On August 16, 2002, Immigration and Naturalization Service (INS) Commissioner James Ziglar announced that he intends to leave the INS by December 31 to return to the private sector. He set no specific date for his departure, saying he would remain to assist INS' transition to a new Homeland Security Department. Ziglar stated in his resignation letter that he had been discussing returning to the private sector with Attorney General Ashcroft and members of Bush's senior staff since July. He also stated that since September 11 he had done his "best to continue making progress toward the goals of restructuring the agency and reducing backlogs while responding to the call to arms in the war on terrorism."

In a letter addressed to INS employees, Ziglar affirmed his support of the Homeland Security Department, stating that it will bring "a new prominence and budget priority to 'border security.'" He urged INS employees to "never bow to evil forces" seeking to undermine American principles, threatening "our heritage as a nation of laws and a nation of immigrants."

2. New Social Security Application Procedures for Noncitizens Take Effect

Using an INS online query system, Social Security Administration (SSA) employees will now be able to verify the status of all noncitizens. A new verification procedure will be effective for all SSA offices by September 1, 2002. The new procedures will apply to requests for both original and replacement social security cards.

According to a policy memorandum issued by the SSA, the SSA will verify noncitizen status with the INS before processing a Social Security Number (SSN) application from individuals born in Iran, Iraq, Libya, and Sudan. This applies even if the individuals are now residents or citizens of another country. This does not apply to individuals from the listed countries who are now U.S. permanent residents, U.S. naturalized citizens, or representatives of a foreign government or an international organization.

For all other foreign nationals, the SSA will first review the SS-5 form (Application for Social Security Card) and the required supporting documents to make sure they are genuine. The supporting documents must show the applicant's identity. The kinds of documents the SSA will accept for this purpose are listed on the instructions to the SS-5 form. If the documents appear genuine, the SSA will verify the applicant's status by querying the INS online system. At the same time, the SSA will also attempt to verify the supporting documents.

If the SSA receives verification of status from the INS, then the SSA will continue to process the SS-5. If the SSA is unable to obtain verification from the INS, but the documents appear to be valid, and the foreign national has been in the U.S. for less than 30 days, the SSA will continue to process the SS-5. However, if the applicant has been in the U.S. for 30 days or more, under the same situation, the SSA will stop processing the SS-5 and formally request verification with the INS.

Furthermore, the SSA will not process social security card applications for a noncitizen whose status has expired or will expire within 14 days of the date the SS-5 would be input. Noncitizens whose current status is about to expire, but whose extension or change of status is pending, will be told to return to the SSA when they have the approval documents.

In light of these new procedural checks with INS records, foreign nationals must make certain to submit SS-5 supporting documents that correspond with documents previously submitted to the INS.

3. Foreign Students Face New Document Requirements for Social Security Numbers

Effective August 9, 2002, the SSA requires international students in F-1 status who are seeking a social security number (SSN) to prove enrollment in a full-time course of study. The purpose of the change, according to an SSA memorandum, is to address the continuing problem of SSN misuse by F-1 post-secondary students and the issuance of questionable referral letters by some designated school officials (DSOs).

The SSA defines "post-secondary full course of study" as at least 12 semester hours (or the appropriate number of quarter hours for full-time attendance) in a program that confers a degree (if an undergraduate) or a non-degree language program of 18 clock hours of attendance weekly. Graduate students are considered full-time if they meet the institution's requirements for full-time attendance.

In the same memo, the SSA promulgated an updated list of F-1 documentation requirements. To be eligible for a SSN, the F-1 student must provide: (1) evidence of age and identity; (2) an I-20 ID (student) copy from an accredited school; (3) a current I-94 card to verify current F-1 immigration status; and (4) as evidence of authorization to work and full-time attendance, one of the following documents or combinations of documents – (a) an original letter from the DSO, specifying that the student is authorized to work on-campus AND is currently enrolled in a full course of study; (b) an original letter from the DSO specifying that the student is authorized to work on-campus AND a certified college transcript showing current enrollment in full course of study; (c) an original pay stub or other proof of current employment showing the school as employer OR an original letter from the on-campus employer OR an original letter from the school to the student stating that s/he will receive a scholarship in exchange for teaching, AND a certified transcript showing that the F-1 student is currently enrolled in a full course of study.

To obtain a replacement social security card, the F-1 student must provide: (1) an I-20 (student) copy; (2) current I-94 card; and (3) verification that the student is maintaining status – that is, attending school full time - by submitting: (a) an original letter from the DSO specifying that the named student is currently enrolled in a full course of study; or (b) a certified transcript that shows current enrollment in a full course of study.

4. INS Allows Concurrent Filing for Immigrant Visa Petitions and Adjustment of Status Applications

On July 31, 2002, the INS announced that it will now accept adjustment of status applications filed concurrently with immigrant visa petitions on INS form I-140 from people applying in the employment based (EB)-1, EB-2, and EB-3 categories whose priority dates are current. Under the new rule, a person may simultaneously file the I-140 form with fee and the adjustment of status form with fee and supporting evidence, such as birth certificate, medical exam report completed by an INS doctor, photos and proof of status maintenance, with the regional INS Service Center having jurisdiction over the beneficiary's place of work. Work permits and travel requests may also be filed concurrently.

If the I-140 is pending but not yet adjudicated, a copy of the I-797 receipt of the I-140 may now be filed together with the I-485 package for each member of the beneficiary's family. The interim rule does not address whether the INS will accept I-485 filings for pending I-140s requesting consular processing. The final rule may address this issue.

Some risks of filing concurrently are: longer processing times as INS adjusts to the new system; loss of filing fees, medical exam reports, etc. if the I-140 is denied; and possible adverse impact on fiancé(e)s or family members if the I-485 is approved before expected. The risk of I-140 denial is especially great for employer-sponsored I-140s where the employee is fired or the employing company is bought or sold prior to adjudication of the concurrent filing. Additionally, although "efficiency" is the new rule's stated rationale, it is unclear whether it will in fact take less time to obtain permanent residence by concurrently filing the I-140 and I-485, rather than by filing an I-140 and requesting consular processing.

The presumed benefits include shorter wait period for obtaining permanent residence; interim work permit and travel permission (advance parole) for each family member; less opportunity for INS error, as it will adjudicate the two related filings together; preservation of status based on the I-485 filing for those whose temporary visa status will soon expire; and relief from obligation to maintain or renew temporary visa status.

We have two articles on the new rule on our web site: http://www.millermayer.com/new/insmemo7_31_02.html and http://www.millermayer.com/new/concurrentfiling.html. Consult either article for more details.

5. New State Department Form Required of All F, M and J Nonimmigrants

As of July 25, 2002, a new State Department Form DS-158 "Contact Information and Work History for Nonimmigrant Visa Applicant" is required of all applicants for an F, M or J visa. The new form requires applicants to list at least two contacts in the applicant's country of residence who can verify information about the applicant. Relatives do not qualify. The form also requires the applicant to list and describe present and previous work experience, including dates of employment, employer's name and address, job title, and duties. The purpose of the form is to help evaluate an applicant's eligibility for a visa.

To download a copy of form DS-158 or other U.S. Department of State visa-related forms, go to http://travel.state.gov/visaforms.html.

6. President Signs Age-Out Protection Legislation

President Bush signed a law on August 6, 2002 that addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays. As reported in item 8 of July 29, 2002 issue of True, Walsh & Miller's Immigration News Update (http://www.millermayer.com/new/news7_29_02.html), before the passage of this law, called the "Child Status Protection Act," a child's eligibility to receive a visa or be a part of his or her parent's application was based on the child's age at the time that the parent's petition was adjudicated, not the time the petition was filed. Because of INS processing backlogs, many children turned 21 and "aged-out" of eligibility by the time INS adjudicated the petition. When a child "aged-out," s/he was no longer considered a part of the parent's application. The child's petition was either automatically moved to a lower preference category, or the child was required to submit his or her own petition.

Under the new law, the determination of whether a child is an child for immigration purposes (i.e., under 21 years) will be based on the child's age at the time INS form I-130 "Petition for Alien Relative" is filed, rather than on the date of adjudication. The new law has similar provisions for cases where permanent resident parents naturalize after having filed petitions for their children. In these cases, the age determination will be made at the time of the parents' naturalization. Similarly, in cases where citizen parents file petitions for married children and the children later divorce, the child's age will be determined as of the date of the divorce.

For the children of green card holders, or children who are accompanying or coming to join on a petition for a green card, eligibility will be determined based on the date a visa becomes available to them, but only if they seek permanent resident status within one year of such availability. Additionally, the new law provides age-out protection to children of applicants for asylum or refugee status. Finally, the new law provides that the family-sponsored petition of a green card holder's unmarried son or daughter will be converted to a petition for an unmarried son or daughter of a U.S. citizen if the green card holding parent later becomes a citizen, unless the son or daughter elects otherwise.

7. State Department Announces Substantial Delays in Nonimmigrant Visa Processing

The State Department has posted a notice on its web site relating to the processing of nonimmigrant visas. According to the statement, nonimmigrant visa applications are now subject to a greater degree of scrutiny than before September 11, and thus take longer to process. Visa applicants are asked for their understanding, and are advised to expect "substantial delays of six to either weeks or more." The problem is particularly acute for applicants for student visas, many of whom are not receiving their visas in time to begin classes for the fall semester.

The State Department notice can be found at: http://travel.state.gov/specialnotice.html

8. Diversity Immigrant Visa Program Procedures Announced

On August 22, 2002, the State Department issued instructions for entering the Diversity Visa (DV) 2004 lottery program. Entries must be received at one of the mailing addresses listed in the DOS notice (reprinted in DOS Instructions at the website below) between 12:00 noon on Monday, October 7, 2002 and 12:00 noon on Wednesday, November 6, 2002. The mailing addresses have changed slightly from last year.

Natives of the following countries are ineligible for the program: Canada, China (mainland-born), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong, Macau, and Taiwan are eligible.

Under the DV 2004 rules, the photo size requirement has become more flexible. Where the DV 2003 rules strictly required a 2" x 2" photograph, the new rules state that photos between 1" x 1" and 2" x 2" will now be accepted. Also under the old rules, it was acceptable to sign in either the native alphabet or in both the native alphabet and the Roman alphabet. Under the new rules, only the native alphabet signature will be accepted.

As in previous years, to enter an applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Finally, as always, being selected in the DV lottery does not guarantee issuance of a visa, because the number of entries selected is greater than the number of immigrant visas available. Therefore, those selected will need to complete and file their immigrant visa applications quickly. Once all the diversity visas have been issued or on September 30, 2004, whichever is sooner, the DV program for fiscal year 2004 will end.

For complete instructions, go to "Instructions for the 2004 Diversity Immigrant Visa Program (DV-2004)" at: http://travel.state.gov/DV2004.html.

9. New Articles on Our Website

Chris Gafner, Carolyn Lee, and Steve Yale-Loehr have written an article about EB-1-1 green card petitions for people who have extraordinary ability. The article is at:
http://www.millermayer.com/new/eb1hard.html

Steve Yale-Loehr has co-authored an article on recent trends in EB-1-2 outstanding professor and researcher cases. The article is at: http://www.millermayer.com/new/eb1_2trends.html

Steve Yale-Loehr has co-authored an article about how Social Security "mismatch" letters are jeopardizing the ability of some immigrants to keep their jobs. The article is at:
http://www.millermayer.com/new/ssmismatch.html

10. The Firm Speaks

On September 28 Steve Yale-Loehr will speak at a global business immigration law conference in New York City on green card options for immigrants.
________________
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 (mailto:htf@millermayer.com)
Carolyn Lee (mailto:csl@millermayer.com)
Rosie Mayer (mailto:rm@millermayer.com)
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:sy1@millermayer.com.

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