Members of the American Immigration Lawyers Association held a teleconference with representatives of the Immigration and Naturalization Service's headquarters on January 8th.  

- New law and status violations

AILA asked the INS to clarify whether J-1 and F-1 visa holders with D/S (duration of status) designations on their passports are considered to be in unlawful status for purposes of the new three and ten year bars as well as the bar on processing non-immigrant visas at consulates other than home country consulates when an applicant has ever overstayed a non-immigrant visa. The INS has agreed with AILA that unless a person has been determined to be out of status by the INS or an Immigration Judge, than the person is not considered out of status for purposes of the bars.

The INS also indicated that it is likely to take the position an alien who applies for an extension of non-immigrant status but who leaves before the application is approved will not be deemed to have violated status for purposes of the three and ten year bars but will be subject to provisions that bar consular processing outside of the alien's home country.

- Affidavits of Support 

AILA asked INS how it intended to interpret a provision of the new law that says that an Affidavit of Support can only be issued by a citizen or permanent resident living in the US. This effectively means that citizens living abroad cannot apply for relatives to become permanent residents. The INS agreed that this is an unfortunate result, but that its hands are bound by the statute. The INS noted that it understands that the State Department will request that Congress approve a technical amendment to fix the problem.

- DV-98

AILA complained that some INS offices are not expediting DV-98 cases even though the failure to expedite could mean these applications are ultimately denied. INS headquarters indicated that it intends to issue a Field Memorandum shortly urging local offices to prioritize these cases.

- New fingerprint rules

The INS has just opened 55 fingerprint facilities and additional sites are opening every week. The INS has provided AILA with a hotline to telephone reports of problems. AILA members reading this newsletter can contact Greg Siskind at gsiskind@visalaw.com to be supplied with this phone number. The INS claims that within a few months, 92% of the public will have a fingerprint center available within 25 miles of their home.

AILA noted that the new policy of requiring adjustment of status applicants to submit fingerprint cards taken by Law Enforcement Agencies at the time of applying is problematic. Some police stations are requiring persons to be local residents, to have driver's licenses issued in that state, etc. There have been many reports of persons having only one or two places in their entire state where they can get their fingerprints taken. AILA requested that the new INS fingerprint centers also issue fingerprint cards in permanent residency cases. The INS has indicated it is examining the issue.

- INS backlogs

In September, AILA suggested to INS that it allow applicants to file at any of the INS Service Centers rather than the center with jurisdiction. The purpose of this change would be to reduce long backlogs at some locations. The INS has rejected this proposal. The agency does not want to create a situation where Center Directors are competing for application receipts in order to increase their funding.

- Qualifications for EB-2 status

AILA sought clarification that one can qualify for EB-2 permanent residency status by holding either a degree above that of a bachelor's degree or by having a bachelor's degree with at least five years of progressive experience in the specialty occupation. Apparently, the Nebraska Service Center has been taking the position that only an advanced degree is acceptable, not a bachelor's plus experience. INS headquarters agreed with AILA and will contact the Nebraska Service Center soon to correct the problem.

- Incorrect information on approval notices

AILA pointed out that getting incorrect data corrected on INS approval notices is extremely slow and frustrating. INS headquarters stated that the applicants should request correction at the time receipt notices are generated. AILA noted that this is impractical as INS has a terrible record in matching requests to change data to the actual files in time to do anything in time. INS agreed and says it will consider the issue.

- TN Visas and US-Mexican border

AILA reported that some inspectors are refusing to issue Canadians TN visas at the southern border. Some applicants are being told to file applications with the INS Nebraska Service Center. INS agreed that this is incorrect and will work to correct the matter.