Immigration Spotlight

Transcription

1 Jackson & Hertogs, LLP Immigration Spotlight Issue 9 January 15, 2003 Inside Spotlight Immigration & Naturalization Service Special registration: Pakistan and Saudi Arabia Hold lifted on approvals of adjustments/natz Advance submission of passenger data Number of H-1B visas will decrease Department of Labor (DOL) PERM regulation update Other News Special Focus: Consular Processing (part 1) J&H News Immigration Trivia INS News Special registration alert Pakistan and Saudi Arabia deadline February 21st Male nationals and citizens from Pakistan or Saudi Arabia who were born on or before January 13, 1987, entered the United States on a nonimmigrant visa on or before September 30, 2002, and will remain in the United States after February 21, 2003, must register with the INS prior to February 21, (Please note that Armenia was originally included but later removed from the list). It is important that human resource personnel understand that the special registration process for affected individuals is obligatory and that it can take several hours or in some cases even days. Also, individuals subject to special registration who depart the United States must also register with the INS upon departure and can only depart from an airport or other port that is included on an official INS list of pre-approved airports and other ports. Also note that affected individuals holding dual nationality or citizenship (e.g., individuals who are citizens or nationals of Pakistan or Saudi Arabia, and are also citizens of another nondesignated country such as Canada, Britain, France, etc.) are still subject to special registration. Those subject to call in special registration interviews should be prepared to present the following documents (this is not an exclusive list; the INS may request additional documents): Travel documents, including passport, Form I-94 issued at admission, and any other forms of government-issued identification (e.g., employment authorization card, advance parole document) Proof of residence (such as title to property or lease or rental agreement) Proof of current registration at an educational institution (if applicable) Proof of employment (if applicable, and working under valid INS work authorization) (e.g. recent pay stub, and employment verification letter from your employer - see sample on our website under employment verification ) Credit card information Passport Pakistan and Saudi Arabia comprises the third group of countries called in for special registration. The first group of countries consisted of Iran, Iraq, Libya, Sudan, and Syria. The second group consisted of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. The deadline for registration for Group 1 was December 16, 2002, and 170 Columbus Avenue, Fourth Floor San Francisco, CA Voice: Fax: TTY office@jackson-hertogs.com (R01)

2 To catch the reader's attention, place an interesting sentence or quote from the story here. Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JANUARY 2003 PAGE 9.2 for Group 2, January 10, If one of your employees is a national of the first two groups and they have not registered, they need to obtain counsel from an immigration attorney immediately. If you or one of your employees are interested in retaining J&H in this regard, we are happy to provide consultation support (there is e a charge for this service). For additional details regarding special registration, please see our December issue of Spotlight as well as our website under special registration. INS hold lifted on approvals of adjustments and naturalizations INS Headquarters has advised that the problems with the FBI checks have been resolved, and that approvals of adjustment of status (I-485) and naturalization applications (N-400) are proceeding. As previously reported in Spotlight, INS offices nationwide, including the San Francisco District Office, had been holding final approvals on these applications since December 2002, pending notification from the FBI that the applicants had cleared the security checks. The hold was caused by the INS's Computer Linked Applicant Information Management System (CLAIMS) upgrade to allow more communication with the FBI's background check systems. Despite this announcement, we are still experiencing adjudication delays of I-485s due to the hold and we anticipate that it will take several months for the INS to work its way through the backlog on cases that the hold created. INS to require advance submission of passenger data, effective 1/1/2003 As part of the Enhanced Border Security and Visa Entry Reform Act of 2002, the INS has announced that it will require all commercial carriers to submit detailed passenger manifests on all passengers to the agency electronically before an aircraft or vessel arrives in or departs from the United States. Passenger information that must be submitted in advance includes complete name; date of birth; citizenship; sex; passport number and country of issuance; country of residence; U.S. visa number, date and place of issuance (where applicable); alien registration number (where applicable); address while in the U.S.; and such other information the Attorney General, in consultation with the Secretary of State and the Secretary of Treasury, determines as being necessary. The INS hopes that the advance submission of this information will help the agency verify the identities of individuals being transported, while ensuring enforcement of U.S. immigration laws. The proposed rule implementing this provision was published on January 3. It is expected that the INS will quickly finalize the rule after the expiration of the 30 day comment period. Number of available H-1B visas will decrease on October 1, 2003 The number of available new H-1Bs is scheduled to revert back to 65,000 from the current 195,000 on October 1, 2003, the start of the U.S. government s 2004 fiscal year. Due to a booming economy in 2000, Congress temporarily increased the number of available H-1 visas to 195,000 for fiscal years Prior to the increase, the cap was reached as early as March, therefore preventing many employers from hiring H- 1Bs until the beginning of the new fiscal year in October. Although it is unclear whether we will reach the 65,000 cap for FY2004, to prevent interruptions in work authorization, we recommend that employers plan ahead as much as possible and file a request for a change of status to H-1B for any qualified employee currently in TN or F-1 practical training status. In addition, if you are considering hiring foreign nationals currently living abroad, we also recommend starting the H-1B process as soon as possible. Please note that the cap only applies to new H-1Bs (e.g. transfers, extensions, and amendments are not counted toward the cap). If you have any questions, please contact your J&H attorney. DOL News PERM regulation update DOL has advised the American Immigration Lawyers Association (AILA) that it now expects to publish an interim rule implementing the PERM labor certification process in April, with a July effective date. PERM refers to a new method for submitting labor certifications using an attestation style format. It is not yet known whether, and to what extent, the interim regulation will be changed from the proposed regulation published in May For more information regarding PERM, please refer to our July issue of Spotlight as well as to our website under PERM. (R01)

3 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JANUARY 2003 What is Consular Processing all about? - Part 1 of 2 Permanent resident status in the United States can either be granted by the INS through the filing of an application for adjustment of status ( AOS ), or by an American Embassy/Consulate abroad through the issuance of an immigrant visa ( Consular Processing or CP. ) In this article, we will discuss CP, including eligibility criteria, the basic procedures, and the documentary requirements involved. In Part 2 on the same topic, which will appear in February s Spotlight issue, we will explore the pros and cons of CP versus AOS. Eligibility criteria An applicant for an immigrant visa can establish eligibility as the beneficiary of an approved family-based immigrant visa petition filed by a United States citizen or permanent resident immediate family member, or an employment-based immigrant visa petition executed either by the applicant (as an extraordinary ability individual or person seeking a national interest waiver of the labor certification requirement) or by an employer (in all of the other employment-based one, two and Legislation News three categories). The allocation of immigrant visas is controlled by a system of worldwide numerical limitations, based upon foreign state chargeability and the chronological order of the applicant s priority date. Those who are subject to the numerical limits (i.e., those other than parents, spouses and minor children of United States citizens) establish a priority date through the proper filing of a labor certification application or a preference immigrant visa petition. The date of filing, assuming that the underlying labor certification or immigrant visa petition is ultimately approved, establishes the priority date for visa issuance. In most family-based immigrant visa quota categories, there are substantial waiting periods; however, at the present time, immigrant visas are immediately available in all of the employment-based categories. Basic procedures Special Focus In nearly all cases, the applicant for an immigrant visa will be required to return to his/her country of nationality or last residence to appear for an interview at the American Consulate or Embassy. There are limited instances where Consulates/Embassies may accept third country national cases for processing, and there are Consulates/Embassies designated to accept socalled homeless cases where the United States does not maintain a functioning Consulate or Embassy in PAGE 9.3 the individual s country of nationality or last residence. The decision to proceed with an application for an immigrant visa, in lieu of adjustment of status, will normally be indicated on the Form I-130 family-based immigrant visa petition or Form I-140 employmentbased petition. Once the petition is adjudicated favorably by the regional INS processing center, it will then be forwarded to the National Visa Center of the U.S. Department of State. The National Visa Center was established for the purpose of reviewing the approved petitions for accuracy and completeness and then sending to the applicant or attorney of record a packet of instructions (previously and commonly known as Packet 3 ) assuming that immigrant visa processing may be initiated immediately due to the availability of an immigrant visa. The visa petition which was approved by the INS is forwarded to the appropriate Consulate/Embassy abroad for further processing and ultimate visa issuance. Consular posts are currently assigned to one of three processing tracks known as (1) Alpha, (2) appointment and (3) Beta. For those posts designated as Alpha, the Form DS-230 Part I biographical data form, the affidavit of support and all supporting documents are sent to the St. Louis, Missouri address of the National Visa Center with an immigrant visa and affidavit of support review fee. After the fee is processed, the case is then forwarded to the NVC office in Portsmouth, New Hampshire where the documents are reviewed; if all required documents have been attached, the case is forwarded to the American Consulate and the Consulate will in turn forward the appointment letter packet to the applicant or attorney of record. Current designated Alpha posts include Manila, Santo Domingo, Georgetown, Port au Prince, Guangzhou, Bogota, Ho Chi Minh City, New Delhi, Mumbai and Chennai. The appointment consular posts include Montreal, Tirana and all American Consulates located in Africa. With these cases, the NVC reviews not only the biographical data form and affidavit of support, but also the original (or certified copies thereof) civil documents and police clearances. The NVC also issues the appointment letter packet and advises that the original or certified copy documents will be returned to the applicant at the time of the visa appointment. The remaining consular posts are all designated Beta. In these cases, the applicant for the immigrant visa is advised to send the DS-230 biographical data form, the affidavit of support and the civil/police clearance documents directly to the Consu-

4 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JANUARY 2003 PAGE 9.4 late/embassy. The consular post then issues the appointment letter packet directly to the applicant or attorney of record. It is the intention of the U.S. Department of State to convert all posts to Alpha in the near future. The purpose of the Alpha, Beta and appointment designations is to relieve the consular posts abroad of additional administrative work and to make certain that as many of the processing activities have been completed in advance of the forwarding of the file. Documentary requirements and the consular interview The packet of instructions, formerly known as Packet 3, consists of the biographical data Form DS-230 Part I; the Form DS-230 Part II (applicant for the immigrant visa which is signed at the time of the visa application appointment), the Form I-864 affidavit of support with instructions, and a processing fee bill. The Form DS-230 Part I requires visa applicants to list all locations where they have resided for more than six months since reaching the age of l6; this information permits the Consulate/Embassy to conduct routine security clearances through their Automated Visa Lookout System (AVLOS). The following documents are ones that must normally be presented at the time of the visa interview, or sent in advance if the applicant is dealing with an appointment post: 1. Passport which must be valid at least six months beyond the date on which the immigrant visa is issued. 2. Birth certificates for each visa applicant (and for any child under the age of 21 even if the child is not applying for an immigrant visa), if available; if the birth certificate is deemed to be unavailable, secondary evidence such as affidavits, school or religious records may be used. 3. Police clearances are required from countries where the visa applicant has resided for at least six months after reaching the age of 16. In some cases (i.e. New Zealand), the consular post must request the clearance in the applicant s behalf. The instructions also include a list of countries, including the United States, where police clearances are considered to be unavailable. 4. Certified copies of court and/or prison records must be furnished if the visa applicant has a criminal record. If the applicant does have one, a determination must be made in advance as to whether the criminal offense is sufficiently serious as to affect eligibility for visa issuance. 5. Military records covering the visa applicant s period of service in a foreign military organization must be furnished, if applicable. 6. Marriage certificates, as well as proof of termination of any prior marriages (as evidenced by divorce decrees, death certificates, judgments of annulment) must be submitted as required. 7. Photographs which meet certain specifications; the number of photographs required may vary from one consular post to another. 8. Evidence of financial support which may be documented through an affidavit of support where required, letters of prospective employment, bank statements, tax returns, deeds to property or other evidence of financial assets. The availability of birth and marriage documents, police clearances, and the acceptability of secondary documentation are set forth in Volume 9, Appendix B of the Department of State s Foreign Affairs Manual which is also published on the Department of State s website, When the date of the immigrant visa appointment has been scheduled, the appointment packet will be sent directly to the applicant or attorney of record from an Alpha or Beta consular post; the NVC will send out the packet for an appointment post. The packet will contain the appointment letter and instructions concerning the required medical examinations. The examination(s) is conducted in the consular district shortly before the date of the visa interview by a physician or clinic designated by the consulate; applicants are advised to bring with them any available medical records, in particular records of vaccinations, which may assist in the process. Applicants must establish that they have been vaccinated against such diseases as mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, hepatitis B, among others. HIV testing is also required of all applicants, and HIV virus infection is a ground of visa refusal, although waivers of HIV and vaccinations maybe available in some cases. At the time of the visa interview the application on Form DS-230 Part II is executed by the applicant in the presence of the consular officer. For Beta posts, the nonrefundable application fee of $260 and visa issuance fee of $65 are paid at that time; for Alpha and appointment posts, these fees would already have been paid. Eligibility for visa issuance is determined at the time of the interview, and the consular officer will need to be satisfied that the required family- or employment-based grounds for eligibility still exist, and that the visa applicant is not inadmissible for criminal/terrorist/health-related reasons, among others.

5 Jackson & Hertogs, LLP IMMIGRATION SPOTLIGHT JANUARY 2003 PAGE 9.5 If the immigrant visa is issued, the applicant is given a sealed package which contains the consular officer endorsed DS-230 and the supporting documents. The immigrant visa is valid for a period of six months from the date it is issued during which the applicant must present him/herself for admission to the INS at the port of entry. The immigration inspector will take the package and will place a temporary stamp (I-551) in the applicant s passport confirming his/her admission as a lawful permanent resident. The stamp is valid for one year and may be used both for travel and as evidence of employment authorization; the green card or Form I-55l will then be mailed directly to the individual from an INS processing center. Special Note It is very important to note that certain nationalities will be subject to additional security/background checks which can only be completed following the interview, and these can lead to delays of a few days or several months depending on the type(s) of background checks involved. Visa applicants who are likely to be subject to additional background checks should plan their travel accordingly and will need to determine if they will be able to reenter the U.S. as nonimmigrants until the immigrant visa packets can be issued. It is critical to discuss these issues before the decision to proceed with consular processing is made. For information about security background checks, including special registration requirements, see our website. J&H News Upcoming J&H Seminars January 22 Developing a Corporate Immigration Policy Seminar. Hiring - Priority System, Identifying Roles and Responsibilities, Who Pays for What, Timing, When to Sponsor Employees for Permanent Residency, RIFs, Export Control, DOL Compliance Issues, INS Obligations, and Hot Topics. This program will be held offsite in the Santa Rosa Area. February 5 Nonimmigrant Visas: A General Overview. B-1/B-2 Business Visitor/Tourist; E-1/E-2 Treaty Trader/Investor; F-1 Student; H-1B Specialty Worker; J-1 Exchange Visitor; L-1A/L-1B Intracompany Transferee; O-1 Extraordinary Ability; TN Treaty NAFTA. March 5 Extraordinary Aliens and Outstanding Researchers. O-1 criteria; Extraordinary Ability criteria; difference between O-1 and Extraordinary Ability; Outstanding Researcher/Professor immigrant visa; why no longer filing National Interest Waiver immigrant visa cases, Schedule A immigrant visa February 13 Export Control Laws and Regulations. Release of technology to a foreign national who holds a nonimmigrant work visa in the United States is considered to be a "deemed export" to the foreign national's home country. Such a release may require an export license or other approval under the U.S. Export Administration Act or the Arms Export Control Act beyond the immigration documents. Do you know: How to identify a foreign national when you see one? How to determine if you need an export license? How to get an export license, if you need one? How to protect yourself and your company from potential liability? Please join us for a discussion of these issues with Roz Thomsen, a partner in the law firm of Thomsen and Burke LLP, who specializes in U.S. export control laws and regulations. Please feel free to bring other members of your team who maybe responsible or interested in this subject matter. Jackson & Hertogs attorneys will also provide an update on "hot topics", including travel issues and Special Registration. The seminar will take place in Palo Alto and will start at 10:00am. A continental breakfast will be provided between 9:30-10:00am. If you are interested in attending, please contact us at seminar@jacksonhertogs.com. Immigration Trivia In the RIR process, which of the below is permitted by DOL as grounds to disqualify a U.S. worker applicant? a. s/he does not have the skill requirements listed on the application b. s/he has bad communication skills c. s/he is not as qualified as the foreign national being sponsored for the position d. personality doesn t fit in with the company culture Answer: a. It is permissible to reject a U.S. worker if s/he does not meet the minimum qualifications for the position. However, it is not permissible to reject U.S. workers based on subjective reasons (b or d) or because they are not as qualified as the foreign national worker if they meet the minimum requirements (c) Jackson & Hertogs LLP is one of the oldest and most respected immigration and nationality law firms in the United States. Established in 1950, we were one of the first legal firms in the country dedicated solely to the practice of immigration law. Today, Jackson & Hertogs has seven attorneys and a staff of more than 45 legal assistants and office management personnel to assist you with immigration matters.