1. Directorate of Border and Transportation Security: The Act establishes this directorate and the position of Under Secretary for Border and Transportation Security. The Under Secretary will be responsible for preventing the entry of terrorists into the U.S., securing the borders, carrying out the immigration enforcement functions of the USCIS (defined as Border Patrol, detention and removal, intelligence, investigations, and inspections), establishing national immigration enforcement policies and priorities, and establishing and administering rules governing the granting of visas or other forms of permission, including parole.
2. Bureau of Border Security: The Act establishes the Bureau of Border Security and establishes the position of Assistant Secretary of the Bureau who reports directly to the Under Secretary for Border and Transportation Security. The Assistant Secretary, among other duties, establishes policies and oversees the enforcement immigration functions, and administers SEVIS and other programs established to collect information on foreign students and other exchange programs.
3. Visa Issuance: The Act exclusively vests the Secretary of Homeland Security with all authorities to administer all laws and to issue regulations relating to the functions of consular officers in the granting or refusal of visas. In addition, the Secretary shall have the authority to develop programs of homeland security training for consular officers.
4. Information on Visa Denial Required to be Entered into Electronic Data System: Whenever a consular officer denies a visa, the fact of the denial, the basis for the denial, and the name of the person denied will be entered into the interoperable electronic database established under the Enhanced Border Security and Visa Entry Reform Act.
5. Bureau of Citizenship and Immigration Services: The Act establishes the Bureau of Citizenship and Immigration Services to be headed by a Director who reports directly to the Deputy Secretary for Homeland Security. The Director is responsible for adjudication of all petitions currently performed by the USCIS, including asylum and refugee applications.
6. Children’s Affairs: The Act transfers the care and custody of unaccompanied alien children from the USCIS to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services.
7. EOIR: The Act establishes in the Department of Justice the Executive Office for Immigration Review, subject to the direction and regulation of the Attorney General.
8. Office of Civil Rights: The Act creates an Officer for Civil Rights and Civil Liberties. The Officer will be responsible for reviewing and assessing abuses, including racial and ethnic profiling, by employees and officials of the department. Congress will receive an annual report outlining the alleged abuses reported to the office and any actions taken in response.
9. FOIA: The Act provides broad FOIA exemptions for information that is related to the security of critical infrastructure or protected systems, including computer systems and information. Improper disclosure of this information by a federal employee would become a criminal offense. If this provision is interpreted broadly, the FOIA exemption could have a dramatic chilling affect on both the ability to request information contained in the USCIS databases as well as the dissemination of policy memos and other official information from the immigration-related bureaus.

Department of Justice Appropriations Authorization: On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act” (H.R. 2215, Pub. L. No. 107–273). The new law contains several immigration-related provisions, including changes to the AC21 provisions regarding the extension of status for H-1B workers past the six year limit; changes to the Conrad 20 program; ameliorative procedures for EB-5 investors; and modifications affecting naturalization. (For a section-by-section review of the immigration-related provisions, see AILA InfoNet Doc. No. 02092734, and for the PDF text of the bill, see AILA InfoNet Doc. No. 02100743).

The new law expands the provisions of the AC21 to allow H-1B workers who have labor certification applications pending for at least 365 days to extend status beyond the six-year limitation. Congressional statements by Senator Patrick Leahy and Representative Lamar Smith indicate that the provision allows H-1B workers who have already exceeded their six-year limitation to have a new H-1B petition approved so they can apply for an H-1B visa to return from abroad or otherwise re-obtain H-1B status. (For the congressional statements, see AILA InfoNet Doc. No. 02120440).

The “Conrad State 20” program changes include extending the program until 2004 and expanding the number of visas available per state from 20 to 30. A recent division policy statement by the Department of State clarifies that this expansion permits states that have reached the numerical limitation of 20 requests for 2002 to submit up to 10 additional visa waiver requests for fiscal year 2002. (For a copy of the policy statement, see AILA InfoNet Doc. No. 02120400).

The procedures for the EB-5 program are modified to give eligible investors caught by the retroactive application of the USCIS’s changes an opportunity to establish or re-establish EB-5 eligibility. Some general changes to the EB-5 program are also incorporated into this section of the new law.

Eligibility for naturalization is modified in the following two ways: the deadline for allowing family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. is extended, and grandparents and legal guardians of children whose parent, who otherwise would be authorized to submit the petition, died during the preceding five years become eligible for filing an application of naturalization on behalf of the child.

Border Commuter Students: On November 2, the President signed the “Border Student Commuter Act of 2002” (H.R. 4967, Pub. L. No. 107–274). The new law amends INA § 101(a)(15)(F) and (M) by creating a new border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full or part-time academic or vocational studies. This legislation was triggered by a May 22, 2002, USCIS proclamation that commuter students residing in contiguous territory would no longer be allowed to enter the U.S. as visitors to attend school on a part-time basis.

Age-Out Protection: President Bush signed into law the “Child Status Protection Act” on August 6 (H.R. 1209, Pub. L. No. 107–208). Passage of this law was a significant accomplishment that will provide important protections to children who had previously fallen victim to USCIS processing delays. Under previous law, a child’s eligibility to receive a visa or be part of his or her parent’s application was based on the child’s age at the time that the alien relative petition was approved, not the time the petition was filed. Because of enormous backlogs and processing delays, many children turned 21 before the USCIS adjudicated the petition. In such cases, the child “aged-out” and was ineligible to receive an immediate relative visa or was no longer considered to be part of the parent’s application. The child’s petition was either automatically moved to a lower preference category or the child was required to submit his or her own petition, resulting in years of delays and possible ineligibility.

Originally sponsored by Representatives George Gekas (R–PA) and Sheila Jackson Lee (D–TX), and subsequently broadened and improved by Senate legislation (S. 672) sponsored by Senator Dianne Feinstein (D–CA), the Child Status Protection Act provides that the determination of whether an unmarried alien son or daughter of a U.S. citizen is considered an “immediate relative child” (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I–130) is filed on his or her behalf, rather than on the date the petition is adjudicated. The legislation makes similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the former situation, the age determination will be made at the time of the parents’ naturalization. In the latter, the alien beneficiary’s age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability. In addition, the legislation provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status. Finally, the new law provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized U.S. citizen will be converted to a petition for an unmarried son or daughter of a U.S. citizen, unless the son or daughter elects otherwise.

For a summary of the Child Status Protection Act, see AILA InfoNet Doc. No. 02080940.

Border and Visa Entry Reform: On May 14, the President signed into law the Enhanced Border Security and Visa Entry Reform Act (H.R. 3525, Pub. L. No 107–173). This measure balances this nation’s need to enhance security with our history as a nation of immigrants. Among other provisions, the new law helps provide people on the front line with the training, staff and funding they need to do the job, authorizes increased staffing and funding at the USCIS and the State Department, and also provides necessary training for personnel at both agencies. The law also mandates the sharing of intelligence and law enforcement data with the USCIS and State Department on a real-time basis so the agencies can identify high-risk individuals who seek to enter our country. Among other provisions, the bill also seeks to create a North American Security Perimeter. A North American Security Perimeter would bolster security through law enforcement coordination and intelligence sharing, reducing the chance that someone wishing to do us harm would travel to a neighboring country and then cross by land into the U.S.

Affidavit of Support Measure: On March 13, President Bush signed into law the “Family Sponsor Immigration Act” (H.R. 1892, Pub. L. No. 107–150). The new Act amends the INA to provide for the acceptance of an affidavit of support from another eligible sponsor if the original sponsor has died and the Attorney General has determined for humanitarian reasons that the original sponsor’s classification petition should not be revoked.

Under the Act, the list of eligible sponsors who may sign in place of the deceased petitioners include the spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien.

The legislation was necessary to fix a problem created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Under that law, an applicant for permanent residency must have an affidavit of support signed by the family member who filed the petition. If the petitioner dies during the process, the Attorney General can allow an immigrant to go forward with the application for humanitarian or family unification reasons. However, the requirement that the original sponsor sign financial support affidavits has rendered this authority meaningless. Applicants who have been given permission to continue their application after the death of the petitioner have routinely had those applications denied for failure to obtain the signature of the deceased petitioner.

Spousal Work Authorization: On January 16, the President signed into law two bills (H.R. 2277 and H.R. 2278) allowing spouses of intracompany transferees, treaty traders, and treaty investors to work in the United States. H.R. 2277 (Pub. L. No. 107–124) provides work authorization to the spouses of E visa holders. H.R. 2278 (Pub. L. No. 107–125) not only provides work authorization to the spouses of L visa holders but also reduces the required one-year period of prior continuous employment for certain intracompany transferees to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition. (For additional information, see AILA InfoNet Doc. No. 28AU1017 and for the State Department Cable addressing spousal work authorization, see AILA InfoNet Doc. No. 02013032).

USA PATRIOT Act: On October 26, 2001, President Bush signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT) Act of 2001 (H.R. 3162, Pub. L. No. 107–56). The PATRIOT Act included provisions that: expand the definition of terrorism for the purposes of inadmissibility and removal, provide for mandatory detention of aliens who the Attorney General suspects have engaged in terrorist activity, and limit judicial review. However, the law also included some provisions, which AILA helped to develop, that sought to preserve immigration benefits for the families of victims of the terrorist attacks and others impacted by the attack.

The law’s immigration measures are less restrictive than the proposal the Administration earlier had presented to Congress. That proposal would have given the U.S. government sweeping, unchecked powers. It would have allowed indefinite detention, allowed the government to detain individuals without charging them for any crime or any immigration violation, and provided no meaningful opportunity for a hearing to determine the reason for an individual’s detention. Our Congressional allies, led by Representative John Conyers (D-MI) and Senators Patrick Leahy (D-VT), Edward Kennedy (D-MA), and Sam Brownback (R-KS) worked to ameliorate some of the worst provisions of the bill. Notwithstanding these efforts, the new law included several troubling provisions. It included language that will allow for the detention and deportation of people engaging in innocent associational activity and Constitutionally protected speech, and permitted the indefinite detention of immigrants and non-citizens who are not terrorists.

Along with the provisions designed to respond to terrorist threats, the PATRIOT Act included language that sought to preserve immigration benefits for the families of victims of the terrorist attack and others impacted by the attack. It allowed, for example, derivative family members to remain here legally, extended filing deadlines affected by the disaster and allowed pending applications for permanent residence to be completed as if the sponsoring person was still alive.

For a summary of the USA PATRIOT Act, see AILA InfoNet Doc. No. 21LE1026.

Regulatory Activity in Review: 2002

The following is a brief overview of some of the more important immigration-related regulations promulgated by the USCIS and other agencies during the past year. The items appear in reverse chronological order.

On December 2, the USCIS promulgated an interim rule that establishes procedures to terminate the use of current non-biometric border crossing cards (BCCs), eliminates certain former versions of BCCs, and clarifies the validity period of waivers of inadmissibility issued under 8 CFR § 212.4. The rule took effect retroactive to October 1, and comments are due by January 31, 2003. (67 FR 71443, 12/2/02). See AILA InfoNet Doc. No. 02120270.

The State Department, on November 4, finalized a rule implementing the ‘S’ nonimmigrant visa program. The S visa category is available to nonimmigrants determined by the Attorney General to have critical and reliable information concerning a criminal organization or enterprise. The final rule adopts without change the 1996 interim rule. (67 FR 67108, 11/4/02). See AILA InfoNet Doc. No. 02110541.

An October 11 USCIS proposed rule would implement a process for the certification of foreign health care workers under USCIS §§ 212(a)(5)(C) and (r), and would add a requirement that all nonimmigrants coming to the U.S. to work as health care workers, including those seeking change of status, be required to submit a certification. (67 FR 63313, 10/11/02). See AILA InfoNet Doc. No. 02101141.

The State Department raised the machine-readable visa (MRV) fee charged for the processing of a nonimmigrant visa, or a combined nonimmigrant visa and border crossing card application, from $65 to $100, effective November 1. (67 FR 62884, 10/9/02). See AILA InfoNet Doc. No. 02100970.

A September 18 State Department interim rule announced the creation of the ‘Interim Student and Exchange Authentication System’ (ISEAS) for monitoring the visa adjudication process and visa issuances to foreign students and exchange visitors. ISEAS will remain operational until SEVIS is fully developed. (67 FR 58693, 9/18/02). See AILA InfoNet Doc. No. 02091842.

A new USCIS interim rule allows Mexican and Canadian commuter students to study on a part-time basis, within the F-1 or M-1 NIV category, at schools located within 75 miles of the U.S. border. The rule took effect upon publication. (67 FR 54941, 8/27/02). See AILA InfoNet Doc. No. 02082841.

On August 26, the Justice Department finalized a rule that makes a number of procedural reforms at the Board of Immigration Appeals, including cutting the number of BIA Members from 19 to 11. The rule also: mandates single-Member review for the majority of cases; eliminates de novo review (with several exceptions); and sets accelerated briefing schedules and tight time limits for the adjudication of cases. Moreover, the new procedures set forth in the rule apply retroactively to all pending cases, although the Justice Department backed-off from eliminating the de novo standard of review with regard to pending cases. (67 FR 54878, 8/26/02). See AILA InfoNet Doc. No. 02082640. To view AILA’s comments to the earlier proposed rule, see AILA InfoNet Doc. No. 02032031.

A joint USCIS/EOIR proposed rule would allow certain legal permanent residents who pled guilty or nolo contendere to crimes before April 1, 1997, to seek relief pursuant to former INA § 212(c), in light of the Supreme Court’s ruling in USCIS v. St. Cyr. (67 FR 52627, 8/13/02). See AILA InfoNet Doc. No. 02081341. See also AILA InfoNet Doc. No. 02100940 to view AILF’s and AILA’s comments to the proposed rule.

The USCIS, on August 12, finalized a rule that requires certain nonimmigrants to undergo various registration processes, and imposes sanctions on those who do not follow the processes. (67 FR 52584, 8/12/02). See AILA InfoNet Doc. No. 02081245 and 02061331. To view AILA’s comments to the earlier proposed version of the rule, see InfoNet Doc. No. 02071543.

A July 31 USCIS interim rule provides that Forms I-140 and I-485 may now be filed concurrently when a visa number is immediately available. In addition, eligible individuals with I-140 petitions pending on July 31 may now file the I-485 and associated forms. The rule took effect upon publication. (67 FR 49561, 7/31/02). See AILA InfoNet Doc. No. 02073171.

A July 26 USCIS proposed rule would require every applicant for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Service, including any change of address, within 10 days of the change. In absentia removal orders could flow from failure to so provide. (67 FR 48818, 7/26/02). See AILA InfoNet Doc. No. 02072604.

The Justice Department, on July 24, finalized a rule implementing INA § 103(a)(8), which permits the Attorney General to authorize any state or local law enforcement officer, with the consent of those whose jurisdiction the individual is serving, to perform certain functions related to the enforcement of the immigration laws during the period of a declared “mass influx of aliens.” (67 FR 48354, 7/24/02). See AILA InfoNet Doc. No. 02072401.

The USCIS issued an interim rule on July 1, implementing the first phase of the certification process for access to the Student and Exchange Visitor Information System (SEVIS). The rule allows eligible schools to enroll preliminarily in SEVIS provided they meet the established criteria. (67 FR 44344, 7/1/02). See AILA InfoNet Doc. No. 02070342.

The USCIS issued a final rule on June 4, implementing the adjustment of status application procedures under the LIFE Act’s ‘late legalization’ provisions. The rule extends the filing deadline to June 4, 2003, and makes various other changes based on comments received to the interim rule. (67 FR 38341, 6/4/02). See AILA InfoNet Doc. No. 02060431.

A May 9 proposed DOJ rule would amend both USCIS and EOIR regulations by requiring aliens subject to a final order of removal to surrender themselves to the USCIS. The rule also establishes procedures for surrender and provides that aliens violating those procedures will be denied certain benefits. (67 FR 31157, 5/9/02). See AILA InfoNet Doc. No. 02050931.

The DOL has published the proposed ‘PERM’ rule that would amend the agency’s regulations governing the filing and processing of labor certification applications for permanent employment in the U.S. The rule would also amend the regulations governing an employer’s wage obligation under the H-1B program. (67 FR 30466, 5/6/02). See AILA InfoNet Doc. No. 02050740. To view AILA’s comments to the proposed regulations, see InfoNet Doc. No. 02070844.

An April 12 USCIS interim rule prohibits nonimmigrant visitors admitted in B-1 or B-2 status from pursuing a course of study prior to obtaining approval of a change to F-1 or M-1 student status. The rule amends 8 CFR Parts 214 and 248. (67 FR 18061, 4/12/02). See AILA InfoNet Doc. No. 02041232.

An April 12 USCIS proposed rule would eliminate the minimum admission period for B-2 nonimmigrant visitors, reduce the maximum admission period for B-1 and B-2 visitors, and restrict B visitors’ ability to extend stay or change to student status. The rule would amend 8 CFR Parts 214, 235, and 248. (67 FR 18065, 4/12/02). See AILA InfoNet Doc. No. 02041233. To view AILA’s comments to the proposed regulations, see InfoNet Doc. No. 02051431.

On January 31, the USCIS published an interim rule implementing the new ‘T’ nonimmigrant classification, created by § 107(e) of the Trafficking Victims Protection Act of 2000. The rule contains the essential elements that applicants must demonstrate to receive ‘T’ status, as well as application procedures and evidentiary guidance. (67 FR 4783, 1/31/02). See AILA InfoNet Doc. No. 02013134.

MEDIA SPOTLIGHT: Members and Staff in the News

Crystal Williams (National) was quoted in a December 6 Boston Globe article on the delay in the processing of fiancé(e) visas resulting from heightened security screening in the post-September 11 climate. John F. Roth (New York) and David Cox (Atlanta) were quoted in a December 4 Atlanta Journal-Constitution article on the same topic.

The Arizona Republic Quoted Holly Cooper (Arizona) in a December 4 article on a recent contempt citation levied against three USCIS officials in Arizona after they failed to answer a subpoena in a dispute over the treatment of a Guatemalan teenager. Cheryl Little (Southern Florida) was quoted in a December 4 Sun Sentinel article on a recent stay of deportation granted to an unaccompanied minor. The University Wire quoted Luis Bartolomei (Minnesota/Dakotas) in a December 3 article on the registration of Middle Eastern men.

Carl Shusterman (Southern California) was quoted in the December 2 issue of amednews.com on the recent expansion of the “Conrad 20” program. In addition, Carl was quoted in Vol. 5, No. 11 of “Human Resource—Information for Human Resource Professionals” concerning the October 11 USCIS proposed rule would implement a process for the certification of foreign health care workers. Carl was also quoted in a November 27 La Opinion article on the structure of the new Department of Homeland Security and the potential problems such structure will cause with respect to our immigration functions.

On December 2, Amy Peck (Iowa/Nebraska) was quoted in an Omaha World-Herald article on the registration of foreign nationals from Arab countries. The Richmond Times-Dispatch quoted Dustin Dyer (Washington, D.C.) in a December 1 article on H–1B visas. Donna Lipinski (Colorado) was quoted in a December 1 Denver Post article on the risk immigrants take to come to the United States.

The Chicago Tribune quoted Blair Dorminey (Atlanta) and Bob Meltzer (Greater Chicago) in a November 29 article on the subject of Bob’s new online visa processing program for immigration lawyers. Ollie Jefferson (Texas) was featured in a November 29 Forth Worth Star Telegram article on his client, an Ethiopian national facing deportation.

The Baltimore Sun quoted Laura Reiff (Washington, D.C.) in a November 28 story on a recent district court decision ordering the State Department to reinstate the American Hospitality Academy as a sponsor in the agency’s J–1 exchange program. Ann Benson and Karol Brown (Washington State) were quoted in a November 28 Seattle Post-Intelligencer article on a recent class action lawsuit that seeks to block deportations to Somalia in the absence of a functioning government in that country.

On November 26, Steve Perlman (New York) and Paul Virtue (Washington, D.C) were quoted in a Baltimore Sun article on investor visas. The Oregonian quoted David Shomloo (Oregon) in a November 25 article on the registration of Arab men. The San Diego Tribune quoted Jeanne Malitz (San Diego) in a November 25 story regarding border security, and the use of the Interagency Border Inspection System (IBIS).

Note: Please submit all articles, letters-to-the-editor, etc. for inclusion in “Members in the News” to Judy Golub of the AILA Advocacy Department (jgolub@aila.org).

Did You Know?

“Had it not been for new immigration, the nation’s labor force would have grown by only five percent over the past decade and would have seriously constrained both job growth and economic growth.”

--excerpted from a new study released by the Center for Labor Market Studies at Northeastern University, entitled “Immigrant Workers and the Great American Job Machine”

Contributors

Judith Golub, Senior Director of Advocacy and Public Affairs
Ben Johnson, Associate Director of Advocacy
Danielle Polen, Legislative and Regulatory Affairs Associate
Joanna Carson, Business Immigration Associate
John Estrella, Advocacy Associate
Kris Benjamin, Legislative Assistant

American Immigration Lawyers Association
918 F Street, N.W.
Washington, D.C. 20004
202-216-2403

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