In this issue:

1. Department of Homeland Security Reorganization in a Nutshell
2. Immigration Filing Fee Checks to be Made Out to Department of Homeland Security
3. Immigration E-Filing to Begin
4. Justice Department Withdraws Rule Restricting B Visitors
5. Special Registrants Seeking Change/Extension of Status
6. Jury Is Out on Premium Processing
7. Employer Notes: Social Security "No-Match Letters"
8. Ciudad Juarez Will Resume Some Third Country Processing
9. Canadian Landed Immigrants Now Need Visas to Enter U.S.
10. Travel Watch; Reentry; Consular Post Report
11. Changes in Nonimmigrant Visa Photograph Requirements
12. State Department Launches Visa Education Campaign
13. Easter Bunny Nabbed at Border
14. The Firm Speaks
15. New Articles on Our Website
    

1. Department of Homeland Security Reorganization in a Nutshell

On March 1, 2003, the Immigration and Naturalization Service (INS) was abolished and absorbed into the new Department of Homeland Security (DHS). The transition does not make any immediate substantive changes in immigration filing procedures. Additionally, so far the addresses remain the same for immigration service centers, district offices, application support centers and asylum offices. The reorganization mainly effected a change in the structure of immigration functions. INS was the one agency where all immigration functions, including adjudication and enforcement, were housed within the Department of Justice. Now, immigration functions are separated into three separate agencies within the DHS.

Immigration service functions -- including immigrant visa petitions, applications for citizenship, applications for asylum and refugee status, and adjudication of nonimmigrant petitions – are now handled by the Bureau of Citizenship and Immigration Services (BCIS). Two separate bureaus handle immigration enforcement: the Bureau of Customs and Border Protection (BCBP) and the Bureau of Immigration and Customs Enforcement (BICE). The BICE enforces customs and immigration laws within the United States. The BCBP conducts inspection and enforce immigration and customs laws at the border.

The Senate Judiciary Committee continues to have jurisdiction of the immigration functions. The Department of Justice retains jurisdiction of the Executive Office of Immigration Review (EOIR), the appellate body reviewing immigration judges' decisions. The Department of State retains jurisdiction over visa processing and issuance, although consular officers will be subject to rules issuing from the Department of Homeland Security.

The BCIS has released a brochure covering many questions about the transition, including whether INS documents with INS seals on them, such as green cards and naturalization certificate, are still valid (yes), and whether applications pending on March 1 must be re-filed (no). To find the brochure, click to: http://www.immigration.gov/graphics/ChangingINSbrochure.pdf.

For the DHS website, click to: http://www.dhs.gov/
You can find BCIS on the internet at: http://www.immigration.gov/

Changes are forthcoming. For example, the Missouri Service Center will soon be renamed the National Benefits Center (NBC). Very soon certain family-based green card petitions now filed at local BCIS offices will be filed with the NBC instead. The NBC will handle data entry to take some of the load off the local offices.

Will ABC [All Benefits Center], CBS [Central Benefits Service], and WB [Without Benefits] be far behind?! Stay tuned (pun intended).

2. Immigration Filing Fee Checks to be Made Out to Department of Homeland Security

The BCIS advises that it is still accepting checks made payable to INS or DOJ. There is conflicting information about the proper payee, but the latest information indicates that preferable payee is the U.S. Treasury or the Department of Homeland Security. Members or the American Immigration Lawyers Association (AILA) report that some ports of entry will only accept checks made payable to the DHS. As the DHS encompasses BCIS, BCBP and BICE, the safest payee would appear to be DHS.

3. Immigration E-Filing to Begin

The BCIS has announced that beginning at the end of May it plans to offer electronic filing (e-filing) as an option for two of the most commonly submitted immigration forms - the application used to renew or replace a "green card" (Form I-90) and the application for an Employment Authorization Document (EAD) (Form I-765).

Customers who e-file will not have to submit photographs at the time they file their applications. They will schedule an appointment to visit an Application Support Center (ASC) or the electronic collection of a photograph, signature, and fingerprint. After filing electronically, customers will schedule their appointment by calling the National Customer Service Center at 800-375-5283.

The EAD and "green card" replacement applications were selected as the first forms for e-filing because they account for approximately 30 percent of the applications received annually by the BCIS. Electronic filing for other immigration applications will be phased in over the next several years.

A press release about the new immigration e-filing program is at: http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0140.xml.

4. Justice Department Withdraws Rule Restricting B Visitors

The Justice Department has withdrawn a proposed rule that would have limited the admission period and extension procedures for B nonimmigrant visa holders. The proposed rule would have eliminated the minimum admission period of B-2 visitors for pleasure, reduced the maximum admission period of B-1 and B-2 visitors from one year to 6 months, and established greater control over a B visitor's ability to extend or change status to a student classification. The rule was the subject of much criticism from immigration lawyers and the business community. The Justice Department received over 10,000 comments opposing the proposed rule.

5. Special Registrants Seeking Change/Extension of Status

Immigration lawyers report that they have been receiving Requests for Further Evidence (RFE) from the BCIS on extension and change of status petitions, asking for proof of special registration where beneficiaries are subject to special registration. Many RFEs have been issued even though the deadline for registration had not yet been reached and even if the case is in premium processing. AILA is seeking clarification from the BCIS on this issue. In the meantime, beneficiaries subject to special registration should register before filing and provide a copy of their I-94 cards annotated with the fingerprint identification number to their attorneys to include with the filing.

6. Jury Is Out on Premium Processing

The Justice Department's Inspector General has completed an audit of the immigration premium processing program. The premium processing program was established in June 2001 to allow expedited servicing for an additional fee of $1,000. Currently, the program is open only to nonimmigrant visa petitions filed on Form I-129. In Fiscal Year 2002, the program generated over $115 million in revenues.

The audit showed that the Immigration Service had not maintained statistical databases tracking workload and required resources for premium processing. In addition, the results showed there is a correlation between premium processing and increased backlogs in regular adjudication. Since the premium processing program began, the immigration case backlog has steadily increased, reaching 3.2 million in September 2002.

The auditors, however, did find that the premium processing program was, in general, meeting the goal of adjudicating petitions within 15 days.

7. Employer Notes: Social Security "No-Match Letters"

The Social Security Administration (SSA) has made significant changes to the number of no-match letters it will issue this year, in part in reaction to the roughly 900,000 letters SSA sent to employers last year.

No-match letters are sent to employers whose employees' social security number (SSN) on W-2s do not match SSA records. After pursuing various formulas for when employers were notified during past years, in 2002 the SSA sent a letter to every employer who had at least one employee whose information did not match SSA records. The 2002 letters also contained language indicating that the Internal Revenue Service (IRS) could fine an employer for each incorrectly reported social security number, causing panic and uncertainty among employers and employees. The letters were also confused with notification of immigration violations, resulting in terminations and resignations of foreign national employees. Reports indicate that U.S. employers lost thousands of workers due to the effects of no-match letters. An article about this controversy is on our web site at: http://www.millermayer.com/new/ssmismatch.html.

For 2003, the SSA will issue letters only to employers with more than 10 employees with mismatched information or for whom mismatched employees represent 1% or more of the W-2 forms filed with SSA. In addition, the 2003 letter does not include any reference to IRS fines. In addition, the letter explains that it is not about the employees' immigration status, and that taking any adverse action against an employee because of a no-match report could violate state and federal law and subject the employer to legal consequences. The letters will provide employers with a list of all employees with no-match information and request the employer to provide the correct information in 60 days.

The IRS is not totally out of the picture, however. The IRS can fine employers $50 for each incorrectly reported social security number. The IRS is developing an enforcement policy for these fines, although reports indicate that the IRS will delay penalties for an additional year. The employers are still subject to liability under these regulations.

While neither the SSA nor the IRS currently shares detailed information with the Immigration Service, the SSA is considering sharing more information with the Service. The new IRS enforcement program would also include meetings with the Immigration Service.

The SSA is also developing a pilot program called the Social Security Number Verification System (SSNVS), an Internet-based system enabling employers to verify an employee's SSN. The SSA has proposed broader access to the SSNVS, although it remains unclear how the system would comply with the anti-discrimination provisions in the immigration statute and protect employee information from unauthorized verifications.

8. Ciudad Juarez Will Resume Some Third Country Processing

The U.S. consulate in Ciudad Juarez, Mexico has advised AILA that it plans to resume processing of some nonimmigrant visas for third country nationals (TCNs). TCNs are foreign nationals who are not nationals of Mexico or Canada who seek visa processing in U.S. consular posts in Mexico or Canada. The consulate plans to re-open TCN processing for all types of visa renewals for which the initial visa was issued in the home country. The consulate will also process visas for TCN applicants who obtained a change of status from the BCIS from one nonimmigrant classification to another, except where the initial class was B-1 or B-2.

However, Ciudad Juarez will process those who arrived in the United States with a B-1 or B-2 visa with a "prospective student" annotation. Ciudad Juarez indicates that for workload reasons, it does not intend to process E visa applicants for treaty traders or investors. Nor will it accept cases with "special processing requirements."

Ciudad Juarez will begin taking appointments soon. Generally, appointments must be made at least two weeks in advance. For more information, go to Ciudad Juarez post's website at: http://ciudadjuarez.usconsulate.gov/.

9. Canadian Landed Immigrants Now Need Visas to Enter U.S.

All landed immigrants in Canada from the former British Commonwealth countries and Ireland who used to be visa exempt must now present a valid U.S. nonimmigrant visa to enter the United States. The only exceptions will be for landed immigrants from the countries that are on the Visa Waiver Program and who are entering the United States as a visitor only and for less than 90 days.

Under an old State Department rule, the passport and visa requirement for entry into the United States were waived for these individuals entering from Canada. The new policy removes this benefit.

This change affects both landed immigrants in Canada and Canadian landed immigrants currently in the United States in valid nonimmigrant status, such as F-1 or H-1 who were admitted visa-exempt. If these individuals now leave the United States, even for one day, they need a visa to return to the United States.

U.S. consular posts in Canada will likely be very busy processing visas for landed immigrants due to this new requirement. Expect delay in TCN visa processing in Canada. For more information on the new requirement, go to the U.S. Embassy in Ottawa's website: http://www.usembassycanada.gov.

10. Travel Watch; Reentry; Consular Post Report

All foreign nationals returning to the United States may expect intensified questioning and security checks from inspectors due to instability in post-war Iraq and the region. Each returning foreign national should possess required documentation showing eligibility to travel and reenter. Foreign nationals subject to special registration will be subject to even higher levels of security screening, including registration.

Many consular posts are now closed or are offering only limited services. According to recent reports, the following embassies and consulates have announced that they are closed until further notice: Surabaya, Indonesia; Amman, Jordan; Skopje, Macedonia; all embassies and consular posts in Pakistan; Bucharest, Romania; and all posts in South Africa. These posts may now be open for limited service and for emergency services to U.S. citizens. As of April 20, 2003, the post in Karachi, Pakistan is closed.

Non-emergency personnel in the following embassies and consulates were given the option of leaving, which may result in limited services or closures: Mnama, Bahrain; Beirut, Lebanon; Muscat, Oman; Doha, Qatar; Dhahran, Jetta and Riyadh, Saudi Arabia; and Abu Dhabi and Dubai, United Arab Emirates. Also, as a precautionary measure against Severe Acute Respiratory Syndrome (SARS), the State Department has authorized voluntary departure of non-emergency personnel in several consular posts in China, including Guangzhou, the Special Administrative Region (SAR) of Hong Kong, Chengdu, Shanghai, and Shenyang, and the U.S. Embassy in Beijing.

The availability of consular services changes frequently in these times. All travelers are advised to contact or check the information relating to the applicable consular posts before leaving the United States if a visa will be required for reentry.

The U.S. Department of State's website has a page called "Current Travel Warnings" (http://travel.state.gov/warnings_list.html) listing countries where Americans are advised not to travel. The consulates in the countries listed on this page, including many countries in the Middle East, the Gulf, parts of Africa, South American and Hong Kong are likely to have delays in processing visas because of heightened security checks and decreased personnel at these posts.

11. Changes in Nonimmigrant Visa Photograph Requirements

The State Department has instructed consular posts to phase in a new photo standard for nonimmigrant visa processing. The old photo standard required a profile view of the face. The new standard is the same as required for U.S. passport issuance, reflecting the State Department's move to create a uniform standard for photos. An excerpt of new requirements are as follows:

"The photograph of each visa applicant must be an unmounted full face photo, taken within the past six months. A 'full face' photo is one in which the applicant is facing the camera directly. The applicant should not be looking down or to either side, and the face should cover about 50 per cent of the area of the photo. Although variations in hair styles and in head coverings make it difficult to rigorously define the term 'face,' in general, the head of the applicant, including both face and hair, should be shown from the crown of the head to the tip of the chin on top and bottom, and from hair line side-to-side. It is preferable that the ears be exposed. The key requirement is that the photograph clearly identify the applicant."

Applicants are further advised to staple or glue the photo to the Form DS-156. If the photo is stapled, the staples should be placed as far away as possible from the applicant's face against a while or off-white background only.

12. State Department Launches Visa Education Campaign

The State Department has unveiled a new effort to communicate changes to U.S. visa procedures. The initiative is entitled "Secure Borders. Open Doors, " currently consisting of a new website (www.UnitedStatesVisas.gov). The website contains has four main areas with instructions for business visitors, students, tourists and intending immigrants. The section entitled "Studying in the United States and coming on an exchange" contains a link to another Department of State website entitled, "Education USA" (http://exchanges.state.gov/education/educationusa/IYWTS.htm). This site contains .pdf booklets in English, French, Spanish and Arabic about pursuing various levels of study in the United States. Not all booklets are provided in all four languages, however.

13. Easter Bunny Nabbed at Border

BARK and BITE, newly created agencies of the Department of Homeland Security, announced on April 1, 2003 that the Easter Bunny, a.k.a. Peter Cottontail, is now being detained in an undisclosed location after being apprehended at the San Luis Obispo, California port of entry. A spokesperson for BARK and BITE announced that "the purported Mr. Bunny chose to disregard the special registration requirements for rabbits, which include a complete background check and paw prints. In addition, his passport shows recent unexplained travel, including to many countries we consider sponsors of terrorism. He says he was distributing 'eggs.' We just don't buy it."

14. The Firm Speaks

Steve Yale-Loehr will moderate a panel on June 19 at the AILA annual conference. The panel will provide an overview of immigration law, including recent developments, for beginning immigration lawyers.

Also, Steve was quoted in the Washington Post on March 3 discussing his views regarding the proposed reduction in the Board of Immigration Appeals from 23 to 11 members. Steve testified before Congress last year on this issue.

Steve was also quoted in the Chicago Tribune on April 25 criticizing a new decision by Attorney General John Ashcroft to detain Haitian immigrants who are applying for asylum.

15. New Articles on Our Website

Steve Yale-Loehr has co-authored an article about when green cards are not really final. The article, "The INS Approval: When It Can't Be Trusted," is at http://www.millermayer.com/new/insapproval.html.

Steve has also written a long article about H-1B workers who apply for a seventh year extension under a new law. That article is at http://www.millermayer.com/resources/nonimmigrant/buyingtime.html

Steve has co-written an article about the detention of asylum seekers at: http://www.millermayer.com/resources/detandcrimasylum

Laurie Johnston and Carolyn Lee have written a memo summarizing I-9 employment eligibility requirements. The article is at http://www.millermayer.com/resources/formI9.html

Also check out four other articles on labor and employment law of interest to employers. True, Walsh & Miller provides outstanding service in labor and employment law, complementing our business immigration practice. These articles are entitled, "Are employers required to have a sexual harassment policy?," "Are New York employers required to provide employees with an employee handbook?," "Obligations of New York employers to applicants and employees with disabilities," and "2002 Developments in New York labor and unemployment law." They can be found at: http://www.millermayer.com/practice/laborcont.htm.

_____________________
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.

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