October 10, 2000 Immigration News Update
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Business
Immigration News Update
from True, Walsh & Miller
October 10, 2000
1. Paperwork Audit at All
INS Offices Creates Delays
2. Diversity Visa Lottery for FY 2002 Now Accepting Applications
3. New INS Adjustment of Status Form
4. Policy Guidance on Public Benefits
5. National Visa Center Procedures Explained
6. Photo Specifications for INS are Now On-Line
7. The Firm Speaks
8. New Articles on Our Web Site
1. Paperwork Audit at All INS Offices Creates Delays
A paperwork audit at
all Immigration and Naturalization Service (INS) offices nationwide
is creating delays for those who currently have applications
pending.
INS offices are in the midst of a two-week review to determine how
effectively they provide service. The audit is creating delays
because so many INS employees are involved and because of a policy
that limits the movement of files and folders between offices during
the review.
Once the audit is completed, offices and processing centers
hopefully will return to normal processing times.
2. Diversity Visa Lottery for FY 2002 Now
Accepting Applications
The diversity visa lottery for fiscal year 2002 began its 30-day
application period on Monday, October 2. Applications close on
November 1, 2000.
There are several important changes for DV-2002. Most importantly,
the mailing address for submitting DV applications has changed to
the Kentucky Consular Center in Williamsburg, Kentucky. A second
important change is a new list of ineligible countries. For the
first time, Pakistan joins the list of ineligible countries. Even
more importantly, Poland and Taiwan are OFF the list of ineligible
countries. This means that individuals born in Poland and Taiwan are
eligible to apply for DV-2002. Otherwise, the instructions and
requirements remain relatively unchanged. The complete list of
ineligible countries for DV-2002 are: Canada, China (mainland born
and Macau), Colombia, the Dominican Republic, El Salvador, Haiti,
India, Jamaica, Mexico, Pakistan, the Philippines, South Korea, the
United Kingdom and dependent territories, and Vietnam. Persons born
in Hong Kong SAR, Taiwan, and Northern Ireland are eligible to apply
for the DV 2002 lottery.
The lottery is a random drawing. Be suspicious of any organization
that offers to increase your chances of being selected for the
lottery if you pay them a fee. They are promising something that is
false. Also, there is no charge to enter the visa lottery, other
than the cost of postage.
The complete U.S. State Department Announcement can be viewed on the
web at http://travel.state.gov/dv2002.html Detailed instructions may
be found at http://travel.state.gov/dv2002vb.html
3. New INS Adjustment of Status Form
The INS has issued the following statement about its revised
adjustment of status application form. For general information
about adjustment of status, see the following article on our web
site: http://www.millermayer.com/resources/immigrant/immigrant3cont.htm
WASHINGTON - Eligible aliens who are seeking to become a legal
permanent resident or "green card" holder and have not yet
filed an adjustment of status application should use the new Form
I-485 (Application to Register Permanent Residence or Adjust Status)
- revised on February 7, 2000 - when submitting their application to
the Immigration and Naturalization Service (INS).
With the new Form I-485 young men between the ages of 18 and 25 will
be registered automatically with the Selective Service when INS
receives their application for adjustment of status. Under the
law, male legal permanent residents between the ages of 18 and 25
must register with the Selective Service. Failure to do so can lead
to the denial of a naturalization petition. With the old form INS
had to wait until the application was adjudicated before sending
registration information to the Selective Service. This posed
a problem for some males who needed to register when they filed
their application but were too old once INS had adjudicated their
petition. This streamlined process eliminates this potential
problem.
In the interest of customer service, INS has continued to accept
older versions of the form during a transition period which will end
on December 1, 2000. After that date only the new form will be
accepted. INS will return any application that is made using older
versions of the form.
Where can I get the new form?
The new Form I-485 can be downloaded from the INS website
http://www.ins.usdoj.gov or can be ordered from the INS
National Customer Service Center by calling toll free 1-800-375-5283
How do I know I am using the new form?
The new form has "(02/07/00 Rev.)N " specified on the
bottom right corner of every page.
Why did INS change the form?
INS revised Form I-485 (Application to Register Permanent Residence
or Adjust Status) on February 7, 2000, to incorporate recent
significant statutory, regulatory and policy changes. In addition to
the new Selective Service registration the new form:
*
Explains how applicants can travel outside of the United States
without adversely affecting their applications;
*
Warns applicants that if they were unlawfully present in the United
States after April 1, 1997 travel outside of the United States could
trigger either a 3 or 10 year bar to admission to the United States
under provisions of the 1996 Immigration Act;
*
Clarifies when applicants need to submit their required medical
examination report;
*
Contains information about how to file the Affidavit of Support; and
*
Addresses other technical issues.
What happens if I use the old form after December 1, 2000?
INS offices have been instructed to reject any application they
receive after December 1, 2000, that is made with an old version of
Form I-485. Your application will be returned to you with either a
copy of the new form for you to use or instructions on how you can
obtain the new form.
4. Policy Guidance on Public Benefits
The U.S. Department of Health and Human Services (HHS) and the
U.S. Department of Agriculture (USDA) recently issued guidance to
state officials clarifying the proper treatment of immigration
status and Social Security Number (SSN) questions on benefit
application forms. The guidance is posted at: http://www.dhhs.gov/ocr/immigration/.
As background, many states have sought to combine the application
forms for Medicaid, SCHIP, TANF, and Food Stamps to encourage
participation by needy eligible persons. Despite this laudable
effort, all state forms now include inappropriate and unnecessary
questions regarding immigration status and SSNs. These
questions discourage participation by eligible immigrants and their
citizen family members, at a time when access to safety net services
by these families has reached crisis levels. Improper questions may
also violate privacy and civil rights laws. The guidance
responds to these issues. It advises states to review their
forms and make adjustments where needed to ensure that eligible
immigrants and their citizen family members are not deterred from
applying because of inappropriate questions on the application.
The guidance is in the form of a letter accompanied by a series of
questions and answers (which contain important details on the
requirements for each program), as well as model notices to
applicants.
Immigration Status Questions: The guidance clarifies that only the
immigration status of the "applicant" for benefits is
relevant. Application forms should not inquire about the immigration
status of household or family members who are not seeking to receive
benefits. In Medicaid and SCHIP, this distinction is clear: the
applicant is the person who will actually receive the benefit. In
the Food Stamp and TANF programs, however, where households or
families may apply for benefits as a unit, the definition of
"applicant" may be less clear. The guidance encourages
states to allow household members who are not seeking benefits to be
designated as "non-applicants" early in the process.
Although these persons may be required to supply information about
their income and resources, they should not be asked about their
immigration status or SSN. A person's choice not to disclose
immigration status or SSN may affect the amount of benefits received
by the household, but should not affect the eligibility of other
household members.
Social Security Number Questions: Under Medicaid, TANF and Food
Stamps, applicants who do not have an SSN must apply for one.
However, state and local agencies must assist individuals in
applying for an SSN, and may not delay, deny or discontinue
assistance pending the issuance of an SSN. There is no SSN
requirement for separate SCHIP programs. Where disclosure of an SSN
is not required, states may ask individuals to voluntarily provide
them, but must inform the applicant whether disclosure is voluntary
or mandatory, by what authority it is requested and what uses will
be made of it.
The guidance also encourages states to educate and train their
eligibility workers, and to develop and implement a plan for
informing applicants of the state's commitment to these principles.
Notices should be written at the appropriate literacy level and
translated into appropriate languages, consistent with HHS'
"Policy Guidance on the Title VI Prohibition Against National
Origin Discrimination as it Affects Persons with Limited English
Proficiency."
5. National Visa Center Procedures Explained
The following information on the operations of the State
Department's National Visa Center (NVC) is provided by Donna Kane of
the INS's Vermont Service Center to help demystify the process and
to assist persons who need to make inquiries regarding their cases.
As background, the NVC helps process visa cases overseas at U.S.
consular posts. It often is an alternative to adjustment of
status. See generally the article on our web site at: http://www.millermayer.com/resources/immigrant/immigrant13cont.htm
GENERAL INFORMATION:
The National Visa Center (NVC) processes all approved immigrant visa
petitions after they are received from the Immigration and
Naturalization Service (INS) and retains them until the cases are
ready for adjudication by a consular officer abroad. Petitions may
remain at NVC for several weeks or for many years depending on the
visa category and country of birth of the visa applicant. When an
applicant's case is about to become current (a visa number is likely
to be available within the year) the petition is forwarded to the
appropriate U.S. embassy or consulate overseas. If an applicant is
adjusting status in the U.S. the case will be forwarded to the
appropriate INS office upon request by that office.
NVC receives thousands of telephone and written inquiries from
applicants, congressional offices, U.S. embassies and consulates,
INS offices, and the White House. An automated recorded message can
answer many of these inquiries 24 hours a day, seven days a week
(603) 334-0700. Status of case information can only be accessed by
entering your NVC case number or INS receipt number on a touch-tone
telephone. NVC only has information on petitions it has received. If
our automated service does not recognize the INS file or receipt
numbers you entered, most likely we have not yet received your
petition. Operators are available to respond to more difficult
inquiries from 8:00 AM to 3:45 PM (EST) Monday through Thursday. NVC
also holds a customer service feedback day so that the public can
talk to operators about the information we provide. The telephone
number and customer service dates are provided at the end of some of
the messages.
Written inquiries, changes of address and requests to upgrade
petitions due to naturalization of the petitioner should be sent to:
The National Visa Center, 32 Rochester Avenue, Portsmouth NH
03801-2909. Please note that NVC is not open to the
public. Unfortunately, some people have traveled long distances to
inquire about their case in person, only to discover that we are not
able to meet with them.
When an applicant's priority date is close to becoming current NVC
will mail a packet of forms and information (Packet 3) to the
beneficiary (applicant). If requested to do so we will send this
Packet 3 to the applicant's lawyer or to the petitioner instead of
the beneficiary. The exact contents of the Packet 3 will depend on
where the applicant will be interviewed for a visa. For instance,
the Packet 3 we send to people applying in China is different from
the one we send to applicants in France.
FREQUENTLY ASKED QUESTIONS
A.
Why don't you have my case at NVC yet?
When you complete a petition (I-130, I-140, etc.) for an immigrant
visa you send it to the Immigration and Naturalization for approval.
If the INS approves the petition they will send you a Notice of
Approval (I-797) and then they will send the petition to NVC.
Sometimes there is a delay between when you get the Notice of
Receipt and the Notice of Approval from the INS and also between
when you get the Notice of Approval and when NVC receives the
petition. After NVC receives the petition, it will send a letter to
the principal applicant (your beneficiary) regarding the status of
the case. We recommend that you wait at least three weeks after you
get your Notice of Approval before calling NVC if you have not heard
from the Center by that time. Please remember that unless instructed
to do otherwise, we notify the beneficiary (the applicant) - NOT the
petitioner - regarding the status of the case.
B.
I am the beneficiary (applicant) and my case is at NVC. Now what
happens?
This depends on whether or not your case is current. If your visa
category is an immediate relative category (spouse, parent or child
of a U.S. citizen) then your case is automatically current. If
your visa category is one of the family preference or employment
categories, there are legal limits on the numbers of visas that can
be issued in each category and in most categories, the demand is
higher than those limits. In these categories, waiting lists have
been established based on your priority date, which is the date your
sponsor filed your petition with the INS. Cutoff dates
established by the Visa Office determine when your petition will be
reached for processing. Your petition can only become current and
thus ready to further processing when the cutoff date in your visa
category has advanced up to your priority date.
If your case is about to become current we will send you, the
beneficiary, a Packet 3 containing information and forms. You should
complete all the necessary forms and follow the instructions to
continue with the visa application process. Your sponsor
(petitioner) should complete the Affidavit of Support (I-864) form,
which will be sent directly to the petitioner by NVC.
6. Photo Specifications for INS are Now On-Line
The Immigration Service has very precise requirements for
photographs required of applicants for practical training EAD cards,
other employment-based cards, and applications for certain other
benefits. Our web site has put the photo requirements on-line,
complete with examples. To view the photo specification page, go to:
http://www.millermayer.com/resources/general46cont.htm
7. The Firm Speaks
October 24: Steve Yale-Loehr will give a presentation on Visas
After Graduation at Cornell University's Kennedy Hall from 7-9 p.m.
November 13: Hilary Fraser and Rosanne Mayer will lead a panel on
temporary work visas at the NAFSA regional meeting in Montreal
Canada.
November 23: Steve Yale-Loehr will speak on comparative business
immigration issues at an international symposium on immigration,
labor and the law in Sydney Australia. (See http://www.law.usyd.edu.au/nationskilling/)
December 13: Steve Yale-Loehr will speak on unlawful presence issues
at a conference sponsored by the American Immigration Lawyers
Association in New York City.
For more information about any of these talks, contact us at the
email addresses listed at the end of this newsletter.
8. New Articles on Our Web Site
Steve Yale-Loehr has co-authored an article about recent
restrictive rends in national interest waiver cases. It is on
our web site at: http://www.millermayer.com/resources/immigrant/immigrant16cont.htm
Steve Yale-Loehr has co-authored an article about Q-2 visas, a new
work visa category. The article is at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant15cont.htm.
Steve Yale-Loehr has co-authored an article about the evolving
boundaries of H-1B classification. The article originally
appeared as one of his regular immigration columns in the New York
Law Journal. The article can be found on our web site at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant6.htm
The contents of these web pages are provided for general informational purposes and
do not constitute legal advice for specific cases, which should only be obtained from an
attorney. |
Copyright © 2002 True, Walsh & Miller, LLP. Attorneys at Law
The Commons, 202 East State Street, Ithaca, New York 14850
phone: 607-273-4200, fax: 607-272-6694, E-mail: twm@twmlaw.com |
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