DEVELOPMENTS ON LEGALIZATION, INFOPASS, VISA REVALIDATIONS, I-130 PETITIONS AND H-1B GAP CASESThis is part 1 of a two-part article. The second part will appear on Monday, July 26th. Prospects for legalization, implementation of InfoPass, and the difference between visas and status changes in the U.S. including the now expired visa revalidation program are discussed here. As we move into the summer months, there are new developments to report in the field of immigration some of which are favorable and others not so. The following is a list of them -- not in any particular order. 1. Dreams of legalization seem to be dead in the water during this political season. It appears that President Bush for all of his publicly declared support of a proposal to allow illegals to work legally in the U.S. will not put any political capital into any of these measures for fear of angering the right wing of the Republican Party. Even legislation which is largely favored in Congress to provide relief for illegal farm workers (AgJobs) and minors (DREAM Act) is being stalled by the Republican leadership. AgJobs is legislation which would allow up to 500,000 farm workers to begin the road to legalization, and is strongly supported by 63 senators. The DREAM Act would allow minors who entered the United States while under the age of 16 to apply for conditional green cards upon graduating from high school or passing the GED as long as they have good moral character and have resided here 5 years. It has 47 cosponsors in the Senate; its companion bill 134 cosponsors in the House; and it is widely considered a noncontroversial bill. Rep.Howard Berman (D., Calif.), the chief sponsor of an accompanying House bill for AgJobs, was quoted in The Wall Street Journal on July 14th as saying that the White House told the Senate majority leader not to let the bill come up, not that the Administration was against it or for it -- just not to let it come up for vote. We believe that as the election comes down to the final months, President Bush will continue to give lip service to his wish for some form of guest worker program for illegals to placate Hispanic voters, but will not put any political muscle behind any legislation unless his Hispanic poll numbers plummet and he sees more danger to his reelection chances from Hispanics than the right wing conservatives of his party. 2. InfoPass has come to the New York district office with an official start date of July 22nd. InfoPass is an attempt by the U.S.C.I.S. to reduce lines outside its offices by allowing individuals to electronically schedule appointments with the U.S.C.I.S. for information or services. It is already in use in certain district offices such as Miami, Dallas and Los Angeles and thus far appears to have received critical acclaim as a way to make the immigration process more civilized. InfoPass has been highly useful for persons asking questions about their cases and replacing permanent residence cards without long waits. In Dallas, it is also the focus of a pilot program for 1 step adjustment of status applications for permanenet residence in which individuals with completed applications for permanent residence can schedule an adjustment of status interview with the U.S.C.I.S. on their computers. All paperwork would be filed and the interview conducted on the same day. The U.S.C.I.S. further announced plans to implement InfoPass nationwide to include 33 local district offices by September 2004. 3. With the visa revalidation program at the Department of State ending on July 16, 2004, and many rumors flying around such as one I heard that individuals will no longer be allowed to to change or extend non-immigrant status in the United States after that date but must leave the country and interview overseas for these actions, it might be beneficial to go over the rules at this time. Initially there is a huge difference between extending or changing status in the U.S. as opposed to obtaining a visa in the passport. Individuals who have been maintaining legal non-immigrant status in the country are generally allowed to change status to other nonimmigrant categories or to extend their present non immigrant statuses without leaving the country. They can do so even if the visas in their passports have expired. That is because a visa is useful for travel in and out of the United States, but once in the United States, periods of stay are controlled not by the visa but by U.S.C.I.S. notations on I-94 cards or other documents. However, the U.S.C.I.S. does not issue visas in passports. It only issues paper extensions or changes of status which cannot function as visas for travel in and out of the country. The issuance of visas is within the province of the Department of State acting through the consular units in its embassies or consulates. Until July 16th, many types of expired or soon to be expired visas could also be revalidated within the U.S. itself by the Department of State. Now individuals must interview with an American consular officer outside the U.S. if they wish a visa for travel purposes. These applicants will go through biometric registration before being given a visa for the U.S. and the vast majority of them will be interviewed. In times past, third country nationals maintaining their statuses in the U.S. who wished to obtain visas in Canada or Mexico were allowed to return to the U.S. with their I-94 cards even if the visa interview was delayed or denied through the automatic visa revalidation program between the United States, Canada and Mexico. That is no longer the case, and unsuccessful visa applicants must remain outside the U.S. unless they receive a favorable decision on the visa application or have an alternate way to return to the States. If individuals go to Canada or Mexico and do not apply for visas, they are still generally allowed to return to the U.S. on the basis of their I-94s under automatic visa revalidation with the exception of individuals from Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria who must obtain visas to return. † The author is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His 1981 case with Ronald W. Freeman, Chavan v. Drysdale, 513 F.Supp.990 (NDNY 1981), encouraged the INS to change its 3 year maximum stay period for L-1 specialized knowledge personnel, and his 1992 correspondence with John Cummings, then Acting Assistant Commissioner for Refugees, Asylum and Parole, on the fate of asylees’ children who age out (69 Interpreter Releases, July 13, 1992), has been widely cited by others in the field. Readers may visit Mr. Lee’s website at www.alanleelaw.com. ‡ This article © 2004 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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