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September 27, 2002 Immigration News Update
Click for a Printable Version of this Article
In this issue: 1. INS Starts Online Status Check System The Immigration and Naturalization Service (INS) has launched a system for checking the status of a case pending at an INS Service Center via the Internet. The information provided is the same as can be obtained by calling the "INS Direct" inquiry lines at the Service Centers, but this system provides an alternative way to find out the status of your case without worrying about busy signals. The web site can be found at https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp. 2. New State Dept. Procedures and Database for International Students The State Department has issued new procedures for admitting international students to the United States. Effective September 11, 2002, before issuing a F, J, or M nonimmigrant visa, a consular officer must first verify the that the applicant has been accepted or enrolled in a school or program using an electronic database. The database is known as the "Interim Student and Exchange Authentication System," or ISEAS. This procedure applies to all visa applicants, including currently enrolled students, exchange visitors and their dependents who are need a visa to return to the United States. Therefore, it is essential for all foreign nationals in these categories, new and already-enrolled, to notify their college or program about their travel plans so that this information can be reflected in ISEAS and verified by the consular officer. ISEAS is an interim measure, an outgrowth of the Border Security Act signed into law on May 14, 2002. The Act addressed the need to improve the State Department's ability to track international students scholars while in the United States. The INS is developing a permanent electronic information collection and tracking system called "Student and Exchange Visitor Information System," or SEVIS. The State Department will use ISEAS until SEVIS is fully implemented. The launch date for SEVIS is supposed to be January 30, 2003. However, recent reports indicate that SEVIS will not be ready by that deadline. The State Department recognizes that many institutions and program sponsors will not have added the required data onto the new ISEAS by September 11, 2002. Therefore, the State Department has authorized a 30-day grace period from September 11 during which consular posts will be permitted to accept e-mail notification of F, J or M status if the student's schools/organizations have not yet entered the student's information into ISEAS. Consular officers will ask the students to contact their institutions to send e-mail confirmation to the posts of the students' status. Alternatively, consular officers may contact the sponsoring institutions, themselves, and request email confirmation of enrollment. In these circumstances, the student should be sure to obtain from the consular officer the email address to which the email confirmation should be sent. 3. Five Countries Designated for Special Registration Effective September 11, 2002, the INS has implemented special registration requirements for foreign nationals from countries designated by the State Department as state sponsors of terrorism. The five countries currently designated are Iran, Iraq, Libya, Sudan, and Syria. The special registration requirements apply to those seeking to enter the United States as nonimmigrants. Foreign nationals from these countries will be fingerprinted and photographed by the INS when they apply for admission to the United States. They must also register in-person at an INS office after 30 days, reregister annually, and check in with the INS before leaving the United States The special registration requirements also apply to any nonimmigrant foreign national who a consular officer or an inspecting officer "has reason to believe" are nationals or citizens of one of the five designated countries. This situation may arise where a foreign national is a dual national or citizen of one of the designated countries. The INS has updated its web site with detailed information on how and where to comply with the new Special Registration requirements: http://www.ins.usdoj.gov/graphics/lawenfor/specialreg/index.htm. Recent press reports indicate that nationals of Saudi Arabia may also become subject to special registration. Stay tuned. 4. State Department and INS Offer Preliminary Guidance on the Child Status Protection Act As reported in last month's TWM newsletter (http://www.millermayer.com/new/news8_30_02.html), the Child Status Protection Act (CSPA) was signed into law on August 6, 2002. The CSPA is intended to protect a child who has "aged out" of eligibility for a green card due to processing delays. Despite its good intentions, certain provisions of the CSPA have proven difficult for the State Department, the INS ,and practitioners alike to decipher. To help, the State Department and the INS have both recently issued preliminary interpretations about the CSPA. Both a recent State Department cable and an INS memorandum explain that under section 2 of the CSPA, a child of a U.S. citizen who was younger than 21 years old when a family-based immigrant visa petition filed on INS form I-130 was filed will remain permanently eligible for a green card as an immediate relative of a U.S. citizen, even if the adjustment does not occur until after the child turns 21. The child must remain unmarried, however, to be eligible. So, for example, if a Form I-130 is filed for a child of a U.S. citizen when she is 20, that child will remain eligible for adjustment as an immediate relative as long as she does not marry, even if the child is 24 by the time she adjusts. The INS and State Department also indicate that section 2 of the CSPA allows a child of a lawful permanent resident parent who later naturalizes to convert his petition to immediate relative classification and lock in his age at the time of his parent's naturalization. For example, if a green card holding parent files a Form I-130 for his 17-year old son, and then naturalizes when his son turns 20, the son will remain eligible for a visa as an immediate relative, even if the son is 22 by the time he actually gets his green card. CSPA section 3 addresses the other preference and diversity visa categories. The INS and State Department explain that unlike the immediate relative cases under section 2, the filing date of the I-130 does not determine the applicant's age for those who are seeking to adjust or obtain visas as children of permanent residents. Rather, under section 3, the beneficiary's age is "locked in" as of the date the priority date of the I-130 becomes current, minus the number of days that the petition is pending. The beneficiary will only benefit from this provision if he or she applies for adjustment of status or for an immigrant visa within one year of eligibility. For example, if a Form I-130 was filed in 1998 when the child was 20, the priority date became available in 2002, and the Form I-130 was not adjudicated until today, the beneficiary's "age" when determining the preference category would be 20 (24 (age when priority date is current) minus 4 (4 years pending time)), provided the beneficiary applies for an immigrant visa or adjustment within one year of the priority date becoming available. The CSPA has many hidden complexities, depending on your particular facts,
which country you are from, and which immigrant visa category you qualify for.
If you're not already one of our clients, we can do a consultation with you
for $190 to determine if you might benefit from the CSPA. Just contact Steve
Yale-Loehr at mailto:sy1@millermayer.com. The INS recently issued a policy memorandum indicating when INS offices may waive the interview requirement in green card cases. The purpose of allowing waivers is to help INS offices better manage their limited resources. The categories within employment-based immigrant visa applications include adjustments based upon a petition for immigrant worker (Form I-140), or adjustments filed by a spouse or child of such a principal foreign national. The I-140 petition must have been filed by the same employer for whom the adjustment applicant works. If a foreign national is employed by a different employer using the "portability" provisions recently enacted by Congress, the INS will consider on a case-by-case basis whether an interview is still necessary. The INS may also waive the interview if an adjustment is based upon an approved immigrant petition for an alien entrepreneur (Form I-526) or a petition for a religious worker (Form I-360),. The INS may waive an interview in family-based immigrant adjustment cases where the adjustment is based on a petition for an immigrant relative (Form I-130) for an unmarried child, parent or spouse of a U.S. citizen who is applying to adjust to conditional resident status from K-1 or K-2 within 90 days of entry. Interviews may also be waived for an unmarried child under 14. For asylees or refugees, most adjustment applications will be adjudicated at the Nebraska Service Center without an in-person interview. However, cases may be referred to an INS district office for interview if they involve complex issues, criminal charges or indications of fraud, or cases where the record indicates changes in the country conditions on which the original grant of asylum was based. Other categories of adjustment applications where the INS may waive the interview include cases where: (1) the applicant has been interviewed in the course of an investigation, field examination, or prior interview, and the INS determines that a further interview is unnecessary; (2) the applicant is a native or citizen of Cuba, or is a spouse or child of such a foreign national regardless of citizenship or place of birth, applying for adjustment under the Cuban Refugee Adjustment Act; (3) there is sufficient evidence to support a denial of adjustment without conducting the interview; or (4) the applicant is a beneficiary of Form I-360 filed as a battered spouse or child and the Service does not have any information that casts doubt on the approval of the I-360. Even when a case falls within one of the categories, the INS may still determine that an interview is necessary if the case involves complex issues, criminal charges, indications of fraud, or any other reason the application is at higher risk. The INS will decide whether to conduct an interview on a case-by-case basis. To qualify for a waiver, the I-485 adjustment application must be accompanied by original or certified copies of supporting documents. 6. Fast Lane for U.S.-Canada Travel: NEXUS Program The NEXUS alternative inspection program allows pre-screened, low-risk travelers to be processed with little or no delay by U.S. and Canadian border officials. Approved applicants are issued photo-identification and a proximity card. Participants cross the border in a dedicated lane, where they present their membership identification and proximity card, and make a declaration. They are then released, unless chosen for a selective or random secondary referral. Individuals may qualify to participate in NEXUS if they are a citizen or permanent
resident of the United States or Canada, or are a non-permanent resident who
can demonstrate a need to use the NEXUS lanes. However, individuals may not
qualify if they are inadmissible to the United States or Canada under applicable
immigration laws, provide false information on their application, have been
convicted of a criminal offense for which they have not received a pardon, have
been found in violation of customs or immigration law. To participate, an individual's
application must be approved by both the United States and Canada. NEXUS will be operational at both the Detroit/Windsor and Buffalo/Fort Erie bridges beginning in January 2003 and at the Detroit/Windsor tunnel by March 2003. NEXUS will be expanded to the Niagara Falls area by spring 2003. NEXUS will be expanded to all other high-volume crossings between the United States and Canada by the end of 2003. NEXUS enrollment centers will open in Buffalo, New York in October 2002. 7. Status of Conrad 30 Legislation for J-1 Doctors The U.S. House of Representatives passed legislation in June 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 of INA § 212(e) 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. The House approved the bill 407-7. Senators Sam Brownback (R-KS) and Kent Conrad (D-ND) 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, however, would make the waiver program permanent. These are the final days of Congress. To urge the Senate to pass this bill before adjourning for the year, our readers are encouraged to fax letters to their senators. A model letter is pasted in below: Dear Senator _______: I urge you to take final action to bring S. 2674 to the Senate floor and vote on final passage before Congress adjourns for the year. S. 2674 is an important measure to me and my community because it would ensure that highly trained, well-qualified physicians will be able to work in areas which are, unfortunately, medically underserved. S. 2674 has bipartisan support. The companion bill, H.R. 4858, has already passed the House of Representatives in overwhelming numbers (407-7). S. 2674 will reauthorize the popular Conrad State 20 Program and modestly increase the allocation of physicians to each state to 30. It allows states to make their own decisions on where physicians are needed. S. 2674 continues all the important protections of making sure that only highly qualified and well-trained physicians, with the requisite security clearances, are allowed to work under this program. My state and community have benefited greatly from the Conrad 20 Program and I urge its immediate passage by the Senate. Thank you for your kind attention to this matter. Sincerely,
You can reach your senators through their individual office numbers, which are listed in the phone book. Alternatively you can call the Congressional switchboard at 202-224-3121. Call today! 8. 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. On October 24 Steve Yale-Loehr will speak on green card options for international
students and scholars at New York University. For answers to your immigration questions, contact: Hilary Fraser (mailto:htf@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.
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