Fourth Quarter 2002
A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP
Fourth Quarter 2002
LIMITING THE PERIOD OF ADMISSION FOR B NONIMMIGRANT ALIENS
The USCIS is proposing to eliminate the minimum period of admission for a B-2 nonimmigrant visitor for pleasure, currently a 6-month admission. In place of the minimum period of admission for B-2 visitors, the Service is proposing that both B-1 (visitors for business) and B-2 visitors will be admitted for a period of time that is fair and reasonable for the completion of the purpose of the visit.
The Service is also proposing to reduce the maximum period of admission for B-1 and B-2 visitors from 1 year to 6 months. The maximum increment of extension of stay will remain 6 months, and this 6-month maximum will apply to all B-1 and B-2 visitors.
This rule also restates explicitly the general requirement for extensions of status, to provide that an alien requesting an extension of either B-1 or B-2 status bears the burden of proving that he or she has the adequate financial resources to continue his or her temporary stay in the United States and that he or she is maintaining an unrelinquished residence abroad.
Finally, the rule proposes to establish greater control over a B visitor's eligibility to change to a student nonimmigrant status.
These regulatory modifications will help lessen the probability that alien visitors will establish permanent ties in the United States and thus remain in the country illegally.
Why Is the Service Proposing To Reduce the Maximum Admission Period for B-1 and B-2 Visitors From 1 Year to 6 Months?
INS regulations at 8 CFR 214.2(b)(1) currently provide that a B-1 visitor for business or B-2 visitor for pleasure may be admitted for a period of up to 1 year. As the attacks of September 11, 2001 demonstrated, this generous period of stay is susceptible to abuse by aliens who seek to plan and execute acts of terrorism. Virtually all B visitors with legitimate business or tourism interests are able to accomplish the purposes of their visits in less than 6 months. Accordingly, it is proposed that the maximum period of admission for B-1 and B-2 visitors be reduced from 1 year to 6 months for each admission. In addition to promoting the security the United States, this change will reduce the likelihood that an alien visitor will establish permanent ties in the United States and remain in the country illegally.
Will B Visitors Be Able To File Requests for Extensions of Stays?
Under the proposed rule, all B visitors for business or pleasure will continue to be eligible to apply for extensions of stay, but only in cases that have resulted from unexpected events (such as an event that occurs that is out of the alien's control and that prevents the alien from departing the United States), compelling humanitarian reasons, such as for emergency or continuing medical treatment, or as Service policy may direct.
In addition, this proposed rule recognizes that a few B nonimmigrants enter for specific, legitimate reasons that, by their very nature, can require a stay of longer than 6 months. Those nonimmigrants that are lawfully continuing in those activities may also apply for extension of status.
All such requests, made on Form I-539, Application to Extend/Change Nonimmigrant Status, must be timely filed and non-frivolous, and the alien must document that he or she is maintaining an unrelinquished residence abroad and has adequate financial resources to continue the temporary stay. Documentary evidence showing ties to the alien's country of residence and possession of sufficient financial means to remain in the country for the requested period of time can include such items as current bank records and lease or real property ownership documents.
The Service believes that the vast majority of aliens seeking admission as B visitors will be able to complete their stays in the United States within the period of time granted by the inspecting Service officer. The burden will be on the arriving alien to adequately explain to the inspecting Service officer at the time of admission the precise nature of the visit so the Service officer can make a determination on the period of stay to be granted. Requests for extensions of stay only heighten the probability that alien visitors will establish permanent ties in the United States and thus remain in the country illegally.
Will the Proposed Rule Affect the Status of B-1 or B-2 Visitors Already Admitted in the United States?
The new admission procedures under this rule will not affect aliens who were admitted to the United States as B-1 or B-2 visitors for business or pleasure at any time prior to the effective date of a final rule, which will be published in the Federal Register at a later date. However, B-1 or B-2 nonimmigrants who were admitted to the United States before the effective date of the final rule, but who apply for an extension of nonimmigrant status on or after that effective date, will be subject to the heightened requirements for extension of stay and to the 6-month limit on such extensions.
What Continuing Obligation Do All B Nonimmigrants Have During the Time They Remain in the United States?
The Service notes that, under the existing provisions of section 261(a) of the Act, an alien who remains in the United States for a period of 30 days or more (other than an A or G nonimmigrant) is subject to the requirements for registration of aliens. Nonimmigrant aliens register initially using the Form I-94, Arrival-Departure Record. However, aliens who are subject to the registration requirements are also obligated, under section 265(a) of the Act, to notify the Service of each change of address within 10 days of such change, by submitting Form AR-11 to the Service. The obligation to notify the Service of each change of address applies to all B nonimmigrants (indeed, all nonimmigrants other than those in A or G status) who remain in the United States for more than 30 days, regardless of whether their continued stay is pursuant to their initial admission or as a result of a change or extension of status.
The change of address requirements are set forth in the existing law and regulations. Accordingly, the Service does not need to propose changes in this rule to implement them. However, the Service is restating these existing requirements here for the benefit of readers, so that aliens who apply for nonimmigrant status will be advised of them.
NEW SECURITY CHECKS
INS has instituted a new process whereby all petitions and applications with the exception of N-400s were being subjected to a new security check. The USCIS has extended the requirement to N-400s, as well. Moreover, these new checks are apparently being required even for those cases in which a good deal of processing has already taken place. While the new security check mandate is in effect at all USCIS offices nationwide, implementation of the new process has been uneven at best, as some USCIS offices reportedly have limited access to the Interagency Border Inspection System (IBIS) database against which the checks are performed, and even where IBIS is available, many USCIS officers have yet to receive training on the system.
The USCIS has thus far been unable to inform AILA what kind of processing delays we can expect the new security check system to generate. While the backlogs will differ from office to office, a significant initial delay is probably a realistic assumption at this point.
HOUSE PASSES USCIS REORGANIZATION BILL
On April 25, 2002, the House passed H.R. 3231, a bill that would reorganize the Immigration and Naturalization Service (INS). While the final measure includes new provisions that address some concerns, this bill fails to adequately address the problems that plague a deeply troubled federal agency. AILA strongly supports a reorganization of the USCIS, but one that works. Any successful reorganization plan puts someone in charge with clout, separates-but coordinates-adjudications and enforcement, and provides adequate funding. H.R. 3231 falls short on these essential issues. AILA looks forward to working with the Senate and the Administration on a much improved reorganization plan that will address the agency's many problems.
UPDATE ON SECTION 245(i)
Senator Daschel (D-SD), the Senate Majority leader, recently introduced the Uniting Families Act of 2002 that extends Section 245(i). Under this measure, the filing deadline would be extended until April 30, 2003, and people still would have had to be physically present in the U.S. on December 21, 2000.
This extension, unlike other proposed extensions, does NOT include any date by which someone would have had to have established a relationship or filed a labor certification. Rather, the bill reiterates that people are ineligible for Section 245(i) based on marriage fraud and security and related grounds.
Because the House leadership appears to support the more restrictive extension of Section 245(i) that includes the August 15, 2001 eligibility date, it remains an uphill battle for a good measure to pass Congress this session.
Opponents of Section 245(i) are continuing their disinformation campaign, alleging that Section 245(i) is an amnesty and provides a haven for terrorists.
ACTION: Please contact your Senators and ask them to both cosponsor and support this excellent extension of Section 245(i). The Congressional Switchboard number is 202-224-3121.
SETTING THE RECORD STRAIGHT ON SECTION 245(i) OF OUR IMMIGRATION LAWS
This little understood and much maligned provision is simply about the location-that is, where-already qualified aliens may apply for their legal permanent residency. On March 28, the Federation for American Immigration Reform put out a press release claiming that this provision somehow opened a loophole for terrorists to gain legal permanent residency in the U.S.
Contrary to the Federation's allegations, Section 245(i) does not operate independently of the long-standing provisions of our immigration laws that make known terrorists inadmissible to, and deportable from, our country. A person seeking Section 245(i) processing must:
- Prove to the USCIS that they have the requisite family relationship or job offer;
- Wait in the same line as everyone else for the visa application to be approved or denied;
- Prove that he/she meets all the requirements for permanent residence in the U.S., including passing background and security and "affidavit of support" requirements.
In perhaps the most widely spread series of distortions imaginable, opponents allege that Section 245(i) provides some kind of magical protection from deportation and some kind of magical blanket waiver of all of our immigration laws. Nothing could be further from the truth. In fact, Section 245(i) does not provide any authorization to remain in the United States, does not provide employment authorization, and does not provide any protection from deportation, unless and until it is the applicant's turn, a visa is available, and the person has been approved for lawful permanent resident status, a process that typically takes years.
Contrary to the Federation's allegations, terrorism-related provisions in the law would deny admission to any alien who:
- Has engaged in a terrorist activity, including providing material support to a terrorist organization, being a member in a terrorist organization, using one's position of prominence to endorse or espouse terrorist activity, or preparing or planning any terrorist activity;
- The Attorney General has reasonable grounds to believe is engaged in or is likely to engage after entry in any terrorist activity;
- The Attorney General knows or has reason to believe seeks to enter the United States to engage, even incidentally, in any unlawful activity.
Furthermore, people seeking to use Section 245(i) are screened in many other areas, all of which can be used to deny an application. These areas include:
- Health-related grounds, including mental and physical disorders;
- Criminal convictions;
- Drug trafficking (with or without a criminal conviction);
- Prostitution and commercialized vice;
- Government officials who have violated religious freedom;
- Smuggling and human trafficking;
- Money laundering;
- Adverse foreign policy consequences;
- Membership in totalitarian parties;
- Perpetrating Nazi persecution or genocide;
- Likely to become a public charge;
- Anyone committing document fraud or misrepresentation;
- Practicing polygamists;
- International child abductors;
- Unlawful voters;
- Various other documentation requirements.
We list above grounds to underscore what the Federation is trying to obscure: immigrants who qualify for permanent residence and get to complete their paperwork in the U.S. (under Section 245i) are subject to intense scrutiny. They face a rigorous screening process that involves a lengthy application, criminal background checks, in-person interviews, and other hurdles. Applicants must be fingerprinted and the fingerprints are checked against databases maintained by the Federal Bureau of Investigations (FBI). In addition, certain identifying biographic data about each applicant is transmitted to the Central Intelligence Agency (CIA). In return, the CIA advises the USCIS when information in their files appears to relate to an applicant. In addition, the basis for eligibility (such as a marriage or an offer of employment) is closely examined, and any suspicion of fraud or misrepresentation is carefully investigated.
It is time to stop the fear mongering and false allegations against Section 245(i). It is time to set the record straight.
DRAMATIC CHANGES TO THE ALIEN LABOR CERTIFICATION PROCESS BY DEPARTMENT OF LABOR
The US Department of Labor has released a set of proposed regulations for a new program ("PERM") that will completely overhaul the labor certification system that is the basis for most employment-based green card applications filed in this country. The Department of Labor is promising that, for most cases, applications will be adjudicated in less than 21 days.
Overview of PERM Program
There are three major components to the PERM program:
- recruitment prior to filing;
- automated processing of most applications; and
- elimination of the local office of the DOL (SESA) in the application process.
Like the current RIR program, the PERM program requires employers to recruit in advance of filing a labor certification application. Employers will be required to conduct both mandatory and alternative recruiting steps. Evidence of recruitment will not be submitted with applications. Rather, employers will have to create a file which can be reviewed in an audit. Applications are submitted on forms designed for automated processing.
New Application Forms
Two (2) new forms will be utilized: Prevailing Wage Determination Request
Form 9088 - Prevailing Wage Determination Request
Form 9089 - The form has 56 questions, most of which are yes and no questions and attestations.
The forms are machine readable and will also be completed directly on the web (much like the current system used for Labor Condition Applications in H-1B cases).
The computer screens the information on the form. Incomplete applications are returned. Applications will be (1) certified, (2) denied, or (3) flagged for auditing. Processing times for cases not denied or flagged for audit should take no more than 21 days. If selected for auditing, employers will have 21 days to respond or face denial.
Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2002, American Immigration Lawyers Association
The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102973-624-2800 @ email@example.com