| Labor Certification Processing
Under Perm (Updated: February 1, 2005) |
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The regulation implementing the new Program Electronic Review Management System (PERM), governing labor certification applications was published in the Federal Register on December 27, 2004. PERM is effective March 28, 2005. 69 Fed. Reg. 77326-421 (Dec 27, 2004) Labor Certification
PERM
Effect of PERM
PERM Processing Time
Pre-PERM Applications
Applications at the regional offices are divided into two categories:
The BRC inputs the data and processes the pending applications on a “first in first out” basis. Once the BRC receives the applications, they are interfiled with all other applications nationwide by date order. The applications are divided into two queues, regular and RIR (reduction in recruitment). There is some confusion on this point, since in a recent question and answer session with DOL officials, one of the officials said that all applications are processed together in a single queue, regardless of whether or not it was filed with an RIR request.
However, the attorneys and employers will be receiving “continuation and corrections” letters from the BRC asking for confirmation that they want to continue with the application and to make corrections if indicated.
During this transition phase, it is unclear as to whether a specific application is currently being processed at the state agency or the regional office or waiting to be inputted at the BRC. As always, we will notify you as soon as we learn anything about your application.
No Conversion – Withdraw and Refile
Preserving the Priority Date and EB3
The filing date is also important for those who have reached the end of their fifth year as an H1B visa holder. They must have a labor certification application filed before the end of their fifth year in order to extend their H1B visas at the end of their sixth year without having to return to their home country for at least one year.
New Recruitment for Withdrawn RIR
However, if the employer is confident that there are still no qualified, willing, able and available U.S. workers to be found, the job position is not in the EB3 category, the employee is not from one of the three oversubscribed countries (India, China, Philippines), and the H1B extension is not an issue, re-filing under PERM appears to be faster than waiting for the pending applications to be processed at the BRC. If the regional office or the BRC has already processed the application to the point where a work order has been placed, we cannot withdraw and re-file.
File without Withdrawal
PERM Changes Applications are filed on-line, and the goal is that decisions will be
issued in 45 to 60 days. Recruitment Notice of the job must be posted at the employer’s place of business
for ten (10) business days.
Recordkeeping/Recruitment Report In case of an audit, the employer must submit requested documentation to DOL within 30 days. If DOL finds that there are problems with the application, it can require the employer to undertake DOL supervised recruitment for all its subsequent applications for two (2) years.
Supervised Recruitment
Timing of When to File and Other Considerations Pre-PERM filing now has the benefit of an earlier priority date. It is also mandatory if you are approaching the end of your fifth year as an H1B visa holder. Filing under PERM has the benefit of the possibility of an earlier decision (45 – 60 days after filing) on your application. Withdrawing an earlier application and re-filing has the possible benefit of an earlier decision than waiting for processing under the old way. However, there is no guarantee that your earlier priority date will be preserved. (See discussion above re priority dates and EB3.) Re-filing will also require paying for additional newspaper ads and attorneys fees. Withdrawing and re-filing will take longer than simply filing a new application without asking to preserve the earlier priority date. This is because withdrawing and re-filing will require DOL to retrieve the earlier filed application from the BRC before making a decision on your new application. If you choose to re-file, and an early priority date is not at issue, simply filing a new application and allowing the old one to be withdrawn by DOL without preserving the earlier priority date may be faster. Another consideration is that if many applicants withdraw and re-file, there may not be many pre-PERM applications left to process, and these remaining applications may be processed quickly just because there are so few of them. The above is a very brief summary of PERM. To read it in its entirety, you can find it at http://atlas.doleta.gov/foreign/pdf/PERM_Final_Rule_12-27-04_FR.pdf. Should you have any questions, please do not hesitate to contact us.
Law Offices of Cheng, Cho & Yee, P.C. Pai-Pai Cheng, |
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| Backlog Elimination | |
The U.S. Citizenship and Immigration Services (USCIS) has announced it will be streamlining the way immigration benefits are delivered. USCIS states: ' USCIS will deliver the right benefit to the right person in the right amount of time, while ensuring that the wrong individual does not access immigration benefits." Read more information about Backlog Elimination, and the work of USCIS by visiting the website at www.http://uscis.gov/graphics/index.htm and view the following documents: Backlog Elimination Strategy Fact Sheet 6/17/04
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| Recent Developments (Last Update: August 12, 2003) |
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| On 8/4/03, BCIS (formerly INS, now it stands for Bureau
of Citizenship and Immigration Service) issued a clarification
on an I-140 withdrawal/revocation by the I-140 employer
and its effect on the subsequent I-485.
There are five possible possible outcomes: (1) labor certification has been approved, but I-140/I-485 have not been filed; (2) I-140 has been approved and I-485 has been pending less than 180 days; (3) an I-140 has been approved and I-485 is pending more than 180 days; (4) I-140 and I-485 were filed concurrently and the I-140 has not been approved and yet, both I-140 and I-485 have been pending less than 180 days; (5) I-140 and I-485 were filed concurrently and are still pending more than 180 days. In the first, second and last scenarios, the alien is out of luck, a new labor certification will need to be filed by the new employer. In the third and fifth scenarios, the alien is in good hands as long as the new job is in the same or similar occupation for which the certification or approval was initially made and the job is bona fide. In summary, the key language involved here is "as long as the I-485 has been pending more than 180 days." |
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| Update from June 19, 2003 | |
New Development in Social Security Cards FOREIGN NATIONALS ELIGIBILITY FOR ILLINOIS DRIVERS LICENSES ELIGIBILITY C Applicant who are unable to obtain a social security number permitting them to work, but who would be eligible for a non-work social security number based on their INS documentation and who are otherwise eligible to obtain an Illinois drivers license are eligible. APPLICATION REQUIREMENTS Applicant must conform to current "identification policy," presenting acceptable forms of identification with the exception of the social security card. Applicant must present of one of the following: I-551 alien registration card, I-688 temporary resident card, or I-94 arrival /departure record with valid passport. Applicant must provide proof of insurance on the vehicle to be used for the drive exam and the vehicle used must pass safety inspection. Applicant must pass the vision screening, the written exam, (orals may be given and interpreters are allowed and to be provided by applicant) and the road exam. Only one written exam will be given for each scheduled appointment. Applicant must note at which Social Security Administration office they will be making application. Applicant must provide a letter from spouse’s or parent’s employer substantiating residence, relationship to the principal spouse/parent, and anticipated duration of his/her employment. If applicant is a student, the applicant must provide a letter from the school substantiating residence, and current enrollment status. Illinois Secretary of State reserves the right to request additional documentation. PARTICIPATING DRIVERS FACILITIES Only a limited number of facilities are in the pilot program and only applicant with a scheduled appointment will be served SCHEDULING INFORMATION To schedule an appointment in the Chicago Metro area call (312) 814-1132 For downstate Illinois call (217) 782-7044 Dates currently available are April 21, 28, May 5, 12, and 19, 2003. |
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| Update from October 10, 2002 | |
INS Starts On-Line
Status Check System for Cases Pending at INS Service Centers
Help has arrived for those persons calling the public inquiry telephone number at an INS Service Center to check on the status of a pending application or petition. Calling the INS Customer Service telephone numbers during regular business hours is often a frustrating exercise of endless busy signals. The INS has now instituted an on-line system for checking the status of petitions and applications pending at INS Service Centers. You will need to have the application receipt number or case file number to check on the status of a pending application or petition. The link is: https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp The information provided is the same information that is available on the automated telephonic inquiry system, but the on-line system is often quicker and much more easily accessed. If you need to speak with a living, breathing INS Immigration Information Officer, you will still need to use the INS Service Center Customer Service telephone numbers. On a related note, in November of 2002, the Chicago INS offices are expected to offer a means of electronic filing for I-90 Applications to Replace Permanent Resident Cards and for I-765 Applications for Employment Authorization. INS Headquarters Being Swamped by Change of Address Notifications Over the last few months, I have advised readers concerning the intention of the INS to strictly enforce 50 year old requirements for making timely (within 10 days) notification to the INS of any address change. In early September the INS reported that before September 11, 2001, the INS received about 2,800 change of address notifications each month. After September 11, 2001, that figure climbed to about 19,800 notifications per month. Since the INS published their notice of intent to strictly enforce the law in the July 26, 2002 edition of the Federal Register, the INS headquarters has been receiving about 30,000 AR-11 Change of Address forms each day, and have only been able to process about 100,000 of those changes. The INS does not have an available database for processing these changes, and processing is accomplished by manually placing each change of address notification in an individual's INS file; and these files may be located in any part of the country. The INS has increased the staff to handle these forms from one person to five persons, and the INS hopes to quickly turn the job over to a private contractor. When the Attorney General decided to strictly enforce this law, there were no provisions made for additional funding for the INS to handle the additional work. The INS has indicated that they will somehow try to find the necessary funding somewhere in their budget. State Department Announces "Emergency"
Fee Increase for Machine Readable Visas for Nonimmigrant Visas, Effective
November 2, 2002 Keeping Watch on Governmental Agency Budget Authorization Bills for New Immigration Provisions Around this time each year, the U.S. House and Senate discuss, debate and try to pass budget appropriations bills for the various agencies and departments of the Federal Government so that those agencies and departments can continue to operate in the next fiscal year. It has been the practice over many years to include new immigration related laws in many of these appropriations bills; particularly the appropriations bills for the U.S. Departments of State and Justice. This year's Department of Justice Appropriations bill (passed by the House on September 26th, and passed by the Senate on October 3rd) contains several immigration related provisions. One of the more noteworthy provisions of the bill involves an attempt to "fix" a benefit offered in previous legislation that provide a means of continuing H-1B visa status beyond the normal limit of six years in cases where the U.S. Department of Labor is taking a long time in processing an Application for Alien Employment Certification and the INS is taking a long time in processing an I-140 Immigrant Visa Petition for Alien Worker. The American Competitiveness in the 21st Century Act ("AC-21") passed about two years ago allowed for extensions of H-1B status beyond the usual six year limit, but required that a labor certification be filed more than 365 days before the end of the sixth year, and that an immigrant visa petition (I-140), the next step in the lengthy permanent residency process, be filed before the end of the sixth year as well. This law was passed to protect foreign nationals and their employer sponsors from the perils of inefficient government bureaucracies. This law recognized lengthy INS processing delays, but somehow overlooked the increasing delays occurring at the Department of Labor in Labor Certification processing. In practice, many workers were unable to use or benefit from this provision of AC-21 because even though their employer filed a labor certification before the beginning of their sixth year on their H-1B, the labor certification was still pending at the end of their sixth H-1B year, and the employer was unable to file the I-140 visa petition because the I-140 could not be filed until the labor certification was approved and issued. The "correction" provisions contained in this year's Department of Justice Appropriations Bill allows for those in H-1B status to get extensions (in one year increments) beyond the six years when a labor certification was filed before the end of the 5th year of H-1B status, without regard to the ability to file an immigrant petition (I-140) before the end of the sixth year. This provision also allows those who have already exceeded the six year limitation to have a new H-1B petition approved and obtain a visa to return from abroad or otherwise re-obtain H-1B status. Another provision of the bill extends and expands a program for J-1 foreign residency requirement waivers available for foreign physicians. The State "Conrad Program" for foreign medical graduates seeking waivers of J-1 visa foreign country residency requirements currently provides for up to 20 visas per state available to foreign medical graduates. Provisions in the Department of Justice Appropriations bill would extend the program through 2004, and would raise the number of available visas per state from 20 to 30 visas. Another provision of the bill extends (for 2 years after the date of enactment of the legislation) the deadline for allowing family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. in past wars. Another provision of the law amends the Immigration and Nationality Act ("INA") to authorize a child's grandparents or legal guardian to submit an application for Naturalization on behalf of the child under Section 322 of the INA where the child's parent, who otherwise would be authorized to submit the petition, died during the preceding five years. The bill also contains several provisions dealing with Conditional Permanent Residence for Certain Alien Entrepreneurs, Spouses, and Children. |
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| Update from September 14, 2002 | |
U.S. Passport
Fees Increased as of August 19, 2002
The U.S. Department of State has announced a fee increase for U.S. passport issuance effective August 19, 2002. Fees for first-time issuance of an adult (over 16 years old) passport will increase from $60.00 to $85.00. Adult passport renewal fees will increase from $40.00 to $55.00. Fees for issuance of a minor's (under 16 years old) passport will increase from $40.00 to $70.00. The additional cost of "expedited service" will increase from $35.00 to $60.00. Follow-Up on Failure to file a notice of Change of Address with INS On August 5, an Immigration Judge in Atlanta refused to order the deportation of an individual who failed to file the change of address notice. The permanent resident maintained that his failure to notify the INS of his change of address was not willful, and that no one had ever advised him of this obligation. The Immigration Judge noted that the INS stopped airing public service announcements about this reporting requirement many years ago, and the last deportation for this offense was in 1958. The Judge said that deportation should be considered only for those who were aware of the reporting requirements and willfully broke the law. Attorney General Ashcroft recently announced plans to revise nearly all immigration application and petition forms to include a statement of the reporting requirement and a statement that by signing the application of petition, the alien acknowledges receipt of notice of the requirement and accepts responsibility for the consequences of non-compliance. INS Expands Data Sharing Program at Ports-of-Entry The INS has expanded a data sharing program that had been used at three U.S. international airports (Miami, San Francisco, and New Orleans) over the past year. The data sharing program is now being expanded for use at all ports-of-entry. The program allows inspectors at ports-of-entry to access U.S. Department of State consular files and records. The port-of-entry inspectors can see and review a copy of the original visa application for a visa presented by an applicant for admission to the U.S. This program will make it more difficult for people to enter the United States using fraudulent visas or visas that were not issued to them. Since the beginning of the year, this program has enabled inspectors at Miami International Airport to prevent the admission at least 108 people. An Admission of Marijuana Use During Immigrant Visa Medical Examination may Render Immigrant Inadmissible to the United States In a case reported June 25th, Nathanial Flores Pazoguin vs. Donald A. Radcliffe, District Director, INS, an applicant for admission to the United States as an immigrant was determined to be inadmissible due to an admission made by the applicant during his medical examination for an immigrant visa. Mr. Pazoguin, a citizen of the Philippines, appeared for his medical examination at the office of the Civil Surgeon in Manila in connection with his application for an immigrant visa to the U.S. During his medical examination, Mr. Pazoguin admitted previous use of marijuana. The Civil Surgeon noted this admission in the visa applicant's medical report. Despite this notation in the applicant's medical report, the U.S. Embassy in Manila issued an immigrant visa to Mr. Pazoguin, and he was permitted to board a plane to the United States. Upon arrival in the United States, Mr. Pazoguin submitted his visa documentation to the INS inspecting officers. The INS noted the remarks concerning marijuana usage on the medical report, and questioned Mr. Pazoguin about his previous marijuana usage. Mr. Pazoguin reportedly reaffirmed his previous statements about marijuana usage to the INS inspectors. The INS then determined that Mr. Pazoguin was inadmissible to the United States, and Mr. Pazoguin filed an action in the U.S. District Court. The Court held that the admission of marijuana usagebefore a Civil Surgeon in the Philippines during a medical examination for an immigrant visa constitutes an admission of essential elements of a controlled substance crime in the Philippines, and renders the visa applicant inadmissible to the United States. Increased Scrutiny in Visa Issuance Policies and Procedures On July 10th it was disclosed that an informal policy has existed at the U.S. consular visa issuing posts in Saudi Arabia that provided for the issuing of nonimmigrant visas to any (Saudi national) person who was not obviously ineligible for a visa, and that these visas were generally issued without interviews, and were based on applications prepared and submitted by travel agencies on behalf of the visa applicants. The disclosure of this policy reportedly led to the forced resignation of Mary Ryan, the Assistant Secretary of State for Consular Affairs. The policy is now being changed, and the State Department has announced that they will be reviewing visa issuance policies and procedures at 207 U.S. Consular Posts that issue visas. Among the changes being implemented is a requirement that male nonimmigrant visa applicants between 16 and 45 years old must be interviewed before their visas may be issued. The State Department is also looking at the possibility of eliminating the use of travel agencies in the preparation and presentation of visa applications. INS Sees Increased Number of Applications for Naturalization After September 11th One aftermath of the terrorist attack of September 11th has been a significant increase in N-400 Applications for Naturalization. Many N-400 applicants for naturalization cite an increase in patriotic fervor and a desire to contribute to the strength of the United States as citizens. Other applicants report that the reports of immigrants being arrested and having difficulties reentering the U.S. after travel abroad have spurred them to seek U.S. citizenship. Between October 1, 2001 and May 31, 2002, the INS saw a 65% increase in N-400 filings over the same period the previous year. Increased scrutiny has slowed the processing of N-400 applications. Despite the increased number of N-400 applications, the number of approved naturalization applications has actually decreased by 10% from last year. Up-Date on INS Plans for Stepped-Up Enforcement of Change of Address Laws INS just announced an intention to begin strict enforcement a 50 year old law requiring non-U.S. citizens residing in the U.S. for more than 30 days to report any change of address to the INS within 10 days of changing their address (this includes nonimmigrants, immigrants, and those in the U.S. without authorization). On July 22nd, Attorney General John Ashcroft announced a proposed rule that will require the INS to up-date nearly three dozen immigration forms to better explain the address change reporting requirements, and to give notice of the potential penalties for failure to comply with the reporting requirements. The Justice Department advised that the rule change was meant to shift the responsibility from the government to the immigrant for making sure that the U.S. government knows where non-U.S. citizens can be found. This comes amid reports that the INS in Atlanta is seeking to deport a 30 year old lawful permanent resident father of five (two of whom are U.S. citizens) for failure to report an address change in 1999. The immigrant was pulled over while driving in North Carolina for exceeding the speed limit (by four miles per hour). Law enforcement officers were suspicious because the immigrant had several thousand dollars in cash and a map of North Carolina with red circles drawn around some cities. The immigrant explained that he made his living selling electronic equipment that he buys through the mail at swap meets and stores, and that the circled cities were places with flea markets and other potential outlets for his sales. During the course of police questioning, INS agents were invited to join the investigation. In response to questions from the INS agents, the immigrant admitted that he had changed his residence address in 1999 to live near a sister, and that he did not report his address change to the INS within the required ten days. He was arrested and jailed for this offense. He pleaded guilty in the U.S. District Court to the offense of failing to comply with the address change notification requirements, and he was sentenced to 25 days in jail. Upon completion of his sentence, the INS kept this individual in custody, and commenceddeportation proceedings based solely on the immigrant's failure to timely report his change of address, as required by law. Those proceedings are still pending at the time this article is written. Failure to report address changes to the INS on INS form AR-11 could result in a fine of $200.00 and up to 30 days in jail. For nonimmigrants, failure to notify the INS of an address change is a status violation, and could result in deportation. It is important to remember that applicants for permanent resident status and applicants for naturalization are required to list their residence addresses for the previous five years on the application forms. At interviews on these applications INS Examiners may ask questions to determine compliance with address change reporting requirements. For those individuals who are required to register with the INS (currently includes people from Iran, Iraq, Libya, Sudan, Syria and may soon be expanded to as many as 33 countries and any individual from any country that the INS determines should be subject to registration), failure to comply with the registration requirements could result in a $1,000.00 fine and up to six months in jail. The AR-11 is a one page form that is available in "fillable" format at the INS website (in the forms section) at www.ins.usdoj.gov and it should be filed within 10 days of any change of address at the following address: U.S. Department of Justice Immigration and Naturalization
Service, Concurrent filing of I-140 & I-485 applications The INS published an interim rule (effective immediately) in the July 31, 2002 edition of the Federal Register to allow for concurrent filing of the I-140 and I-485 in employment-based first, second and third preference cases if an immigrant visa number is immediately available at the time of filing. An I-765 Application for Employment Authorization and an I-131 Application for Advance Parole (if not subject to the 3/10 year bars) may also be filed with the I-485. The I-485 applicant must be in the United States at the time that the I-485 is filed, and must, in all other respects, be eligible for adjustment of status. There is no mention in the regulation concerning the individual INS Service Center preferences for which P.O. Box number the I-140/I-485 package should be addressed, but since most filing packages will be sent out by FedEx, I would send the package to the Street Address of the Service Center, with the types of applications enclosed clearly labeled onthe envelopes. If using regular mail to the Nebraska Service Center, I would send concurrent filings to the I-140 P.O. Box number unless/until advised otherwise. I would also enclose a copy of the current visa bulletin cut-off-dates to show that an immigrant visa is immediately available. Additionally, I would recommend using separate filing fee checks for each application (the I-485 and fingerprinting check amounts can be combined). Previously Filed & Pending I-140's The interim rule provides that in cases where an I-140 has already been filed and is still pending at the INS Service Center on July 31, 2002 (and an immigrant visa number would be immediately available under the selected preference category of the I-140 petition if the I-140 petition were approved), an I-485 (with accompanying I-765 and/or I-131) can be immediately filed at the Service Center, so long as a copy of the I-797 Notice of Action filing fee receipt for the pending I-140 is attached to the I-485. The rule does not comment on the situation where an I-140 is filed at an INS Service Center with jurisdiction over the place where the employment is located and the beneficiary resides within the jurisdiction of a different INS Service Center, but the rule does state that the I-485 (with associated forms, fees and documentation) should be filed "with the Service Office at which the visa petition was filed". Aliens in Deportation/Removal Proceedings For aliens in deportation or removal proceedings, 8 C.F.R. 245.2 (a) (2) establishes "(I-485) applications shall be made and considered only in those proceedings". If the alien applicant is before the Immigration Court, the I-485, associated forms, documents & proof of payment of fees must be filed with the Immigration Court (the I-140 must be filed with the appropriate INS Service Center). If the alien has an appeal pending before the Board of Immigration Appeals (BIA), then the I-485, associated forms, documents & proof of payment of fees (to the local INS office) must be filed with the BIA. The BIA will accept the filing of the I-485 for placement into the Record of Proceedings (ROP). The filing of the I-485 does not stay or suspend the deportation proceedings, and WILL NOT be treated as a Motion to Reopen, Motion to Reconsider, or any other motion beyond a request to include the adjustment application in the file. If the underlying I-140 petition is approved and an immigrant visa is or becomes immediately available, the alien must affirmatively move the Immigration Court or the BIA to consider the I-485 application for adjudication, or to remand the I-485 to the Service for adjudication if the Service concurs in the remand. September 6, 2000 Interim Rule Relating to National Interest Job OfferWaivers for Physicians On September 6, 2000, the INS published (64 FR 53889) an interim rule relating to national interest job offer waivers for physicians. Under 8 C.F.R 245.18 (f) of that interim rule, when a physician files for adjustment of status the INS is required to give the physician notice of specific requirements relating to the adjustment of the physician's status. If the physician files the I-140 concurrently with the I-485, the INS will give the required notice upon approval of the I-140, rather than upon the receipt of the I-485. |
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| Update from July 26, 2002 | |
| INS Expands Data Sharing Program at Ports-of-Entry
And the Noose is Getting Tighter Over the last few months, I have advised non-U.S. citizen readers to consider carefully whether planned travel abroad or even around the U.S. was absolutely necessary in view of the Government's efforts to "smoke-out" and round-up persons suspected of involvement with terrorism. Significant delays and increased scrutiny should be expected at ports of entry; both land borders and airports. Both identity documentation and documentation providing evidence of eligibility for admission will receive increased review and scrutiny. INS Examiners at ports of entry often require several forms of photo-bearing identification. Worn documents or documents bearing old pictures or pictures that no longer accurately reflect the current image of the bearer may result in referrals for "secondary inspection"; a most unpleasant process. While in the past, a passport and an unexpired working-visa stamp and an INS approval notice have been sufficient for readmission to the U.S. after temporary business travel abroad, nonimmigrant workers returning to the U.S. from a trip abroad may now want to have available additional documentation to show that they are eligible for admission to the U.S. in the classification shown on their visa. H-1B workers returning to the U.S. from a trip abroad may also want to have available a copy of their most recent pay check stub and a current letter from their H-1B employer confirming their current H-1B employment. There have been several reports of nonimmigrants traveling within the U.S. who have been detained temporarily until they have been able to establish their lawful immigration status. It is advisable for any nonimmigrant traveling within the U.S. to carry the same types of documentation that are recommended above for nonimmigrants traveling abroad. Minor discrepancies in documents that previously would have been waived by INS inspectors at ports-of-entry may now lead to a determination of inadmissibility (such as an F-1 student returning to resume classes after a short trip abroad who has not had his I-20 endorsed by school officials within the past six months). Nonimmigrants should also be very careful to maintain their lawful nonimmigrant status, and to file any requests for extension or change of nonimmigrant status in a timely and well-documented manner. The INS has announced plans to implement a foreign student tracking program by the end of the year. Permanent residents returning to the U.S. from travel abroad may expect to be asked to present their passports, their I-551 "green cards", and other current and valid photo-bearing identification. They may also be asked to present additional evidence to show that they have retained their lawful permanent resident status, and have not lost or abandoned their permanent resident status by remaining outside of the U.S. for more than six months without having secured a reentry permit. Recent events have shown that demands to document lawful immigration status can occur at the most unexpected times and in the most unexpected places. In Florida, a Jordanian attempting to renew his driver's license was detained and held for authorities when he was unable to establish lawful status. In another State, an individual registering for high school was asked to produce immigration documents. When a school official noted that the student's tourist visa had expired, the official turned the passport over to local police, who passed the document to the INS. The INS arrested the student, and he has been in INS custody for the last four months. An attorney in New Jersey has reported that one of his clients was lost in Newark, and asked police in a passing patrol car for directions. Instead of providing assistance, the police asked questions about the man's immigration status. After determining that the man was out-of-status, the police arrested him and turned him over to the INS. This same attorney has another client who encountered F.B.I. agents in the hallway of his apartment building as he was returning home after work. The agents were in his building to check out information they had received concerning another tenant in the building, and the agents were in the process of leaving the building when they came upon the man returning home from work. The agents followed him to his apartment and questioned the man. Learning that the man and his visiting nephew had overstayed their nonimmigrant authorized stays, both the man and his nephew were arrested and handed over to the INS. Periods of detention in such cases can be lengthy, and the INS may not permit detainees to leave even when they agree to deportation. Any number of circumstances may bring about Government scrutiny. Transfers of funds abroad in amounts of $10,000 or more will trigger certain reporting requirements to the U.S. Government. These reports may prompt the interest of Federal investigators, checking for indications of money laundering operations or support for terrorist organizations. Working for certain industries may also prompt such scrutiny. For example, a large company that employs many service employees, and may have a contract to provide certain services at an airport may attract Federal scrutiny of all I-9 forms and all employees, even if only a few employees may be assigned to perform work on the airport contract.
On January 16, 2002, President Bush signed into law House Bills H.R. 2277 and 2278; bills to permit the spouses of E-1 Treaty Traders and E-2 Treaty Investors and L-2 Spouse of L-1 Intracompany Transferees to accept employment in the United States. While immigration advocates had hoped that the INS would implement the law immediately, and would determine that employment authorization for these spouses was "incident to their status" (is a right based merely upon status), the INS has indicated that they will require such E-1/E-2/L-2 spouse to apply for and obtain employment authorization documents (EAD cards) before being allowed to work in the U.S. The INS has indicated that they are in the process of drafting regulations on how these spouses may apply for work authorization. It is expected that such applications will be made using the I-765 form, and will involve a filing fee of $120 (the new fee effective 2/19/2002). U.S. Attorney General Proposes Major Changes in the Make-up and Procedures of the Board of Immigration Appeals (BIA) U.S. Attorney General John Ashcroft is proposing regulations that will significantly change the make-up and operations of the Board of Immigration Appeals (BIA). The BIA is currently composed of up to 23 Board Members (an increase from 5 Board Members in 1995), headed by a Chairman. The BIA currently has 19 Board Members and four vacancies. The BIA hears appeals of Immigration Court Decisions made by Immigration Judges, and the BIA usually hears these appeals in panels of three Board Members. The BIA currently has a backlog of about 55,000 cases, and most cases take about two years to be adjudicated by the BIA. Over the years, most Board Members have been recruited from the ranks of attorneys representing the INS, and only recently, has the BIA added Board Members from the ranks of attorneys in private practice who represent aliens in their immigration matters before the INS. Even though the vast majority of BIA decisions uphold the position of the INS, there have been a few pro-immigrant decisions that have been issued in the last couple of years, and there have been several well-reasoned dissenting opinions that favored the alien's positions and were cited as persuasive by Federal Judges in overturning restrictive BIA opinions. This has greatly angered those who prefer the BIA to function as a front for due process, and a rubber stamp for approval of INS positions on various immigration issues. Citing the interests of reducing the case backlog, and in accelerating deportation cases through the system in order to swiftly deport those who should be deported, and to avoid lengthy and costly detention while deportation orders are being appealed, the Attorney General has decided to reduce the number of Board Members on the BIA from 23 to 11 over the next six months, with the Attorney General deciding who should stay and who should go. Given the not so hidden agendas behind these changes, it is not too difficult to imagine which Board Members will be asked to leave. Other proposed changes would have most appeals heard and decided by a single Board Member rather than a panel of three Board Members. This could make the decision in any given case a matter of "the luck of the draw". The Board Member assigned to hear the appeal will have the right to summarily dismiss the case if that Board Member determines that the appeal was filed for purposes of delay. The Attorney General also proposes that the BIA could not review the entire case decided below by the Immigration Judge, and the BIA would be to accept findings of fact reached below by the Immigration Judge unless the findings were "clearly erroneous". It is anticipated that these changes, accompanied by strict time limits in case presentation and adjudication, will reduce the processing time of BIA appeals to six months, and result in annual savings of $2 million. The cost of diminished due process is priceless. |
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COPYRIGHT BY AUTHOR -- 2002 This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation. |