Article 2002-10-10
A LOOK
BACK AT A SUMMER OF IMMIGRATION CHANGES
As we head into
the fall, we can look back at the summer of 2002 and see that it
brought us some benefits and confusion. The following is a
quick summary of some of the more interesting immigration happenings
in the past two-three months.
One of the most arresting developments was the passage into law
of the Child Status Protection Act on August 6, 2002. The
new Act's initials by which it is already known, CSPA, promises
to create confusion with the Chinese Student Protection Act, which
also goes under the name CSPA. The new CSPA promises to correct
the multiple problems of children aging out and not being eligible
to follow parents when they immigrate to the United States, children
of asylees ageing out during the process of applying to come over
to the States, and children being disadvantaged by the naturalization
of petitioning parents where the country of visa chargeability is
further backlogged under the F-11 category for unmarried sons and
daughters of U.S. citizen than for unmarried sons and daughters
of permanent residents under the F-2B category. The new law
applies to all pending petitions and applications. Clarification
on the full extent of the law must await the issuance of regulations
by the INS.
The INS surprised many by passing a long awaited regulation allowing
the combination filing of I-140 immigrant visa petitions for alien
workers with I-485 applications to adjust status to permanent residence
beginning on July 31, 2002. Although this move had been discussed
extensively by the INS in the past two years, the regulation was
generally not expected at this time. Prior to the movement
of cases in the early 1990's to the remote service centers, INS
had allowed combination I-140/I-485 filings at its local district
offices. The move back to allowing such combinations is welcome
as such will ultimately reduce the amount of waiting time to close
out employment based immigration cases. However, readers should
understand that there are advantages and disadvantages to combination
filings, and some cases may not be appropriate for such filings.
I will discuss these in a separate article.
The visa lottery is scheduled to run this year between October 7,
2002 to November 6, 2002. Natives of Hong Kong, Macau and
Taiwan are eligible, China is not. Potential applicants should
be aware that there is great emphasis being put upon individuals
signing their own applications, and that photo specifications are
being strictly adhered to by the Department of State. Failure
on either point will invalidate the application. The photograph
specifications have been changed so that the applicant must be directly
facing the camera, the head of the person being photographed should
not be tilted up, down or to the side, and should cover about 50%
of the area of the photo. The size should be between 11/2
X 11/2 and 2 X 2 inches square, with the applicant's name and date
of birth printed on the back. The address for applicants from
Asian countries is
DV Program
Kentucky Consular Center
2002 Visa Crest
Migrate, Kentucky 41902-2000, USA
President Bush on July 3, 2002 signed a presidential order identifying
the war on terror as a period of armed conflict, therefore making
persons serving honorably in an active duty status in the armed
forces immediately eligible for naturalization. Executive
Order 13269 identifies the period beginning September 11, 2001 as
a period of armed conflict, the termination of which will be indicated
by the future Executive Order. This law not only allows permanent
residents but also individuals without status to be naturalized.
Of course, the problem at this time is that the armed services to
our understanding will not accept individuals without permanent
residence. Thus the requirement in the law that illegals must
register for Selective Service is strange since illegals are unable
to join the armed forces anyway (All male individuals in the U.S.
between the ages of 18 and 26- even illegals and only excepting
non-immigrants holding valid non-immigrant statuses- are required
by law to register for Selective Service). This is doubly
incongruous as an illegal who failed to register between the
required ages and later obtains permanent residence may be denied
his later naturalization on grounds of lack of good moral character
for failing to register for Selective Service.
In a move pregnant with political meaning, the government announced
that the National Security Entry-Exit Registration System (NSEERS)
is being implemented at selected ports of entry on September 11,
2002, the anniversary of the attacks on America. NSEERS promises
to be a comprehensive entry-exit system applicable to virtually
all foreign visitors. Under the first step in this system, the fingerprints
of a "small" number of foreign visitors is to be matched
against government databases. This is pursuant to a final
rule issued on August 12, 2002 for the registration of "Special
interest" aliens. The registration would apply to natives
or citizens of a country designated by the Attorney General with
the Department State coming to the U.S. on a non immigrant visa.
It would also apply to non-immigrant visa aliens that an immigration
inspector or consular officer believes are from those countries,
or to such aliens that an immigration inspector or consular officer
believes meet some pre-existing criteria. Those criteria are
not identified. On September 6, 2002, the Attorney General designated
the countries as Iran, Iraq, Libya, Sudan and Syria – all countries
condemned by the Department of State as state sponsors of terrorism.
Such designated individuals are to be fingerprinted and photographed
by the INS at the port of entry. If they stay for more than
30 days, they must return to the INS within 30 to 40 days to present
proof of compliance with the terms of their visas. If they
are in the U.S. for over one year, they must register annually within
10 days of the anniversary of the day and month of their coming.
Finally they must report to a departure control officer to exit
the United States. .
The INS commissioner, James Ziegler, resigned on August 16, 2002,
a year after coming into the job. No successor has yet been
named. He has said that he will depart no later than December
21, 2002.
The INS has unveiled its Students and Exchange Visitor Information
System (SEVIS) pursuant to its interim rule of July 1, 2002.
The new system is to be used to track the nearly 1 million nonimmigrant
foreign students and exchange visitors during their stays in the
United States. SEVIS is an Internet based computer system
to enable schools and program sponsors to immediately transmit electronic
information and event notifications to INS and the Department of
State. Beginning on July 1, 2002, the INS has allowed most
schools that it has already certified to go through preliminary
enrollment. It will be mandatory for all schools wishing to
enroll foreign students beginning January 30, 2003. SEVIS
is certainly an improvement over the present paper system in which
INS never knew whether students ever went to study after entering
the U.S. with F-1, M-1 or J-1 visas. The question lurking
in the background is when students and exchange visitors will be
hit with fees for the maintenance of SEVIS. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandated
a fee on students and exchange visitors to fund the design, development
and operation of the system. Fees are controversial as other
countries may reciprocate by complaining through diplomatic channels
and imposing like fees on American students studying abroad.
The State Department has opposed collection of fees at its consulates
and embassies. In an earlier cable in February 2001, the State
Department complained that the high cost, $95, and the fact that
the fee would be non refundable even if the applicants were refused,
would create a public-relations headache for consular posts in addition
to producing a backlash by the host countries. Thus far INS
is delaying publication of a final fee rule until the SEVIS program
is further along in its implementation.
Everyone who is not a citizen in this country is caught up in a
tizzy of fear as the INS begins to enforce a 50 year-old rule on
reporting address changes that had not been enforced for almost
as long. The law provides that all individuals who are not
citizens in the country must report changes of address within 10
days of the move. The fear has been spurred by the INS using
it as a pretext to hold people that it is interested in for other
reasons. Readers can report changes of address by obtaining
and filling out Form AR-11 which is available at all INS offices
or can be downloaded through the INS website www.ins.usdoj.gov.
A few notes are deserved here because of the inexplicability of
the government's action. The INS is now being swamped by AR-11s
and cannot possibly keep track of all non-citizens in this country.
The INS even recently stated that it does not have a system in place
to keep up with all the paperwork. INS was also embarrassed
when it was recently discovered that there are 200,000 unopened
address changes among 2 million pieces of unopened correspondence
to INS gathering dust in the INS warehouse complex in Missouri.
This whole concept is worse than looking for a needle in a haystack.
The nonsensicalness of the registration is only matched by its obvious
inability to do anything to counter acts of terrorism. Persons
wishing to do harm against the United States would simply not register
changes of address when they are close to carrying out their terrorist
deeds. In addition, enforcement actions have been unfair and
offend the due process clause of the Constitution. Immigration
Judge William Cassidy in Atlanta recently terminated removal proceedings
against a permanent resident who was being held by the government
because of non-reporting of address when the alien said no one had
ever told him about the rule and the judge noted that the government
had stopped airing announcements concerning the rule many years
ago and that his research revealed that the last such deportation
case brought by the government on such charges was in 1958.
Congress is now back in session after a lengthy break from August
until Labor Day, and immigration issues promise to be part of the
agenda until the end of the session or even during a lame-duck session
if Congress is called back after the elections in November.
Part of the agenda will probably touch upon the questions of legalization,
fixing the outrageously restrictionist IIRIRA legislation of 1996,
and extension of section 245(i) which allows most illegal individuals
to adjust status in the U.S. upon payment of a fine amount if they
have a qualifying immigration case. Hopefully the concern
over security does not reach such heights as to drown out all hope
of remedial immigration legislation.
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