H-1B Visa and Immigration
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UPDATES - Year 2002

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March, 2002

House Passes 245(i) Extension

The House of Representatives approved a very narrow extension of Section 245(i) by a vote of 275 to 137. Although the bill passed by the House is severely flawed, its passage came over strenuous opposition by anti-immigration forces from inside and outside Congress, and sends an important signal that there is little support for their restrictionist agenda. The Senate must vote to approve the legislation before it can be signed into law by the President. It is unclear if or when the Senate will take up this bill.

Section 245(i) is an important provision that would allow eligible people to adjust status in the United States. By pushing for this extension, both the Administration and Congress recognize that Section 245(i) is pro-family, pro-business, good policy and makes sense. Not surprisingly, restrictionists strongly oppose any extension of Section 245(i), alleging (inaccurately) that it is an amnesty.

The extension measure currently before Congress is a positive, but very flawed, gesture. It is positive because it helps to move our issue forward. It is flawed because it includes very restrictive language that will significantly limit its benefits. While this extension proposal appears to extend Section 245(i) until November 30, 2002, many people will not qualify because of the additional requirement that eligibility for Section 245(i) be established prior to August 15, 2001. For people who are submitting a family-based application, the new provision would require that the “familial relationship that is the basis of the application” existed before August 15, 2001. This completely arbitrary date will prevent many families from benefiting from this new law.

For people who are submitting an employment-based application, they would have to prove that a labor certification was submitted prior to August 15, 2001. The requirement that an application have been previously filed will render this extension almost meaningless for employment based applications. Since Section 245(i) had previously expired, it would have made no sense for an employer to submit a labor application on behalf of an employee who needed Section 245(i) at a time when the program did not exist.

The August 15, 2001 requirement is unnecessary given the requirement that the principal beneficiaries of these petitions and applications must have been physically present in the U.S. on December 21, 2000, the date of enactment of the LIFE Act Amendments of 2000. The purpose of this last requirement is to make sure that the renewed availability of section 245(i) does not operate to encourage anyone to violate our immigration laws.

The proposed Section 245(i) extension measure is further complicated by the short extension period. The new law either extends Section 245(i) until November 30, 2002, or four months after the INS issues regulations implementing this law, whichever is earliest. (And new regulations would have to be issued, given the new August 15 date by which the familial relationship is required.) This short extension will lead to much confusion in communities nationwide about when people must apply and who is eligible.

 

Consular Processing Update: Department of State Amends the Contiguous Territory Rule

On March 7th, 2002 the Department of State amended the provision for automatic revalidation of expired visas for nonimmigrant aliens returning from short visits to other North American countries or adjacent islands ("contiguous territories") under 22 C.F.R. Section 42.112(d). Commonly referred to as the "contiguous territory" rule, the automatic revalidation provision of 22 CRF Section 42.112(d) allowed aliens who were out of the US for less than thirty days in a contiguous territory, to re-enter the US with an unexpired I-94 Arrivals/Departure card. Such aliens may have been applying for readmission in the same classification or in a new classification authorized by the INS prior to their departure.

In an effort to enhance security screening of visa applicants, the Department of State has amended the "contiguous territory" provision in two ways. First, the automatic revalidation provision is no longer applicable to aliens who apply for new visas during visits to contiguous territories. Second, it is no longer available to aliens who are nationals of countries identified as state sponsors of terrorism, currently designated as Iraq, Iran, Syria, Libya, Sudan, North Korea and Cuba. This is an interim rule that is effective on April 1, 2002, with a 60 day comment period, ending May 6, 2002.

In the past, it has been possible to rely on the automatic revalidation provision as a critical "safety net" for clients applying for nonimmigrant visas as Third Country National applicants at border posts in Canada and Mexico. This amendment necessitates additional scrutiny on the part of counsel in advising clients on consular processing options. The effect of this amended provision is potentially devastating. If an applicant is refused a nonimmigrant visa at a border post in Mexico or Canada, the applicant must depart through Canada or Mexico and will not be permitted to re-enter the US using the INS approved change or extension-of-status.

Another change that has affected TCN consular processing in Mexico and Canada is the introduction of a two-week "buffer" period when booking appointments at border posts. Appointments must now be secured at least two weeks in advance to provide posts with an opportunity to determine if the alien is a national from a designated country that is on the as yet unpublished DOS classified list of countries that are subject to additional security clearances. The list of countries reportedly affected by these restrictions, includes but is not limited to Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen. The "buffer" period allows posts an opportunity to notify the applicant if the appointment can be honored. If the appointment cannot be honored, the applicant must apply in their home country.

Finally, visa applicants face several other changes in consular processing procedures when applying for US nonimmigrant visas at US embassies and consulates. Effective January 2002, the Department of State requires all male nonimmigrant visa applicants between the ages of 16 and 45 to complete the DS-157 Supplemental Nonimmigrant Visa Application Form during the visa application process, with limited exceptions for diplomats and persons from visa waiver countries. The form supplements the standard Form DS-156 and seeks to gather additional information about the applicant's specialized skills or training in connection with firearms, explosives and nuclear, biological, or chemical agents; the applicant's educational history; and the applicant's movements over the past ten years. Among other things, the DS 157 also asks applicants to indicate whether they performed military service and whether they have ever been in an armed conflict.

This form is in use at all US embassies and consulates and is readily available on the Department of State website as well as on most individual posts' websites. In some instances, some posts including Israel and London, posts are also requesting that all male and female nonimmigrant visa applicants holding Chinese, Cuban, Iranian, Iraqi, Libyan, Russian, Somali, Sudanese or Vietnamese passports to complete the form.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]