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May 2003

(May 29, 2003)

BCIS Begins Offering "Online"

Filing For Two Popular Immigration Forms

CHICAGO - Today, the Bureau of Citizenship and Immigration Services (BCIS) started accepting electronic filing (e-filing) of two of the most commonly submitted immigration forms - the application used to renew or replace a "green card" (Form I-90) and the Application for Employment Authorization (Form I-765). Together, both forms represent approximately 30 percent of the 7 million applications filed with the Bureau every year.

For those who file electronically, the BCIS confirms the identity of the customer early in the application process. BCIS also electronically collects a photograph, signature, and fingerprint for the individual. These biometric data are stored and can be used later for verification of the person's identity. Customers whose applications are approved receive high quality immigration documents with special security features produced from BCIS' centralized card production facility.

"For the first time in our history, BCIS is able to offer our customers the option of filing for certain immigration benefits using the internet, 24 hours a day, 7 days a week," said Acting Director Eduardo Aguirre. "E-Filing is part of our ongoing effort to provide simpler, more convenient ways for customers to interact with BCIS while meeting our national security objectives," he added.

Customers who e-file do not have to submit photographs at the time they file their applications. Instead, they will schedule themselves for an appointment to visit an Application Support Center (ASC) at a convenient time for the electronic collection of a photograph, signature, and fingerprint. After filing electronically, customers will schedule their appointment by calling the National Customer Center at (800) 375-5283.

The Employment Authorization and "green card" replacement applications were selected as the first forms for e-filing because they account for approximately 30 percent of the applications received annually by the BCIS. Additionally, these forms are relatively easy to complete and require very little supporting documentation because these individuals already have records on file with BCIS. Electronic filing for other immigration application will be phased in over the next several years.

As an added convenience, customers who e-file will also be able to pay the fees for these applications online through the electronic transfer of U.S. funds from their checking or saving account, eliminating the need to obtain a money order or cashier's check. The BCIS plans to start accepting credit card payments for e-filed cases later this year. For additional information on e-filing requirements, please visit www.bcis.gov.

BCIS customers who have e-filed or who have an application pending at one of BCIS' Service Centers can check the status of their application on line by visiting www.bcis.gov. The website also provides information and forms online for users to download. Electronic filing is a key facet of BCIS' Immigration Service Modernization program, a 10pyear effort to transform the deliver of immigration services. The initiative focuses on improvements in a wide range of areas, including customer service, employee development, technology and processes, and management infrastructure.

See also:

Fact Sheet: E-Filing and other BCIS Services Online 5/29/03

Electronic Filing (E-Filing) Frequently Asked Questions 5/29/03

###

Last Modified (06/04/2003)

(May 29, 2003)

Fact Sheet: E-Filing and Other BCIS Services Online

Each year the Bureau of Citizenship and immigration Services (BCIS) receives approximately seven million applications for immigration benefits. BCIS has now developed the technology to accept electronic filing of certain applications for immigration benefits. This technology improves both customer service and BCIS' ability to verify the identity of individuals in the future. E-filing - combined with the collection and storage of an applicant's digital photograph, signature, and fingerprint - allows the the BCIS to produce a high quality immigration document with special security features. Applications that can be filed online are forms I-765 (Application for Employment Authorization) and I-90 (Application for Replacement of Green Card). These two forms represent approximately 30% of the total number of benefit applications filed with BCIS annually.

E-filing Applications

* E-filing is quick, easy and convenient for applicants because it allows them, or their representatives, to complete and submit applications at any time, from any computer with Internet access. Upon completions of the e-filing session, customers will receive instant electronic confirmation that the application was received. Customers can then schedule themselves for an appointment to visit an Application Support Center fro collection of a digital photograph, signature, and fingerprint.

* For those who file electronically, BCIS confirms the identity of the customer early in the application process. BCIS also electronically collects a photograph, signature, and fingerprint for the individual. These biometrics are stored and can be used later for verification of the person's identity.

* Customers whose applications are approved receive high quality immigration documents with special security features produced from BCIS' centralized card production facility.

* BCIS intends to add electronic filing capabilities for additional forms in the Fall of 2003. Additional forms include: Form I-129, Petition for Nonimmigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-821, Application for Temporary Protected Status; and Form I-907, Request for Premium Processing.

* Filing instructions and eligibility information for e-filing are available at www.bcis.gov.

Online Status Check

* Last year, BCIS expanded its e-services by introducing "Case Status Online". Customers who have a receipt number for an e-filed application or an application or petition filed at a Service Center can check the status of their pending case online through the website www.bcis.gov and avoid prolonged waits on the phone or at a local office.

* It is estimated that more than 30,000 customers take advantage of this service every day. Those filing electronically will also be able to take advantage of this remarkable service.

Forms Online

* The website also provides information and forms online for users to download free of charge. Customers are able to print out the forms, complete them and mail them to the appropriate office for adjudication.

* Today, the online form catalog is the most used feature of the BCIS Website, with almost 1 million of the nearly 2.8 million visitors per month downloading forms.

###

Last Modified 05/29/2003

(May 29, 2003)

Electronic Filing (E-Filing) Frequently Asked Questions

Q. What is electronic filing (e-filing)?

A. Electronic filing, or e-filing, is the filing of an electronic document on a website via the Internet. The BCIS website currently provides two type of on-line applications that may be completed and submitted through the website www.bcis.gov.

Q. Who is eligible to participate in e-filing?

A. Currently, Form I-90, Application to Replace Permanent Resident Card, and Form I-765, Application for Employment Authorization, can be e-filed. Thousands of applicants will be eligible to take advantage of this new process. It is estimated that 750,000 people will be eligible to take advantage of this new process. It is also estimated that 1.75 million people file for Employment Authorization, Form I-765, each year. These applications make up approximately 30% of our workload. However, some applicants will not have the option of filing electronically. Details are provided in each form's E-filing Instructions and Eligibility Information, which are accessible at www.bcis.gov. For individuals who cannot e-file, or for those who choose not to e-file, the BCIS will continue to accept paper applications.

Q. Will other forms be available for e-filing?

A. The BCIS is already working on six other forms that should be ready for e-filing in the future.

* Form I-129, Petition for nonimmigrant worker;

* Form I-131, Application for Travel Document;

* Form I-140, Immigrant petition for Alien Worker;

* Form I-539, Application to Extend/Change Nonimmigrant Status;

* Form I-821, Application for Temporary Protected Status;

* Form I-907, Request for Premium Processing.

Additional, high-volume forms will be added in the future.

Q. If I already filed a Form I-90 or Form I-765 before the Immigration and Naturalization service (INS) transitioned to the BCIS, do I have to submit another form?

A. No. Any form you previously filed with the INS is acceptable and you do not have to file another form now that the INS has transitioned to the BCIS. Furthermore, the eligibility criteria for all immigration benefits remain unaffected by the transition.

Q. How do applicants pay the fee associated with these two forms?

A. Customer will now be able to pay the fees associated with these applications online through the electronic transfer of U.S. funds from their checking or savings accounts. At this time customers cannot pay application fees with a credit card. The BCIS plans to start accepting credit card payments later this year.

Q. What is the Confirmation Receipt notice?

A. After electronic filing is complete, the applicant receives electronic confirmation that the application was received. This notice is titled "Confirmation Receipt." The notice is titled "Confirmation Receipt." The Confirmation Receipt notice provides a unique Receipt Number for the application filed. The Confirmation Receipt notice does not mean that the application was approved, but it does provide proof that the application was filed. A paper receipt, Form I-797, will be mailed to the applicant after filing. It will contain essentially the same information, including the same Receipt Number. This Receipt Number can be used to check the status of their pending case using the Case Status Service Online system found at www.bcis.gov.

Q. How do applicants provide supporting documents or evidence required by BCIS to adjudicate their application?

A. After electronic submission, applicants are instructed to send supporting documentation or evidence to the address listed on the Confirmation Receipt notice. Applicants should attach a copy of the Confirmation Receipt notice to the documents to help BCIS match them to the e-filed application.

(May 1, 2003)

Two U.S. State Department Employees And

Seven Others Charged in Scheme to Sell Visas

WASHINGTON, D.C., - Assistant Attorney General Michael Chertoff of the Criminal Division and McGregor W. Scott, United States Attorney for the Eastern District of California announced today that a federal grand jury in Sacramento returned an 18-count indictment charging nine persons, including two former State Department employees, in connection with an alleged corrupt scheme, operating out of the U.S. Embassy in Sri Lanka, to sell entry visas to the United States.

The indictment followed the arrests of eight of the nine defendants and searches at five locations in three states. According to a 130-page complaint unsealed in Sacramento yesterday, the scheme allegedly involved the payment of hundreds of thousands of dollars by persons in Sacramento and elsewhere to two married State Department employees between 2000 and 2003, in exchange for the issuance of visas to various foreign nationals, primarily from Vietnam and India.

The complaint further alleges that Acey R. Johnson, while working in the consular affairs section of the U.S. Embassy in Sri Lanka, issued visas to scores of persons pursuant to the scheme.

The indictment charges all nine defendants with conspiring to defraud the United States and to bribe public officials and to commit visa fraud. The charged defendants are: Acey R. Johnson, 32, who is married to Long N. Lee and was until recently a Consular Associate employed in the consular section of the U.S. Embassy in Sri Lanka; Vinesh Prasad, 33, of Sacramento; his brother Minesh Prasad, 28, of Sacramento; Narinderjit Singh Bhullar, 40, of Sacramento; his brother Davinder Singh Bhullar, 44, of India; Phuong-HIen Lam Trinh, 35, of Torrance, California; Rajwant S. Virk, 46, of Herndon, Virginia; and Rachhpal Sing, 32, of Hayward, California. The indictment also charges some of the defendants with additional charges. The status of the defendants is as follows:

Acey R. Johnson, 32, who was until recently a Consular Associate employed in the consular section of the U.S. Embassy in Sri Lanka, was arrested on the morning of Tuesday, April 29, 2003, at his home in Port Orford, Oregon by Special Agents with the Diplomatic Security Service of the U.S. State Department ("DSS") and the FBI. He appeared in U.S. District Court yesterday in Medford, Oregon, and was detained pending further proceedings in Medford in Monday, May 5, 2003 at 1:30 p.m.

Long N. Lee, 51, a State Department Foreign Service Officer and career State Department employee, who is married to defendant Johnson, was arrested at Dulles International Airport yesterday evening after being escorted from the U.S. Embassy in Colombo, Sri Lanka to the United States by DSS agents. She is scheduled to appear today at 2:00 p.m. before a U.S. Magistrate Judge in Alexandria, Virginia. Long had been the chief administrative officer at the Embassy.

Vinesh Prasad, 33, and Minesh Prasad, 28, of Sacramento, were arrested Tuesday morning, April 29, 2003, at their home in Sacramento. They appeared yesterday before a Magistrate Judge in Sacramento, and were ordered detained pending further proceedings on Wednesday, May 7, 2003, at 2:00 p.m.

Narinderjit Singh Bhullar, 40, of Sacramento, was arrested Tuesday morning at his home in Sacramento. He appeared before a Magistrate Judge that same day, and was scheduled to appear again for further proceedings today at 2:00 p.m. in Sacramento.

Phuong-Hien Lam Trinh, 35, of Torrance, California, was arrested Tuesday morning at her home in Torrance. She appeared yesterday before a Magistrate Judge in Los Angeles, who ordered her released upon the posting of bail in the amount of $100,000 secured by real property. She was ordered to appear in Sacramento on Friday, May 9, 2003, at 2:00 p.m.

Rajwant S. Virk, 46, of Herndon, Virginia, was arrested Tuesday morning at his home in Herndon. He appeared that same day before a Magistrate Judge in Alexandria, Virginia. He was released on bond and is expected to appear there again today at 2:00 p.m. for further proceedings.

Rachhpal Singh, 32, of Hayward, California, was arrested Tuesday morning at his home Hayward. He appeared yesterday before a Magistrate Judge in San Francisco, where he was released on bond and ordered to appear in U.S. District Court in Sacramento on Tuesday, May 6, 2003, at 2:00 p.m.

Davinder Singh Bhullar, 44, remains at large and is believed to be in India. He is currently a fugitive in an unrelated criminal case also pending in U.S. District Court in Sacramento.

In addition to the conspiracy charged against all defendants, defendants Johnson, Lee and Vinesh and Minesh Prasad are each charged with ten counts of wire fraud, one count of mail fraud, and one count of bribery. Defendants Vinesh and Minesh Prasad, Narinderjit Singh Bhullar and his brother Davinder Singh Bhullar are charged with one count of visa fraud, and Narinderjit and Davinder Singh Bhullar are each charged with one count of wire fraud. Vinesh Prasad is further charged with one count of encouraging illegal entry of aliens for financial gain, and with two counts of money laundering. Finally, Narinderjit Singh Bhullar is charged with one count of money laundering.

Each of the charges in the indictment is a felony. The maximum sentence for the conspiracy charge, and for each wire fraud, mail fraud, and money laundering charge is five years in prison. The visa fraud and encouraging entry by aliens charges each has a maximum penalty of 10 years in prison, and the bribery charge has a maximum penalty of 15 years in prison. Each count in the indictment also carries a penalty of up to a three-year period of supervised release, and a $250,000 fine. The indictment also seeks forfeiture of various properties, bank accounts, and over $175,000 in cash seized during searches on Tuesday.

The case is being prosecuted in U.S. District Court in Sacramento by Assistant U.S. Attorneys Benjamin B. Wagner and S. Robert Tice-Raskin of the U.S. Attorney's Office, and Noah D. Bookbinder of the Public Integrity Section, headed by Noel L. Hillman, Chief. The case is the product of an extensive investigation conducted by the Diplomatic Security Service and the Joint Terrorism Task Force for the Eastern District of California, a task force headquartered at the FBI offices in Sacramento. Sri Lankan law enforcement authorities also provided assistance in the investigation. The U.S. Attorney thanked the U.S. Ambassador in Sri Lanka, E. Ashley Wills, for his assistance.

The United States Attorney's Office noted that the complaint and indictment are only accusations, and that the defendants are presumed innocent until and unless proven guilty.

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April 2003

(April 24, 2003)

Guidance for Processing H-1B Petitions

as Affected by the 21st Century Department of

Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator's Field Manual Update AD 03-09

MEMORANDUM FOR: SERVICE CENTER DIRECTORS, BCIS REGIONAL DIRECTORS, BCIS OFFICE INTERNATIONAL AFFAIRS BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, BUREAU OF CUSTOMS AND BORDER PROTECTION

FROM: William R. Yates, Acting Associate Director for Operations, Bureau of Citizenship and Immigration Services, Department of Homeland Security

On November 2, 2002, President Bush signed into law the Twenty-First Century Department of Justice Appropriations Authorization Act (21st Century DOJ Appropriations Act). One section of the new law amends § 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21) and removes the six-year limitation on H-1Bb status for certain aliens on whose behalf an alien labor certification or employment-based (EB) immigrant petition has been pending for 365 days or more. The new amendment broadens the class of H-1B nonimmigrants who may avail themselves of this provision. The purpose of this memorandum is to provide field offices with guidance on processing H-1B extension requests in light of this legislation.

On January 29, 2001, the former Immigration and Naturalization Service's Office of Field Operations issued a memorandum entitled "Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313." On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled "Initial Guidance for Processing H-1B Petitions as Affected by the "American Competitiveness in the Twenty-First Century Act" (Public Law 106-396). Both of these memoranda remain in effect.

A. Provisions in Cases of Lengthy Adjudication

Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period under certain conditions. Previously, the extension could only be granted if the H-1B nonimmigrant was the beneficiary of an EB immigrant petition or an application for adjustment of status, and if 365 days or more had passed since the filing of a labor certification application or since the filing of the EB immigrant petition. The 21st Century DOJ Appropriations Act amends § 106(a) of AC21 to permit H-1B nonimmigrants to obtain an extension of H-1B status beyond the 6-year minimum period, when:

(1) 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or

(2) 365 days or more have passed since the filing of an EB immigrant petition.

This provision minimizes the risk that an alien who has been present in the United states for six years, and who is pursuing permanent resident status, will be forced to depart the United States on account of processing delays at either the Department of Labor (DOL) or the BCIS. Any alien who meets the above criteria on or after November 2, 2002, may be eligible for an extension of H-1B status beyond the sixth year. Further, a petitioner must establish that the above criteria were met at the time the application or petition was filed. 8 CFR 103.2(b)(12). Accordingly, if the filing date of the labor certification application or the EB immigrant petition is 365 days or more prior to the filing date of the extension application, and the application is adjudicated on or after November 2, 2002, the alien is eligible for an extension of H-1B status beyond the sixth year. If an alien did not meet the criteria on or after the effective date of the legislation and at the time of filing, and the alien is not otherwise eligible for an extension of H-1B status, then the BCIS will not approve a request for extension of H-1B status. The request for an extension of status must establish that the alien beneficiary is in valid H-1B status at the time the petition (Form I-129) is field with the BCIS. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status, or where such status expired before the application or petition was filed, with certain exceptions. 8 CFR 214.1(c)(4).

B. Length of Time to be Allowed for Extension of Stay

The BCIS is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made:

(1) to deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

(2) to deny the EB immigrant petition, or

(3) to grant or deny the alien's application for an immigrant visa or for adjustment of status.

A decision to certify or deny an application for labor certification is made by one of DOL's certifying officers. If the application is denied, the employer is advised that there is a period of 35 days within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA). If the employer does not file an appeal within that period, the denial becomes the final decision of the Secretary of Labor. The BCIS will not consider a decision that is under appeal to be final until such time as a decision is issued by BALCA.

Derivative family members are eligible for H-4 status for the same period of authorized stay granted to the principal beneficiary. A family member who has been in the United States in H-1B status for the maximum period of admission may be eligible to change to H-4 status and remain in the United States beyond the sixth year based on the principal alien's status. Unless the alien is independently eligible for an extension of H-1B status, the alien is limited to the H-4 classification.

C. Evidence that an Application for Labor Certification has been Pending 365 Days or More

The BCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H-1B beneficiary has been pending 365 days or more:

(1) a document from a State Workforce Agency (SWA) notifying the employer, the employer's representative, the DOL, or the BCIS that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more; or

(2) a document from one of DOL's Employment and Training Administration (ETA) regional offices notifying the employer, the employer's representative, or the BCIS that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more.

The above documents must include the name of the petitioning employer, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the pending ETA-750. The DOL has agreed that if neither of the above documents were issued at the time of filing, the ETA regional office with jurisdiction over the application for labor certification will issue the second document listed above to the employer named on the Form ETA-750, upon request. If the H-1B nonimmigrant is requesting an extension based upon a labor certification that has been pending 365 days or more but was certified in the name of another alien, the H-1B nonimmigrant may be eligible for the extension provided the H-1B petitioner submits evidence that the beneficiary is using the labor certification to obtain status as an EB immigrant. This means that the alien will be the beneficiary of a pending or approved Form I-140 based on that labor certification.

D. Procedures

In order for an H-1B nonimmigrant to receive an extension of stay beyond the 6-year limit, a petitioner must file a Form I-129 on behalf of the nonimmigrant beneficiary. The petitioner may be either the beneficiary's current employer or a new employer. If the H-1B petition is approved, the petition will be valid for a period of 1 year. One-year extensions of the beneficiary's H-1B status may continue until one of the events outlined in section B of this memo occurs. In accordance with the requirements of he June 19, 2001 memorandum cited above, a petitioner is required to file a new Form I-129 and pay the $130 filing fee for a request for a 1-year extension of status under AC21  § 106. Existing guidelines in the instructions on the Form I-129W that relate to payment of the $1,000 H-1B Nonimmigrant Petitioner Account fee shall be followed.

Questions regarding this memorandum may be directed via e-mail through appropriate channels to Joe Holiday at Service Center Operations or to Mari Johnson in Adjudications.

Accordingly, the Adjudicator's Field Manual (AFM) is revised as follows:

1. A new paragraph is added at the end of Chapter 31.1(b) of the AFM to read:

On November 2, 2002, President Bush signed into the law the Twenty-First Century Department of Justice Appropriations Authorization Act (21st Century DOJ Appropriations Act). One section of the new law amends  § 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21) by making the folowing change:

Public Law 107-273:

- Removes the six-year limitation on H-1B status for certain aliens on whose behalf an alien labor certification or employment-based (EB) immigrant petition has been pending for 365 days or more.

2. Chapter 31.2(d) of the AFM is revised to read:

(d) Limits on a Temporary Stay. Specific limits on what is regarded as a temporary period of stay in all H classifications are included in the regulations to reflect the temporary nature of these classifications and to achieve consistency in the handling of requests for extensions of stay. The maximum time limit in an H classification and the requirement to reside abroad upon expiration of this period cannot be avoided by leaving the United States before the expiration of the maximum time limit and reentering within a short period of time under a new petition. In such cases, the approval period of the new petition shall be consistent with and count towards the maximum time limit on an alien's temporary stay. A new period of authorized stay may begin only when the alien has resided outside the United States for a period required by the classification, or when the alien qualifies for an exemption from limits on the maximum period of stay as discussed below. The H nonimmigrant's spouse and children are subject to the same time limits as the principal. A family member who has been in the United States in H-1B status for the maximum period of stay may be eligible to change to H-4 status and remain in the United States beyond the sixth year based on the principal alien's status, provided the principal alien qualifies for an exemption from limits on the maximum period of stay. Unless the alien is limited to the H-4 classification.

The limitation on the total period of stay does not apply to H-1B, H-1C, H-2B, or H-3 aliens who do not reside continually in the United States and whose employment in the United States is seasonal or intermittent or for an aggregate of six months or less per year. Further, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

Finally, the limitation on the total period of stay does not apply to H-1B aliens when:

▪ 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB nonimmigrant; or

▪ 365 days or more have passed since the filing of an EB immigrant petition.

3. Chapter 31.3 of the AFM is revised by adding a new section (g)(8) to read:

(8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition. As discussed in section 31.2(d) of the AFM, if the filing date of the labor certification application or the EB immigrant petition is 365 days or more prior to the filing date of the extension application, and the application is adjudicated on or after November 2, 2002 (the effective date of the legislation), the alien is eligible for an extension of H-1B status beyond the sixth year. The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made:

▪ to deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

▪ to deny the EB immigrant petition, or

▪ to grant or deny the alien's application for an immigrant visa or for adjustment of status.

A decision to certify or deny an application for labor certification is made by one of Department of Labor's certifying officers. If the application is denied, the employer is advised that there is a period of 35 day within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA). If the employer does not file an appeal within that period, the denial becomes the final decision of the Secretary of Labor. The BCIS will not consider a decision that is under appeal to be final until such time as a decision is issued by BALCA.

The BCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H-1B beneficiary has been pending 365 days or more:

▪ a document from a State Workforce Agency (SWA) notifying the employer, the employer's representative, the Department of Labor, or the BCIS that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more; or

▪ a document from one of Department of Labor's Employment and Training Administration (ETA) regional offices notifying the employer, the employer's representative, or the BCIS that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more.

The above documents must include the name of the petitioning employer, the date that the Form ETA-750 was field, the name of the alien beneficiary, and the case number assigned to the pending Form ETA-750. The Department of Labor has agreed that if neither of the above documents were issued at the time of filing, the ETA regional office with jurisdiction over the application for labor certification will issue the second document listed above to the employer named on the Form ETA-750, upon request. If the H-1B nonimmigrant is requested an extension based upon a labor certification that has been pending 365 days or more but was certified in the name of another alien, the H-1B nonimmigrant may be eligible for the extension provided the H-1B petitioner submits evidence that the beneficiary is using the labor certification to obtain the status as an EB immigrant. This means that the alien will be the beneficiary of a pending or approved Form I-140 based on that labor certification.

4. The AFM Transmittal Memoranda button is revised by adding the following entry:

AD 03-09       Chapter 31.1(b); chapter      Provides guidance on granting

[INSERT         31.2(d); and Chapter           extensions of H-1B stay

SIGNATURE   31.3(g)                              beyond the 6th year in

DATE OF                                                accordance with Pub. 107-273

MEMO]

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(April 17, 2003)

   Effect of Grandparent's Death

on Naturalization under INA Section 322

MEMORANDUM FOR REGIONAL DIRECTORS DISTRICT DIRECTORS OFFICERS-IN-CHARGE SERVICE CENTER DIRECTORS, From: William R. Yates /s/ Janis Sposato, Acting Associate Director Bureau of Citizenship and Immigration Services

This memorandum establishes the interpretation of Section 322(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1433(a)(2)(B), that all officers of the Bureau of Citizenship and Immigration Services are to follow in adjudicating applications for citizenship under Section 322. This interpretation is to be followed in all cases that are pending on the date of this memorandum, as well as in cases filed on or after that date. For cases adjudicated before the date of this memorandum, directors should consider this memorandum to be a sufficient basis to grant an otherwise untimely motion to reopen or reconsider a previous decision.

The question has arisen whether the citizen parent’s citizen parent must be alive in order for the alien child to qualify for naturalization under Section 322.1 It is our understanding that some offices have held that the citizen parent’s own citizen parent must be alive. The Administrative Appeals Office has reached the same result, albeit in a case not designated as a binding precedent. In contrast, at least one office has held that an alien child remains eligible after the death of the citizen parent’s own citizen parent, so long as the citizen parent’s own citizen parent met the physical presence requirement in Section 322(a)(2)(B) at the time of death.

1 A recent amendment to § 322 makes clear that the alien child may qualify after the citizen parent’s own death, if a citizen grandparent or citizen guardian applies for the alien child’s naturalization not more than five years after the death of the citizen parent, and the person with custody does not object. 21st Century DOJ Appropriations Authorization Act, Pub. L. 107-273, Division C, § 11030B, 116 Stat. 1758, 1837 (2002).

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(April 11, 2003)

Severe Acute Respiratory Syndrome (SARS): Public Announcement: US Dept. of State Office of the Spokesman

The Public Announcement alerts Americans that the Centers for Disease Control and Prevention (CDC) has issued a number of travel advisories for Severe Acute Respiratory Syndrome (SARS), which are being posted on its website (http://www.cdc.gov). Also posted is a current list of SARS-affected countries. Health alert notices are being distributed at U.S. airports to people arriving from SARS-affected areas. Americans planning to travel to SARS-affected areas should monitor the CDC's website for the latest information. In addition, Americans should be aware that some countries may bar entry to those travelers arriving from SARS-affected areas. U.S. citizens may wish to check with Embassies and/or Consulates of countries they plan to visit prior to travel. Prospective parents of adoptees in SARS-affected countries should consult the appropriate link on adoptions at the CDC website, http://www.cdc.gov/ncidod/sars/adoption.htm. This supersedes the Public Announcement issued on March 28, 2003, and the Fact Sheet on SARS issued on March 28, 2003. This Public Announcement expires on August 11, 2003.

The CDC and the World Health Organization (WHO) are tacking SAR's origin and method of transmission, as well as determining how its spread can be contained. In light of the continually evolving nature of the geographic spread of SARS, American citizens should regularly consult the CDC's website (www.cdc.gov) and the WHO's website (www.who.int) for updates.

Strong efforts are being made to contain SARS. Countries have implemented measures such as mandatory screening of incoming passengers at airports, and persons with SARS-like symptoms may be quarantined and/or sent to designated hospitals until the authorities are satisfied they do not have SARS. U.S. Government employees in SARS-affected countries who are known to have had contact with a SARS-infected person have been instructed not to go to work until 7-10 days after the last contact with that person. Medical evaluation currently cannot be arranged from SARS-affected areas, because no commercial airlines or air ambulance services are willing to transport SARS patients.

Most SARS cases appear to involve health-care workers caring for SARS patients and close family contacts. The CDC is working closely with the WHO and country partners to define the origin of this infection, to track patterns of its transmission, and to determine effective strategies for its control and prevention.

The CDC has identified the following three criteria, which must ALL be present, by which a potential SARS case may be identified:

-- Fever greater than 38ْ C (100.4ْ F), AND

-- One or more signs or symptoms of respiratory illness including cough, shortness of breath, difficulty breathing, hypoxia (low oxygen in the blood), x-ray findings of pneumonia, or respiratory distress, AND

-- One or more of the following within 2-10 days of the onset of symptoms: Travel to mainland China, Hong Kong, Singapore, or Vietnam; and/or close contact*, with a person who has been infected with SARS (*close contact means having cared for, lived with, or having had direct contact with respiratory secretions (such as coughs and sneezes) and body fluids of a person with SARS).

The incubation period between exposure to infection and the development of symptoms appears to range from 2-10 days. Currently, prevention of new cases is based on individuals avoiding close contact with SARS-infected persons as described above. Persons matching the case description for SARS should be promptly evaluated by medical personnel and notify local health authorities. Persons suspecting of having SARS should severely limit their interactions with others.

Contact Information for the CDC:

Public Inquiries:

English (888) 246-2675

Spanish (888) 246-2857

TTY (866) 874-2646

Mon-Fri 8am-11pm EST

Sat-Sun 10am-8pm EST

Address:

The Centers for Disease Control and Prevention

1600 Clifton Road

Atlanta, GA 30333

USA (404) 639-3311

American citizens currently in or planning to travel to SARS-affected areas should also consult the Department of State's Worldwide Caution, Public Announcements, Travel Warnings, and Consular Information Sheets for each SARS affected country, all of which are available at the Consular Affairs web site at http://travel.state.gov. American citizens may also contact the Department of State toll-free at 1-888-407-4747, or if calling from overseas, 317-472-2328, for information.

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(April 10, 2003)

Filing a Waiver of the Joint Filing

Requirement Prior to Final Termination of the Marriage

MEMORANDUM FOR REGIONAL DIRECTORS, SERVICE CENTER DIRECTORS, DISTRICT DIRECTORS; From: William R. Yates /s/ Janis Sposato, Acting Associate Director, Operations Bureau of Citizenship and Immigration Services

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(April 7, 2003)

Processing Fingerprint Checks Prior to

the Filing of Form I-600 (Petition to Classify

Orphan as Immediate Relative) Abroad, U.S. Dept. of Homeland Security, BCIS, Memo for Regional Directors, FROM: William R. Yates /S/ Janis Sposato,

Acting Associate Director for Operations.

Purpose

The purpose of this memorandum is to provide guidance in processing FBI fingerprint checks subsequent to the approval of the Application for Advance Processing of Orphan Petition, Form I-600A, and prior to the filing abroad of the Petition to Classify Orphan as an Immediate Relative, Form I-600. This memorandum should be read in conjunction with the Memorandum, Fingerprint Check Integrity When Adjudicating Orphan Petitions dated February 14, 2003. The procedures outlined in this memorandum shall be implemented immediately.

Background

Prior to the adjudication of Forms I-600 filed abroad, prospective adoptive parents (PAPs) and qualifying household members must have valid FBI fingerprint clearances. In order to facilitate this requirement, field offices should take the following steps to ensure that PAPs will not need to undergo fingerprint processing when traveling abroad to file Form I-600 or face undue delay related to this procedure.

Approval of Form I-600A

■ In order to best utilize the fifteen month FBI fingerprint check period of validity, the adjudicating officer should schedule the PAPs and all qualifying household members for fingerprinting after the home study has been received.

■ Upon approval of Form I-600A the FBI fingerprint check expiration date for the PAPs and all qualifying household members will be annotated on the Notice of Approval, Form I-171H.

■ If the FBI fingerprint check is due to expire within thirty (30) days of their planned departure they should appear at their local BCIS office with the Form I-171H in order to request a referral for re-fingerprinting and payment of the fingerprint fee (for the PAPs and all qualifying household members).

■ A copy of the Form I-171H will be retained in the office adjudicating the approval of the Form I-600A. Additionally, if the PAP or qualifying household member is an IDENT, a copy of the rap sheet shall be retained together with the Form I-171H.

■ The expiration date of the FBI fingerprint checks shall also be noted on the Visas 37 that is forwarded to the overseas office.

Processing of Re-Fingerprinting Requests

■ If a PAP appears at the local BCIS office requesting to be fingerprinted again due to either the expiration or impending expiration of fingerprints, then the fee for such processing will be taken at the local office and a referral to the Application Support Center (ASC) provided to the PAP and all qualifying household members. Prior to scheduling the PAPs for re-fingerprinting, the BCIS officer shall check F-track or BBSS to ensure that re-fingerprinting is necessary (fingerprints have expired or will expire within thirty days of travel).

■ The proper fingerprinting fee must be received and may be recorded on Form I-171H (i.e., attaching the receipt). Local procedures may be implemented for handling the fee receipt as appropriate.

■ After a referral to the ASC, a system inquiry (F-track or BBSS) within the anticipated processing time it takes for the FBI fingerprint check to be completed (usually 48 hours) should be performed.

■ If the new FBI fingerprint check has been completed and is a NON-IDENT the adjudicating officer should forward a revised Visas 37 reflecting the new period of fingerprint validity. The information necessary to sent the Visas 37 will be taken from the copy of the Form I-171H retained by the adjudicating office.

■ If the FBI fingerprint check response is an IDENT then the adjudicating office shall await the receipt of the rap sheet related to that IDENT. Upon receipt of the rap sheet, the adjudicating officer will check to ascertain whether there are any arrests or convictions that did not appear on a previous rap sheet or where undisclosed. Additionally, adjudications officers should ensure that the record is noted to indicate that any arrest or conviction was reviewed. As circumstances warrant, a request for evidence or home study update will then be initiated by the adjudicating officer.

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March 2003

(March 21, 2003)

State Department Cable: Student

and Exchange Visitor Visa Processing Update,

R2117402 MAR 03, FM Sectstate Washdc, To All Diplomatic

and Consular Posts Special Embassy Program AMEmbassy Program, AMEmbassy Kabul, AMEmbassy Dushanbe, Unclas State 074670, Visas, For Consuls, Also for PAO's

1. Summary: This cable provides guidance on issues related to the various regulatory time periods impacting student and exchange visitor visa processing. The cable provides information regarding the DHS regulation limiting the entry of F, M and J nonimmigrants to thirty days or less prior to their start/report date. Paragraph 5 provides language to be used to inform F, M, and J visa recipients of this DHS regulation. Paragraph 9 directs posts not already doing so to accept F, M, and J visa applications more than 90 days prior to the applicants' start/report dates.

30 Days, 60 Days, 90 Days

2. Many posts have inquired of the Department about the impact of the recently promulgated DHS rule limiting the entry of students and exchange visitors to thirty days or less prior to the beginning of their program or start date as given on the Form I-20 or DS-2019. For F students the Department of Justice SEVIS final rule amends 8 CFR, Section 214.2(f) to state that, "an F-1 student may be admitted for a period up to 30 days before the indicated report or date or program start date listed on Form I-20." The same section states that F-2 dependents are eligible for admission if they are able to demonstrate that the F-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or engaged in approved practical training following completion of studies. Finally for F-1 students (and their F-2 dependents), the regulation states that an F-1 student who has completed a course study and any authorized practical training following completion of studies will be allowed an additional 60-day period to prepare for departure from the U.S. or to transfer to another school (See 9 FAM 41.61, N10.1)

3. For M vocations students the rules vary slightly. Amended section 214(m) states that an M-1 student may be admitted for a period up to 30 days before the report date or start date of the course of study listed on the Form I-20 M-N. A student in M nonimmigrant status is admitted for a fixed time period, which is the period necessary to complete the course of study indicated on the Form I-20 M-N, plus practical training following completion of the course of study, plus an additional 30 days to depart the United States, but not to exceed one year. Note: An M student may receive extensions to accommodate a total program period of up to three years. End note. (See also 9 FAM 41.61, N10.2) An M-1 student who fails to maintain a full course of study or otherwise fails to maintain status is not eligible for the additional 30-day period of stay. Regulations regarding the admission of M-2 dependents mirror those of F-2 dependents.

4. Section 214.2(j) as amended by the final rule states that a J exchange visitor, and J-2 spouse and children, may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS-2019. The initial admission of an exchange visitor, spouse and children may not exceed the period specified on Form DS-2019, plus a period of 30 days for the purposes of travel. Reference to this 30-day "grace period" is to be found in 9 FAM 41.62, N11. A spouse or child may not be admitted for longer than the principal exchange visitor.

Adjudication Guidance

5. DHS inspectors currently are enforcing the regulation limiting admission of F, M and J nonimmigrants to 30 days or less before their start/report dates as listed on form I-20/DS-2019. While this regulation does not alter existing FAM guidance regarding when such visas can be issued (see para 8), recipients of these visas should be advised of this DHS regulation. Posts may use the following language to advise F, M, and J visa recipients of this regulation:

"To all recipients of an F, M, or J student or exchange visitor visa: Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the United States until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). Please consider that date carefully when making your travel plans to the United States."

6. In adjudicating the cases of prospective students who express a convincing need to enter the United States more than 30 days prior to their start/report date, conoffs should carefully review 9 FAM 41.61 N13.2 regarding entry of F and M students prior to enrollment, and the prospective student visa. If a prospective student plans to enter the U.S. on a B visa with plans to change his or her nonimmigrant category to F or M, the visa issuing officer should explain the DHS regulation that the prospective student make this intent clear to the inspector at the port of entry (see reftel D). The visa issuing officer also must carefully explain to any would-be F or M applicant planning to enter in a non-student category more than thirty days prior to their start/report date that, before beginning any studies/program, he or she must obtain a change of classification to that of student. The alien must file with DHS From I-539, Application for Change of Nonimmigrant Status, with the requisite fee (currently $140.00), for this purpose. The student also must submit the Form I-20 A-B or Form I-20 M-N and the required financial evidence to the DHS office at which the application is made.

7. The DHS regulation and FAM reference discussed in para 6 above relate to F and M visas. There is no FAM guidance on J exchange visitors that parallels 9 FAM 41.61 N13.2; nor does the DHS regulation requiring the B visitor to declare his or her intent to change nonimmigrant category apply to J exchange visitors. However, the practical approach is the same - if an exchange visitor must enter the U.S. more than thirty days prior to the start/program date in another nonimmigrant status, he or she must apply to the DHS for a change of classification to that of exchange visitor. The alien must file with DHS Form I-539, Application for Change of Nonimmigrant Status, with the requisite fee ($140.00), for this purpose. The exchange visitor must also submit the Form DS-2019 and related documentation to the DHS office at which the application is made.

8. As stated in para five above, the DHS regulation limiting entry of F, M and J nonimmigrants to thirty days or less prior to their start/report date does not impact the existing guidance in 9 FAM 41.61, N13.2: "Posts must not issue a student visa to an applicant seeking to enter more than 90 days prior to the designated registration date. This will prevent abuses by 'students' entering well in advance of enrollment and subsequently not commencing scheduled courses." Note that this FAM note concerns only the date of visa issuance, and applies only to F and M visas. There is no corresponding note in 9 FAM 41.62 concerning J visas.

Given the DHS thirty-day limitation, however, the Department can see little grounds for issuing J visas more than 90 days out, in the absence of special circumstances.

9. The Department is very cognizant of potential visa processing delays due to new processing requirements, SAO requirements, etc. While we expect that the progress that we and our interagency partners have made in instituting new procedures and in strengthening existing practices will mitigate potential delays, we want to give prospective students and exchange visitors every opportunity to make their start/report dates. Therefore, the Department thanks those posts that have been accepting student visa applications in advance of the 90-day visa issuance limitation, and directs any posts not currently accepting such applications to do so. Recognizing that J visas are subject to less specific timing criteria, the Department appreciates similar flexibility in the acceptance and issuance of these cases as well.

The Impact of SAOs

10. The Department is aware of concerns expressed by several posts about how to factor in possibly limited namecheck clearance lifespans. The issue of SAO clearance lifespans is the subject of an interagency meeting to be held the week of March 24.The Department hopes to provide guidance to the field following that meeting. For now, conoffs must be cognizant of the prospective student's or exchange visitor's start/report date, and that date's impact on the 30- and 90-day "windows" in calculating when to submit any required SAO cable.

POWELL

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(March 12, 2003)

BCIS Takes First Step Toward Development of New Citizenship Test, US Department of Homeland Security, Bureau of Immigration and Customs Enforcement

WASHINGTON, DC - Today, the Bureau of Citizenship and Immigration Services (BCIS) announced the launch of a pilot project to standardize the English, government, and United States history tests administered to citizenship applicants. The first phase of the two-stage pilot focuses on the English language portion of the test. The BCIS is working with a professional test development company on the effort.

"The long-range goal is to devise a test that will be fair, consistent, and meaningful for naturalization applicants nationwide," said William R. Yates, Acting Associate Director for Operations, BCIS. "The priority at the new Bureau of Citizenship and Immigration Services is ensuring that we not only meet but exceed our customers' expectations and that includes creating a level playing field for those seeking to become new Americans."

As part of the English language pilot, consenting citizenship applicants will be asked to answer one test question at the end of their regularly scheduled naturalization interview. The pilot will include questions designed to gauge reading, writing, and speaking skills. The applicant's response will not affect the outcome of the interview.

Five cities are slated to participate in this first phase of naturalization test pilot - Los Angeles, Sacramento, San Antonio, Atlanta, and Newark. A BCIS team arrived in Newark today to train the officers who will administer the pilot and brief community-based organizations on the test redesign effort. Over the next three weeks, the team will travel to the other designated cities to implement the pilot in those locations.

To qualify for U.S. citizenship, applicants must demonstrate a basic understanding of English, including an ability to read, write, and speak the language. They must also be able to show that they know the fundamentals of U.S. history and government.

Currently, citizenship applicants are quizzed on these topics as part of the naturalization examination interview. The test questions are generally culled from a lengthy pre-approved list, but there is no standardized testing format or method for administering the questions. As a result, the test content and process can vary from officer to officer and from office to office.

"Whether you're a citizenship applicant in Sacramento or San Antonio, you should have the same set of expectations about what kind of test you will experience," said Gerri Ratliff, the BCIS project director for the test redesign effort. "Not only is it a matter of fairness, but it will also help ensure that applicants come into the test fully prepared."

The U.S. Commission on Immigration Reform headed by former Congresswoman Barbara Jordan recommended that the naturalization testing process be standardized and that the content be revamped to make it more relevant. The goals is to have a new naturalization test in place by late 2004.

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(March 10, 2003)

The Meaning of 8 CFR 274a.12(a) as it Relates to Refugee and Asylee Authorization for Employment,

Memorandum for All Regional Directors, William Yates, Acting Associate Director, Operations Bureau of Citizenship and Immigration Services

I. Introduction

On June 17, 2002, The Immigration and Naturalization Service (INS) Office of General Counsel forwarded to the Office of Planning a legal opinion entitled "Employment Authorization of Aliens Granted Asylum." The opinion stated that, as a legal matter, aliens who have been granted asylum are authorized to work in the United States whether or not they have obtained an Employment Authorization Document (EAD, Forms I-766 or I-688B). The BCIS concurs with the Office of General Counsel's conclusions and asks that all offices conduct their affairs in such a way as comports with the Instructions in this memorandum.

II. Employment Authorization of Asylees and Refugees

8 CFR 274a.12(a) states that all aliens listed under 274a.12(a) are "employment authorized incident to status" and that they are "authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes." Asylees are one of the classes listed under 274a.12(a) at (a)(5). Therefore, asylees belong to the classes of aliens who are "employment authorized incident to status."

There has been some confusion, however, on this point since the employment authorization regulations at 274a.12(a) appears to require asylees to apply for an employment authorization document:

(a) Aliens authorized incident to status

* * *

(5) An alien granted asylum under Section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service," 8 CFR 274a.12(a) [Emphasis added]

Further, the last sentence of the introductory paragraph to 274a.12(a) states that an alien asylee, among others, "who seeks to be employed in the United States must apply to the Service for a document evidencing such employment."

These last two points read alone appear to suggest that the Service has the discretion to withhold employment authorization from asylees must first apply to the Service and be granted employment authorization in order to work. This is a misconception. The Service does not have the discretion to withhold employment authorization from any asylee, pursuant to INA 208(c)(1)(B). In fact, by regulation at 8 CFR 274a.12(a), such authorization is granted automatically upon the individual attaining asylee status.

The confusion, therefore, seems to arise from a blurring of the distinction between an alien having employment authorization versus an alien having evidence of employment authorization. However, this distinction must be maintained. In the case of asylees, the distinction is made both by statute in INA 208(c)(1)(B), which directs the Attorney General to authorize employment to asylees and issue documentation evidencing this fact, and by regulation at 8 CFR 274a.12(a). This distinction is further reinforced by regulation in 274a13(a), which describes how aliens authorized to be employed incident to status, such as asylees, may "obtain documentation evidencing this fact" of employment authorization.

Once an individual receives asylee status, by regulation, that asylee is authorized to work as of the date of the grant. This is true regardless of whether the Service has issued the asylee an EAD. But if the asylee wishes to receive an EAD from the Service, the regulations prescribe an application process for the asylee to follow. There may be a number of reasons why an asylee will choose to seek to obtain an EAD from the Service, such as, to satisfy the identity and employment authorization documentation requirements of the Form I-9, Employment Eligibility Verification form, the registration requirements of INA 264(e), or the requirements of a state benefits or licensing agency. However, failure to obtain an EAD does not result in a lack of employment authorization.

Because the regulatory sections concerning refugees parallel that of the asylees on these points, the same conclusion is applicable to refugees. Just as asylees, refugees are employment authorized incident to their status and do not need to obtain an EAD in order to be considered authorized to work by the Service. Refugees are listed as a class of aliens authorized to work incident to status in 8 CFR 274a.12 at (a)(3) and (a)(4).

III. Instructions

INS officers are mandated to update and clarify the information that they provide other government entities and the public regarding the employment authorization of asylees and refugees. The date of employment authorization begins for asylees and refugees is the date on which they attained their asylee status irrespective of the issuance of an EAD, and continues for so long as they are in that status. Upon adjustment to lawful permanent resident status, their work authorization further continues.

The Office of Operations requires your assistance in disseminating these instructions and attached guidance from the former INS' Office of the General Counsel to your respective offices. Questions regarding the above policy can be directed to Michael Hardin, Office of Adjudications, (202) 514-4754.

Attachment Link

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February 2003

(February 28, 2003)

Application for Naturalization, Form N-400:

Termination of Acceptance of Editions Issued Prior

to May 31, 2001Department of Justice, Immigration and Naturalization Service [INS No. 2247-02] - Action: Notice.

Summary: This notice confirms only editions dated May 31, 2001, or later, of the Form N-400, Application for Naturalization, as acceptable for filing by persons applying for United States citizenship. These revised editions include recent legislative changes, clarify the information required from applicants, eliminate obsolete questions, and upstate the data collection process. This notice advises the public that all Forms N-400 that are mailed, postmarked or otherwise filed on or after March 31, 2003 must bear the edition of May 31, 2001, or later.

Dates: This notice is effective March 31, 2003.

For Further Information Contact: Gerard Casale, Business Process and Reengineering Division, Immigration and Naturalization Service, 801 I Street, NW., Washington, DC 20536, telephone (202) 514-0788.

SUPPLEMENTARY INFORMATION:

Background:

In a Federal Register notice dated November 16, 2002, at 66 FR 57737-57739, the Department of Justice, Immigration and Naturalization Service (Service) announced the establishment of the revised Form N-400, bearing the edition date of May 31, 2001, as the only edition acceptable for applications for United States citizenship. That notice stated that earlier editions of Form N-400 would not be acceptable for filing after December 31, 2001.

Subsequent to publication of the November 16, 2001, notice the Service continued to allow additional time for transition to the processing of the current Form N-400, during which the previous edition has been accepted for processing. However, it is necessary to complete the conversion to an updated naturalization format that reflects all current benefits and requirements.

Accordingly, as of March 31, 2003, only the May 31, 2001, or subsequent editions of Form N-400 will be valid for filing an application for naturalization.

To prevent applicants from mistakenly submitting obsolete editions after the termination date of March 31, 2003, offices involved in the distribution of naturalization applications should only provide editions of Form N-400 having an edition date of May 31, 2001, or later.

What Happens After the "Sunset Date" for Accepting the Previous Edition of Form N-400?

Beginning March 31, 2003, only the May 31, 2003, or later editions of Form N-400 will be valid for filing an application for naturalization.

Service Centers will no longer accept earlier editions of the form for filing. Any obsolete editions of the Form N-400 application that the Service Centers may receive on or after March 31, 2003, will be rejected and returned to the applicant with instructions to submit a current Form N-400.

Will the Service Continue to Process the Previous Edition Form N-400 Applications that were Filed Prior to March 31, 2003?

The previous edition of the naturalization applications, if it was properly filed at a Service Center before March 31, 2003, will be processed to completion. However, in cases where there is an eligibility issue that the previous edition does not cover, the Service may ask for the additional information.

How Can Applicants Obtain the Current Edition of Form N-400?

Applicants can obtain copies of the current Form N-400 by calling the Service Forms Line at 1-800-870-3676. The current edition of Form N-400 also can be viewed, filled, and printed electronically from the Service's Web site at www.immigration.usdoj.gov.

Michael J. Garcia,

Acting Commission, Immigration and Naturalization Service

[FR Doc. 03-4863 Filed 2-26-03; 12:08 pm]

Billing Code 4410-10-U

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(February 27, 2003)

INS Informs Public Regarding

Changes in Immigration Benefit Filing Fees

WASHINGTON - The Immigration and Naturalization Service (INS) today published a final rule in the Federal Register  that reinstates the surcharge added to immigration benefit application fees. This fee is used to support asylum and refugee services and the agency's fee waiver program.

On January 24, 2003, INS published an interim rule that eliminated the surcharge. The Service was required to take that action under provisions of the section 457 of the Homeland Security Act of 2002, Public Law 107-296. The U.S. Congress has since repealed that section of the law. Effective February 27, the immigration benefit application fee schedule returns to the levels that existed prior to January 24.

All applications and petitions filed with INS on or after February 27, 2003 must comply with the new fee schedule. (The readjusted fee table is attached). Applications and petitions not accompanied by the increased fee will be rejected with a request to submit the appropriate amount.

However, the Service will accept applications and petitions postmarked on or before February 27 with the reduced fee that went in effect on January 24.

Additional information about the INS immigration benefit filing fees is available through the INS website (www.immigration.gov), or through its toll-free National Customer Service Line, (1-800-375-5283).

- INS -

Last Modified 02/27/2003

***Represents New INS Filing Fee Change as of 02/27/2003.

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(February 14, 2003)

Waiver of Photograph for I-90, Applicants

Seeking a Replacement or Renewal Form I-551, Memorandum for Regional Directors, Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations

Recently, some applicants filing Form I-90, Applications to Create Permanent Resident Card, for replacement or renewal Form I-551, Permanent Resident Card, have sought a waiver from the requirement at 8 CFR §265.5(e)(1)(i) that all I-90 applicants provide photographs accompanying their application. These applications have sought such a waiver based on religious grounds, stating that their faith prohibited them from being photographed.

The regulations, at 8 CFR § 264.5(e)(iii) for replacement of permanent resident cards provide that the photograph requirement may be waived only "in cases of confinement due to advanced aged or physical infirmity." However, the Alien Documentation, Identification and Telecommunication System (ADIT) manual states that "religious/ethnic reasons" as well as "physical disfigurement" may be acceptable reasons to waive the photograph requirement. Based on this statement in the ADIT manual, the Immigration and Naturalization Service (Service) has on occasion granted photograph waiver requests on religious grounds, in addition to the grounds specifically provided by regulation. However, in light of national security  concerns arising from the events of September 11, 2001, and because Form I-551 is evidence of legal status to enter and remain in the United States, the potential for misuse were it issued without a photograph is too great to allow discretionary waivers beyond what is specifically provided by the regulations at 8 CFR  § 264.5(e)(3)(iii).

In addition, the purpose behind the waiver at 8 CFR  § 264.5(e)(3)(iii) is to accommodate those who are confined due to advanced age or physical infirmity to nonetheless obtain a replacement of the permanent resident card. In light of the concerns mentioned above, the Service should seek to accommodate the applicant by a home visit to accomplish the photograph requirement, in lieu of granting the waiver under 8 CFR  § 264.5(e)(3)(iii). Only in extraordinary circumstances where no such accommodation is possible and when the Service officers is certain that the card will not be misused, should the waiver be granted pursuant to 8 CFR  § 264.5(3)(3)(iii). A supervisory approval is required for any such photo waiver.

This memorandum covers only waivers of the photograph. Certain alterations to the ADIT photograph requirements, in cases involving disfigurement, for example, are acceptable in accordance with past practice and guidance, so long as the person remains clearly identifiable from the photograph.

The Office of Field Operations requests your assistance in disseminating this policy memorandum to your respective offices and ensuring its immediate implementation. Questions regarding the above policy can be directed to Michael Hardin, Office of Adjudications, (202) 514-4754.

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January 2003

(January 29, 2003)

Implementation of Class Action Judgment in Proyecto San Pablo v. INS,

Department of Justice, Immigration and Naturalization Service, [INS No. 2149-01], Notice.

Summary: This notice implements the class action judgment in Proyecto San Pablo v. INS, No. Civ. 89-456-TUC-WDB (D. Ariz.) by notifying aliens who applied for legalization under section 245A of the Immigration and Nationality Act (Act), 8 U.S.C. 1255a, of their rights under the judgment. This notice is necessary because neither the class counsel nor the Immigration and Naturalization Service (Service or INS) has reliable information concerning the names and addresses of class members.

Dates: This notice is effective January 29, 2003.

For Further Information Contact: Robert Raymond, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street NW, Room 6109, Washington, DC 20536, telephone (202) 514-2895.

Supplementary Information:

1. Why Is the Service Publishing This Notice?

The Service is publishing this notice to comply with the judgment entered on March 27, 2001, as amended, in the class action entitled Proyecto San Pablo v. INS No. Civ 89-456-TUC-WDB [D.Ariz.] (Proyecto case). Service regulations do not permit aliens to file motions to reopen in legalization cases under §245A of the Act, 8 U.S.C. 1255a. The Court's judgment, however, requires the Service to reopen certain legalization cases and make new decisions in those cases. This notice explains how to obtain a new decision in your case.

2. To Whom Do the Personal Promises "I," "Me," "My," "You" and "Your" Refer?

In this Notice, the personal pronouns "I," "me," "my," "you" and "your" refer to any alien who filed a timely application for legalization and who believes that he or she may be a class member in the Proyecto case.

3. Does This Notice Apply to My Case?

This notice applies to your case if you meet each of the following requirements:

(a) You filed an application for legalization under §245A of the Act during the period that began May 5, 1987, and ended May 4, 1988;

(b) You filed this application with a legalization office n the former Northern or Western region of the Service (that is, in: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington (State), Wisconsin, or Wyoming);

(c) The Service denied your application for legalization or terminated your temporary residence under §245A(g)(2)(B)(i) f the Act because, at some time during the period beginning before January 1, 1982, and ending on the date you filed your legalization application, you were "outside the United States as a result of a departure under an order of deportation."

4. What Does the Court's Order Permit Me to Do?

If this Notice applies to your case, then you may obtain a new Service decision on your legalization application. You may also obtain employment authorization, in 1-year increments, until the Service makes a new decision in your case. The Service may not deport you until it makes a new decision in your case. In addition, you will be given an opportunity to obtain a copy of your prior deportation or exclusion records under the Freedom of Information Act (FOIA). You will also be able to submit and have adjudicated, Form I-690, Application for Waiver of Grounds of Excludability Under Sections 245A or 210 of the Immigration and Nationality Act, or any other waiver you deem appropriate, although the parties continue to dispute the legal effect of such a waiver.

5. How Do I Obtain Employment Authorization?

The Proyecto Judgment requires the Service to extend your employment authorization until the Service reopens your case and makes a new decision. If your current employment authorization document has expired, or is about to expire, you should apply for a new employment authorization by completing Form I-765, Application fro Employment Authorization, and filing it, without fee. Follow the instructions listed on the From I-765. To make it clear that you are claiming to be a Proyecto class member, you must write the word "Proyecto" in box 16 on the Form I-765. The Employment Authorization Application must be adjudicated within 90 days of the date of its receipt. You must file your Form I-765 with the Nebraska Service Center. The address is: Immigration and Naturalization Service, Nebraska Service Center, Attn.: Proyecto Unit, PO Box 87687, Lincoln, NE 68501-7687.

6. Will the Service Center Give Me a New Employment Authorization Card, if My Card Expires Before My Case is Decided?

Yes, any employment authorization card will be valid for 1 year, and so long as you have filed a motion to reopen as described below in paragraph 10, you may apply for renewal until the Service makes a final decision in your case. You will not be eligible for an extension of employment authorization, however, if you fail to file a motion to reopen within 1 year from the date you receive this notice. So long as you file a timely motion to reopen, the Service may not deport you until it issues a new decision in your legalization application.

7. How Do I Obtain a New Decision in My Case?

Because the legalization application period ended more than 13 years ago, it is not likely that the Service will have a current address for you. For this reason, the Service will not act to reopen your case until you want the Service to do so. If you want to exercise your rights under the Proyecto decision, you must file with the Service a motion to reopen, without fee. As described below, your motion to reopen may include all information and/or waiver applications you wish the Service to consider. As such, you should first attempt to obtain any information you may need through the FOIA process as described below in question 8. in addition, you should prepare any waiver applications you wish to be considered and submit all of the information along with your motion to reopen. If you have not received a response to your FOIA request at the time you must file your motion to reopen, then you must still file your motion to reopen, but you may wait to submit the supporting documents until after you receive the response to any FOIA requests that you have made.

To avoid delays, please make sure that your motion to reopen clearly states that you are seeking the reopening of your case under the judgment in the Proyecto case.

8. Where Do I File My FOIA Requests?

The Service's FOIA requests are filed according to the instructions on Form G-639, Freedom of Information/Privacy Act Request (available on the Service's Web site at http://www.ins.usdoj.gov). To make a FOIA request, you may use Form G-639, or a letter specifically indicating which records are being requested. The form approved by the Court for requesting your Service records is attached.

A. Service Records

In order to obtain a copy of your prior Service file you must file a FOIA request with the Service. File your FOIA request with the Nebraska Service Center. The address is:

Immigration and Naturalization Service

Nebraska Service Center

Attn. FOIA/PA Unit

 PO Box 82521

Lincoln, NE 68501-2521.

B. Immigration Court Records

In order to obtain a copy of your prior deportation or exclusion records from the Immigration Court, you must file a FOIA request with the Executive Office of Immigration review (EOIR). Since EOIR is not part of the Service, you must send your EOIR FOIA request directly to EOIR at the following address:

Office of the General Counsel

Executive Office of Immigration Review

FOIA/PA Requests

5107 Leesburg Pike

Suite 2400

Falls Church, VA 22041

The EOIR does not have its own special FOIA request form. However, EOIR will accept either the Form G-639, or a letter specifically indicating which records are being requested. The form approved by the Court for requesting your EOIR records is included as an appendix to this notice.

9. Where Must I File the Motion to Reopen?

You must file your motion to reopen with the Nebraska Service Center. The address is:

Immigration and Naturalization Service

Nebraska Service Center

Attn.: Proyecto Unit

PO Box 87687

Lincoln, NE 68501-7687

10. When Must I File the Motion to Reopen?

You must file your motion to reopen no later than 1 year from the date you are personally served with this Notice by the Service, ad described below.

The Service will personally serve you with a copy of this notice in one of three ways. First, on or about the time of the publication of this Notice in the Federal Register, if you are known to meet the Proyecto class definition, the Service will mail this Notice, by certified mail return receipt requested, to your last known address contained in your file. Second, after publication of this Notice in the Federal Register, when you file an application for employment authorization (Form I-765), the Service will check your alien file to see if there is written confirmation that you previously received this notice. If there is no such confirmation, the Service will mail a copy of this Notice, by certified mail return receipt requested to you at the address listed on the application for employment authorization, or to your attorney or representative as required by 8 CFR 292.5, if a Form G-28, Notice of Entry of Appearance as Attorney or Representative has been filed since the publication of this notice in the Federal Register. Third, the Service may personally deliver a copy of this Notice to you at any time the Service encounters you.

The 1-year time period for filing your motion to reopen begins on the date that personal service in one of the three ways described above is confirmed to have occurred. The Service cannot deny your legalization application, or deny work authorization pursuant to this Notice, unless the service can confirm that this Notice has been served on you in one of the three ways described above.

If you need to file FOIA requests before you can file your motion to reopen, then you must still file your motion to reopen within the 1-year time period described above. If you have not yet received the results from your FOIA requests, then your motion to reopen must include a statement that you are awaiting your FOIA results.

11. What Must I Include With My Motion to Reopen?

You should include in your motion to reopen:

(1) A copy of any documents that you received from the Service and EOIR in response to your FOIA requests that you want to have included in your legalization record or proceeding,

(2) A waiver application (Form I-690) with the fee established in 8 CFR 103.7(b) (currently $35) (available on the Service's Web site at http://www.ins.usdoj.gov) if you wish the Service to adjudicate a waiver.

(3) Any brief, any other waiver that you wish to have adjudicated, and any other evidence you wish to submit in support of your motion; and

(4) Either a statement that you are ready to have a new decision entered in your case, or a statement that you are still awaiting the results of your FOIA requests.

12. What if I Have Not Yet Received the Results of My FOIA Request?

If you are still awaiting FOIA results you must still file the motion to reopen no later than the period described in paragraph 10, above. You may include with your motion a copy of any waiver application you wish to file, a copy of your FOIA requests, any evidence you want to submit other than evidence from your FOIA requests, and a statement indicating that you are awaiting the results of the FOIA requests. You must then submit, no later than 6 months after you receive the results of your FOIA requests, any brief you wish to file and complete copy of any documents that you want to have included in your legalization record of proceeding.

13. When Will the Service Decide My Case?

Because your motion to reopen should include any and all evidence that you want included in your legalization record of proceeding, any brief you wish to file, and any waiver application you wish to have considered, the Service may decide your motion to reopen at any time after you file it, unless you indicate in your motion that you are still awaiting the results of your FOIA requests. If you are still awaiting the results of your FOIA requests, the Service will not rule on your motion until you have had an opportunity to obtain and review the FOIA documents. You must submit a brief and any documents you want the Service to consider no later than 6 months after you have received a response to both of your FOIA requests.

14. What if I Do Not File a Motion To Reopen?

The Service will not make a new decision in your case unless you file a motion to reopen, which you must do within the 1-year period described in this notice under the heading "When Must I File The Motion to Reopen?" (Paragraph 10). If you have received employment authorization pursuant to these instructions and do not file a motion to reopen, your employment authorization will not be renewed.

15. What if I Do Not Get This Notice With These Instructions Within a Year?

You will be permitted to file a motion to reopen and take the other steps outlined here if you come to the attention of the Service more than a year after these instructions are published, unless the Service can confirm that this Notice has been personally served on you in the manner described in this notice under the heading "When Must I File The Motion to Reopen?" (Question 10).

16. Does the Proyecto Judgment Entitle Me to a Stay of Deportation?

The March 27, 2001, Judgment of the Court requires the Service to stay your deportation and to release you from custody without bond, so long as you are a class member. Filing either the application for a new employment authorization document or the motion to reopen will help notify the Service that you are entitled to this stay and release without bond. The stay will remain in effect until the Service makes a final decision in your case.

17. Does the Proyecto Judgment Make Me Eligible for Legalization?

Not necessarily. According to the order of the District Court, the Service is required to reopen and readjudicate your legalization application. This does not necessarily mean that the Service will approve your application.

18. Do the Legalization Confidentiality Rules Apply to My Case?

The legalization confidentiality rules apply to your case in the same way that they apply to an other legalization case. Your applications and file requests cannot be used for any other reason than to make a determination on your eligibility for legalization. They cannot be used in removal, deportation or exclusion proceedings.

19. Do I Have the Right to Have an Attorney or Other Person Represent Me?

By statute and regulation, you have the right to be represented before the Service by any attorney or other person authorized to represent people before the Service.

Please note that Robert Gibbs, Esq., Gloria A. Goldman, Esq., and Robert Pauw, Esq., have represented the class in this case. You may retain Mr. Gibbs, Ms. Goldman, or Mr. Pauw to represent you, but you also have the right to retain any other attorney or other person authorized to represent people before the Service. If you want Mr. Gibbs or Mr. Pauw to represent you, or want further information about this case, you may contact them at: Gibbs Houston Pauw, 1000 Second Avenue, Suite 1600, Seattle, Washington 98104; telephone (206) 682-1080; Website: www.ghp-law.net. You may also contact Ms. Goldman at 1575 West Ina Road, Tucson, Arizona 85704-1926, telephone (520) 797-9229.

If you already have your own attorney or representative, he or she may also contact Mr. Gibbs, Ms. Goldman, or Mr. Pauw for information about this case.

20. What if My Address Changes?

It is very important that you inform the Service of any change of address while your case is pending. You should promptly notify the Service in writing of a change of address to any officer where you filed a FOIA request, and to the Nebraska Service Center as shown below:

Immigration and Naturalization Service

Nebraska Service Center

Attn.: Proyecto Unit

P.O. Box 87687

Lincoln, NE 68501-7687

Paperwork Reduction Act

The documentary requirements included when filing a motion to reopen your case, including the form approved by the Court for requesting your records is not considered an information collection under 5 CFR 1320.4(a)(2).   Dated January 23, 2003.

Michael J. Garcia,

Acting Commissioner, Immigration and Naturalization Service

Note: The appendix to this notice contains the FOIA request Form provided for in the Proyecto judgment.

BILLING CODE 4410-10-P

Appendix

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(January 28, 2003)

SEVIS Grace Period  Student

Exchange Visitor Information System

On January 1, 2003, the Immigration and Naturalization Service (INS) completed the deployment of its Student and Exchange Visitor Information System (SEVIS) and over three thousand schools have been admitted to use the system. In order to accommodate schools and exchange visitor programs that are new users of SEVIS, the INS has decided to grant a grace period, until February 15, 2003.

During this period, the Service encourages schools and exchange visitor programs to enter information and issue forms through SEVIS system as anticipated by its regulations, but we will continue to accept forms issued under the previous paper system to accommodate schools that may have initial difficulty accessing or using SEVIS. Schools that have difficulties should report them promptly to the SEVIS Help Desk so that INS and the schools may use this period effectively to work together to resolve problems and make the transition to SEVIS one that works for INS, the schools and the foreign students.

INS will not accept forms issued after February 15, 2003, unless they were issued through SEVIS.

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(January 27, 2003)

INS Campaign Seeks Out

Applicants for LIFE Legalization Benefits

WASHINGTON, D.C. - The Immigration and Naturalization Service (INS) today announced a public outreach campaign to encourage thousands of eligible individuals to file applications that could adjust their status in the United States that of permanent residents.

"This public outreach campaign provides a golden opportunity for eligible individuals to apply for Life Legalization benefits," Michael Garcia, INS Acting Commissioner, said of the nationwide program, which features television and radio spots in Spanish. "It reflects the agency's commitment to assist individuals who want to come into compliance with U.S. immigration laws."

The public outreach campaign aims to reach more than 200,000 long-term U.S. residents who are believed to be eligible to apply for legal status under a provision of the Legal Immigration and Family Equity (LIFE) Act. The deadline for filing such applications is June 4, 2003.

To reach its intended audience, the INS is taking to the airwaves with 30-second radio and television spots urging potential applicants to protect their futures ("Arregala tu Futuro") by filing applications before the June 4 deadline. Similar messages appear on posters and fliers distributed in Hispanic communities. In addition, INS managers in the agency's 33 district offices are taking the message to local news media, through interviews and public appearances.

The public outreach program is national in scope but concentrated in four metropolitan areas that the INS believes are home to about two-thirds of the eligible LIFE Legalization applicants who have yet to file. Those metropolitan areas are: Los Angeles, Chicago, Houston and New York City.

To be eligible for this LIFE Act benefit (known as "LIFE Legalization"), an individual must have entered the United States before January 1, 1982 and resided in continuous unlawful status through May 4, 1988, including being physically present in the United States from November 6, 1986 until May 4, 1988. Among other requirements, they must also have filed a written claim for class membership in one of the three class action lawsuits arising from the 1986 Legalization, or Amnesty, program for illegal immigrants. The three lawsuits are entitled Catholic Social Services, Inc. (CSS) v. Meese, the League of United Latin American Citizens (LULAC) v. INS, and Zambrano v. INS.

Individuals who meet the U.S. residency requirements and who, before October 1, 2000, filed a written claim for class membership in any of the lawsuits, are eligible to apply for adjustment of their legal status under the LIFE Act Legalization provision.

The LIFE Act provides eligible applicants with work authorization, and even a stay of removal or deportation proceedings or orders, while their adjustment applications are pending. It also protects from removal and provides employment authorization for certain spouses and minor children of eligible applicants for the period of time in which they are afforded Family Unity protection.

The INS estimates that the majority of potential applicants under this provision of the LIFE Act are Hispanic with the largest number being natives of Mexico. As of October 31, 2002, about 55,000 individuals have filed applications under this provision of the LIFE Act.

Additional information about the LIFE Legalization is available through the INS website (http://www.ins.usdoj.gov/graphics/services/residency/LIFE.htm), or through its toll-free National Customer Service Line, (1-800-375-5283). The necessary forms can be obtained at INS district offices or downloaded from the INS website. In addition, several major community-based organizations can assist applicants.

-INS-

Last Modified 01/28/2003

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(January 24, 2003)

NEW INS FILING FEES: Homeland

Security Act of2002 Directs INS to Stop Collecting Portion of Fees Used to Fund Asylum and Refugee Services and Fee Waiver and Exemption Programs

***Represents New INS Filing Fee Change as of 01/24/2003.

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(January 8, 2003)

INS Announces New Rule for the Adjustment of Status of Certain Nationals from Vietnam, Cambodia and Laos  

INS Also Announces New Standards for the Waiver of Criminal Grounds of Inadmissibility

WASHINGTON, DC - The Immigration and Naturalization Service (INS) today announced a final rule that became effective December 26, 2002 that will provide for permanent resident status to as many as 5,000 eligible individuals from Vietnam, Cambodia, and Laos. The Service notes that since this is a final rule, applications for adjustment of status will be accepted beginning January 27, 2003. Concurrently published with this final rule is a related interim final rule that provides new standards for adjudicating applications for a waiver of certain criminal grounds of inadmissibility. The public has 30 days to provide comments on the interim final rule.

The adjustment of status rule provides permanent immigration benefits to eligible individuals from three countries - Vietnam, Cambodia, and Laos. Following the Vietnam War, many individuals from Vietnam, Cambodia, and Laos were paroled into the United States and have remained in an indefinite status since.

To qualify for the program, an alien must be a national of Vietnam, Cambodia or Laos who was paroled into the United States prior to October 1, 1997. In addition, the alien must have entered the United States from one of three programs: the Orderly Departure Program, a Refugee Camp in East Asia, or a Refugee Camp administered by the United Nations High Commissioner for Refugees in Thailand. Detailed eligibility and procedural requirements are explained in the final regulation.

When individuals apply for certain immigration benefits, they are required to demonstrate that they are admissible under immigration law. One factor that makes an individual ineligible to become a permanent resident is a criminal history. Certain grounds of inadmissibility can be waived at the discretion of the Attorney General. Recently, the Attorney General determined that favorable discretion should not be exercised for criminal waivers involving violent or dangerous individuals, except in extraordinary circumstances. The Attorney General defined "extraordinary circumstances" to mean situations where the individual has established exceptional and extremely unusual hardship, or situations where there are overriding national security or foreign policy considerations. Nevertheless, depending on the nature and severity of the underlying offense, the extenuating circumstances presented by the applicant may still be insufficient. These standards have been, in turn, incorporated into the rule.

-INS-

Last modified 01/10/2003

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November 2002

(November 27, 2002)

Guidance on Adjudication of H-1B Petitions Filed on Behalf of Nurses,

FROM: Johnny N. Williams /S/ Executive Associate Commissioner Office of Field Operations

The purpose of this memorandum is to provide field offices with guidance on adjudication of H-1B petitions when the beneficiary is a registered nurse (RN). This memorandum clarifies that while typical RNs generally do not meet the requirements for H-1B classification, aliens in certain specialized RN occupations are more likely than typical RNs to be eligible for H-1B status.

A. General Requirements for H-1B Classification in a Specialty Occupation

The Service will approve an H-1B nonimmigrant worker petition filed on behalf of certain foreign nurses if the statutory and regulatory requirements for H-1B classification are met. An individual is eligible for H-1B nonimmigrant classification if he or she is in a specialty occupation. Under section 214(i)(1) of the Immigration and Nationality Act (Act), a specialty occupation "means an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." Under section 214(i)(2) of the Act, the specialty occupation requirement is met by "(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in paragraph (1)(B) for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty."

An employee may submit evidence that the alien has the required degree (or its equivalent) by submitting:

1. a copy of the alien's U.S. bachelor's or higher degree in the specialty occupation,

2. a copy of the foreign degree determined to be equivalent to the U.S. degree, or

3. evidence that the alien's education and experience are equivalent to the required U.S. degree.

In order to be licensed as an RN, an individual must graduate from an approved nursing program and pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam. The minimum requirement for entry into the field of nursing as a registered nurse is a two-year associate degree in nursing (A.D.N.), meaning a typical RN would not likely be eligible for H-1B classification. (See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 2002-2003 edition, p.269.) Accordingly, RN positions do not generally require a bachelor's or higher degree. In order to qualify an RN position as H-1B, the petitioning employer can met the existing regulatory requirements by showing that:

1. a bachelor's or higher degree (or its equivalent) is normally the minimum requirement for entry into the position;

2. the degree requirement is common to the industry for parallel nursing positions (i.e., employers in the same industry require their employees to hold the degree when they are employed in the same or similar position);

3. the employer normally requires a degree or its equivalent for the position; or

4. the nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree (or its equivalent).

In determining degree equivalencies, the Service uses a formula that requires the beneficiary to have three years of specialized training and/or work experience for each year of college-level training that the beneficiary is lacking. 8 CFR 214.2(h)(4)(iii)(D)(5). The Service will be issuing more detailed technical guidance on this subject in the near future.  

Accordingly, a registered nurse will be eligible for H-1B classification if the petitioner can demonstrate that the position and the individual alien meet the requirements for establishing that the position is H-1B as outlined above. 

B. Advanced Practice Nurses 

In contrast to most general RN positions, certain specialized nursing occupations are likely to require a bachelor’s or higher degree, and accordingly, be H-1B equivalent. Positions that require nurses who are certified advanced practice nurses (APRN) will generally be H-1B equivalent due to the advanced level of education and training required for certification. An employer may require that the prospective employees hold advanced practice certification as one of the following: clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), certified nurse-midwife (CNM), or certified nurse practitioner (APRN-certified). If the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN, at least a Bachelor of Science in Nursing (BSN), and some additional graduate level education.

The following list describes certain advanced practice occupations that will generally be H-1B equivalent if the position requires, and the alien has obtained, advanced practice certification: 

• Clinical Nurse Specialist (CNS): Acute Care, Adult, Critical Care, Gerontological, Family, Hospice and Palliative Care, Neonatal, Pediatric, Psychiatric, and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women’s Health;

• Nurse Practitioner (NP): Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health;

• Certified Registered Nurse Anesthetist (CRNA); and

• Certified Nurse-Midwife (CNM).

C. Nurses in Administrative Positions 

Certain other nursing occupations, such as an upper-level “nurse manager” in a hospital administration position, may be H-1B equivalent since administrative positions typically require, and the individual must hold, a bachelor’s degree. (See Bureau of Labor Statistics, U.S. Dep’t of Labor, Occupational Outlook Handbook at 269.) Nursing Services Administrators are generally supervisory level nurses who hold an RN, and a graduate degree in nursing or health administration. (See Bureau of Labor Statistics, U.S. Dep’t of Labor, Occupational Outlook Handbook at 75.) 

D. State Requirements

As stated earlier in this memo, a general RN position does not qualify as H-1B. However, the National Council on State Boards of Nurses (NCSBN) has confirmed that the state of North Dakota is the only state that requires that an individual possess a BSN in order to be licensed as an RN in that state. This applies to individuals who enrolled in a nursing program after January 1, 1987. In a situation in which the BSN is a prerequisite to practicing in the field, the position will qualify as an H-1B position. Thus, a petition for an RN position in the state of North Dakota will generally qualify as an H-1B position due to the degree requirement for licensure. The Service will issue updated field guidance if it becomes aware of other states that adopt this requirement.  

E. Nursing Specialties 

An increasing number of nursing specialties, such as critical care and peri-operative (operating room), to name two examples, require a higher degree of knowledge and skill than a typical RN or staff nurse position. Further, certification examinations are available to registered nurses who are not advanced practice nurses, but who possess additional clinical experience. Examples of these types of certification examinations are school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. In such nursing specialties, the petitioner may be able to demonstrate that the H-1B petition is approvable by demonstrating that the position meets the requirements outlined in Section A above, and by demonstrating that the individual nurse meets the requirements. For example, for certain critical care nurses the employer must demonstrate, through affidavits from independent experts or other means, that the nature of the position’s duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent). As always, each petition must be adjudicated on a case-by-case basis and a decision to approve or deny the petition must take into account the totality of the requirements for the position, (i.e., educational requirements, additional training in the specialty, and the individual’s qualifications for the position.  

Questions regarding this memorandum may be directed to the Office of Adjudications through appropriate channels.

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August 2002

(August 21, 2002)

Eligibility to Self-Petition as an Intended Spouse of

an Abusive U.S. Citizen or Lawful Permanent Resident

Memorandum for Regional Directors Deputy Executive Associate Commissioner, Immigration Services Division; From: Johnny N. Williams /s/ Executive Associate Commissioner Office of Filed Operations

On October 28, 2000, the President signed the Victims of Trafficking and Violence Protection Act (VTVPA). Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements contained in the Immigration and Nationality Act (Act). The purpose of this memorandum is to inform Immigration and Naturalization Service (Service) officers in the filed of the change in the law concerning the eligibility to self-petition as an intended spouse of an abusive United States citizen (USC) or lawful permanent resident (LPR). This provision of the BIWPA applies to all self-petitions pending on or filed on or after October 28, 2000.

Prior to the enactment of the BIWPA, an alien was ineligible to file a self-petition as a battered spouse of a USC or LPR if s/he was not legally married to the abusive USC or LPR spouse on the date the petition was properly filed with the Service. This left no relief for a battered alien who believed s/he was married to a USC or LPR, but later discovered the marriage was not legitimate because of the bigamy of the USC or LPR. The BIWPA defines a battered alien in this situation as an in ‘intended spouse’ and amends the Act to preserve self-petitioning eligibility for intended spouses.

Sections 1503(b)(1) and (c)(1) of the BIWPA provide that an alien who can demonstrate that s/he believed s/he had entered into a bona fide marriage with a USC or LPR wand with whom a marriage ceremony was actually performed, but such marriage is not legitimate solely because of the bigamy of such USC or LPR, is eligible to file a self-petition as a battered spouse. In other words, if the self-petitioner can demonstrate that:

1. s/he married a USC or LPR who s/he believed was free to enter into a marriage;

2. that a marriage ceremony was actually performed; and,

3. the requirements for the establishment of a bona fide marriage were otherwise met

the self-petition should not be denied on the grounds of failure to demonstrate a legally valid marriage.

Evidence Required

Whether the self-petitioner is an intended spouse, as defined by the BIWPA, is a matter of evidentiary proof. That proof must demonstrate that the self-petitioner believed that s/he entered into a legally valid marriage with the USC or LPR. The focus is therefore on the intent of the self-petitioner not that of the alleged abuser. Primary evidence shall be a marriage certificate issued by civil authorities in the United States or abroad.

Proof of the abuser’s prior divorces shall no longer be required since a finding that the marriage is not legally valid due to the abuser’s bigamy cannot render the self-petitioner ineligible. A self-petitioner who ahs been married prior to the current relationship intended by him or her to be legally a marriage must, however, continue to demonstrate the lawful termination of any such marriages prior to entering the current relationship.

An alien who demonstrates eligibility to file a self-petition as an intended spouse must nevertheless fully satisfy all other eligibility requirements and demonstrate that:

1. the person s/he believed s/he was married to is a USC or LPR;

2. that s/he entered the relationship intended to be legally a marriage in good faith;

3. that there was battering or extreme mental cruelty perpetrated by the USC or LPR during the relationship intended to be legally a marriage;

4. s/he resided with the abuser at some point; and,

5. that s/he is a person of good moral character.

Evidence submitted to meet these eligibility requirements may also be used when determining the intent of the battered alien at the time s/he entered into the relationship with the USC or LPR.

Please direct any questions concerning these changes to the Office of Adjudication, (202) 514-4754.

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June 2002

(June 17, 2002)

Employment Authorization of Aliens Granted Asylum

The Office of the General Counsel has been requested by the Office of Policy and Planning to provide a legal opinion regarding the employment authorization and employment authorization documentation of aliens granted asylum.  

ISSUE  

Whether an alien granted asylum must apply for and be issued an Employment Authorization Document (EAD, Forms I-766 or I-688B) to be deemed to be authorized for employment in the United States.  

SUMMARY CONCLUSION  

No. Because an alien granted asylum is employment authorized incident to his or her status, such alien is authorized for employment regardless of whether he or she has applied for or been issued an EAD.  

DISCUSSION  

Whether an alien granted asylum must apply for and be issued an Employment Authorization Document (EAD, Forms I-766 or I-688B) to be deemed to be authorized for employment in the United States.  

The starting point for a discussion on the employment authorization of asylees is the governing statutory provision in the Immigration and Nationality Act (INA). Under section 208(c)(1)(B) of the INA, the Attorney General is required to authorize an asylee "to engage in employment in the United States, and provide the alien with appropriate endorsement of that authorization." Because this statutory provision requires the Attorney General to act in order for an asylee to receive employment authorization, an asylee is not employment authorized by operation of this statutory provision alone.[1]  

To fulfill his obligation under section 208(c)(1)(B) of the INA, the Attorney General has established processes for granting employment authorization to asylees and issuing an appropriate endorsement of that employment authorization.[2] The main process is outlined at 8 C.F.R. §§ 274a.12(a)(5) and 274a.13.[3] Section 274a.12(a)(5) provides for the granting of employment authorization to asylees and for an endorsement of employment authorization, while section 274a.13 governs the application process for obtaining this employment authorization endorsement.[4] Section 274a.12(a)(5) provides as follows:

Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3) through (a)(8) or (a)(10) through (1)(13) of this section, and who seeks to be employed in the United States, must apply to the Service for a document evidencing such employment authorization. . . . . (5) An alien granted asylum under section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service. 8 C.F.R. § 274a.12(a)(5) (1987). By designating asylees as one of the classes of aliens authorized employment "incident to status" and authorizing employment as a condition of admission or change to this alien class, the regulations clearly provide for the automatic employment authorization of asylees at the time they receive their grant of asylum.[5] This obviates the need to authorize employment on a case-by-case basis while still meeting the requirements of section 208(c)(1)(B) of the INA. Section 208.20(c) of the regulations further provide for employment authorization for derivative asylees (i.e., spouses and children), essentially restating the authorization found at § 274a.12(a)(5).[6] 8 C.F.R. § 208.20 (2000); Getahun v. OCAHO, 124 F.3d 591, 594-95 (3d Cir. 1997) (in interpreting the pre-1994 version of 8 C.F.R. § 208.20, stating that "[b]y virtue of the grant of asylum her employment authorization was 'automatically' granted or continued"); see also Hernandez v. Reno, 91 F.3d at 780 (Family Unity Program).

As previously noted, while authorizing asylees for employment automatically upon attaining asylee status, 8 C.F.R. § 274a.12(a)(5), in conjunction with 8 C.F.R. § 274a.13, also provides a mechanism for asylees to acquire an employment authorization endorsement that can be used to obtain employment. The mechanism provided by the regulations is the Employment Authorization Document (EAD) application process. 8 C.F.R. § 274a.13(a). Because the resulting documentation contains evidence of employment authorization, this mechanism satisfies the endorsement of employment authorization requirement of section 208(c)(1)(B) of the INA. As explained in the Supplementary Information to the 1994 proposed rule amending the asylum regulations, an asylee, by regulation, is immediately work authorized upon becoming an asylee and will receive evidence of employment authorization "expeditiously," but upon application to the Service. 59 Fed. Reg. at 14780, 14783 (amending 8 C.F.R. § 208.20(c)). Requiring a separate application in order to receive an EAD facilitates the administration of EAD issuance processes given INS' resource constraints, and is a permissible exercise of authority under section 103(a)(3) of the INA. To obtain an EAD, the regulations require asylees seeking to be employed in the United States to utilize this mechanism.

The provision at 8 C.F.R. § 274a.12(a)(5) specifically references the employment authorization documentation mechanism in two instances. Examination of these two instances is necessary to determine the scope of the EAD application requirement. The first instance is the establishment of the EAD application requirement itself. Second, 8 C.F.R. § 274a.12(a)(5) describes asylees as employment authorized, "as evidenced by an employment authorization document issued by the Service." Each of these references will be analyzed in turn.

With respect to the requirement to apply for an EAD, the plain language of this requirement simply directs asylees seeking employment on how they may obtain evidence of their employment authorization: by application rather than automatically upon receiving asylee status. For those seeking employment in the United States, the EAD has been chosen as the ideal document to provide asylees because it contains more than just the employment authorization endorsement required by section 208(c)(1)(B) of the INA; it also contains evidence of identity, the combination of which will enable the asylee to meet the documentation presentation requirements of the employment eligibility verification rules. See INA § 274A(b); 8 C.F.R. § 274a.2(b)(1)(A). The EAD is also a document that contains security features that make it tamper-resistant, which is a statutorily required consideration for the document to be acceptable to an employer pursuant to the rules in section 274A of the INA. See INA §§ 274A(b)(1)(B)(ii) and 274A(b)(1)(E).

Aside from the EAD provision in 8 C.F.R. § 274a.12(a)(5) for those seeking employment, the INS issues to asylees the Form I-94, Arrival/Departure Record indicating asylee status, which can be used as evidence of employment authorization.[7] See 8 C.F.R. § 208.20(c) (employment authorization of derivative asylees); see also Procedures Manual, International Affairs, p.125-6 (Jan. 18, 2000) (providing for the issuance of Form I-94 indicating asylee status in the case of asylum grant by INS). Thus, the application requirement in 8 C.F.R. § 274a.12(a)(5) is only triggered where an asylee seeking to be employed wishes to obtain a document evidencing his or her employment authorization issued by the INS pursuant to 8 C.F.R. § 274a.13(a). The requirement in 8 C.F.R. § 274a.12(a)(5) to file an application for an EAD is a direction for asylees on how to obtain evidence of their employment authorization for obtaining employment in the United States and is not a condition of their employment authorization.

The phrase in 8 C.F.R. § 274a.12(a)(5) that lists asylees as employment authorized, "as evidenced by an employment authorization document issued by the Service," has often been the source of confusion or misunderstanding, and is pointed to as further evidence that an asylee must apply for employment authorization. Two interpretations of this phrase are conceivable.

First, the phrase could be read to mean that an asylee is employment authorized only when in possession of an employment authorization document. After all, section 274a.12(a) of the regulations sets forth the list of classes of aliens with employment authorization incident to status, and the phrase "as evidenced by . . ." is tacked on to the end of each alien class listed. Thus, the phrase could be viewed as a condition of employment authorization.

Second, the phrase could be interpreted as referring to the document of choice that the INS will issue to asylees, rather than a condition of employment authorization. Asylees then would be employment authorized with or without obtaining an EAD. Under this interpretation, the phrase is merely a reference to the EAD application process stated earlier in § 274a.12(a) so that paragraph (a) of § 274a.12 and subparagraph (a)(5) would contain the same two points: employment authorization and evidence of employment authorization.

Given that in paragraph (a) of § 274a.12, asylees are stated as being employment authorized without condition as a result of obtaining their status, espousing the first interpretation would read this language out of the regulations. Therefore, the first interpretation is not an acceptable construction of the provision. Paragraph (a) and subparagraph (a)(5) must be read to give effect to both paragraphs. The second interpretation successfully accomplishes this goal. It is in keeping with the spirit of the statutory and regulatory framework by providing for automatic employment authorization for asylees, and then to provide for how INS will evidence this employment authorization.

This point is made clearer when applying the second interpretation to a class of aliens that is not subject to the EAD process. For example, lawful permanent residents, who are listed in 8 C.F.R. § 274a.12(a) along with asylees as employment authorized incident to status, are issued the Form I-551 by the Service to evidence their employment authorization. The absence of a Form I-551 does not mean that the lawful permanent resident is not employment authorized, for such authorization is one of the direct benefits given to lawful permanent residents upon attaining that status. See INA §§ 274A(b)(1)(B) & 274A(h)(3); see also Loa-Herrera v. Trominski, 231 F.2d 984, 988 (5th Cir. 2000); Kossov v. Perryman, 2002 WL 849610 (May 1, 2002). Yet, 8 C.F.R. § 274a.12(a)(1) also joins lawful permanent residents and Form I-551 with the phrase, "as evidenced by." Clearly, the phrase does not place a condition on receiving this benefit of the status.

Under the plain language of the regulations, then, failing to utilize the EAD application process results in nothing more than the asylee being employment authorized without an INS-issued EAD. Despite this plain language reading of the regulations, some statements made by INS would seem to support the first and more restrictive interpretation of the EAD language in 8 C.F.R. § 274a.12(a)(5). These statements, however, are flawed and, therefore, have little, if any, interpretive value. For example, in the Supplementary Information to the 1994 final rule amending 8 C.F.R. § 208.20, the following was expressed:[8]

The proposed amendments to section 208.20 are designed to ensure that asylees receive their EAD promptly upon application. They do not create new requirements or obstacles for asylees seeking authorization to work. Asylees are among the categories of persons who are eligible for employment incident to their status but must nevertheless apply for an employment authorization document. 8 CFR 274a.12(a)(5). Among others in this category are those aliens who are admitted as refugees, granted withholding of deportation, or granted Temporary Protected Status. Since authorization for employment is a discretionary immigrant benefit, the INS will continue to require that persons in these categories file a separate application for an EAD. Accordingly, this provision of the proposed rule will be retained in the final rule with an amendment for clarity. 59 Fed. Reg. 62284, 62296 (Dec. 5, 1994) (emphasis added). Upon analysis of the italicized portions of this paragraph, it is evident that a number of misstatements were made.

The first italicized statement from the above-quoted paragraph—"[t]hey do not create new requirements or obstacles for asylees seeking authorization to work"—incorrectly separates the granting of employment authorization from the status of asylee. Under 8 C.F.R. § 274a.12(a)(5), employment authorization is incident to status, so asylees will not be separately seeking work authorization from the INS; by operation of law (i.e., the regulations), they will already have such authorization upon becoming an asylee. This was properly explained in the Supplementary Information of the proposed rule. See 59 Fed. Reg. at 14780, 14783. The regulations at 8 C.F.R. § 274a.12(a)(5) do place a requirement on asylees, but that requirement has to do with asylees seeking evidence of employment authorization rather than employment authorization itself.

The second italicized statement from above, citing to 8 C.F.R. § 274a.12(a)(5)—"[a]sylees are among the categories of persons who are eligible for employment incident to their status but must nevertheless apply for an employment authorization document"—is also incorrect. Section 274a.12(a)(5) lists asylees not as aliens who are eligible for employment incident to their status, but, instead, as aliens who are authorized for employment incident to their status.

Finally, by characterizing the granting of employment authorization to asylees as discretionary, the third italicized statement from above—"[s]ince authorization for employment is a discretionary immigrant benefit"—is likewise incorrect. Because of the mandatory language in the statute, the Attorney General has no discretion to withhold employment authorization once an individual is granted asylum. See INA § 208(c)(1)(B).

Judicial review of this issue has been limited and generally is inapplicable to the particular question of asylee employment authorization. In Hernandez v. Reno, 91 F.3d 776 (5th Cir. 1997), the court interpreted statutory language similar to the directive in section 208(c)(1)(B) of the INA for the Attorney General to authorize employment and provide an employment authorization endorsement; however, this case involved the Family Unity Program. One of the issues in Hernandez was whether INS regulations at 8 C.F.R. § 274a.12(a) improperly require an alien to file separately for employment authorization and an employment authorization document under the Family Unity Program. Id. at 779. The court found that INS cannot require an eligible alien to apply separately. Id. at 780. The court added that INS' mandated separate application procedure in the regulations reads the statutory requirements that INS authorize employment and provide an employment authorized endorsement or other work permit out of the law. Id. The court failed to explain its conclusion, but limited it to the particular case that was before the court.[9] Id. at 781.

The court appears to have based its conclusion on a faulty premise—that the regulations require eligible aliens to apply for employment authorization. An eligible alien is not required to apply for employment authorization, but receives it automatically. The regulations, instead, require that evidence of this employment authorization be obtained by application to the INS. The regulation was properly promulgated under the Attorney General's authority in section 103(a)(3) of the INA to perform such acts as deemed necessary to carry out his authority under the INA. The authority supplied by section 103(a)(3) of the INA permits the Attorney General to institute procedures for providing the statutorily mandated employment authorization and employment authorization documentation. Because the court limited its holding to the particular case at bar, and based its decision on faulty premises, the court's decision has little to no authoritative value in the asylee context.

The case that comes closest to discussing the issue is Getahun v.OCAHO, 124 F.3d 591 (3d Cir. 1997). However, the court specifically left the issue unanswered. This litigation actually concerned an alleged violation of the prohibition against an employer's request to see more or different employment eligibility verification documents from an employee when completing the Form I-9. The Third Circuit considered the case upon appeal of the decision of the Office of the Chief Administrative Hearing Officer of the Executive Office for Immigration Review of the United States Department of Justice (OCAHO), which held, in part, that an asylee is employment authorized upon receiving such status, but the regulations at 8 C.F.R. § 274a.12(a) require the asylee to apply for and receive an EAD in order to be able to work in the United States. Getahun v. Merck, 6 OCAHO 880, at 6 (July 24, 1996). The Third Circuit disagreed. In dicta, the court stated that 8 C.F.R. § 208.20 (pre-1994 version) clearly provides for an automatic grant or continuation of employment authorization upon a grant of asylum.[10] Id. at 594-95. Because the asylee in Getahun already applied for a new EAD in accordance with 8 C.F.R. § 274a.12(a), the court did not further opine on the alien's contention that 8 C.F.R. 208.20, as it existed in 1991, provided employment authorization regardless of whether the asylee applied for a new EAD. However, the court stated that it found the alien's argument persuasive. Id. at 595. Though this discussion in Getahun was dicta, it does support the reading of the regulations advocated by this memorandum.

CONCLUSION

Section 208(c)(1)(B) of the INA clearly directs the Attorney General to authorize for employment in the United States those individuals who have been granted asylum. This provision also requires the Attorney General to provide to asylees an endorsement of this authorization. The Attorney General, through the INS, has complied with the first directive of section 208(c)(1)(B) of the INA by issuing regulations that provide for the automatic employment authorization of asylees upon attaining that status. The Attorney General has also complied with the second directive of section 208(c)(1)(B) of the INA by providing the EAD application process for asylees, which supplies evidence of employment authorization and identity that may be used standing alone to obtain employment. In addition, by policy directive, asylees are provided with the Form I-94 containing an endorsement of their work-authorized asylee status which, therefore, constitutes an endorsement of their work authorized status.

While it is our opinion that the current regulations properly implement the statutory directive to authorize employment to asylees and provide asylees with evidence of employment authorization, we recommend that the regulations nevertheless be amended to ensure greater consistency between sections 208, 274a.12, and 274a.13, and to clarify the confusion that appears to have developed both within the INS and among the public since the employment authorization regulations were first published. We also recommend the issuance of field guidance on the automatic employment authorization of asylees, INS-issued employment authorization documentation for asylees, and the documentation that can be presented to employers for satisfaction of the employment eligibility verification requirements of section 274A of the INA.

1 But see Hernandez v. Reno, 91 F.3d 776, 780 (5th Cir. 1997) (Family Unity case). The Hernandez case is discussed later in this memorandum.

2 On May 14, 2002, the President signed into law the Enhanced Border Security and Visa Entry Reform Act of 2002, which contains a provision pertaining to the Attorney General's obligation to issue evidence of employment authorization to asylees. This provision also applies to arriving refugees. It states:

3 Not later than 180 days after the date of enactment of this Act, the Attorney General shall ensure that, immediately upon the arrival in the United States of an individual admitted under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or immediately upon an alien being granted asylum under section 208 of such Act (8 U.S.C. 1158), the alien will be issued an employment authorization document. Such document shall, at a minimum, contain the fingerprint and photograph of such alien.

4 Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. Law No. 107-173, § 309 (2002). This provision removes some of the discretion the Attorney General had in section 208(c)(1)(B) of the INA with respect to the timing and contents of the employment authorization documentation issued to asylees. Because the regulations at 274a.12(a) address how the Attorney General will fulfill his statutory obligation to provide an employment authorization endorsement to asylees, this new provision does not invalidate these regulations.

5 For derivative asylees, the process is also described in 8 C.F.R. § 208.21, but with the added option of obtaining a Form I-94, Arrival/Departure Record indicating the alien's status as asylee.

6 Note that while 8 C.F.R. § 274a.12(a)(5) appears to refer to employment authorization document generally, 8 C.F.R. § 274a.13(a) clarifies that the document to which 8 C.F.R. § 274a.12(a)(5) is referring is the Employment Authorization Document (EAD). Because the issue in this opinion does not relate to the application process for obtaining evidence of employment authorization, 8 C.F.R. § 274a.13 will not be discussed in this memorandum. The EAD is more than an endorsement of employment authorization. Under 8 C.F.R. § 274a.2(b)(1)(v)(A), the EAD can be used by an asylee to establish both employment authorization and identity to an employer.

The regulations at 8 C.F.R. § 274a.12 list all of the classes of employment authorized aliens. The classes of employment authorized aliens are divided into three categories: those employment authorized incident to status; those employment authorized incident to status for a specific employer; and those who are eligible to request employment authorization from the Immigration and Naturalization Service (INS or Service). Asylees are listed in the first category of employment authorized alien classes.

The asylum regulations have metamorphosed since asylum reform in the mid-1990s. Prior to 1994, the asylum regulations provided:

When an alien's application for asylum is granted, he is granted asylum status for an indefinite period. Employment authorization is automatically granted or continued for persons granted asylum or withholding of deportation unless the alien is detained pending removal to a third country. Appropriate documentation showing employment authorization shall be provided by the INS.

8 C.F.R. § 208.20.

When 8 C.F.R. § 208.20 was revised in 1994, the language was replaced with a cross-reference to 8 C.F.R. § 274a.12(a)(5) and the requirement to apply to the INS for an EAD. 8 C.F.R. § 208.20 (1994) states: "An alien granted asylum and eligible derivative family members are authorized to be employed in the United States pursuant to §274a.12(a)(5) of this chapter and if intending to be employed, must apply to the INS for a document evidencing such authorization. The INS shall issue such document within 30 days of the receipt of the application therefor." In so doing, the regulations at 8 C.F.R. §§ 208.20 and § 274a.12(a)(5) paralleled each other by addressing the two requirements in section 208(c)(1)(B) of the INA: employment authorization and evidence of employment authorization. The reason given in the proposed rule revising 8 C.F.R. § 208.20 was to clarify that asylees will receive evidence of their employment authorization upon application to the INS, though asylees "will continue to be authorized immediately to be employed," as they had been in the past. See 59 Fed. Reg. 14779, 14780, 14783 (March 30, 1994).

 In March of 1997, general references to the employment authorization of asylees were removed from 8 C.F.R. § 208. See 62 Fed. Reg. 10337, 10344 (March 6, 1997). In a later amendment to 8 C.F.R. § 208, the provision returned, but only with respect to the spouse and children of asylees with approved Forms I-730, Refugee/Asylee Relative Petitions. See 63 Fed. Reg. 3792-01, 3796 (Jan. 27, 1998). This particular provision was again amended in 1999, but only to move this section from 8 C.F.R. § 208.19 back to 8 C.F.R. § 208.20. The current regulations at 8 C.F.R. § 208.20(c) state:

Employment will be authorized incident to status. To demonstrate employment authorization, the Service will issue a Form I-94, Arrival-Departure Record, which also reflects the derivative's current status as an asylee or the derivative may apply under § 274a.12(a) of this chapter, using Form I-765, Application for Employment Authorization, and a copy of the Form I-797.

This language was added to the regulations in 1998 without explanation. 63 Fed. Reg. 3792-01 (stating generally that the provisions relating to derivate spouses and children of both refugees and asylees were being clarified and made more consistent with each other). It echoes 8 C.F.R. § 274a.12(a)(5) in its statement that these asylees are employment authorized incident to status. However, it also goes further than 8 C.F.R. § 274a.12(a)(5) in that it provides for the automatic issuance of the Form I-94, Arrival/Departure Record, as evidence of employment authorization and status, while also referring to the EAD application process as another option for derivative asylees.

7 The Form I-94 is only endorsed with asylee status. Because an asylee is employment authorized incident to status, the asylee status endorsement also functions as an employment authorization endorsement.

8 This explanation was given in response to a commenter's challenge of the proposed EAD requirement.

9 Notwithstanding the limited scope of the decision, the INS merged its EAD application into the application for Family Unity Program in response to the lawsuit.

10 The pre-1994 version of 8 C.F.R. § 208.20 is quoted in footnote 5, supra.

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