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Current Issue
U.S. Immigration News Update September 2002 Headlines
PRESIDENT SIGNS CHILD AGE OUT PROTECTION LAW
President George W. Bush on Tuesday, August 6, 2002 signed the Child Status Protection Act. This new law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of Immigration and Naturalization Service ("INS") processing delays. Prior to the passage of this law, a child's eligibility to receive a visa or be part of his or her parent's application was based on the child's age at the time that the alien relative petition was approved, not the time the petition was filed. Because of enormous backlogs and processing delays, many children turned 21 before the INS adjudicated the petition. In such cases, the child "ages out" and is ineligible to receive an immediate relative visa or is no longer considered to be part of the parent's application. The child's petition is either automatically moved to a lower preference category or the child is required to submit his or her own petition, resulting in years of delays and possible ineligibility.
The "Child Status Protection Act" (H.R. 1209), provides that the determination of whether an unmarried alien son or daughter of a U.S. citizen is considered an "immediate relative child" (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law. The new law makes similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the former situation, the age determination will be made at the time of the parents' naturalization. In the latter, the alien beneficiary's age will be determined as of the date of his or her divorce.
For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability. In addition, the new law provides age out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status. Finally, the new law provides that the family sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized U.S. citizen will be converted to a petition for an unmarried son or daughter of a U.S. citizen, unless the son or daughter elects otherwise.
INS FINALIZES ALIEN REGISTRATION RULE
The INS has finalized a rule that requires certain nonimmigrants to undergo various registration processes, and imposes sanctions on those who do not follow the processes.
Attorney General Ashcroft announced that the first phase of the Special Alien Registration Program will be implemented at selected ports of entry beginning September 11, 2002. Nationals of Iran, Iraq, Libya, Sudan and Syria will be affected.
This final rule applies to only a small percentage of the more than 35 million nonimmigrant aliens who enter the United States each year: (1) Nonimmigrant aliens from selected countries specified in notices published in the Federal Register, and (2) individual nonimmigrant aliens who are designated by a consular officer outside the United States or an inspection officer at the port of entry based on information that indicates the need for closer monitoring of the alien's compliance with the terms of his or her visa or admission because of the national security or law enforcement interests of the United States. This rule expands the existing special registration rule to require that these designated nonimmigrant aliens provide more detailed and frequent information to ensure that they comply with the conditions of their visas and admissions, along with leaving the United States.
GREATER SCRUTINY AND LONGER WAIT FOR VISA APPLICANTS POST 9/11
The Department of State ("DOS") has posted a notice relating to the processing of nonimmigrant visas. The public is advised that nonimmigrant visa applications are now subject to a greater degree of scrutiny than prior to September 11, 2001 and thus take longer to process. Visa applicants are asked for their understanding, and are advised to expect "substantial delays of six to eight weeks or more." Below is the DOS notice.
DOS Notice on Current Visa Processing Situation
Since the terrorist attacks of September 11, 2001, the State Department has been engaged with other U.S. government agencies in an extensive and ongoing review of visa issuing practices as they relate to the security of our borders and our nation.
Through the use of supplemental application forms and other measures, visa applications are now subject to a greater degree of scrutiny than in the past. This scrutiny means that visa applications in some instances take longer to process to conclusion than has been customary. We recognize that individual applicants may experience inconvenience and hardship if their application takes longer to process than they expected. We are doing everything possible to meet the legitimate needs of prospective travelers consistent with the priority we must attach to our security and legal responsibilities.
While our consular officers strive to offer visa applicants as expeditious service as possible, their primary responsibility is to carry out U.S. law and to ensure that applicants to whom they issue visas will not pose a threat to the safety and security of the United States and its inhabitants. This is a serious responsibility that must take precedence over other considerations pertaining to a visa application.
We realize that these necessary security measures may affect the travel plans of visa applicants, especially individuals intending to enroll in or continue college and university studies in the United States. We will make every attempt to meet the legitimate needs of prospective travelers to the United States, consistent with the priority of our security and legal responsibilities. We recommend that individuals build in ample time before their planned travel date when seeking to obtain a visa.
Special security screening procedures affect a limited number of prospective travelers. Our goal is to have assured security within a system that is responsive to everyone wishing to visit the United States. However, delays in processing of visas will continue to occur as the Department of State, working with other agencies, brings new information systems on line. Responding to the attacks of September 11, 2001, Congress ordered that security inadequacies be identified and addressed. By legislative instruction, some of this work was specifically to be accomplished by the first anniversary of the attacks. That work is in course now in accordance with those instructions.
The time needed for adjudication of individual cases will continue to be difficult to predict, as necessary new procedures are refined. Visa applicants affected by these procedures are informed of the need for additional screening at the time of application and should expect substantial delays of six to eight weeks or more before a visa can be issued.
We trust that affected applicants will understand that this waiting period is necessary as we strive to make every effort to ensure the safety and security of the United States for all who are here, including foreign visitors.
INS BEGINS NEW STUDENT VISA TRACKING SYSTEM
The INS announced the successful start on July 1, 2002, of a preliminary enrollment period to enable INS approved schools to begin using the Student and Exchange Visitor Information System (SEVIS) to accept foreign students.
SEVIS is an Internet based computer system that will enable schools and program sponsors to transmit electronic information and event notifications to INS and the Department of State throughout a foreign student's or exchange visitor's stay in the United States.
The preliminary enrollment period is limited to postsecondary, language, and vocational schools accredited by an accrediting agency recognized by the United States Department of Education; public high schools with certification from the appropriate public official that the school meets the requirements of the state or local public educational system; and private elementary and private secondary schools that are accredited by an organization holding membership in the Council for American Private Education (CAPE) or the American Association of Christian Schools (AACS). In addition, all schools must have been approved by INS to accept academic (F visa) and vocational (M visa) foreign students for the past three years.
There is no fee for preliminary enrollment. The preliminary enrollment period will remain open until at least August 16, 2002. At that time, INS plans to issue a new interim rule governing the certification process for all schools seeking to participate in SEVIS. Upon issuance of the new interim rule, all schools will pay a standard certification fee. The rule will further provide that every two years there will be an onsite review of each school that desires to accept or continue to accept foreign students.
"The beginning of this enrollment period brings us one step closer to implementing SEVIS," said INS Commissioner James Ziglar. "SEVIS promises to revolutionize the way information about foreign students is shared between schools and INS."
PARIS CONSULATE WARNS ADDITIONAL DELAYS IN VISA PROCESSING
The U.S. Consulate in Paris, France has announced that for nationals of countries subject to additional consular scrutiny, the time frame in which the 'additional administrative processing' might be completed cannot be specified. If a client was told that the expected processing would take some definite amount of time (e.g.: 30 days), that is no longer correct. The consul cannot say when any of these applicants' cases will be processed to conclusion. The consulate indicates that it will contact these applicants when a final decision is made in their cases.
Similar experiences are reported at other U.S. consulate posts by members of the American Immigration Lawyers Association, with waits of 2 and 1/2 months or more for issuance of nonimmigrant visas to nationals of countries believed to be on the "list of 26" countries subject to additional scrutiny.
J1 WAIVER ONLINE STATUS CHECK
The Waiver Review Division of the State Department recently implemented an online case status system for Section 212(e) J1 waiver cases. Click on the following link to view the J1 waiver case status website: http://12.172.51.143. Recent users report that they have found it to be fairly current.
OLD MEXICAN BORDER CROSSING CARDS VALID UNTIL 10/1/2002
As part of the Enhanced Border Security Act, the INS announced today that the older, nonbiometric Mexican Border Crossing Card will be valid until October 1, 2002. Mexican nationals are encouraged to apply as soon as possible for the new biometric BCC, Form DSP150. The Department of State has issued over five million new cards since April 1998.
On October 1, 2001, the INS began accepting only the new biometric Border Crossing Card ("BCC"). This requirement was mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. With the enactment of the Enhanced Border Security Act, holders of the old border crossing cards, Form I186 or I586, now have until October 1, 2002, to replace them with the new biometric, machine readable cards (DSP150).
The new DSP150, also known as the biometric BCC, has a photo and machine readable biometric information. Beginning October 1, 2002, the old BCC will no longer be a valid entry document.
With passage of the new law, those persons seeking admission to the United States must possess one of the following:
- The old border crossing card, Form I186 or I586 (until October 1, 2002);
- A valid biometric, machine readable, B1/B2 visa/BCC (DSP150);
- A B1/B2 visa and BCC combination document issued by DOS before 1998, where the visa is still valid, along with a valid passport; or
- Other valid visa and passport.
The Department of State has been accepting applications for the new document since April 1, 1998. Persons must call a toll fee number in Mexico (listed below) to arrange for an appointment at a U.S. consulate. At their scheduled appointment, consular staff in Mexico photograph and fingerprint the applicants. Upon approval, DOS will issue the new BCC to the applicant.
The posts that are accepting biometric BCC applications are located in Mexico City, Ciudad Juarez, Guadalajara, Hermosillo, Merida, Matamoros, Monterrey, Nogales, Nuevo Laredo, Tijuana, and at the Tijuana and the Mexicali Temporary Processing Facilities.
In Mexico, visa information is available by calling 01-900-849-4949. In addition, visa information is available at no charge on the U.S. Embassy homepage at http://www.usembassy-mexico.gov/
NEW RULE PERMIT PART TIME BORDER COMMUTER STUDENTS
On August 27, 2002, the INS published an interim rule allowing Mexican and Canadian commuter students to study on a part time basis at schools located within 75 miles of the United States border. This new rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part time basis within the F1 or M1 nonimmigrant visa category. These changes are being made to facilitate and legitimize certain part time study in border communities while ensuring that all applicable requirements and safeguards are met.
"Clarifying the legal manner in which part time students enter the U.S. will benefit not only the students but American schools in the border communities," said Attorney General John Ashcroft. "This new rule will prevent the significant disruption of the part time study that has become an accepted fact of life along our borders with Mexico and Canada," he added.
"The purpose of this rule is to acknowledge the special relationship between the United States and its neighbors and to legitimize such study by border commuter students, while placing it within a regulated, controlled process, said INS Commissioner James Ziglar. To qualify under this new rule, they must attend an INS approved school located no more than 75 miles from the border and obtain the appropriate Form I20 Certificate of Eligibility for Nonimmigrant Student Status, and obtain the appropriate visa, unless exempt. By January, the INS will have in place an online reporting system known as the Student and Exchange Visitor Information System (SEVIS). Schools will be required to report through SEVIS on foreign students, including these part time commuters.
The immigration law prohibits the admission as visitors of aliens seeking to attend school part time as commuters. However, it had become commonplace for these students to enter as visitors on a daily basis. Since September 11, the INS has more closely scrutinized the purpose of entry of these Mexican and Canadian visitors. Tighter enforcement of our laws has led to concerns that part time commuter students are no longer eligible to pursue their studies on the U. S. side of the border.
Recognizing the need to serve the educational interests of students living on both sides of our northern and southern borders and the economic prosperity of these border communities, the INS instructed immigration officers to parole Canadian and Mexican nationals who have already enrolled in U.S. schools until December 31, 2002. This rule will ensure that those students may continue their education in the U.S. The rule will also benefit commuter students who wish to commence part time study at a border school once they have obtained the necessary documentation.
EXPEDITED NATURALIZATION FOR MEMBERS OF THE MILITARY
A July 3, 2002 Presidential Executive Order allows noncitizens serving in active duty status in the U.S. Armed Forces, during the period starting September 11, 2001 and ending when so ordered by the President, to be eligible for naturalization under Section 329 of the Immigration and Nationality Act. That provision waives certain requirements for naturalization, including the residence and physical presence requirements.
STATE AND LOCAL POLICE COULD ENFORCE IMMIGRATION LAWS
The Department of Justice has finalized a rule permitting the Attorney General to authorize any state or local law enforcement officer, with the consent of those whose jurisdiction the individual is serving, to perform certain functions related to the enforcement of the immigration laws during the period of a declared "mass influx of aliens."
NEW FORM DS158 REQUIRED OF ALL STUDENTS
As of July 25, 2002, the new Form DS158 (Contact Information and Work History for Nonimmigrant Visa Applicant) must be used by foreign nationals applying for a student visa (F1, M1, and J1 visas) to enter the United States, as well as by other nonimmigrant visa applicants "as appropriate." The form, DS158 must be used in addition to the basic nonimmigrant visa application form, DS156. Many visa applicants also need to submit Form DS157 as part of their nonimmigrant visa application package as well. The State Department had sought emergency approval from the Office of Management and Budget for use of the new form. That approval has been received, and the State Department has posted the form on its website, http://travel.state.gov/visaforms.html
OUR OFFICE PUBLISHES THIS NEWS UPDATE TO PROVIDE THE PUBLIC WITH GENERAL
INFORMATION REGARDING THE LATEST DEVELOPMENTS IN US IMMIGRATION LAW. THE
INFORMATION IN THIS NEWS UPDATE SHOULD NOT BE INTERPRETED AS LEGAL ADVICE.
READERS ARE STRONGLY ADVISED TO CONSULT A QUALIFIED IMMIGRATION LAWYER TO
RESOLVE THEIR INDIVIDUAL CIRCUMSTANCES. FOR CONSULTATION WITH AN IMMIGRATION LAWYER,
PLEASE CALL US AT (626) 279-5341 OR E-MAIL US AT INFO@BCCVISALAW.COM. AN ATTORNEY IN OUR OFFICE WOULD BE HAPPY TO ASSIST YOU.
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