In this issue:

1. Immigration to Become Part of Department of Homeland Security
2. INS Issues Proposed Rule on Address Notification
3. Justice Department Proposes Registration and Monitoring of Certain Nonimmigrants
4. House Approves Legislation to Extend J-1 Waiver Program for Foreign Physicians
5. State Department Announces Results of Diversity Visa Lottery
6. State Department to End Visa Exemption for Commonwealth Citizens Residing in Canada
7. INS Proposes Rule Concerning Academic Honoraria for B Nonimmigrants
8. Congress Approves Age-Out Legislation
9. Carolyn Lee Joins True, Walsh and Miller’s Immigration Practice
10. New Articles on Our Web Site

1. Immigration to Become Part of Department of Homeland Security

It appears clear that at least part of the Immigration and Naturalization Service (INS) will become part of the new Department of Homeland Security (DHS). Exactly where it will be in the new department, or how much of the immigration function would transfer to the new department, remains to be seen.

The Bush administration, which proposed creating the DHS in June, would incorporate all immigration functions into the Border and Transportation Security Division of the DHS. The House of Representatives, which has passed its version of a bill to create the new DHS, would transfer only immigration enforcement functions to the new department, while leaving INS service functions in the Justice Department. The Senate, which is still considering its version of the bill, would move the entire INS into the DHS, but create a separate division for immigration, called the Directorate of Immigration Affairs, within the new department. A final compromise bill is likely to be enacted in September.

Many immigration experts have voiced concerns about moving the entire immigration process into the DHS. The ability to effectively and quickly adjudicate immigration cases is questionable in an agency whose overall goal is enforcement and security.

Steve Yale-Loehr’s comment: No matter what the final bill looks like, this will be the biggest change in immigration in more than 50 years. This is more than just moving bureaucratic boxes around on a chart. Immigration will gain a new security emphasis by being in the new DHS. This will mean more delays in the transition, and more scrutiny of petitions. Fasten your seat belts and be prepared for a bumpy ride!

2. INS Issues Proposed Rule on Address Notification

A long-existing INS regulation requires all noncitizens residing in the United States who are over 14 years old and remaining in the United States for more than 30 days to report any address change to the INS within 10 days. Such address changes are reported on INS form AR-11. Failure to do so is a misdemeanor and can result in a jail term of up to 30 days and/or a fine of up to $200. Failure to notify the INS of an address change can also place an individual into custody and removal from the United States. This regulation has rarely been enforced. Until now.

On July 26 the INS published a proposed regulation that will allow it to begin enforcing the address reporting requirement. Immigration advocates are concerned that the proposed rule does not address the underlying problem. The proposed rule ignores the fact that the INS does not have the capacity to deal with the notifications the agency now receives, much less the hundreds of thousands of additional notifications it will receive once the rule becomes final. In fact, due to this rule, more people will be charged with violating the law because of the agency’s inability to properly file the notifications the INS receives.

Comments on the proposed regulation are due August 26.

Noncitizens who have changed their address since their last entry into the United States should file form AR-11 with the INS. Copies of form AR-11 are available for download from the INS web site at: http://www.ins.usdoj.gov/graphics/formsfee/forms/files/ar-11.pdf.

3. Justice Department Proposes Registration and Monitoring of Certain Nonimmigrants

On June 5 the Justice Department proposed regulations requiring the registration and monitoring of certain nonimmigrants. Under the new regulation, nonimmigrants from certain countries and other nonimmigrants identified under certain criteria would have to be registered and fingerprinted upon entering the United States. Furthermore, these individuals would have to present themselves at INS offices 30 days after their arrival and annually afterwards to present evidence of residency and other documents pertaining to their nonimmigrant status. Additionally, the registered nonimmigrants would have to report their departure from the United States. Failure to comply would result in being placed into a criminal database, being subject to removal, and possibly being subject to criminal prosecution.

The proposed regulation has been criticized by a number of immigration and civil liberties advocates. Their concern focuses on two areas. First, many civil libertarians view the proposed rule as racial profiling and stigmatizing towards Muslim and Arab populations. Second, many immigration advocates denounce the regulation as burdensome and as missing its intended purpose in the war against terrorism.

The Attorney General’s prepared remarks introducing the proposed regulation can be viewed at http://www.usdoj.gov/ag/speeches/2002/060502agpreparedremarks.htm

4. House Approves Legislation to Extend J-1 Waiver Program for Foreign Physicians

The House of Representatives recently passed legislation that would renew and extend for another two years the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement for certain J–1 physicians who agree to work in medically underserved areas for at least three years. The legislation (H.R. 4858) would reinstate the waiver program, which expired on May 31, and would extend the program for another two years, through June 1, 2004. The bill would also increase the number of physicians that a state may sponsor annually from 20 to 30. Finally, the effective date of the bill would be retroactive to May 31, 2002, the date the program expired.

Senators Sam Brownback (R–Kansas) and Kent Conrad (D–North Dakota) have introduced similar legislation in the Senate (S. 2674). Like H.R. 4858, S. 2674 would increase the number of available waivers to 30 per state. The Senate bill would make the waiver program permanent.

If you are an affected J-1 physician, write your Senator now to urge them to pass S. 2674.

5. State Department Announces Results of Diversity Visa Lottery

The State Department recently announced the results of the 2003 diversity visa lottery program, which had a filing period last October 2002. Interestingly, significantly fewer individuals applied for the lottery this year. A total of 6.2 million qualified entries were received out of 8.7 million who applied. The State Department reported that 2.5 million applications were either received outside of the mail-in period or were disqualified for failing to properly follow directions. In contrast, last year 10 million qualified for inclusion in the lottery out of 13 million who mailed in applications.

The visas have been apportioned among six geographic regions. Those selected will need to act on their immigrant visa applications quickly once the new fiscal year begins October 1. During the visa interview, applicants must provide proof of one of the following: (1) a high school education or its equivalent; or (2) two years of work experience within the past five years in an occupation that requires at least two years of training or experience.

Only participants in the DV-2003 program who were selected for further processing have been notified. Those who have not received notification were not selected. They may try for the upcoming DV-2004 lottery if they wish. The dates for the mail-in period for the DV-2004 lottery are scheduled from Monday, October 7, 2002 until Wednesday, November 6, 2002. Instructions on entering the DV-2004 program will be publicized in late summer 2002.

To read the complete State Department announcement, which includes a statistical breakdown by country of those who were selected for DV-2003, go to:
http://travel.state.gov/DV-2003results.html

6. State Department to End Visa Exemption for Commonwealth Citizens Residing in Canada

According to Antoinette Marwitz, the new U.S. Consul General in Toronto, the State Department is planning to change its regulations to require "aliens resident in Canada…having a common nationality with nationals of Canada" to obtain nonimmigrant visas to enter the United States. These individuals, who are citizens of British Commonwealth countries, are currently exempt from the nonimmigrant visa requirements, as well as from passport requirements if they are entering the United States from a Western Hemisphere country. Presumably, the passport exemption also would be eliminated, as would the exemption for such nationals resident in Bermuda.

7. INS Proposes Rule Concerning Academic Honoraria for B Nonimmigrants

The INS recently proposed new rules concerning honoraria and the payment of associated expenses for B visa holders. B visas allow nonimmigrants to travel to the United States as a tourist (B-2) or a businessperson (B-1) for periods ranging from a few days to up to six months. Under the new rules B visa holders would be allowed to receive honoraria and payment of associated incidental expenses for usual academic activity. The new rules do not specify a minimum or maximum monetary value of the honoraria and payment received.

Under the rule the honorarium-paying entity must be an institution of higher education, a nonprofit research organization or a government research organization. The academic activity may not last longer than nine days at any single institution, and honoraria and associated expenses may not be accepted from more than five institutions or organizations during a 6-month period.

For a more in-depth discussion of the new regulations concerning honoraria and the payment of associated expenses for B visa holders, see the following article on our web site: http://www.millermayer.com/new/bvisa_proposedrule.html

8. Congress Approves Age-Out Legislation

Families seeking immigration into the United States are sometimes dealt a cruel twist of fate, as children “age out” of their parent’s immigration application by turning 21 before the application is approved. Congress has just passed legislation to alleviate this problem.

The bill (H.R. 1209) amends the INA to provide that the determination of whether an unmarried noncitizen son or daughter of a U.S. citizen is considered a “child” (under 21 years old) for purposes of classification as an immediate relative must be based on the age of the child as of the date the Petition for Alien Relative (Form I–130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the current practice. Similar determinations would apply in the case of lawful permanent resident (LPR) parents who subsequently naturalize after having filed petitions for sons or daughters, and U.S. citizen parents who filed petitions for married sons or daughters where those sons or daughters later divorce.

The bill also provides age-out protection for certain unmarried sons and daughters of LPRs seeking status as family-sponsored, employment-based, and diversity immigrants, or accompanying or following to join a parent, by mandating that their eligibility be determined according to their age on the date that a visa number becomes available to them (or to their parent, in the case of those accompanying or following to join a parent), if they sought LPR status within one year of visa number availability. Similar protection exists for children accompanying or following to join a parent who has filed for asylum or refugee status.

President Bush is expected to sign the bill into law shortly.

9. Carolyn Lee Joins True, Walsh and Miller’s Immigration Practice

We are pleased to announce the addition of Carolyn S. Lee to our immigration practice. Carolyn graduated cum laude from Williams College in 1993, where she received a B.A. in Political Science and English Literature. She received her J.D. with a specialization in international legal affairs from Cornell Law School in 1999.

After graduation from law school Ms. Lee practiced at the law firm of Hunton & Williams in New York City before relocating back to Ithaca. We are happy to have her aboard at True, Walsh & Miller, where she specializes in immigration law and general business law. You can contact Carolyn at csl@millermayer.com.

10. New Articles on Our Web Site

Academic honoraria for B nonimmigrant visitors: http://www.millermayer.com/new/bvisa_proposedrule.html

B-1 visitor for business visa overview:
http://www.millermayer.com/new/b-1.html

EB-5 immigrant investors overview:
http://www.millermayer.com/new/eb5.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 your immigration questions, contact:

Hilary Fraser (htf@millermayer.com)
Carolyn Lee (csl@millermayer.com)
Rosie Mayer (rma@millermayer.com)
Steve Yale-Loehr (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.