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By Richard M. Rawson
[Nov. 2002]

HOMELAND SECURITY ACT OF 2002

On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002. Among other things, the new law will transfer responsibility for immigration matters from the INS to two new subdivisions within the Department of Homeland Security. The Directorate of Border and Transportation Security will be primarily responsible for immigration enforcement actions (border patrol, detention and removal, intelligence, investigations and inspections). The Bureau of Citizenship and Immigration Services will be primarily responsible for processing immigration petitions (naturalization, asylum, refugee applications, and visa petitions currently handled by the four INS regional processing centers). It remains to be seen how the new law will impact processing times for various types of visa petitions and related immigration applications.

ADOPTION OF NEW ALIEN REGISTRATION RULE

In August 2002, an "alien registration" rule was adopted which applies to selected foreign nationals as well as other individuals who are identified as requiring greater security screening. The new rules require these foreign nationals to be fingerprinted and photographed upon entry, to register with the local INS office in person 30 days after entry, to register with the INS annually, and also to comply with certain departure control procedures.

January 10, 2003 Registration Deadline. Pursuant to a notice published in the Federal Register on Friday, Nov. 22, 2002, persons who meet the following criteria must register with the local INS office in the area where they live on or before Jan. 10, 2003:

• Males 16 years of age or older (born on or before Dec. 2, 1986),
  
  
• Who are nationals or citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates or Yemen,
  
  
• Who were last admitted to the United States as a nonimmigrant on or before Sept. 30, 2002, and
  
  
• Who will remain in the United States beyond Jan. 10, 2003.
  

December 16, 2002 Registration Deadline. Pursuant to an earlier notice published in the Federal Register on Nov. 6, 2002, persons who meet the following criteria must register on or before Dec. 16, 2002:

• Males 16 years of age or older (born on or before Nov. 15, 1986),
  
  
• Who are nationals of Iran, Iraq, Libya, Sudan or Syria,
  
  
• Who were last admitted to the United States as nonimmigrants on or before Sept. 10, 2002, and
  
  
• Who will remain in the United States beyond Dec. 16, 2002.
  

Registration Requirements. The following is a brief summary of the registration requirements for persons who are subject to the above registration deadlines:

• Registration is required even if the person is a dual citizen of another country not listed above.
  
  
• Registration is not required for persons who have obtained permanent residence status in the United States (green card status), diplomats who entered the United States under A or G visas as employees of foreign governments or international organizations, and persons who have applied for or been granted asylum in the United States.
  
  
• At the time of registration, the person will be photographed, fingerprinted and interviewed under oath. The person must present his passport, I-94 arrival departure card, and other government issued travel documents. The person must also submit proof of residence, employment or student status, as applicable.
  
  
• Each person who is required to register with the INS must report any address change to the INS in writing within ten days of the change using INS Form AR-11 SR.
  
  
• If the person remains in the United States for another year, he must report annually to the INS in person within ten days of the anniversary date of the initial registration.
  
  
• The person must also report to the INS at the time of departure and leave through a designated port.
  
  
• Persons who fail to comply with these registration requirements will be deemed "out of status" and deportable.
  

More information on Alien Registration Requirements. Additional information is available on the INS web site at www.ins.usdoj.gov.

OTHER RECENT IMMIGRATION LAW CHANGES

INS Case Status Online. On Oct. 28, 2002, the INS announced the successful implementation of Case Status Online. Customers who have a receipt number for an application or petition filed at an INS Service Center can check the status of their pending case online through the INS website and avoid prolonged waits on the phone or at a local office. Case status can be obtained by going to https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp.

Extension of H-1B Status for Aliens with Lengthy Adjudications. Recognizing that lengthy processing times by the Department of Labor has precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000 (Pub.L. 106-313), this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the 6th year limitation. As long as 365 days have elapsed since the filing of a labor certification application or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed their status or left the country. If an application for a labor certification adjustment of status, or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

B-1 Rules Proposed by INS. In response to security concerns after the Sept. 11 attacks, the INS issued proposed rules in June 2002 which change the admission procedures for B-1 business visitors and B-2 tourists. In the past, B-1/B-2 visitors were routinely admitted for six months, but the new rules limit the initial admission to one month unless the visitor can give good reason why he or she needs to stay longer. There are also new restrictions on persons who enter B-1/B-2 and later change to F-1 student status (the intent to explore possible studies in the United States should be disclosed at the time of the initial entry in B-1 or B-2 status).

Employment Authorization for Spouses of E and L Workers. The U.S. Congress amended the immigration laws on Jan. 16, 2002 authorizing spouses of L and E visa holders to apply for employment authorization. The INS has not yet issued implementing regulations, but an INS memo issued on Feb. 22, 2002 provides guidance on how to apply. The application is made on Form I-765. Until new forms are issued by the INS, the basis for the application should be handwritten as (A)(18) for L visa holders and (A)(19) for E visa holders. Documents which must be submitted with the application include the I-94 arrival/departure cards for the L or E visa holder and the spouse who is applying for employment authorization. Proof of marriage and a copy of the INS approval notice and visa stamp are also recommended.

Concurrent Filing of I-140 Immigrant Petition and I-485 Application. In July 2002, the INS announced a new concurrent filing procedure for I-140 immigrant visa petitions and I-485 applications for adjustment of status. This is a welcome change designed to reduce the overall processing time for employment-based green card applications.

Reduction in Employment Abroad Requirement for Blanket L Petition. At the same time Congress granted employment authorization to spouses of L and E visa holders, it also shortened the period of time (from 12 months to 6 months) that an L-1 intracompany transferee must be employed abroad before being transferred into the United States under a blanket L petition. The new rule has limited application, however, because it only applies to L-1 personnel transferred under a blanket L petition, not regular L petitions, and does not apply to multinational executives seeking to qualify for a green card.

Visa Issuance Fee Increased from $65 to $100. Earlier this year, the standard visa issuance fee charged at U.S. consulates overseas increased from $45 to $65. Subsequently, the visa issuance fee increased again from $65 to $100 effective Nov. 1, 2002.

Child Status Protection Act. The Child Status Protection Act, passed in August 2002, makes it easier for children to obtain a green card at the same time as their parents and avoid the "aging out" problem. In the past, children were required to complete the green card process prior to their 21st birthday. Because of lengthy INS processing times, children ran the risk of "aging out" before the family's application could be processed. Under the new law, the child's eligibility will depend on his or her age at the time the immigrant petition is filed (or the date on which the immigrant visa becomes available), rather than the date the green card application is finally approved. Thus, children will no longer run the risk of losing eligibility due to delays in INS processing of the case.

Other Changes as a Result of 9/11. Some of the changes listed above are the result of increased security in response to the Sept. 11 attacks. Other changes resulting from 9/11 include the following:

• The INS issued a fact sheet in July 2002 reminding all foreign visitors that they are legally obligated to notify the INS of their current address using form AR-11. Failure to notify the INS of address changes could have serious consequences in the future. INS forms are available at www.ins.usdoj.gov.
  
  
• The INS may inspect immigration documents of foreign workers when they travel domestically as well as internationally. Thus, it is important for foreign workers to carry their U.S. immigration papers with them at all times.
  
  
• In general, persons who travel to Canada or Mexico for less than 30 days can reenter the United States with an expired visa so long as they have a current INS approval notice (the so-called "automatic visa renewal" rule). Under new rules promulgated after 9/11, this automatic visa renewal rule no longer applies to persons who apply for a new visa while they are in Canada or Mexico (they must wait for the new visa to be issued or return to their home country if the new visa is refused). Also, this exception no longer applies to persons who are citizens of countries that are deemed to be sponsors of terrorism (Iran, Iraq, Syria, Libya, Sudan, North Korea and Cuba).
  
  
• INS has promulgated new rules for better tracking of F-1 students and J-1 exchange visitors who drop out of school or otherwise fall "out of status."

If you have questions or would like more information on the above changes, please contact any members of DWT’s immigration practice team, including:

Richard M. Rawson, Seattle, RichRawson@dwt.com
Christopher R. Helm, Seattle, ChrisHelm@dwt.com
James M. Mei, Portland, JimMei@dwt.com

This Immigration Alert is a publication of the Immigration Department of Davis Wright Tremaine LLP. Our purpose in publishing this Alert is to inform our clients and friends of recent developments in immigration law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

Copyright © 2002, Davis Wright Tremaine LLP.