In this issue:
1. Congress Passes Immigration Changes for Doctors, H-1B Workers, Investors
2. Congress Expands Conrad State 20 Program
3. Special Registration Update
4. State Department Increases Fee for Machine-Readable Visas
5. Foreign Student Update for Students and Schools
6. The Firm Speaks
7. New Articles on Our Web Site

1. Congress Passes Immigration Changes for Doctors, H-1B Workers, Investors

In early October 2002, Congress passed a Department of Justice authorization bill that includes several immigration provisions. The immigration-related provisions include:

• Waiver of Foreign Country Residence Requirement for International Medical Graduates: The bill extends the so-called Conrad State 20 program for J-1 physicians to 2004. The new bill also raises the number of waivers state may recommend from 20 to 30. Changes to the Conrad State program under the new bill are discussed more fully in the next article.
• Extension of H-1B Status for Foreign Nationals with Delayed Adjudications: The bill addresses the problem created by long delays at the Department of Labor in processing labor certifications. These delays precluded some H-1B visa holders from being eligible for the one-year extension of H status under the American Competitiveness in the 21st Century Act.
• Under the new bill, as long as 365 days have passed since the filing of the labor certification application or an immigrant visa petition (Form I-140), H-1B status may be extended in one-year increments. This will be true even if the foreign national has since changed status or left the country. If the labor certification application, immigrant visa petition or adjustment of status is denied, however, the extended H-1B status ends then.
• Application for Naturalization by Alternative Applicant if Citizen Parent Has Died: The bill authorizes a child's grandparents or legal guardian to submit an application for naturalization on behalf of a child where the child's parent, who otherwise would be authorized to submit the petition, died during the preceding five years.
• Provisions Relating to EB-5 Immigrant Investors: The bill corrects a serious injustice that has befallen several hundred immigrant investors due to actions taken by the Immigration and Naturalization Service (INS). The new law gives certain investors an opportunity to re-establish eligibility under the EB-5 immigrant investor program. Investors who meet the requirements of the new law will be granted unconditional permanent resident status. Investors who have not yet met these requirements will have two years to complete their investments or to make new investments.

True, Walsh & Miller's own Steve Yale-Loehr helped spearhead the EB-5 provisions of the bill in his capacity as co-chair of the American Immigration Lawyers Association (AILA) Investor Committee. It took Steve and his colleagues three years to get the bill through Congress. Congratulations, Steve!

2. Congress Expands Conrad State 20 Program

The Department of Justice Authorization bill extended the Conrad State 20 pilot program for J-1 doctors and expanded the number of allowed waivers to 30. The U.S. immigration law subjects most J-1 doctors to a two-year home residence requirement. Under the original Conrad State 20 program, J-1 doctors who agreed to work in medically underserved areas for at least three years were eligible to apply for a waiver of the home residence requirement to a state department of health. However, the Conrad State 20 program limited eligibility for the program to foreign doctors who obtained J status by June 1, 2002. The pilot program also allowed a state department of health to recommend only up to 20 waivers per federal fiscal year.

The new bill allows a state health department to recommend up to 30 waivers. The bill also extends the eligibility deadline for obtaining J status to June 1, 2004. The original Senate version of the bill omitted the eligibility deadline, making the program permanent. Look for renewed debate on the program's lifespan in 2004.

For more information on Conrad 30 waivers, see our new article posted at: http://www.millermayer.com/new/jdwaiverrequirement.html.

3. Special Registration Update

Last month (http://www.millermayer.com/new/news9_27_02.html article no. 3) we reported that INS implemented special registration requirements for foreign nationals from Iran, Iraq, Libya, Sudan and Syria, effective September 11, 2002. This was the first phase of the National Security Entry-Exit System (NSEERS). Effective October 1, 2002, the INS implemented the second phase of its efforts to track foreign nationals from specific countries deemed high-risk. Under this phase, all foreign nationals subject to special registration must report to an INS officer at a pre-approved port of entry before leaving the U.S. If a registered foreign national fails to report his/her departure to the INS, he/she may be presumed to be inadmissible to the U.S.

The INS has also expanded the list of countries whose nationals are subject to special registration. In addition to the five countries listed above, the INS has made male citizens and nationals of Pakistan, Saudi Arabia and Yemen between the ages of 16 and 45 submit to special registration. Additionally, the INS has discretion to requiring any foreign national, regardless of nationality, to undergo special registration if they are considered a national security risk. The discretionary factors relating to national security risk may include dual citizenship with one of the designated countries, a foreign national's unexplained trips to certain designated countries, other instances of unexplained travel, previous visa violations, people who by their "behavior, demeanor, or answers" demonstrate that they should be monitored while in the United States, and characteristics determined by intelligence profiles. Because of the broad and discretionary nature of the criteria, almost any nonimmigrant could be subjected to special registration.

The INS has published a list of 68 pre-approved ports across the country, 18 of which are airports. The pre-approved ports in New York State include the Buffalo Peace Bridge, Lewiston Bridge, Niagara Falls Rainbow Bridge, Thousand Islands, and JFK International Airport. For more on special registration, go to: http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/index.htm.

4. State Department Increases Fee for Machine-Readable Visas

The State Department is raising its machine-readable visa fee to $100 effective November 1, 2002. The fee increase results from a 20% decrease in the volume of applications the State Department received in the last fiscal year. The drop is attributable to fears about traveling to the U.S. since September 11, 2001. The drop has resulted in decreased fee revenues for the State Department, while workload for State Department employees has increased due to heightened security checks and increased numbers of interviews.

5. Foreign Student Update for Students and Schools

As reported in previous newsletters, experts continue to be skeptical that the INS' Student and Exchange Visitor Information System (SEVIS) will be operational by the statutory deadline of January 30, 2003. Immigration advocates have been concerned that if SEVIS is not fully operational by that date, thousands of new foreign students who are not already in the U.S. may be unable to enter the country and start their education.

The SEVIS program requires schools to monitor foreign students by collecting the students' names, addresses, phone numbers, class schedules and any changes to the students' personal information. Such personal information could include whether the student dropped classes, dropped out of school, or was arrested.

The U.S. House of Representatives held a hearing on September 24, 2002 to determine the progress of the SEVIS program. While an INS official testified that she expected SEVIS to be fully operational by the deadline, she added that the training might not be complete by then. In contrast, the DOJ Inspector General and the President of the American Council on Education voiced skepticism about SEVIS' prospects for meeting the deadline, referring specifically to training college personnel on how to use the SEVIS system.

In other SEVIS-related news, the INS is now requiring all schools to reapply for certification to admit nonimmigrant students. Under the new rule, schools are supposed to use SEVIS and be certified by INS by January 30, 2003. As stated above, it is unclear whether that date will hold.

Schools must initiate INS certification review by accessing the SEVIS website at http://www.ins.usdoj.gov/sevis and submitting INS Form I-17 with the required fee. To be reviewed by the INS and be granted access to SEVIS by the mandatory compliance date, the INS strongly encourages schools to submit an electronic Form I-17 at least 75 days before the compliance deadline, or November 17, 2002 by our calculation.

The INS certification review is a two-fold process. First, the INS will verify the bona fides of a school, coordinating this part of the review with the Department of Education and/or applicable state education agencies. Second, the INS will conduct an on-site interview for a review of documents to support the I-17 and to determine whether the school has complied with INS requirements.

The INS will determine which schools will undergo on-site review first, based on a risk analysis. All vocational, flight, and language schools will be required to have an on-site review before the INS will allow them to enroll in SEVIS. In contrast, the INS may allow conditional enrollment in SEVIS for certain other accredited schools before the agency visits the campus.

The new rules also require schools to be reviewed every two years. Under the old rules, a school's approval continued indefinitely.

Finally, the fee for the certification process is $230 for the I-17 and $350 for the on-site review, for a total of $580. Under prior practice, public schools were exempt from the I-17 fee, but under the new rule all schools must pay the $580 fee.

For more information on SEVIS generally, go to: http://www.ins.gov/graphics/services/tempbenefits/sevp.htm

6. The Firm Speaks

On October 23, 2002, Steve Yale-Loehr will be speaking from 7-9 pm in Alumni Auditorium, Kennedy Hall, on the Ag Quad at Cornell University about nonimmigrant and immigrant visas after graduation.

Steve will be speaking on the same topic at the Silver Center, Room 714, 100 Washington Square East, at New York University from 5-7 pm on October 24, 2002.

Finally, Steve will give a presentation on current visa and immigration issues, particularly as they relate to international educational exchange, on November 20, 2002 at Cornell.

Contact Steve at mailto:syl@millermayer.com for more details on any of these talks.

7. New Articles on Our Web Site

Steve Yale-Loehr and Michael J. Bayer have written an article on employment-based green card options for international workers in the United States. The article is at: http://www.millermayer.com/resources/immigrant/empbased.html.

An article summarizing the new Conrad 30 waiver provisions is posted at:
http://www.millermayer.com/new/jdwaiverrequirement.html.

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That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information.

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rma@millermayer.com), or
Steve Yale-Loehr (mailto:syl@millermayer.com).