Visa Processing for Third Country Nationals at Posts Other than Ciudad Juarez, Mexico

A longstanding Department of State policy has allowed Third Country Nationals, orTCN’s, to receive visas for travel to the United States at consular posts in Canada andMexico. Third Country Nationals are nationals of countries other than the U.S., Canada,or Mexico. Processing of TCN visas in Canada and Mexico has allowed people to applyfor nonimmigrant status while in the United States and to travel to Canada or Mexico toreceive their visas. This procedure has eliminated the cost of traveling overseas for manypeople.

Unfortunately, as of November 1, 2002, Ciudad Juarez, Mexico ceased processing ofTCN’s. The American Immigration Lawyers Association has communicated withconsular officials, however, who report that there remain sufficient visa appointmentslots to handle the bulk of third country national nonimmigrant visa applications nolonger being serviced by the U.S. Consulate at Ciudad Juarez. While this is very goodnews, the relief may be short-lived. For while Landed Immigrants of Canada who arenationals of Commonwealth countries are currently visa-exempt, the Department of Stateis planning to amend its regulations to require visas from such Landed Immigrants. Oncethe regulation is changed, there will not likely be a surplus of open visa slots in Canada.Many TCN’s will therefore not be accommodated by either Canada or Mexico, and theywill have to travel to their country of nationality in order to obtain a visa.

Canadian Landed Immigrants from Commonwealth Countries Will Soon Need Visas

Under current State Department regulations, Landed Immigrants of Canada who arenationals of Commonwealth countries are not required to obtain nonimmigrant visaswhen they gain lawful nonimmigrant status in the United States1. But according toAntoinette Marwitz, the new U.S. Consul General in Toronto, the State Department isplanning to change its regulations to require Landed Immigrants from Commonwealthcountries to obtain visas for entry to the United States. This change has not yet officiallyoccurred. Regulations were actually published to enact this provision, but they were laterwithdrawn for review. They are expected to be re-published soon.

1 Nonimmigrant visas are entry documents placed in an alien’s passport by the Department of State. Visasare different that INS conferred “status,” which is notated on Form I-797 Approval Notices issued by INS,and the form I-94, Arrival/Departure record.

Change in Procedures for Screening Nonimmigrant Visa Applicants

In the wake of the 9/11 terrorist attacks, the Department of State implemented proceduresfor increased screening of nonimmigrant visa applicants. All male nonimmigrant visaapplicants between ages 16 and 45 are now required to fill out Form DS-156, thusproviding background information that helps the Department of State to assess whetheror not the applicant is likely to pose a security risk to the United States. The StateDepartment has established a list of 26 countries whose nationals are all subject to specialprocessing requirements. A complete and accurate list of these countries has never beendivulged. Nevertheless, nationals from the “List of 26” applying for a nonimmigrant visasince 9/11 have had to wait approximately 20 business days for the State Department toperform background checks. The Department of State has also established additionalsecret criteria with which to determine whether an applicant shall be subject to additionalprocessing requirements. All of the special clearance procedures established by the StateDepartment remain in effect except that as of October 2, 2002, the 20-day hold procedureon nonimmigrant visa applications from the “List of 26” countries is no longer in effect.This applies to all future applications as well as to those now at any point in the 20-dayhold queue.

New Rules on Extension of H-1B Status Beyond the 6th Year

H-1B status, like all nonimmigrant statuses, is limited in duration. An alien can typicallyhold H-1B status for a total of only 6 years. This 6-year limit is sometimes problematic,however, because of lengthy adjudications at both the Labor Certification and the I-140stage. H-1B status holders frequently run out of time on the H-1B before they can eitherbegin the Adjustment of Status process, or before they can complete Consular Processingto become Permanent Residents. Because the 6-year limit can be a problem, laws havebeen created to accommodate H-1B aliens whose Labor Certifications or I-140 petitionshave been pending for a long time.

The American Competitiveness in the Twenty-first Century Act of 2002 (or “AC-21”)was the first law to offer relief to H-1B aliens caught in this time crunch. Section 106 ofAC-21 provided that if an H-1B alien’s Labor Certification application had been pendingfor over 365 days and if his or her I-140 petition had also been filed, then he or she couldbe granted an additional year on H-1B status. The alien’s H-1B status would be extendedin one-year increments until the I-140 had been adjudicated.

While AC-21 provides some relief to H-1B aliens, it is also somewhat flawed. In manycases, Labor Certification applications pend for longer than 365 days withoutadjudication, and I-140 petitions cannot be filed until the Labor Certification has beenapproved. Aliens frequently run out of time on H-1B status without being able to file anI-140 petition, and thus they do not meet all of AC-21’s requirements for extension of H-1B status beyond the traditional 6 years.

A new law has signed that amends AC-21 and corrects this problem. The 21st CenturyDepartment of Justice Appropriations Authorization Act (or “DOJ Authorization Act”) 2permits H-1B aliens to extend their nonimmigrant status beyond the 6-year limit if 365days have elapsed since either (1) the alien has filed a Labor Certification; or (2) the alienhas filed an I-140 petition that does not require a Labor Certification. Under the newlaw, the alien’s H-1B status will still be extended in one-year increments until either theLabor Certification or the I-140 has been adjudicated

Passport Validity Dates for Nonimmigrant Visa Applicants

Nonimmigrant aliens who apply for visas for admission to the United States must possesspassports that are valid for a minimum of 6 months beyond the date of the expiration ofthe initial period of the alien’s admission into the U.S.2 In light of this requirement, thegovernments of some countries have agreed that their passports will be valid for return tothe country for a period of 6 months beyond the expiration date posted in the passport.Below is a list of countries whose governments have made such arrangements for theirnationals:

Togo Egypt Trinidad & Tobago El SalvadorAlgeria Japan EthiopiaAntigua & Barbuda Jordan FinlandArgentina Korea FranceAustralia Kuwait GermanyAustria Laos GreeceBahamas, the Latvia GrenadaBangladesh Lebanon GuatemalaBarbados Liechtenstein GuineaBelgium Luxembourg GuyanaBolivia Macau Hong Kong (CertificatesBosnia-Herzegovina Madagascar of identity andBrazil Malaysia passports)Canada Malta HungaryChile Mauritius IcelandColombia Mexico IndiaCosta Rica Monaco IrelandCote D’Ivoire Netherlands IsraelCroatia New Zealand ItalyCuba Nicaragua JamaicaCyprus Nigeria SwedenCzech Republic Norway SwitzerlandDenmark Oman SyriaDominica Pakistan TaiwanDominican Republic Panama ThailandEcuador

2 Pursuant to 8 C.F.R. 212.1(a), Canadian nationals are exempt from this requirement unless they arereturning from a trip outside the Western Hemisphere.

3 Suriname Slovak RepublicParaguay Tunisia SloveniaPeru Turkey South AfricaPhilippines United Arab Emirates SpainPoland United Kingdom Sri LankaPortugal Uruguay St. Kitts & NevisQatar Venezuela St. LuciaRomania Zimbabwe St. Vincent and theRussia GrenadinesSenegal SudanSingapore

Please note that automatic passport extensions are useful only for nonimmigrant visaapplicants, and not for immigrant visa applicants.

Information on Department of Labor and INS Processing Times

Information on the processing times for Labor Certifications is available online athttp://immigration.com/, as is information on current processing times for petitionspending at regional INS service centers. To read the INS processing time charts, simplyselect the service center at which you have a petition pending and look up the number ofthe pending petition (e.g. I-129’s are for H’s, L’s, and TN extensions at the NebraskaService Center; I-140’s and I-360’s are immigrant visa petitions). The name of theservice center at which your petition is pending can be found on your INS ReceiptNotice.

Vermont Service Center No Longer Promising 60-Day Adjudications on Concurrently Filed I-140 Petitions

The INS implemented a new concurrent filing rule in July of 2002, allowing people tofile I-140 and I-485 petitions simultaneously. Upon implementation of the rule, INSregional service centers promised that I-140 petitions filed simultaneously with I-485petitions would be adjudicated within a 60-day time frame. However, because of anincreased level of concurrent filings at the Vermont Service Center, 60-day adjudicationshave become impossible. The Vermont Service Center will now perform a prima faciereview on concurrently filed I-140 petitions to determine whether the beneficiary iseligible for Employment Authorization and/or Advance Parole document(s). TheEAD/AP documents will be issued if possible, and then the I-140/I-485 will be returnedto the I-140 backlog to be processed in order of date of receipt. Other service centershave not yet rescinded the 60-day promise.

Additional Special Registration Requirements for Certain Nonimmigrant Aliens Already Present in the United States

A notice was placed in the Federal Register on November 6, 2002 stating that as a resultof intelligence information currently available to the Attorney General, certainnonimmigrant aliens already present in the United States will be subject to specialregistration with the INS. This notice is effective on November 15, 2002.

An alien is required to register pursuant to this notice if he:

(1) Is a male who was born on or before November 15, 1986 (i.e. 16 years of age or older);

(2) Is a national or citizen of Iran, Iraq, Libya, Sudan, or Syria and who was inspected by the INS and was last admitted to the Untied States as a nonimmigrant on or before September 10, 2002 (notwithstanding any dual nationality or citizenship); and

(3) Will remain in the United States until at least December 16, 2002.

Aliens who have applied for or who have been granted asylum prior to the publication ofthe notice are specifically exempt from the registration requirements.

All aliens subject to this registration requirement must appear before an immigrationofficer on or before December 16, 2002 at certain designated locations. For a list of theselocations, refer to the notice in the Federal Register using the following link:

http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=62248223891+109+0+0&WAISaction=retrieveUpon reporting to the INS, aliens will be required to answer questions under oath beforean immigration officer, and those answers will be recorded. Aliens must also presenttheir travel documents and any other forms of government-issued identification, alongwith proof of residence. Aliens subject to this requirement must also appear within 10days of each anniversary of the date of registration to answer questions under oath.

Willful failure to comply with the requirements of the November 6th notice constitutes afailure to maintain nonimmigrant status, and may result in an alien being placed indeportation proceedings.