FROM THE CANADIAN OFFICE

****This month, we are pleased to add this new feature to our Web site. With the addition of our firm's Toronto, Canada office, we now are fortunate enough to have Henry Chang, a distinguished Canadian immigration practitioner, contributing this column as well as other articles to Siskind's Immigration Bulletin. The Canadian home page is http://americanlaw.com/. Mr. Chang can be reached by e-mail at hchang@fox.nstn.ca or 416-362-6632.****

Automatic Extension of Expired Iranian Visas

Recently, an Iranian foreign medical graduate in the United States under J-1 for post graduate medical training travelled to Canada for one week and then sought re-admission to the United States pursuant to 22 CFR S. 41.112(d). Prior to leaving the United States, he called the Immigration and Naturalization Service and was told that he would be permitted to re-enter if he travelled to Canada for 30 days or less.

22 CFR S. 41.112(d) provides for the automatic extension of expired visas at a port of entry after a trip not exceeding 30 days solely to contiguous territory (Canada or Mexico). Iranian visas are only good for one entry but the term "expired visa" for the purpose of this section includes a visa which is not longer valid because the visa holder has used up the permitted number of entries. The regulation also permits converstion of the expired visa to the appropriate category where the alien has changed status since his or her initial entry.

The Iranian originally entered under a B-2 visitor visa and then switched to J-1 status within the United States. He had maintained status since his original entry. He had also complied with all of the requirements of 22 CFR S. 41.112(d). However, the Iranian was refused on the basis that Iranian visas did not automatically extend. The Iranian was instead told to apply at the U.S. consulate for a new visa.

22 CFR S. 41.112(d)(3) specifically states that it does not apply to nationals of Iraq. However, there is no reference to Iranians being denied the benefit of this provision. The port of entry which denied him would give not give a legal authority for their position. They simply responded by saying that they were sure Iranian visas did not automatically extend.

As a result of the Iranian hostage crisis, there was extensive regulation of Iranian nonimmigrant visas starting including a provision directing the automatic revocation of Iranian visas unless subsequently endorsed by a consular officer (22 CFR 46.8 -- rescinded in 1980) . Although a cancelled visa would probably not be eligible for automatic extension, the Iranian foreign medical graduate did not have his visa canceled prior to seeking re-entry from Canada. As far as I could tell, there was no current provision directing the cancellation of Iranian visas; they were simply one entry visas.

I discovered an obscure reference to a Department of State Cable to the INS dated October 21, 1991 which instructs that if Iranians "are found admissible admit the individuals prior to canceling (sic) the Visa". Therefore, the Iranian doctor should have been permitted one automatic revalidation of his visa under 22 CFR S. 41.112(d) and then the INS could have cancelled his visa. Once again the port of entry had made a mistake.

However, the Iranian foreign medical graduate wanted to avoid conflict so he went to the U.S. consulate for a new visa. Because I did not have an opportunity to confront the port of entry, this issue is certain to arise in the future. Iranians nationals holding U.S. visas who are planning on travelling to Canada (or Mexico) should be aware of this problem.

Clarification of the Term "Employed" for L-1 Eligibility

In a recent exchange of correspondence between an AILA lawyer and Yvonne M. LaFleur, Chief of the Nonimmigrant Branch at the INS Office of Adjudications, the INS confirmed that the requirement of an L-1 alien being "employed" abroad by a parent, subsidiary, branch office or affiliate of the petitioner is not limited to workers actually on the company's payroll.

The lawyer used the example of an employee who had no other employment and who devoted his full time and attention to the management of his employer's business enterprise. He received complete direction and assignments from executives of the employer and was subject to their control at all times. It was intended that the individual be an employee and he was treated as such for all purposes by the employer.

Ms. LaFleur confirmed that the "alien in question may apply for admission as an intracompany transferee if all of the criteria for L-1 classification are met, including having been "employed" by the foreign organization continuously for at least one year in the three years preceding the application for admission to the U.S.."

Workers abroad who are treated as de facto employees by their employers now appear to be eligible for L-1status provided that they can establish that their relationship to the foreign parent, subsidiary, branch or affiliate is one of employer-employee. However, it is recommended that such workers retain the services of a legal representative, as many ports of entry may not be applying the law correctly.