|
A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP In this Issue:
Special Registration Has Not Ended — Many Requirements Continue The reports that Special Registration has “ended” are NOT correct. The ON LY significant change in Special Registration that the Department of Homeland Security (“DHS”) announced at the beginning of December 2003 is that it is “suspending” the requirement of (1) annual re-registration applicable to all registrants and (2) 30/40-day follow-up interviews applicable to port-of-entry registrants. All other requirements and the Special Registration program itself are NOT changed and remain in effect. Anyone who does not comply with all the continuing requirements of Special Registration could be subjected to denial of admission to the U.S., denial of immigration benefits, possible criminal prosecution, and/or removal proceedings. What Did DHS’s New Interim Rule for Special Registration Do? The ONLY major changes in Special Registration requirements are the following: The annual re-registration requirement is suspended for all Special Registrants, i.e., for both those who registered under the “Call-In” and those who were registered at a port-of-entry (“POE”). The 30/40-day follow-up interview requirement (applicable only to POE Registrants) is also suspended. The new rule applies ONLY to registrants whose re-registration deadline or 30/40-day deadline is on or after December 2, 2003. Anyone who willfully missed a deadline before that date is still considered to have violated Special Registration. All other requirements for Special Registrants remain in effect. Are Special Registrants Still Subject to Other Requirements? YES. All Special Registrants continue to be subject to the following requirements:
Does the Rule Affect Past or Existing Violations of Special Registration? NO. The new Federal Register announcement specifically states that the new rule does not excuse past failure to comply with the Call-In deadlines or the 30-40 day follow-up interview or annual re-registration deadlines. In addition, the new rule does nothing for the thousands of people who were placed in removal proceedings when they appeared for Call-In. Are Nonimmigrants Entering the Country Still Subject to Special Registration? YES. Port-of-Entry (“POE”) Registration continues. Nonimmigrants who are citizens or nationals of Iraq, Iran, Syria, Libya and Sudan will be subject to Special Registration upon entry to the United States. Others can be designated for Special Registration on a case-by-case basis. What is the Effect of USVISIT on Special Registration? It is unclear when, if or how the upcoming USVISIT program will affect Special Registration and whether Special Registration will be subsumed into USVISIT. People who were registered under Special Registration continue to be governed by the Special Registration rules and must comply with those requirements. Further announcements about USVISIT are likely and may clarify the relationship between Special Registration and USVISIT. Could Re-Registration Still Be Required for Some Special Registrants? YES. The interim rule says that DHS can require selected individuals to re-register at any time, with notice of only 10 days. The interim rule provides that notice of the re-registration requirement may be given by any means, including regular mail, e-mail or publication of a notice in the Federal Register. It is very important for anyone who has ever been registered under Special Registration to be vigilant and watch for information about such a requirement. The interim rule also says that DHS can announce another Call-In Registration at any time. Can There Be Further Changes in Special Registration? YES. The interim rule was published on December 2, 2003, at 68 FR 67578. It goes into effect immediately but is subject to a 60-day public comment period. After that, the DHS could publish a final rule or leave the current interim rule in place. A final rule could include further changes. In addition, DHS may issue new rules and regulations at any time. Visa Restrictions And Backlogs Create Unprecedented Problems During the holiday season, many immigrants in the United States will be unable to travel or have family members visit. This seasonal problem is a reflection of the problems faced year-round by families and business: visa policies and backlogs have made international travel and commerce a nightmare. There are three (3) main kinds of security checks:
When a post initiates a security check, it simultaneously sends a cable to DOS and the appropriate government agency. The post must wait for an affirmative response from DOS and the participating federal agency to respond before issuing a visa. There is still no way to expedite any of the security checks. The House Small Business Committee, chaired by Representative Donald Manzullo (R-IL), held a hearing recently (“Lowering the Cost of Doing Business in the United States: How to Keep Our Companies Here”) that focused on the negative consequences for American business of the numerous visa restrictions implemented since 9/11. These restrictions act as a trade barrier, discourage foreign visitors coming to the U.S., have negative consequences for American companies, and do not make us safer. Testifying at this hearing, Palma Yanni, President of the American Immigration Lawyers Association (“AILA”), focused on the monumental delays at both U.S. consulates abroad and at the Department of Homeland Security’s Citizenship and Immigration Services (“USCIS”), as well as the delays that result when the Federal Bureau of Investigation (“FBI”) and other agencies that screen foreign visitors do not send back security checks in a timely manner. “We need to make sure we keep out the people who mean to do us harm, not families who seek reunification, workers sought by American companies, and foreign visitors who eat in our restaurants, stay in our hotels, and buy American products,” said Yanni. “We all want to make our nation safer, but we need to use measures that enhance our security, not those that provide false solutions to real problems,” said Yanni. “Security experts tell us we can enhance our security by focusing our law enforcement efforts on investigation and surveillance based on individual suspicion, not over-reaching, time-consuming checks on every person who seeks to enter the United States. We must ensure our economic security, or we will be unable to pay for our national security,” emphasized Yanni. Family members, business people, artists, doctors, students, researchers, and tourists are just a few of the foreign visitors who are finding the welcome mat withdrawn. “The current restrictions and backlogs have become an emergency. Businesses are suffering economic losses because visas are delayed for months and in many cases, denied,” continued Yanni. “Moreover, immigrants living in the U.S. find it all but impossible to travel to other countries because of tremendous delays in the issuance of travel documents.” “There seems to be a ‘culture of no’ that pervades the visa adjudication procedure. It appears easier to delay or deny a visa than to approve it. Federal agencies need to learn how to say ‘yes’,” said Yanni. In fact, there has been a dramatic drop in the number of visas issued since 2001 for all visitors to the United States, from 6.9 million to 4.9 million. Visa applications have decreased 15% from 2002 to 2003. In addition, newly mandated procedures that many assert will not make us safer also have slowed the application process: the State Department Consular officers now are required to conduct face-to-face interviews with visa applicants, without receiving additional resources; beginning early next year, under the US VISIT program, our government will begin fingerprinting travelers with visas, again without adequate funding and with insufficient planning; and unless waived in October 2004, visitors from visa waiver countries will be required to have machine-readable passports, when the U.S. itself is unable to comply with that deadline. “We all want a safer nation. However, when a renowned physician’s visa application is delayed or denied, we are not a safer nation,” stated Yanni. “When families remain separated, we are not safer. When businesses cannot access foreign markets because of bureaucratic backlogs, we are not a safer nation either. We need an immigration system that works, one that works for businesses and for families,” concluded Yanni. DOS Issues Cable Postponing Machine-Readable Passport Requirement The Secretary of State has granted a postponement until October 26, 2004, as the date by which Visa Waiver Program travelers from 21 countries must present a machine-readable passport at a U.S. port of entry to be admitted to the country without a visa. The Department of State consulted with the Department of Homeland Security before making this decision. The countries for which the postponement has been granted are: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. Each country to which this postponement was granted made a formal request and certified that it is making progress toward ensuring that machine readable passports are available to its nationals and that it has taken appropriate measures to protect against misuse of its non-machine-readable passports. Five other eligible countries did not request a postponement of the effective date, because virtually all of their citizens already have machine-readable passports. Those countries are Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia. As of October 1, 2003, visa waiver travelers from those five countries must present either a machine-readable passport or a United States visa. Belgium, which is also a visa waiver country, was not eligible to receive this extension. Belgian nationals who wish to travel under the auspices of the visa waiver program have been required to present a machine-readable passport since May 15, 2003. This requirement was stipulated in the Department of Justice’s review of Belgium’s continued eligibility to participate in the visa waiver program in February 2003. The Secretary’s authority to postpone the effective date for a visa waiver country’s citizens to present a machine-readable passport is contained in the USA Patriot Act, which legislated the requirement for visa waiver travelers. Citizens of visa waiver program countries are permitted to enter the United States for general business or tourist purposes for a maximum of 90 days without needing a visa. PERM Regulation Not Expected Until 2004 The Department of Labor has indicated to AILA’s DOL Liaison Committee that it now believes that the PERM regulation will not be published until early 2004. DOL expects that the regulation will take effect 120 days after its publication. Department of Homeland Security Unveils US-VISIT Program The U.S. Department of Homeland Security today unveiled the capability it will have in place at airports and seaports on December 31, 2003, to process visitors holding visas as they enter the United States. The US-VISIT program -- United States Visitor and Immigrant Status Indicator Technology -- is a cornerstone of the Department’s goals to improve border management at our ports of entry. By capturing more complete arrival and departure data for those who require a visa to enter the United States, the US-VISIT program will enhance the security of our citizens and visitors while expediting legitimate travel and trade. “We are moving rapidly to complete development and deploy the US-VISIT capability to meet the congressionally mandated deadline of December 31, 2003,” said Asa Hutchinson, Under Secretary of Border & Transportation Security of the Department of Homeland Security. “We are on target to achieve this first increment of US-VISIT,” he said. US-VISIT uses scanning equipment to collect “biometric identifiers,” such as fingerprints, in an inkless process, along with a digital photograph of the visitor. Together with the standard information gathered from a visitor about their identity and travel, the new program will verify the visitor’s identity and compliance with visa and immigration policies. The new procedures are expected to add just seconds to the entry and exit process. All data obtained from the visitor is securely stored as part of the visitor’s travel record. This information is made available only to authorized officials and selected law enforcement agencies responsible for ensuring the safety and security of U.S. citizens and foreign visitors. At exit points, visitors will check out at kiosks by scanning their visa or passport and repeating the simple inkless fingerprinting process. The exit confirmation will be added to the visitor’s travel records to demonstrate compliance. Land border processing will be introduced in phases in 2005 and 2006. “All of these entry and exit procedures address our critical need for tighter security and our commitment to expedite travel for the millions of legitimate visitors we welcome each year to conduct business, learn, see family or tour the country,” said Under Secretary Hutchinson. “The new program is designed to enhance the security of U.S. citizens and visitors, expedite legitimate travel and trade, ensure the integrity of the immigration system, and safeguard visitors’ personal privacy,” Hutchinson continued. The law requires that an automated entry/exit system be implemented at air and seaports by December 31, 2003; the 50 most highly trafficked land ports of entry by December 31, 2004; and all ports of entry by December 31, 2005. DHS is working closely with the air and sea industry to explain the requirements of the US-VISIT program. In addition, the US-VISIT Project Team will partner with industry to ensure the latest technologies available will be incorporated into US-VISIT. Portions of this newsletter have been reprinted with permission from AILA The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
The immigration law practice of Meyner and Landis LLP provides a full scope of immigration law services. This includes representation of large and small businesses seeking to recruit and retain foreign nationals to meet staffing goals; foreign nationals seeking work or trader or investor opportunities or wanting to achieve family reunification; and foreign nationals in deportation proceedings, including those who face removal from the U.S. due to criminal convictions.
More
Meyner and Landis LLP
One Gateway Center
Suite 2500
Newark, NJ 07102
Tel: (973) 624-2800
Fax: (973) 624-0356
© 2008 by Meyner and Landis LLP. All rights reserved. Disclaimer