1. Implementation of US-VISIT Approaches; Delays Lie Ahead
2. Attorney General Gives FBI Agents Immigration Powers
3. Religious Worker Program Extended until 2008
4. DHS Officials to Screen Visas Overseas; Slowdown in Consular Processing?
5. Computer Upgrade Causes Errors on Immigration Receipt Notices
6. IRS Outlines Penalty Waiver Procedure for Social Security No-Match Letters
7. Filings at Local Offices to be Sent to National Benefits Center for Processing
8. DHS Proposes New Fees for Some Student Visa Applications
9. New URL for CIS Web Site
10. New Articles on Our Web Site
11. The Firm Speaks
12. See Our Halloween Photo!

1. Implementation of US-VISIT Approaches; Delays Lie Ahead

With the first phase of US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) scheduled for implementation at the end of this calendar year, many concerns still remain about the new program. Under the new US-VISIT program, border officers will take photographs, scan travel documents, and take fingerprints of foreign visitors to check their identities. Unfortunately, the program has been underfunded and poorly coordinated within the Department of Homeland Security (DHS)'s three immigration agencies, which may have disastrous effects for those foreign visitors legally entering and exiting the United States.

Although a government task force determined that the creation of an adequate entry-exit system that did not clog our borders would require billions of dollars to be even minimally effective, only $380 million was appropriated in fiscal year 2003. Now, with only a few months before US-VISIT will become a central part of U.S. border security, real estate still must be purchased, facilities still must be upgraded, technological capabilities still must be extended, and inspectors still must be hired to manage this huge high-tech border system.

Beyond the financial problems the US-VISIT program is experiencing, there are issues of information sharing within the DHS that may seriously undermine the deployment of the system. A recent statement from a government spokesperson seems to indicate that the databases of the different immigration agencies will not be integrated by the time US-VISIT is deployed. If this is true, individuals whose visa extensions are pending with Citizenship and Immigration Services may be erroneously denied entry to the United States simply because of a lack of communication between the immigration groups within DHS.

As the first stage of US-VISIT implementation approaches, we will keep you informed of any new pertinent developments. To read a fact sheet about the US-VISIT program, go to: http://www.dhs.gov/dhspublic/display?content=736

2. Attorney General Gives FBI Agents Immigration Powers

The Attorney General has issued an order delegating to the FBI full authority to "exercise the powers and duties of the Immigration Officers." This order, which pertains primarily to FBI counterterrorism investigations, may also have implications for all foreign nationals in the United States. The order gives the FBI authority to investigate and arrest foreign nationals who have committed or are committing non-criminal, i.e., civil violations of Immigration law.

A memorandum circulated to all FBI offices from the FBI General Counsel summarizes the order. According to the General Counsel's memo, the order gives FBI agents authority "to exercise the functions of immigration officers in some circumstances" and provides "guidance on the implementation of this authority." Specifically, FBI agents can now exercise the functions of immigration officers when: (1) "investigating, determining the location of, and apprehending, any alien who is in the United States in violation of the [immigration law and regulations] relating to" visas, admission, or the maintenance of status; or (2) "enforcing any requirements of such statutes or regulations, including, but not limited to, nonimmigrant aliens subject to special registration." The memo also states that the order grants FBI agents the authority to arrest a foreign national without a warrant when they have reason to believe the alien is present in the United States in violation of an immigration provision, a standard "that can be met by an admission from the alien, a review of immigration records, or other reliable information."

Although the FBI insists that the new authority will ordinarily be used only in support of ongoing investigations, agents will have the option of exercising the authority at any time.

3. Religious Worker Program Extended until 2008

A bill to extend the immigrant visa category for certain foreign religious workers passed Congress and has been signed into law by the President. The new law extends the special immigrant religious worker program, in its current form, until 2008.

The religious worker program makes special religious workers eligible for one of the approximately 10,000 EB-4 employment-based immigrant visas set aside each year for "certain special immigrants." Religious workers include ministers of religion, professionals working in religious vocations or occupations, and others working in religious vocations or occupations.

To find out more about the various employment-based immigrant categories, and the EB-4 program in particular, look at the following article on our web site: http://www.millermayer.com/resources/immigrant/empbased.html

4. DHS Officials to Screen Visas Overseas; Slowdown in Consular Processing?

The New York Times reports that the Department of Homeland Security (DHS) is planning on opening seven visa screening offices in Muslim and Arab countries.

The establishment of permanent DHS offices at U.S. embassies in Egypt, Indonesia, Morocco, Pakistan, and the United Arab Emirates early next year is the first step in the realization of a memorandum of understanding between the Department of State (DOS) and DHS on visa policy and management. The memo, which we first reported on in our last newsletter (see http://www.millermayer.com/resources/news10_3_03.html ), transferred responsibility for visa policy and oversight from the State Department to the DHS. This means that the DHS will now establish most visa policies, have final approval over most DOS-initiated guidance, review implementation of visa policies, and ensure that homeland security requirements are fully reflected in the visa process.

As such, the DHS is now assigning officials to visa issuing posts, where they perform several functions such as training consular officers regarding specific security threats, reviewing visa applications, and conducting investigations. The new offices will be in addition to DHS offices that already exist in Riyadh and Jeddah, Saudi Arabia.

Although the administration believes that the presence of DHS officers will ease the visa process for legitimate visa applications, there is concern that this development will in fact significantly slow consular processing for the majority of applicants in affected countries, as the DHS and DOS struggle to define their boundaries in this new sharing of visa authority.

5. Computer Upgrade Causes Errors on Immigration Receipt Notices

A computer system upgrade at Citizenship and Immigration Services (CIS) caused errors on all receipt notices issued by the Service Centers on October 6 and 7. The errors concerned the number of days it takes CIS to process applications, petitions, motions, and appeals.

People who called the automated services of the National Customer Service Center (NCSC) during that time frame should also note that the error that occurred during the system upgrade also caused the NCSC's automated call-in and online systems to report incorrect processing times.

Although these errors were nation-wide, most heavily impacted was the California Service Center, who did not issue any receipt notices until the problem was resolved.

Despite the seriousness of this issue, since October 6 and 7 there have not been any further system problems reported by CIS, so those who have received or are expecting to receive receipt notices from CIS should not unduly worry about the accuracy of the information provided.

6. IRS Outlines Penalty Waiver Procedure for Social Security No-Match Letters

The IRS intends to begin fining employers for reporting incorrect Social Security Numbers (SSNs) on W-2 forms. Although the IRS has never imposed fines before, it does have the authority to fine employers $50 for each incorrect SSN, up to $250,000 per employer per year.

The IRS is planning on fining employers who reported incorrect SSN numbers in 2002, but waivers of these fines are available if reasonable cause can be shown. According to a September 23 IRS letter, an "employer may rely on the Social Security Number that an employee provides in response to a solicitation," so if an employer can document that the incorrect number was provided to the employer by the employee and subsequently used in good faith, the fine may be waived.

The Social Security Administration (SSA) processes W-2 forms and checks names and numbers on the forms against SSA records. When the SSA finds a discrepancy, it sends out no-match letters to the employer and employee in question, requesting a correction of information on the form.

According to the American Immigration Lawyers Association, "although it is important to respond to the SSA, the agency does not compel compliance, and it is imperative that employers make sure that they do not inadvertently violate any laws while trying to comply with the request." As such, if an employer or an employee receives a no-match letter, an attorney should be contacted to resolve the issue lawfully.

For more on Social security mismatch letters, see the following article on our web site: http://www.millermayer.com/new/ssmismatch.html . Now may also be a good time to do an internal I-9 audit at your company to make sure everything is in order. Contact one of our immigration attorneys for details.

7. Filings at Local Offices to be Sent to National Benefits Center for Processing

Over the course of the next few months, local offices of Citizenship and Immigration Services (CIS) will begin forwarding all new family-based immigration filings to the National Benefits Center (NBC) in Missouri for intake and initial processing. NBC will be reviewing, among other things, advance paroles and employment authorization documents, in hopes of speeding up current lengthy processing times. After processing by the National Benefit Center, applications will be returned to local CIS offices for interviews.

With the new application processing protocol, certain local offices may now require new family-based filings to be made by mail. If you plan to file a new family-based immigration application, contact your local CIS office or True, Walsh & Miller at twm@millermayer.com

8. DHS Proposes New Fees for Some Student Visa Applications

The DHS has published a proposed rule that would foreign nationals applying for F-1, F-3, M-1, M-3, or J-1 visas to pay a fee. Generally, the fee would be $100, although certain J-1 visa applicants would pay only $35, and others would be exempt.

The rule provides that: participants in exchange programs sponsored by the federal government would be exempt from the fee; au pairs, camp counselors, and participants in summer work travel programs would be subject to a reduced fee of $35; and dependent foreign nationals would be exempt from paying the fee entirely. For those that are subject to it, the fee would have to be paid before status is granted. Under the proposed rule, those applying for change of status would be subject to the fee, but those who have already paid the fee and are applying for an extension of status would not be subject to it. The fee would be submitted either by mail or electronically, along the same guidelines as current immigration fee collections.

The fee levied on F, J, and M students would cover the costs of administering and maintaining the Student and Exchange Visitor Information System (SEVIS) system, and ensuring compliance by individuals, schools, and organizations with the system's requirements. The proposed fee would pay for the continued operation of SEVIS.

In its current state, the F, J and M fees are only part of a proposed rule, so they do not currently have any effect on visa applications. If, however, the proposed rule were to be accepted as an interim rule, the fees would go into effect as outlined above.

For a fact sheet about the SEVIS program, go to: http://www.millermayer.com/resources/nonimmigrant/sevisfact.html To see the proposed rule, go to: http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=1329823865+1+0+0&WAISaction=retrieve

9. New URL for CIS Web Site

On November 1, without warning, U.S. Citizenship and Immigration Services (CIS) changed its web site URL. Www.immigration.gov and www.bcis.gov no longer work. You have to use http://www.uscis.gov/ See the announcement on the front page of their web site for details. You should change all your bookmarks accordingly.

Yet another example of the confusion caused by moving immigration functions to the Department of Homeland Security (DHS).

10. New Articles on Our Web Site

We have a new article about recent changes in the H-1B visa category at:

http://www.millermayer.com/resources/nonimmigrant/h1changes.html

We have also updated our H-1B fact sheet at: http://www.millermayer.com/resources/nonimmigrant/h1fact.html

11. The Firm Speaks

Steve Yale-Loehr will speak about security clearances and other visa concerns for students and scholars at the NAFSA regional conference in Lake George, NY on November 10.

Steve will also moderate a panel on current business immigration issues at a December 8 conference sponsored by the American Immigration Lawyers Association in New York City.

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

12. See Our Halloween Photo!

Even though we are serious immigration professionals most of the time, we also know how to have fun. Our immigration group gets dressed up every Halloween. See a link to this year's photo of most of our immigration group at the top of the page at http://www.millermayer.com/resources/generalcont.htm We will give a free one-year subscription to this newsletter to the first person who can correctly identify everyone in the photo! (OK, we know the newsletter is free anyway, but we thought we would try to inject a little humor into our newsletter.)

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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. Please put "unsubscribe to millermayer.com immigration newsletter: in your subject line.

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