address Change Report

• There are a few legal provisions in the immigration statute which have not been aggressively enforced by the law enforcement authorities, including the INS and federal prosecutors. One of the provisions is the one which was publicized right after the 9/11 incident: Obligation to carry a legal document for the aliens. One time there was a threat that a violator of this provision be prosecuted and there were a couple of incidents at the airports or in Ohio where the authorities required to show such documents. It has, however, been quite down since then. But the law still remains in the book.
• The other law is the obligation to report the address change in 10 days after change of address for all the aliens. This is another provision which the INS has not enforced. Today, the AILA reports its communication with the INS HQ that confirmed that the aliens would have to follow the law. This report does not necessarily imply that the INS will strictly enforce this provision. But when the authorities try to tighten up security of the country, anything can happen. This is reported to just remind the people of existence of this law. Back to Top

Updated 03/20/2002: INS' Own Restructure Plan

• The move for reorganization of the INS is in full swing in the Nation's Capital circle. There have been a number of legislative or administrative proposals in the past, including the INS' own proposal which is posted here. The INS+Customs Service merger plan which we reported yesterday now gives a new direction to such move.
• The morale of the INS employees must have dropped to the lowest level at this time because of the on-going public and political criticism of the agency relating to the Atta blunder and growing uncertainty of their job security and uncertainty relating to the political move of reorganization of immigration business within the government.
• They are all hard working and innocent people just like anyone else. Their morale should be somehow boosted. Let's give them a big "Thank You" for their public services and send them encouragements. They deserve it! Back to Top

Updated 03/19/2002: Cases of Adoptive Children Immigrants With I-864 Waiver

• The U.S. Department of State explains cases of adopted children immigration application where I-864 Affidavit of Support is waived, most typically who are eligible for automatic naturalization in the U.S. For the details, please click here.

Updated 03/19/2002: Merger of INS, Customs, and Border Patrol on the Horizon?

• The Washington Post reports that the Bush Administration has been pushing ahead to merge these three agencies, and today the Security-related heads of the Administration will get together to finalize the proposal. Reportedly, this reorganization plan is also supported by the Congress. Apparently, this was worked out by the Homeland Security Director and was planned to be released as part of the President's State of Union speech, but has been delayed. Please read on. See also CNN report.
• It is unclear how the immigration function will be affected when a legislation is passed, merging the three agencies. Assuming this plan is translated into legislation, this reporter feels that it would make more sense that immigration function and visa function be merged into a separate agency or one of the existing agencies. Immigration function should not remain a part of the new enforcement agency, in this Reporter's opinion. Part of the delays in service function in the INS was related to diversion of service function revenue and budget to the enforcement function, creating funding shortfall for improvement of the services. This may be one of the ways to remove the delays that the President Bush promised as well. Please stay tuned to this web site for this dramatic developing news. Back to Top

Updated 03/16/2002: Common Misconception of "Visa"

• Media reporters are not alone when it comes to misunderstanding of the term "visa." Even a large number of immigrants do not have a clear understanding of this document and frequently fall out of status in the United States.
• Visa is a permit to "enter" the United States. Therefore, unless a visa is waived or an alien is paroled into the country, an alien must carry a "valid" (even for a day) visa to enter the United States.
• Issuance of a visa is a foreign services function and only the U.S. Department of State or its overseas posts can issue a visa.
• Once a person "enters" the U.S. with a visa, the importance of "visa" stops right there. Alien's legal status within the United States is determined not by the validity of a visa but validity of I-94 or other documents issued by the INS to either admit him/her at the port of entry or to extend/change the validity of I-94 or other document of stay permit. When it comes to issuing such documents, it is the function of the INS and not the U.S. Department of State. The proper term for these documents is a permit to "stay" and not a visa.
• Since a visa does not determine a permit to "stay" in the U.S., confusion on the terms of "visa" and "stay" frequently creates a serious problem. In a number of situation, the period of validity of a visa and the period of I-94 or other admission document do not match. In some cases, immigration inspectors at the port of entry gives an I-94 which expires earlier than the period of visa in the passport. This frequently happens if a person carries a passport which expires earlier than the visa stamp in the passport. Another situation is the INS inspector's error. People should remember that the documents that determine the legal status within the U.S. is the documents which were issued by the INS. Accordingly, even if the INS inspectors mistakenly gave a shorter time, that document controls the legal status. Some people misunderstand this concept and let the I-94 lapse when they have a "valid" visa stamp in the passport. Wrong!!! They should never let the I-94 or other INS documents lapse.
• The opposite instances are those aliens who are given longer validity I-94 at the port of entry than the validity of visa. This happens because of the agreement between the INS and U.S. Department of State that an alien will be admitted to the United States for the period which was given by the INS in I-797 Approval Notice for extension or change of nonimmigrant status rather than expiration date of the visa. For instance, an alien who was granted an extension of status by the Service Centers until June 15, 2002 but enters the U.S. with a visa which expires on March 20, 2002 will be given a I-94 at the airport which will expire on June 15, 2002 rather than March 20, 2002. If the inspector mistakenly gave I-94 valid only until March 20, 2002 in this illustration, he/she should go back to one of the international port of entry and get a correct new I-94 which will expiere on June 15, 2002. Until it is corrected, the I-94 which was issued by the inspector at the airport will control the legal status of alien and not, repeat not, the new I-94 issued by the Service Centers before he/she embarked on an overseas trip.
• The I-94 which was issued at the airport controls the alien's legal status unless it is extended by the INS afterwards. Once it is extended by the INS and issued a new I-94 at the bottom of approval notices, the new I-94 controls the alien's legal status wthin the U.S. and expiration of the original I-94 which was issued at the port of entry should not affect the person's legal status in the U.S, while he/she "remains" in the U.S. Once he/she departs, as stated earlier, the new I-94 which is given by the inspector on his/her return to the U.S. controls the alien's "legal status" within the U.S.
• One other note: In H-1B or H-4 context, change of employer and issuance of new H-1B/H-4 I-94 by the Service Centers do not affect the existing "valid" visa in the passport. Thus such alien can return to the U.S. using the old "valid" visa and without obtaining a new visa to work for a new employer. This is another agreement which was reached between the INS and U. S. Department of State.
• It is hoped that this posting helps people to understand clearly the concepts of "visa" and "status" so that they do not run into a trouble with the law and legal status! Back to Top

Updated 03/16/2002: Validity of Issued Immigrant Visa

• The immigrants who apply for immigration through consular processing either because he/she resides abroad or he/she chooses consular processing even if he/she lives in the U.S should know that once an immigrant visa issued by the visa posts, it is valid only for 6 months. However, there will be some circumstances that require him/her to delay his/her departure beyond 6 months. These immigrants should know that issuance of an immigrant visa does not make him/her a permanent resident of the United States. Admission/entry into the United States through the inspection at the port of entry makes him/her a lawful permanent resident.
• The same rule applies to K non-immigrant visa holders, either a fiancee or spouse/children of U.S. citizen, with respect to the validity period of such visas.
• The U.S. Department of State explains the eligible extension circumstances and procedure to seek extension. Please read on. Back to Top

Updated 03/15/2002: INS Shakeup Announced

• Following the terrorist nonimmigrant status approval notice blunder, today the INS Commissioner announced the shakeup of four top INS positions. For the cnn news, please click here. Back to Top

Updated 03/15/2002: INS Memorandum on Immigration Benefits of Terrorism Victims

• The USA Patriot Act provides various immigration benefits to the surviving relatives of the victims of terrorism, NY World Trade Center and Pentagon. This memorandum prescribes the procedures for preservation of such benefits. For this INS HQ Memorandum, please click here(pdf). For the USA Patriot Act, please see the links on top of this page. Back to Top

Updated 03/14/2002: 40 Quarters SSA and I-864 Affidavit of Support Waiver

• In immigration visa applications, one of the reasons that delay issuance of immigrant visa most frequently in family-based immigration is deficiency in I-864, Affidavit of Support. As reported, the President signed into law Family Sponsor Immigration Act of 2002, allowing alternative affidavit of support executed by the qualified relatives, should the petitioner die.
• The rule that waives altogether I-864 affidavit of support in the event of accumulation of 40 quarters of SSA is another important rule which family-based immigrant visa applicants should study and review. The U.S. Department of State cable elaborates different circumstances that meet the waiver requirement under this rule. Read on. Back to Top

Updated 03/14/2002: TSC E/L Spouse EAD Application Procedure

• AILA reports that the following is TSC procedure: A form I-765 must be submitted to the Service Center with jurisdiction over the dependent spouse’s place of residence; however, concurrently filed applications with Form I-129 petitions for E-1 and E-1 principle aliens can only be filed at the appropriate California or Texas Service Centers. Applicants covered by these procedures should write in the words “spouse of E nonimmigrant,” or “spouse of L nonimmigrant,” as appropriate. The basis of work authorization for the spouse of an E nonimmigrant will be noted as “A-17” under “category” on Form I-766 and (a) (17) on Form I-797. The basis of work authorization for the souse of an L nonimmigrant will be noted as “A-18” under “category” on Form I-766 and (a) (18) on Form I-797. Dependent spouses of E and L nonimmigrants will be authorized employment for the period of admission and/or status of their spouses not to exceed two years. In addition, the dependent spouses may file Form I-765 concurrently with Form I-539. As stated previously, concurrently filed applications with Form I-129 petitions for E-1 and E-2 principal aliens can only be filed at the appropriate California or Texas Service Centers.
• This procedure is consistent with the procedure of the INS HQ Guidance which was released a few days back. Back to Top
  

Updated 03/14/2002: I-539 Security Clearance Procedure in Place

• Nonimmigrants file I-539 with the Service Centers in order to change or extend the nonimmigrant status within the United States. Security clearance was not a part of the procedure before the recent incidents, including 9/11/01. Sources indicate that it is now standard procedure to complete security clearance before the adjudication of I-539 is completed by the Service Centers. Sounds a right thing to do! Back to Top

Updated 03/13/2002: President Signed Into Law: Family Sponsor Immigration Act of 2002 (Nick Name: Alternative Affidavit of Support Law)

• The White House announces today that the President signed into law H.R. 1892, the "Family Sponsor Immigration Act of 2002, which allows an alternative family member to sign the necessary affidavit of support for an alien in the event of the death of the relative who initially filed a petition for permanent resident status for the alien. For the entire text of the bill, please click here. Back to Top
• For the summary of this law, please revisit our earlier report on this Breaking News dated 02/27/2002.

Updated 03/13/2002: Terrorist Atta I-539 Approval Now in Hot Spot

• The report of I-539 approval notice which was issued and mailed out protractedly to the late Atta, the World Trade Center attacker, is creating an embarassment to the INS and the U.S. Department of Justice.
• Today the INS web site has reported a short background explanation of the incident, and the Attorney General at the same time issued a memorandum ordering the Inspector General of the DOJ to conduct a full probe. What's the fuss? As the INS web site explained, because of the processing backlog, such mistake can happen, right? Please read on.
• By the way, Dear Media Hooplas: Let's set the record straight. The INS does not have any authority to approve or issue "visas." Visas can be issued only by the U.S. Department of States and its overseas visa posts. The INS approved change of "Status" and not "visa." The U.S. Department of State certainly issued a visa to Atta and the CIA or FBI also failed to detect Atta's membership with a terrorist group before 9/11. Who says the INS is better equipped with "intelligence" network than these agencies?
• This reporter is not intended to defend the INS. This reporter just wants the medias to look at the facts straight rather than seeking a sensational news. Back to Top

Updated 03/08/2002: Termnation of Informal Processing Times Reporting

• Despite this reporter's repeated explanation of the meaning and purpose of the reporting of informal processing news, people have been creating a problem with the agencies. With regret, this web site will thus cease to report such news. Too bad. Back to Top

Updated 03/07/2002: Automatic Visa Revalidation Rule Change

• The U.S. Department of State amends this rule effective April 1, 2002. Due to the need for greater security screening of visa applicants, the Department is amending the provision for automatic revalidation of expired visas for nonimmigrant aliens returning from short visits to other North American countries or adjacent islands to exclude from its benefits (1)aliens who apply for new visas during such visits and (2)aliens who are nationals of countries identified as state sponsors of terrorism. Currently, the designated countries are Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba.
• It is extremely important that the third country nationals in the U.S. visiting Canada/Mexico for application for change of nonimmigrant visas at one of the American Consulates carry with them a "valid" visa. Otherwise, should the visa application be for any reasons denied or failed to be adjudicated, they will not be able to return to the U.S.
• This change does not affect the TCN who visits Canada/Mexico for less than 30 days, for instance, Niagara Falls, for purposes other than application for a new visa at the American Consulates in CanadaMexico.Back to Top

Updated 03/06/2002: Quo Vadis FMG Immigration?

• As people know, the sponsorship of certain federal and state agencies has been playing an important role for the immigration of clinical practice foreign medical graduates. The leading federal sponsors were Veterans Affairs Department and U.S. Department of Agriculture, and each state program (Conrad) that sponsors upto 20 physicians.
• Now, report indicates that U.S. Department of Agriculture terminated the sponsorship program on February 27, 2002 and all the pending cases are currently returned to the applicants. The news is astonishing considering the fact that the health care of the people in this country, particularly rural areas, has been seriously compromised due to the shortage of health care professionals.
• Currently, there is a legislative bill pending in Congress to increase the quota from 20 to 40 in the state Conrad program, but the action of USDA is indeed considered a wake-up call. The AILA is already working with the Congress to seek legislative actions. Hew........Back to Top

Updated 03/06/2002: FY 2000 Immigration Statistical Yearbook

• This INS Statiscal Yearbook is a jewel for study of immigration history and policy in the United States. Both pro and con immigration advocates, immigration law/policy scholars, and immigrant community should read the Yearbook. Caveat: It is quite an extensive material.

Updated 03/05/2002: H-1B Cap Number Used

• The INS has just released the H-1B cap number used during the first quarter (10/01/01 - 12/31/01).
• Understandably, it reflects the economic depression. The INS received approximately 54,000 petitions during the period, out of which approximately 28,000 was approved and approximately 18,000 was pending.
• During the same period in the previous year of FY 2001, the INS received approximately 129,000. Consequently approximately 58% decreased in FY 2002. The total annual cap for FY 2002 is 195,000. For the details, read the INS report.
• Wait a minute, future H-1B applicants! Before you smile, look what's coming in FY 2004 - annual number will be returned to 65,000. FY 2004 starts on October 1, 2003. Back to Top

For Pre-03/01/2002 News, Please Click Here.