Slow-down on Adjustment of Status, Naturalization, and Asylum Applications Due to Security Checks

INS policy requires that on I-485 Adjustment of Status applications, Naturalizationapplications, and asylum applications, the applicant fill out the form G-325 A. INS usesthe information provided in this form to run a name and date of birth check with the FBI.Traditionally when the FBI has not responded to the inquiry within a certain period oftime, INS has assumed that there is no problem with approving the case.

On November 13, 2002, however, INS issued a memo stating that it will not issuebenefits to Adjustment of Status, Naturalization, or Asylum applicants until the FBI hasgiven a definitive response to the name and date of birth check based on form G-325 A.Unfortunately, the FBI does not currently have an automated system whereby it canprovide quick turn around to these requests. The INS is therefore experiencing a slowdown on adjudication of the aforementioned types of applications. Many cases that areotherwise clearly approvable are being shelved until the FBI can reply to the name anddate of birth check.

The slow down on I-485 applications affects only the I-485 itself; EmploymentAuthorization and Advance Parole documents can still be granted without the securitycheck.

Members of the American Immigration Lawyers Association (AILA) have reported thattheir clients have been scheduled for Naturalization or Adjustment interviews at theirlocal INS offices, only to be informed at the time of the interview that the application iscurrently not approvable, for unknown reasons.

Family-Based Petitioners Arrested

INS offices routinely run IBIS (Interagency Border Inspection System) checks onbeneficiaries of all petitions for immigration benefits. If the IBIS check turns up anycriminal records, they must be addressed before the benefits can be granted. Recently,however, in at least three different cases reported from different places in the UnitedStates, INS local offices have been running IBIS checks on the petitioners in I-130 familybased immigrant visa petitions. If any outstanding wants or warrants exist, thepetitioners have been arrested at the INS offices when they appear to further thebeneficiary’s application. Because the arrests have occurred in different regions, itappears that INS has implemented a new national policy.

Child Status Protection Act Contains Helpful Provisions for Children of Permanent Resident Applicants, Children of Permanent Residents, Children of U.S. citizens, and Naturalized U.S.Citizens

When an alien applies for permanent resident status (or a “green card”), his or herimmediate relatives (spouse and/or children unmarried children under the age of 21), mayaccompany him or her to the United States. The whole family can receive theirpermanent resident status at the same time. In some cases, however, applicants apply forpermanent resident status while their children are under the age of 21, but due to lengthyadjudication periods, the child “ages out,” or turns 21, before the process is complete.Once the son or daughter turns 21, he or she is no longer considered a child, and istherefore ineligible to receive permanent resident status based on the parent’s petition.Or in some instances, the 21-year-old is put onto a longer waiting list for the visa.

The “age-out” problem has existed for many years, and U.S. consulates and the INS havedone their best to accommodate families whose children are close to age 21. Theseagencies have often expedited cases for entire families if any children are potential age-outs. Even with expedite procedures in place, however, many sons and daughters ofpermanent resident applicants still aged out before processing could be completed.

Fortunately, a recent piece of legislation has done much to alleviate the age-out problem.The Child Status Protection Act (CSPA), signed by the President in August of 2002,changes the time at which “child” status is determined. Before the CSPA was signed intolaw, “child” status was determined based on the age of the alien at the time that theImmigrant Visa was ready for issue (in the case of Adjustment of Status, at the time the I-485 was approved, or in the case of Consular Processing, at the time of the ImmigrantVisa interview). Under the CSPA, however, “child” status is now determined at the timethat an immigrant visa petition (I-130, I-140, or I-360) is filed. Therefore if the son ordaughter of an I-140 beneficiary is an unmarried 20-year-old when the I-140 is filed, or ifthe beneficiary of an I-130 petition is 20-years old at the time of filing the petition, thenthe 20-year-old remains indefinitely eligible to obtain an Immigrant Visa. Or, Even if theunmarried son or daughter is 23 or 24 years old by the time of the consulate interview orI-485 approval, he or she will still be eligible to receive permanent resident status.

The CSPA furthermore contains a helpful provision related to visa classification forunmarried sons and daughters of naturalized U.S. citizens. When a permanent residentparent files an I-130 petition to bring an unmarried son or daughter to the U.S., that sonor daughter is placed in the family-based 2nd preference category. To give an idea ofwhat processing times are like, in January 2003, the Department of State will be issuingvisas to 2nd preference petitions that were filed in October of 1997. In other words, it istaking 5+ years for unmarried sons and daughters of U.S. permanent residents to beadmitted to the United States. The Department of State has a longstanding procedurewhereby 2nd preference petitions will be automatically converted to family-sponsored 1stpreference petitions upon the naturalization of the petitioning parent. In January of 2003,visas will be issued for 1st preference family petitions submitted in May of 1999. Theprocessing time for 1st preference petitions is therefore about 2 years shorter than that for 22nd preference petitions. So in many cases, the automatic conversion from 2nd preferenceto 1st preference would be beneficial to the child. However, in some instances, theprocessing time for 1st preference family petitions is longer than the processing time for2nd preference family petitions. For example, processing times for 1st preference petitionsin the Philippines has been extremely backed up for a long time. The Child StatusProtection Act accounts for this difficulty by creating a new provision whereby I-130beneficiaries may choose not to have their petitions converted to the 1st preferencecategory upon the naturalization of their parent(s).

Neither INS nor the Department of State has come to a conclusive interpretation of theChild Status Protection Act. Therefore any guidance that we provide must be consideredas subject to change. We will keep you posted as new information becomes available.

Special Registration Call-In Deadlines and Consequences for Failure to Comply

Since issuing the initial rule requiring all nationals of Syria, Iran, Iraq, Libya, and Sudan toregister with INS every time the cross the border, the INS has issued other special call-inregistrations.

The first special call-in notice was posted in the Federal Register on November 15, 2002. Itrequires all males who are nationals or citizens of Iran, Iraq, Syria, Libya, or Sudan whowere born on or before November 15, 1986; who last entered the United States on or beforeSeptember 10, 2002; and who will remain in the U.S. until at least December 16, 2002, toappear before an Immigration Officer on or before December 16, 2002. These call-inregistration requirements do not apply to Legal Permanent Residents of the United States,asylees, or aliens who have applied for asylum on or before November 6, 2002.

Certain local INS offices have promulgated information stating that this special registrationdeadline will be extended beyond the December 16 deadline. INS headquarters hasconfirmed that this report is false.

The second call-in notice was posted in the Federal Register on December 2, 2002. Itrequires all males who are nationals or citizens of Afghanistan, Algeria, Bahrain, Eritrea,Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United ArabEmirates, or Yemen; who were born on or before December 2, 1986; who last entered theUnited States on or before September 30, 2002; and who will remain in the U.S. until at leastJanuary 10, 2003, to appear before an Immigration Officer on or before January 10, 2003.

These call-in registration requirements do not apply to Legal Permanent Residents of theUnited States, asylees, or aliens who have applied for asylum on or before November 22,2002. Adjustment of Status applicants who have departed and returned to the U.S. onAdvance Parole are not in nonimmigrant status, and therefore are exempt the specialregistration requirements.

Aliens who are dual nationals (such as people who who are nationals of both Canada and oneof the countries listed above) are not exempted from the call-in registration requirements bytheir Canadian nationality. 3When aliens appear for special registration, they must swear an oath. They will also berequired to present all travel documents such as passports, visas, form I-94, and any othergovernment issued identification, along with proof of residence (title deed or lease). Allregistrants will be fingerprinted and photographed. In addition, registrants must appear on anannually on the anniversary of their registration to answer questions under oath.

Failure to appear for either of the special call-in registrations will result in severeconsequences. On November 27, 2002, the Regional Director of the Central Region of theINS released a memo outlining these consequences. An alien who willfully fails to appearfor the call-in registration and/or comply with the applicable special registration requirementsafter appearing for the call-in is deportable for failure to maintain nonimmigrant status. Analien who registers pursuant to the call-in but then later fails (without good cause) to complywith the departure registration requirement will be subject to a presumption of futureinadmissibility to the United States as an alien whom the Attorney General has reasonablegrounds to believe, seeks to enter the United States to engage in unlawful activity. An alienwho willfully fails or refuses to appear for registration or to be fingerprinted may be fined$1000, sentenced to 6 months, or both. An alien who fails to provide information requestedin the Federal Register notice is subject to criminal prosecution and upon conviction, can befined for a sum not to exceed $200 or be imprisoned not more than 30 days.

Anyone who is subject to special registration requirements who has EVER been out of statusshould contact our office immediately, before going to the INS to register. Members of theAmerican Immigration Lawyers Association have reported cases nationwide where alienshave gone to register and been arrested and detained without bond at the time of theinterview, or else have been immediately placed into removal proceedings because they havebeen out of status at some point.

New Call-In Special Registration Notice to be Published in Federal Register on December 16, 2002

A third call-in notice will be posted in the Federal Register on December 16, 2002. Thenotice will require all males who are nationals of Armenia, Pakistan, or Saudi Arabia;who were born on or before January 13, 1987; and who will remain in the United Statesafter February 21, 2003 to appear before an Immigration Officer on or before February21, 2003. This notice will be effective January 13, 2003.

A Department of Justice memo has been circulating about the latest call-in registrationthat has omitted references to Armenia. This memo is incorrect. According to theFederal Register Notice, Armenians are indeed subject to the new call-in registration.

Guidelines for special registration are outlined in the article above.

NEXUS Lanes Soon to Open at Additional Border Crossings

The NEXUS program was created as the result of the Smart Border Action Plan negotiatedbetween the United States and Canada in December of 2001. The purpose of the NEXUSprogram is to pre-approve certain low-risk commuters for quicker border crossing though a lowersecurity lane. These pre-approved NEXUS members are not permitted to bring any declarablegoods into the country in the NEXUS lane. Those people who need to make declarations arerequired to go through the normal lanes. This means that even NEXUS members, when bringingfruit in their lunches, are not permitted to travel in the NEXUS lane. Commuters will be permittedto bring a serving of vegetable salad but will not be allowed to bring any other fresh vegetables.Meat and eggs are not allowed unless the meat is in a single sandwich or a fully cooked, preparedlunch that is in an amount reasonable for personal consumption. Attached is an exhibit explainingthe rules governing the transport of produce in the NEXUS lanes.

Currently, the NEXUS lanes are only open during peak travel hours, and plans are in place toextend hours of operation as admission in the program rises. Also, according to a pressrelease issued by the White House Office of the Press Secretary on September 9, 2002, onlyfour ports of entry along the U.S./Canadian border have opened NEXUS lanes so far. Thefirst NEXUS lane was opened at Sarnia/Port Huron in November of 2000 as part of a pilotproject. Since then, Pacific Highway/Blaine, Douglas/Blaine, and Boundary Bay/PointRoberts opened NEXUS lanes in 2002.

A December 6, 2002 Whitehouse Update on the Smart Border Action Plan indicates thatNEXUS will be operational at both the Detroit/Windsor and Buffalo/Fort Erie bridges onJanuary 23, 2003. NEXUS enrollment centers for Detroit/Windsor and Buffalo/Fort Erie arealready open. By spring of 2003, NEXUS lanes will open at Lewiston/Queenston, theRainbow Bridge and the Whirlpool Bridge. NEXUS should be expanded to all high-volumecrossings by the end of 2003.

Potential NEXUS members must fill out a form that is available online at www.ccra-adrc.gc.ca. A recent notice indicates that the NEXUS lanes will be open to people who arenot permanent residents of either Canada or the United States, but who otherwise meet therequirements of the NEXUS program.

Regulation of Canadian Border Crossing Cards

An interim rule was published in the Federal Register on December 2, 2002 that, ifpassed, will regulate the use of Canadian Border Crossing Cards (BCC’s). CanadianBCC’s have not been issued since 1998, and long standing policy has allowed admissibleCanadian citizens to enter the U.S. temporarily without obtaining a visa. The interim rulereinforces the policy of not requiring BCC’s for Canadian citizens. However, non-citizenresidents of Canada are now required to obtain a BCC with a machine-readable biometricidentifier (such as a photograph or fingerprints). All non-biometric BCC’s will no longerbe honored

.Canadian citizens who are inadmissible to the U.S. must obtain discretionary waivers forentry to the U.S., and must present proof of the waiver (such as Form I-194, Notice ofApproval of Advance Permission to Enter as a Nonimmigrant) at every crossing. In the 5past, proof of approval of a waiver was sometimes issued to Canadians on a documentalso containing a non-biometric BCC. While the non-biometric BCC will no longer behonored, the waiver portion of the document may still be used as proof of the waiver.

Waivers issued under section 212(d)(3) of the Act are currently valid for a period of oneyear, and must be renewed annually. If the interim rule is passed, the period for whichnew waivers will be valid will be up to five years. Some INS offices are reporting a holdon waiver adjudications pending implementation of the new rules.

Expedited Removal Expanded to Cover Aliens Arriving by Sea

The Immigration and Naturalization Service will soon place a Notice in the FederalRegister stating that effective immediately, all individuals who arrive illegally by sea willbe placed in expedited removal proceedings and during their detention will remain indetention. This action was prompted by the arrival of a smuggling vessel on KeyBiscayne in South Florida on October 29 where 211 Haitians and 3 Dominicans cameashore illegally. The INS fears a dangerous mass migration by sea that could cost manylives.

Expedited Removal is a procedure created by the 1996 Illegal Immigration Reform andImmigrant Responsibility Act. The procedure was established to remove certaininadmissible aliens from the United States. Aliens can be removed upon an order issuedby a single INS officer, but all cases must first be reviewed by a senior-level, supervisoryImmigration Officer. People removed from the United States under expedited removalare barred from re-entry for a period of five years but can apply for a waiver. In addition,individuals apprehended for illegally arriving by sea can be released for humanitarianreasons at the discretion of the INS.

Proposed Rule Would Negatively Impact Foreign Health Care Workers

On October 11, 2002, a notice was placed in the Federal Register that would expand currentregulations for the certification of health care workers. The occupations affected are asfollows: nurses, occupational therapists, physical therapists, physicians’ assistants, medicaltechnicians/technologists, and speech language pathologists and audiologists. If passed, thenew rule would require these health care workers employed in the U.S. in temporary status topresent what is called a VisaScreen Certificate upon application for initial status, change ofstatus, or extension of status, and whenever they exit and re-enter the U.S. The VisaScreenCertificate demonstrates that the workers’ education, experience, licensure, and English-language ability are equivalent to their U.S. counterparts. It takes approximately 3-4 monthsfrom the date of application to obtain the VisaScreen Certificate. This means that if aCanadian RN working in the U.S. on TN status travels to Canada for any period of time,he/she will not be able to re-enter the U.S. for 3-4 months while the VisaScreen Certificate isbeing processed.

The information contained in this newsletter is for informational purposes only. It does not constitute legal advice.