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Immigration News
Update - Holiday Travel 2002: An Experience
We Will Not Forget
The
Attorney General will make the 2002 Holiday Season a memorable one. The following recent changes will delay numerous
holiday travelers seeking to return to the US as nonimmigrants should
they need to renew or change their visas while abroad (remember,
INS action changing or extending status in the US has no affect
once outside the US and a new visa stamp in the passport must be
obtained at a consular office outside the US prior to returning):
- No More Expedited Processing/
Mail-In Applications: Many consular posts have
eliminated expedited processing or visa by mail and now require
interviews of all applicants.
Even London has suspended most visas by mail and requires
interviews of most applicants.
While it is still possible to obtain an extension of H,
E, I, L, O and P visas by mail at the US State Department before
departing, this is subject to long delays and is not available
to nationals of states deemed to sponsor terrorism or where there
is a significant security issue.
- Security Checks Cause Delays: Security checks are required for nationals of certain countries
and the State Department refuses to publish a complete list or
state its criteria. (See attached list
of countries). These are no longer processed in 20 business
days: some visa applicants have been waiting since June for security
clearances. If an applicant’s
name is identified as problematic (a “hit”) the individual is
required to submit to a full fingerprint check and is not given
an opportunity to show that he is not the same person as that
on the hit list until the end of the lengthy process. Consequently
persons with common names may run the same risk of delay as those
who are from countries suspected of hosting terrorists.
- Sensitive Technology Triggers
Delays: If
an individual’s position involves any number of areas of technology,
the State Department would also subject the application to further
checks to determine whether the employer should have obtained
the appropriate export control license which would cause further
delays. Citizens of China, India, Israel, Pakistan,
and Russia have been particularly subject to delays on this basis.
- New Requirement for Citizens of
Commonwealth Countries: Citizens of Commonwealth
countries who are Landed Immigrants in Canada are no longer visa
exempt. This has put a
tremendous burden on Canadian posts to process hundreds of thousands
of visa applications causing delays and curtailment of services. In an unrelated development, Ciudad Juarez
is no longer available for issuance of visas to non-Mexicans (third
country nationals). Juarez was previously favored as a place to
obtain a visa for those concerned with delayed visa issuance in
their home countries. With Juarez shut down for third country
nationals there are long delays in getting visa interviews for
third country nationals at most of the rest of the Canadian and
Mexican posts.
- Brief Trips to Canada or Mexico: It is still possible however to take a
brief (under 30 day) visit to Canada or Mexico (and adjacent islands
if one is in F or J status) without obtaining an otherwise required
visa stamp so long as the individual has a valid I-94. This does not apply if an individual unsuccessfully
applies for a visa while there and this rule does not apply to
those individuals from countries deemed to sponsor terrorism.
(See attached list of countries).
As
a result of these various restrictions our clients may have to wait
for a longer period than usual outside the US while waiting for
a new visa interview and issuance. It has been difficult to advise
anyone holding a nonimmigrant visa that they can expect to return
on schedule. Of course, those who already hold a valid visa, or
Canadian citizens who are visa exempt, do not need to be concerned
with visa issuance. However,
they may be subject to Special Registration and required to Register
upon entry and report prior to departure if they are from specified
countries.
>>Back to Top
Special Registration Continues to Expand
New
immigration rules require males over age 16 from certain countries
(whether citizens of such countries or nationals of such countries)
to register with the INS. If
such an individual obtained citizenship elsewhere, he is not necessarily
exempt. Such individuals must appear before the INS and produce extensive
documentation of their status, names, and contact information for
friends and relatives here in the US, and abroad personal account
numbers (e.g., credit cards, driver’s license, bank accounts, video
rental cards) even credit card and Video Tape account information.
Failure to comply can be a criminal offense resulting in deportability
and possible inadmissibility on future visits. Exempt from these
requirements are the following: US Citizens, Lawful Permanent Residents,
and nonimmigrant holders of A (diplomatic) or G (international organization)
status visas, as well as certain persons who have filed for political
asylum. Those in the process of applying for permanent residence
however are not exempt. In
a striking illustration of the inconsistency of immigration policy,
those who enter the country illegally are exempt from registration. Nationals or citizens of the following countries are subject to
registration:
- Iran, Iraq, Libya, Sudan, and
Syria – this is the first group required to register on or before
December 16, 2002 if they will remain in the US after that date
and entered on or before September 10, 2002.
Those entering subsequently were told to report at the
time of entry within a 30-day period. The cutoff date for the
asylum exemption for this group is a filing on or before November
6, 2002.
- The initial list of five countries
was expanded on November 22, 2002 to the include the following
thirteen countries: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon,
Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab
Emirates, and Yemen. The
registration deadline for this group is January 10, 2003. Individuals from these countries who entered on or before September
30, 2002 and who plan to stay in the US at least until January
10, 2003 are subject to registration.
The cutoff date for the asylum exemption for this group
is a filing on or before November 22, 2002; and to be subject
they must remain in the US until January 10, 2003 or beyond and
have been admitted on or before September 30, 2002. This group
must register on or before January 10, 2003.
- The third list most recently announced
on December 16, 2002, includes nationals or citizens of Saudi
Arabia and Pakistan. They
must register between January 13, 2003 and February 21, 2003.
Armenia was to be added, but was removed prior to implementation.
Those
subject to registration must re-register annually within 10 days
of the anniversary of their registration. They are also restricted
with respect to the ports from which they may depart from the US.
There is a limited list of exit ports to which a special
registrant must report immediately prior to departure from the US.
Failure to comply with exit reporting requirements results in inadmissibility
on future trips. This can arise from casual travel across the Canadian
or Mexican border as well as trips home or abroad elsewhere.
Administration
of these requirements has been particularly erratic, even for INS. In some areas those in the process of applying
for permanent residence were arrested and detained if they are subject
to Special Registration. In
other areas, such as Boston, such instances have been relatively
infrequent, at least for the time being. The situation changes rapidly:
one week we got reports LA was arresting virtually no one, two weeks
later they were arresting one-third of the registrants, hundreds
per day. The American Immigration Lawyers’ Association is actively
monitoring these practices and seeking abatement of excessive detention.
We can expect this process of identifying countries to continue.
It is part of the exit-entry control program mandated by
Congress to eventually apply to all countries. Those requiring further
information should contact Vincent Lau at our office (vlau@flynnclark.com).
>>Back to Top
Department of Homeland Security (DHS)
The
President signed a bill abolishing the INS on November 25, 2002
placing most of its functions in the Bureau of Citizenship and Immigrant
Services within the Department of Homeland Security (“DHS”).
This law will make security a priority over customer service.
The President’s budget provides no additional funding for non-enforcement
functions and the combined impact of security checks and reorganization
costs will bleed away the limited resources that remain to process
applications for immigration benefits. The cost of new uniforms
alone could significantly impact processing times.
The bill failed to provide for a strong spokesman for immigration
issues, for coordination between benefits and enforcement, and to
assure funding. Visa issuing functions are even more profoundly
impacted. The State Department
will no longer have the authority to issue regulations and interpretations
– this will be the sole function of the Department of Homeland Security.
Consular officers can be ordered to deny a visa by the DHS
and their issuances will be reviewed and they will be subject to
review by the DHS. Extensive security checks will have to be performed
with no additional funds and the delays we have been experiencing
the past few months may become routine and permanent.
Adjudications Freeze at INS
While
the INS has denied it has frozen processing of applications for
permanent residence and citizenship, it has not been issuing many
approvals lately. Effective November 13, 2002, the Justice Department
has placed INS under strict orders not to approve such cases without
an affirmative response from the security agencies. There was a
tremendous backlog of checks at the FBI; consequently INS has been
unable to release thousands of approved cases. While it has got
caught up on new cases, the problem will linger for older cases.
At the same time Employment Authorization and Advance Parole
(permission for travel while permanent residence processing is underway
at the INS) cannot be approved without a file.
This caused Boston INS to halt same-day service on such applications
for a brief period. Although it is restored, there are delays in
some cases from several days to a month or more while an existing
file is retrieved from another state. This pattern reverberated
throughout the nation causing delays at all offices, some worse
than others.
Downturn in Immigration Threatens Business
While
recent studies have shown that the economy has had relatively little
impact on immigration rates, the unfriendly atmosphere spawned by
our sometimes-misguided emphasis on security has clearly taken its
toll. The Mayo Clinic and other medical centers report substantial drops
in the number of Middle Eastern hospital patients. Student visa admissions are down 20% and overall
nonimmigrant admissions are down 30%.
The reduction in foreign students and visitors has a tremendous
economic impact – the tourism industry was already threatened by
consumer fears of flying and the economic downturn.
Recent government studies have shown that the economic boom
of the 90’s was driven by immigration.
The signals sent out by our anti-terrorism efforts could
cause an already teetering economy to totter.
If these efforts resulted in pointing the needle at terrorists
it would be one thing, but for the most part these efforts enlarge
the haystack through which the government must look, complicating
the task of finding a needle in the haystack. Nonetheless, there
is cause for optimism that the pendulum can swing back. Both political parties realize that minorities
will be in the majority and they need to capture that vote. Minorities will be in the majority in Texas
in 2015, and in 5 states with 25% of the country’s population by
2025. And increasingly those minorities are foreign
born and beginning to vote their interests in a friendly immigration
environment. We have a window of opportunity to affect positive
immigration change before the next election season.
>>Back to Top
HHS Program for Physicians in Rural and
Underserved Areas
New
rules issued by the Department of Health and Human Services on December
19, 2002 authorize waivers to certain foreign physicians serving
in rural and other medically underserved areas.
This program will supersede the program administered successfully
by the Department of Agriculture until it suspended its program
without prior notice this past April. The new program will require
review of the physician’s credentials through a federal credentialing
process. The program is
only available to primary care physicians and general psychiatrists
who complete their residency training within 12 months of commencing
employment for the sponsoring employer. The sponsor will need to document that it has recruited in good
faith unsuccessfully, that it is located in a Health Professional
Shortage Area (HPSA) or Medically Underserved Area and Population
(MUA/P) or Mental Health HPSA, and that it provides care to Medicaid,
Medicare and indigent populations.
The physician must contract to provide such services a minimum
of 40 hours per week in the specified area for a minimum period
of 3 years. Without the resulting waivers, most foreign medical graduates would
be unable to remain in the United States even if they were married
to a United States citizen. Other
programs allow each state to designate up to 30 physicians for waivers,
and allow physicians to serve in selected positions at Veteran Administration
Hospitals and facilities within the Appalachian Region.
INS Expands Options for Nursing Visas
An
INS memo issued November 27, 2002 clarifies the situations in which
nurses may qualify for H-1B status.
Several years ago INS ruled that nurses no longer qualify
for H-1B status normally because H-1B’s are only to be granted for
fields requiring a 4-year bachelor degree. A 3 year nursing certificate
is acceptable for most nursing positions, so nurses were by and
large excluded from the H-1B program.
INS allowed that some nursing positions are more advanced,
but never clarified what positions do require a bachelor’s degree,
and consequently most officers would deny H-1B petitions for nurses.
The recent memo identifies such advance practice nursing
occupations which will now generally qualify for an H-1B provided
the nurse has at least a BSN and certification as a clinical nurse
specialist, nurse practitioner, certified registered nurse anesthetist,
or certified nurse-midwife. It also identifies administrative positions
such as upper-level nurse managers and supervisors. All nursing
positions may qualify in states such as North Dakota that require
a BSN for licensure. The
memo also recognizes that there are other emerging areas of specialization
such as critical care and operating room nurses that require a higher
degree of knowledge and skill.
Also, room is made on a case-by-case basis in the H-1B program
for nurses not in advanced practice areas but who are certified
in areas such as school health, occupational health, rehab nursing,
emergency room, oncology and pediatric nursing.
Nurses
can further benefit from concurrent processing of an I-140 and I-485
application for permanent residence allowed by a change in rules
this past August: the nurse can work within 2-3 months of filing
an immigrant I-140/I-485 petition, less time than it takes to obtain
an H-1B. However, the nurse
must pass the visa screen, a difficult standard for those who have
learned English as a second language, before the final decision
to adjust status.
>>Back to Top
New Student Rules
The
INS released its final regulations for the Student and Exchange
Visitor Information System (“SEVIS”) this month.
The rule becomes effective January 1, 2003.
While the bulk of the rule affects data processing for schools
authorizing study by foreign students, the rules more tightly regulate student
visas and may affect dependents of foreign national business employees.
The
SEVIS system must be updated to reflect when students fail to report
to school after 30 days, change their major field of study, transfer
to another school, or advance to a higher level of study.
Reduced course-load due to illness or academic difficulties
is now limited in duration and requires prior school approval. The grace period to depart the US for students
withdrawing from schools is now clarified and is reduced from what
many thought was a 60 day period to an explicit 15 day period. Schools are required to report to INS within
21 days the occurrence
of any of the following events: student’s failure to maintain status or complete
a program; early graduation; and disciplinary action by the school
as a result of criminal conviction.
Changes
particularly relevant to the business community include a requirement
that dependents of F-1 students, who may be employed full-time on
practical training, change
from F-2 dependent status to F-1 student status if they themselves
are engaged in full time post-secondary education. Many businesses are currently employing
F-1 students full-time on optional practical training. If the F-2
dependents of these F-1’s are already so engaged, they are given
until March 11, 2003 to file an application to change their status.
Also, the optional practical training program allowing post-graduate
full-time employment has been expanded from a maximum one-time period
of 12 months to allow an additional 12 months after a higher educational
level. Thus a student may
qualify for a year of practical training after a bachelor’s program
and again after completion of a master’s program.
Flynn
& Clark Seminars planned
With
the rapidly developing changes in immigration law and procedure,
Flynn & Clark is planning a series of seminars in 2003 to keep
its clients and friends informed. The first seminar, originally
planned for January 22, will be postponed to allow inclusion of
newest developments. We will be contacting readers of Immigration
Update early in 2003 about specific dates.
>>Back to Top
Immigration News Bulletin: Security
Checks Detailed by Country
Applicable to:
men, ages 16-45, born in the countries listed below.
Note: some posts have extended this to nationals of all countries,
regardless of age, or gender. This list is constantly changing without
notice from the State Department. Countries in Bold are deemed state
sponsors of terrorism. Citizens
of these countries will not be able to revalidate visas at the State
Department nor will their visas be revalidated automatically for
purposes of short trips (under 30 days) to Canada or Mexico.
Required:
DS 157, and a minimum wait of 20 business days.
1.
Afghanistan
2.
Algeria
3.
Bahrain
4.
Bangladesh
5.
Cuba
6.
Djibouti
7.
Egypt
8.
Eritrea
9.
Indonesia
10. Iran
11.
Iraq
12.
Jordan
13.
Kenya
14.
Kuwait
15.
Lebanon
16. Libya
17.
Malaysia
18.
Morocco
19. North Korea
20.
Oman
21.
Pakistan
22.
Qatar
23.
Saudi Arabia
24.
Somalia
25. Sudan
26. Syria
27.
Tunisia
28.
United Arab Emirates
29.
Yemen
>>Back to Top
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