In this issue:

1. The INS Under Attack

2. INS Proposes Changes to Visitor and Student Visas

3. INS Issues More Kickbacks

4. DOL Advises on Labor Certification Procedures When Layoffs Occur

5. Visa Bulletin Update

6. Change of Address? The INS Needs to Know

7. Changes in ECFMG Rules Hurt J Visa Applicants

8. The Firm Speaks

1. The INS Under Attack

As widely publicized in the media, the Immigration and Naturalization Service (INS) has recently been under heavy criticism for its mishandling of two incidents. On March 11, 2002, exactly six months after the terrorist attacks on New York and the Pentagon, "approval notices" for Mohammad Atta and Marwan Al-Shehhi were received by the Florida pilot school at which the two had trained. Mr. Atta and Mr. Al-Shehhi are accused of piloting the two planes into the World Trade Center towers on September 11th.

In an unrelated incident, an INS official in Norfolk, VA wrongly granted four Pakistani seamen shore leave on March 15, 2002. Two days later the four Pakistani seamen failed to show up when their ship was set to leave the harbor. Attorney General John Ashcroft described the incident as "maddening."

These incidents have lead to renewed calls to restructure and even dismantle the INS. In response to the criticism, INS Commissioner James Ziglar testified before the House Subcommittee on Immigration and Claims on March 19, 2002. Commissioner Ziglar explained the circumstances that allowed for the "approval notices" to arrive at the pilot school six months after they had been granted. Ziglar emphasized the fact that the INS had approved the flight training in the summer of 2001, before September 11, and that the procedure that allowed the notices to remain in the government’s possession for so many months has been changed. Ziglar also emphasized that the INS has been rapidly restructuring, with its focus now on security. A transcript of Commissioner Ziglar’s statements is at: http://www.ins.usdoj.gov/graphics/aboutins/congress/testimonies/2002/zigtestimony.pdf

The announcement by Commissioner Ziglar that the INS is now focusing on the security of the United States as its top priority will cause significant changes in immigration procedures within the United States. The drastic calls for restructuring and dismantling the INS may eventually cause more drastic changes within immigration procedure. See the next two articles.

The INS has issued an interim rule and proposed two other new rules in the Federal Register. An interim rule prohibits nonimmigrants admitted in B visitor status from pursuing a course of study prior to obtaining approval of a change to student status. A new proposed rule would eliminate the 6-month admission period for B-2 visitors and would instead base the admission period on the amount of time needed to accomplish the purpose of the trip (in many cases 30 days). A third rule would require an alien with a final order of removal to surrender to the INS within 30 days of the issuance of that order. Individuals failing to comply would be prohibited from acquiring future immigration benefits. See http://www.ins.gov/graphics/publicaffairs/newsrels/visa.htm for an INS news release announcing the changes.

We and other law firms have noticed that the INS has seemed to be issuing more requests for evidence (RFEs) in the last few months. While the INS denies a general increase in RFEs, the trend seems apparent. We believe that it relates to the adverse publicity the INS has recently received, as well as heightened worries about security. No INS officer wants to inadvertently approve a petition for a person who later commits a terrorist or other heinous act. Unfortunately, many solid cases are delayed as a result, and many needless RFEs are being issued. There is not a lot anyone can do to prevent the situation.

On March 20, 2002, the U.S. Department of Labor (DOL) issued a memorandum to regional certifying officers (COs) specifying the proper procedure for reduction in recruitment (RIR) labor certification applications when layoffs occur. The memorandum clarified the criteria necessary to determine if a labor certification application is still approvable.

Specifically the memorandum stated that in reviewing a labor certification application, a CO should (1) consider recent regional office experience in processing non-RIR cases involving occupations similar to those for which the employer is requesting RIR; (2) contact state agencies to obtain information on the labor market; and (3) review current relevant articles that may have appeared within the last 6 months in newspapers, trade or professional journals concerning the availability of workers in the occupation in the area of intended employment.

Additionally, the memorandum states the required procedure for COs to take if they suspect: (1) the employer-applicant may have laid off any workers within the last 6 months; (2) general layoffs have occurred in the industry or occupation in the area of intended employment; or (3) that there have been layoffs by the employer.

The DOL memo is likely to make it harder, or at least longer, to obtain labor certification in many cases.

The State Department has just issued the May 2002 Visa Bulletin. The Visa Bulletin is a monthly summarization of the immigration numbers available for the upcoming month. Due to the statutory limits placed on the number of family-based and employment-based immigrants allowed into the country each year, an extensive backlog of eligible applicants has developed. The Visa Bulletin summarizes this backlog for each of the family-based and employment-based categories.

The May 2002 bulletin (located at: http://travel.state.gov/visa_bulletin.html) shows little advancement in any of the family-based numbers. Employment-based applications in all the categories remain current.

Reliance on the monthly Visa Bulletin as an indicator of the average wait time for each immigrant category is inadvisable, as many of the categories have not advanced significantly in a number of years.

If a nonimmigrant, immigrant or individual with a pending application changes their address, the INS must be notified in writing within ten days of the change. The individual must advise the office where the application is pending using the preferred method of that office. Nonimmigrants and immigrants without pending INS applications must notify the INS by using form AR-11. The obligation to report a change of address continues until an individual becomes a U.S. citizen.

Form AR-11 can be obtained at http://www.ins.usdoj.gov/graphics/formsfee/forms/ar-11.htm.

New guidelines from the Educational Commission on Foreign Medical Graduates (ECFMG) have made it harder for some foreign medical graduates to participate in medical residency programs in the United States. Currently ECCFMG is the only organization that can sponsor a foreign medical graduate seeking clinical training the US on a J-1 visa. Foreign medical graduates fill 25% of the slots at U.S. residency programs.

Since 1998 the ECFMG has required medical graduates to pass an English language exam and a clinical exam conducted only in Philadelphia, Pennsylvania. Due to the difficult and expense of traveling to Philadelphia, many foreign graduates simply cannot afford to take the $1200 exam.

Additionally, the ECFMG recently announced that it would no longer sponsor J-1 visas for foreign medical graduates participating in clinical training programs that are not accredited by the Accreditation Council for Graduate Medical Education. This decision will adversely affect many foreign medical graduates, as many cutting edge medical technology training programs have not been accredited yet due to their recent development.

General information about the ECFMG can be found at http://www.ecfmg.org/. Their J-1 information is at http://www.ecfmg.org/evsp/index.html.

On April 25 Steve Yale-Loehr will speak on H-1B and TN issues at an immigration law conference in Washington DC sponsored by the American Bar Association.

On June 15 Steve will moderate a plenary panel on H-1B issues at the annual conference of the American Immigration Lawyers Association in San Francisco.

On July 17 Steve will co-chair a day-long basic immigration conference in New York City sponsored by the Practising Law Institute.

On September 28 Steve will speak at a global business immigration law conference in New York City.

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

In addition, Steve recently testified before Congress criticizing Attorney General John Ashcroft’s recent proposal to reform administrative appeals to the Board of Immigration Appeals (BIA). As a result of his testimony Steve was quoted in the Washington Post, Los Angeles Times, and several other newspapers. Steve’s testimony is at: http://www.house.gov/judiciary/yaleloehr020602.htm

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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)

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.

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Copyright (c) 2002 True, Walsh & Miller, LLP. All rights reserved.