In this issue:
1. Nationals of Pakistan and Saudi Arabia Now Required to Specially Register
2. INS Adjustment Adjudication Freeze Reported
3. Same Day Issuance of EAD and Advance Paroles Also Halted
4. U.S. Department of Health and Human Services to Begin Recommending J-1 Waivers
5. INS Announces Final Rule for SEVIS
6. DOS Announces J-1 SEVIS Rules
7. New Articles on Our Website
8. The Firm Speaks
9. The Firm Spells-Poorly

1. Nationals of Pakistan and Saudi Arabia Now Required to Specially Register

Under a new rule published December 16, 2002 (and modified December 17), all nonimmigrant males aged 16 or older from Saudi Arabia and Pakistan, who entered the United States on or before September 30, 2002, and who will remain in the United States at least until February 21, 2003 must personally appear before an immigration officer between January 13, 2003 and February 21, 2003. Armenia was originally included in the rule, but has since been retracted.

With the addition of Pakistan and Saudi Arabia, there are now twenty countries whose nationals are subject to special registration. The other eighteen are Iran, Iraq, Syria, Sudan, Libya, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. More countries may be added in the future.

Nationals subject to special registration will be registered upon entry to the United States. If they are already in the United States, they must “call in” to the Immigration and Naturalization Service (INS) and register in person at a designated INS office.

For details, please see our memo posted on our website at: http://www.millermayer.com/new/speregmemo.html. We also have a chart listing which nationalities are subject to special registration and other security clearance delays at: http://www.millermayer.com/new/speregchart.html.

2. INS Adjustment Adjudication Freeze Reported

INS district offices and service centers have placed a hold on issuing adjustment of status approvals. The same freeze applies to asylum and naturalization applications. The halt stems from an unpublished national INS directive dated November 13, 2002. This memo ordered INS offices not to approve adjustment, asylum or naturalization benefits until they first receive an affirmative FBI response on the applicants’ name/date of birth check. At the time the memo was issued, there was no way for the FBI to respond electronically to the INS’ requests for clearance, causing backlogs while the INS scrambled to revise its system to accept electronic FBI responses. A combination of the backlogs and revision to the INS system is responsible for the adjustment adjudication freeze.

Previously, if the FBI had not responded to the INS regarding an applicant described on Form G-325A (Biographic Information) within a given period of time, the INS assumed that there was no issue and approved meritorious applications. Now, as the INS memo makes clear, the INS must first await affirmative FBI response.

The INS has advised the American Immigration Lawyers Association (AILA) that revisions to its system are largely completed, and that checks relating to adjustment applicants can be made on an ongoing basis. However, there remains a backlog of pending cases for which INS still needs FBI clearance. FBI has sent INS tapes covering about half of the backlogged cases, but INS local officials are still reporting that they have not been given clearance to issue approvals on even those cases. Stay tuned; we will report any “thaw” in the INS freeze.

3. Same Day Issuance of EAD and Advance Paroles Also Halted

In response to the same November 13, 2002 INS memo discussed above, some INS district offices that have previously processed employment authorization documents (EADs or work permits) and advance paroles on a same-day basis have stopped doing so. Some offices have stopped issuing same-day EADs and advance paroles entirely. Other offices will still issue same-day EADs and advance paroles if the office has the person's A-file, which will rarely be the case.

It is clear that there is confusion in the field as to whether the extensive security checks applicable to adjustment benefits adjudication apply also to EADs and advance paroles. Stay tuned to future reports on any guidance from the INS on this issue. In the meantime, expect that EADs and advance paroles will likely not be issued on a same-day basis.

4. U.S. Department of Health and Human Services to Begin Recommending J-1 Waivers

A new rule effective December 19, 2002 allows medical facilities and practices to submit requests for J-1 waivers to the U.S. Department of Health and Human Services (HHS). Under the new rule, HHS will act as an “interested governmental agency” (IGA) to make J-1 waiver recommendations to the U.S. Department of State. INS grants the actual waiver requests, with the recommendation of the U.S. Department of State.

Historically, the HHS had limited its IGA J waiver functions to accepting waiver requests only for researchers whose work could have national or international significance. The U.S. Department of Agriculture and the Appalachian Regional Commission, on the other hand, accepted waiver requests for physicians to serve in Health Professional Shortage Areas (HPSAs) or Medical Underserved Areas and Populations (MUA/Ps). In February 2002, the Department of Agriculture announced that it would no longer act as an IGA for J waivers for foreign doctors. The HHS will fill the gap left by the Department of Agriculture’s departure from the program.

In addition to accepting waiver requests for physicians providing primary care to HPSAs and MUA/Ps, HHS will also accept applications for psychiatrists to work in Mental Health HPSAs.

During the 12 months following completion of a residency training program, a foreign national physician who has departed from the United States will still be eligible to apply for an HHS waiver. He or she may pursue the waiver from abroad. If the waiver is granted, the physician may obtain an H-1B visa from a U.S. consulate and begin work in the location specified in the employment contract and approved by HHS.

The criteria for HHS waiver recommendations track those required by the Department of State regulations governing IGA waiver requests. First, eligibility is limited to primary care physicians and general psychiatrists. These physicians must begin employment with the sponsoring medical facility within 12 months after they finish their residency program. The 12-month eligibility limit is make sure that the primary care training is current and that the physicians are not engaged in subspecialty training. Second, the facility must establish that it has actively recruited in good faith for U.S. physicians in the recent past without success. Third, the facility must sign a statement confirming that the facility is located in a HPSA or MUA/P, and that it provides medical care to Medicaid and Medicare eligible patients as well as uninsured indigents. Fourth, the physician must sign a statement that s/he does not have pending and will not submit other IGA waiver requests while the HHS waiver request is pending. Finally, the employment contract must be for at least three years, 40 hours per week, and comply with standard IGA requirements, such as excluding noncompete clauses.

The HHS’s Exchange Visitor Waiver Review Board may determine the appropriate numbers and the geographic areas for the waivers. These determinations will be made based on data relating to the health care needs of the relevant areas.

A few open questions remain. For example, in its announcement dated December 17, 2002, the HHS indicated that it will review the applications and “verify the physicians’ credentials through a federal credentialing process” before making its recommendations to the State Department. It is unclear what this federal credentialing process is and whether it exists now. It is also unclear when HHS will actually begin accepting waiver requests. According to a telephone conversation with a representative from the HHS, although the new rule took effect December 19, 2002, the program will not be operative until after policy guidelines are promulgated. Policy guidelines are expected in March or April, 2003. In the same conversation, the HHS representative indicated that under the policy guidelines, facilities will be encouraged to apply first to state Departments of Health through the Conrad state 30 waiver program and then to apply to HHS only if the State Departments of Health have already recommended their maximum of 30 waivers.

Also, in the new rules, the HHS Secretary Tommy G. Thompson announced that he intends to propose revisions to the regulations governing the designation of HPSAs and MUA/Ps during the first three months of calendar year 2003. Look for developments in these proposed changes and HHS policy guidelines in upcoming TWM newsletters.

5. INS Announces Final Rule for SEVIS

The INS published a final rule in December implementing the Student and Exchange Visitor Information System (SEVIS). SEVIS is intended to ensure that foreign students and exchange visitors entering the United States actually enroll in and attend their educational programs. The new rules expand the schools’ monitoring and reporting obligations to the INS, requiring the schools to deliver the information using SEVIS within specified timeframes. A summary of the rule follows.

* Deadlines: The final rule maintained January 30, 2003 as the mandatory compliance date. This means that all authorized schools must use SEVIS to issue SEVIS Forms I-20 to all new students after January 30, 2003. Furthermore, schools must issue SEVIS Forms I-20 to current students who need a new Form I-20 because of a “reportable event,” discussed below.

Authorized schools are given a transitional period ending August 1, 2003 to enter data into SEVIS relating to all students enrolled before January 30, 2003. Non-SEVIS Forms I-20 issued before January 30, 2003 will continue to be valid until August 1, 2003.

* Reporting Requirements: Schools are subject to two types of reporting requirements. First, the schools must report certain information for all students within 30 days following the deadline for registering for classes for each term or session. Most importantly for INS purposes, the school must report a student failing to register. The school must also report whether the student has enrolled at the school or dropped below a full course of study without prior authorization from the designated school official (DSO). Schools are also required to report the current address of each enrolled student and the start date of the student's next term or session.

Second, the schools must report certain other “reportable events” within 21 days of the event. Reportable events include change in information relating to any student who has failed to maintain status or complete his or her program; a change of the student’s or dependent’s legal name or U.S. address; early graduations; and any disciplinary action taken against the student as a result of the student being convicted of a crime.

* Optional Practical Training (OPT): The school recommending OPT remains responsible for maintaining the student records in SEVIS during the training period. Also, time spent studying abroad may count toward the one full academic year requirement, but the student must have first spent at least one full academic term in a full course of study in the United States.

* Employment: The rules provide for procedures for endorsement in SEVIS of employment authorization, based on severe economic hardship and internships with an international organization. The rules also make clear that a student can begin on-campus employment before classes start. However, the DSO is not permitted to indicate a program start date more than 30 days before the start of classes for purposes of on-campus employment. This means that a student may only be authorized to work for up to 30 days before classes begin.

* Reduced Course Load Permitted: In the case of an illness or medical condition, a student may be authorized to reduce course load for a period not to exceed 12 months in the aggregate. A DSO must re-authorize the reduction each term or session, and must update this authorization in SEVIS. The 12-month limit applies only to each program level. If the student completes one program and advances to a different program level, the DSO may authorize another reduction in course load. The INS will permit DSOs to accept medical documentation provided by licensed medical doctors, doctors of osteopathy or licensed clinical psychologists to substantiate a student’s reason for dropping below a full course of study for illness or medical condition.

* Dependent Study: Under the new rule, F-2 and M-2 dependents enrolled in a full course of study before January 1, 2003 may continue their studies as long as they apply for a change of status to F-1 or M-1. The change of status applications must be filed on or before March 11, 2003.

* Change of Address and Form AR-11: As long as a student reports any change of address to the DSO within 21 days of the change, the student will not be required to submit Form AR-11. However, if the student is subject to special registration, the students must still comply with all special registration requirements, including submitting Forms AR-11SR. For a memo about the AR-11 change of address reporting form, see http://www.millermayer.com/new/ar11.html.

6. DOS Announces J-1 SEVIS Rules

The U.S. Department of State (DOS) also issued regulations in December relating to J-1s and SEVIS. Highlights of the new rules follow.

* Deadlines: Starting January 30, 2003, SEVIS must be used to issue all DS-2019s. Accordingly, all designated exchange visitor program sponsors must enroll in SEVIS by this date to continue sponsoring nonimmigrants. After January 30, 2003, only SEVIS-generated Forms DS-2019 can be used for change of classification, reinstatement, transfers, extensions, or any other immigration benefit. The non-SEVIS Form DS-2019 was formerly known as Form IAP-66.

During a transition period, non-SEVIS Forms DS-2019 will be accepted for visa issuance and admission, as long as the sponsor issued the Forms before January 30, 2003.

By August 1, 2003, sponsors must enter information on all exchange visitors continuing to participate in their program and their dependents, including those that entered the country on non-SEVIS Form DS-2019, IAP-66 or IAP-66P. Sponsors must prepare separate SEVIS DS-2019s for accompanying spouses and all dependent children.

* ISEAS and SEVIS: Until SEVIS is fully implemented, sponsors must enter data for all F, M and J nonimmigrants in both Interim Student Exchange Authentication System (ISEAS) and SEVIS. ISEAS was intended to be an interim mechanism pending the full implementation of SEVIS. However, the two databases are not linked. Therefore, schools and program sponsors must electronically register visa applicants into the ISEAS and SEVIS databases separately. ISEAS will sunset when SEVIS is fully implemented.

* Sponsor Enrollment: Designated sponsors must complete the SEVIS Form DS-3036 to enroll in SEVIS. An organization wishing to apply for designation to conduct an Exchange Visitor Program must submit an Exchange Visitor Program Application (DS-3036) to the DOS, including the SEVIS Form DS-3036 and the documentation and fees associated with the Form DS-3036.

* Reporting Requirements: Notification requirements remain unchanged. However, SEVIS enables sponsors to electronically input reportable events. Sponsors must report within 30 calendar days of a J visitor’s program start date that the J visitor has in fact begun his or her program participation. Sponsors are also required to notify all J participants that they must report any change in the U.S. address to the sponsor within 10 days of the change. Sponsors may provide that it be notified in writing of an address change. Sponsors must update the actual, current U.S. address information for Js within 21 days of being notified by the J visitor of the change. A sponsor’s failure to update the J participants’ addresses may be grounds for revocation of its exchange visitor program status. In addition, sponsors must update the program status of J visitors who have completed or who have been terminated from his or her program.

* Change of Address and Form AR-11: Similar to the INS SEVIS rules for students, J-1s are not required to submit Forms AR-11 to report a change of address as long as the exchange visitor reports a change of address within 10 days of the change to the program sponsor. J-1s who are subject to special registration must comply with the special registration rules, including the requirement to report a change of address on Form AR-11SR.

7. New Articles on Our Website

Look for our new memo relating to the Form AR 11 on our website at: http://www.millermayer.com/new/ar11.html.

Also, check out Stanley Mailman and Steve Yale-Loehr's article on the creation of the Department of Homeland Security at: http://www.millermayer.com/new/immsecurity.html

Our article concerning special registration requirements is at: http://www.millermayer.com/new/speregmemo.html

We have a chart listing special registration requirements at : http://www.millermayer.com/new/speregchart.html

Steve Yale-Loehr has written an article about a new law benefiting certain EB-5 immigrant investors at: http://www.millermayer.com/new/bibeb5bill.html

We have revised our memo about security clearances for nonimmigrants. The revised memo is at: http://www.millermayer.com/resources/securityclearance.html

8. The Firm Speaks

Steve Yale-Loehr will speak at Binghamton University on March 26 at 4:30 pm on visa options for students after graduation. Stay tuned for further details.

9. The Firm Spells – Poorly

On November 17, 2002, two of True, Walsh & Miller’s immigration attorneys, Steve Yale-Loehr and Carolyn Lee, participated with another TWM colleague in an adult spelling bee. We wouldn’t normally subject ourselves to such high risk of humiliation, but it was for a good cause, a local nonprofit organization benefiting public education. Despite our good intentions, our team (named “The H-1Bees” of course) was mercilessly eliminated in Round III with a most pernicious word. Can you spell it? The word means: “mixed or tinged with blood.” Is the correct spelling: a) sanguinulant, b) sanguinulent, or c) sanguinolent? Email your choice to syl@millermayer.com. Free subscription to the True, Walsh & Miller newsletter for a year to the contestants with the correct response!

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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).

For general information, visit our web site at http://www.millermayer.com/

The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

To unsubscribe to this newsletter, email mailto:syl@millermayer.com.

Copyright (c) 2003 True, Walsh & Miller, LLP. All rights reserved.