Recent Developments in Immigration Law and Procedure

Citizens of certain countries must register with the INS

On November 6, 2002, the INS announced that citizens of Libya, Sudan, Iraq, Iran and Syria must register, and be fingerprinted and photographed, at an INS office between November 15 and December 16, 2002.  On November 22, the list was expanded to include nationals of 13 additional countries, including: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, or Yemen.  A confidential INS memo has also added special registration requirements for citizens and nationals of Pakistan, Saudi Arabia, and Yemen who are males between the ages of 16 and 45, as well as other aliens considered a national security risk.

This special registration requirement only applies to nonimmigrants who have been admitted into the U.S. before September 11, 2002 with a temporary letter visa, such as B (visitor), H (temporary worker), E (investor or importer, Iran only), F or M (student), K (fiancé), or J (exchange visitor).  The requirement only applies to males aged 16 and older, and does not apply to permanent residents (green card holders) or diplomats.  Annual registration is required after the initial registration.  

Citizens of the designated countries who enter the U.S. as nonimmigrants on or after September 11, 2002 are registered, fingerprinted and photographed when they arrive, and also must report to an INS office between 30 and 40 days after arrival to prove to an INS officer that they are complying with the terms of their admission.  A waiver of all or part of the special registration requirements may be obtained in some limited circumstances.

Those who are subject to special registration also must to report to an INS officer at a pre-approved port of entry before departing the United States.  Failure to do so can result in exclusion from the United States.  The INS has listed a total of 68 approved ports of entry across the country, 18 of which are airports.

Like all nonimmigrants, citizens of the countries subject to "special registration" must notify the INS of a new address within 10 days of moving, using a special form, AR-11SR.

INS Tightens Criteria for Passport or Visa Waivers

Until recently, it was common for the INS to grant a waiver of the normal requirement of a passport and visa to enter the United States.  For example, a person who did not notice her visa had expired might be granted a waiver and admitted without it.  An INS memo dated October 4, 2002 changes this policy by making it clear that a passport or visa waiver can normally be granted only in the following limited circumstances:

·        Medical emergency;

·        Rescue worker responding to catastrophe in the U.S.;

·        A person accompanying a person arriving for a medical emergency;

·        An arrival to visit a spouse, child, parent, brother or sister who became critically ill or died within the past 5 days; or

·        Passport was lost or stolen within 48 hours of departure.

In all other emergencies, a passport or visa can be waived only by one of three top supervisors of the district INS office (not the INS supervisor at the airport).

INS Quick To Cancel Visas

That same memo reminded INS inspectors that they are required to cancel the visas of those who have overstayed past visits to the U.S.  A law passed in the mid-1990s – INA 222(g) – provides that those who overstay the time they are allowed into the U.S. (as reflected by the I-94 form stamped at the airport) can no longer use their existing visa.  Instead, they must return to their home country and get a new visa, even if they have already arrived at the international airport in the U.S.

Super-fast Labor Certifications May Become a Reality 

In May (see FAQs on our home page) we reported on proposed regulations from the Department of Labor that would reduce the processing time for labor certifications, now several years, to less than 21 days.  Six months later, those proposed regulations have yet to be implemented.  However, the latest word from the Department of Labor is that this new "PERM" procedure will go into effect soon.

INS Issues Travel Warning

On November 18, 2002, the INS issued a warning to those who are applying for adjustment of status that they might not be let back into the U.S. if they travel abroad.  There is a common misconception that advance parole (the travel document issued to those who have applied for adjustment of status) provides an unconditional right to return to the U.S.  The reality is that the applicant with advance parole will not be permitted to return to the U.S. if he or she is inadmissible.  CLICK HERE for the full text of the INS memo.