USIA-Liaison Meeting 10/30/98

Members of the American Immigration Lawyers Association met with officials of the United States Information Agency on October 30th. Various aspects of the J-1 visa program were discussed. Greg Siskind, this publication's editor, serves on AILA's USIA liaison committee and attended the meeting and this report is based on his own notes, not the official minutes which have not yet been released.

Les Jin, the USIA's chief lawyer, opened up the session by announcing that Marcia Price has been promoted to the position of Waiver Branch Chief. She is charged with overseeing the USIA staff that reviews applications to waive the two year home residency requirement, a requirement applicable to many J-1 visa holders.

The first issue discussed at the meeting is the new legislation calling for the merging of the USIA into the Department of State within a year. The merger law was incorporated into the massive budget bill signed by the President last month. Within 60 days from the October signing date, a reorganization plan must be submitted to Congress and the President. The plan must be effective on the earlier of October 1, 1999 or earlier if President approves the plan. The USIA will be abolished and transferred to the State Department. The USIA's broadcasting arm will remain independent. No word has yet been received about whether the USIA's building will change. Les Jin did confirm that the USIA's name will go away.

Based on earlier formulated plans, Jin expects the USIA's Program Designation Branch to go to the State Department's Education Bureau and waivers will go to consular affairs.

Asked whether changes are going to happen in the way J cases work, Jin responded that nothing is apparent right now. But there may be more resources available to perform the agency's functions over time and that may mean better service.

A question was asked of Jin whether Program Designations will be an Office-level position at the State Department. The answer is not yet known. AILA asked whether it can push for office level and the USIA responded by stating that AILA should make its views known directly with E Bureau.

- Extension/reinstatement/transfer issues.

Proposed extension/transfer/reinstatement rule - A proposed extension/transfer/reinstatement rule that has been in the drafting stage was discussed. The USIA is considering suggested changes made by AILA and the National Association of Foreign Student Advisors. According to the USIA, the regulations will be in a "plain English" format and should be ready within a few weeks (though no guarantees were made). The rule will be issued as proposed rule instead of an interim rule.

Between January 1998 and October 20, 1998, the USIA received 500 requests for reinstatement. Most were approved. The denials that were issued tended to be in cases where the J-1 visa holder's objectives have changed, when he or she requested to go beyond maximum time of program. No statistics are kept regarding whether the reinstatements filed within 30 day grace period or not.

A question was raised whether one can transfer from one program to another without USIA intervention when the program category changes. The answer is no. You can approve reinstatement and change in category simultaneously.

- Program Designation Issues

Program designation adjudication time periods are taking longer now. Decision times have gone from three months to much longer. From May 1997 to May 1998, 154 new applications in all categories were submitted. 77 were approved. 5-10 were denied. 5-6 were sent back for information. The USIA official position is a 6 month turnaround. Realistically, however, many take longer. Budget ten months for the process.

The USIA is pushing for "work at home" overtime to help alleviate processing time problems in program designation cases. Two clerical positions have recently been filled and this may help. In the long term, the USIA expects to engage in a "re-engineering process" and will consider the possible elimination of certain functions and processes to save time.

The USIA noted several problems with program designation applications -

- The USIA's checklist to help people complete the application process is not always being used. It is on the USIA web site.

- Insurance policies have exclusions that don't cover programs. But they may exclude pre-existing conditions

- Training programs are not complete or are not being sufficiently described.

Delays have also been caused by program designators working with people to correct deficient applications. USIA will try and help correct problems if it thinks program is a good idea.

While statistics are not available, the USIA believes the overall approval rate has increased over the last few years.

The USIA addressed the issue of using outside entities to fulfill program sponsor obligations such as selecting participants, orienting participants or administering program. The USIA is concerned with one organization fronting for another. This is theoretically possible, but will be scrutinized more heavily.

- Program Redesignation Issues

Redesignations - 60 to 70 programs are being told to reapply based on 1993 regulations. Intent to cancel letters will be sent soon for programs the USIA considers "unviable." The USIA questions whether many of these programs are legitimate. Specific programs previously designated are being denied approval, some having been designated more than 30 years ago. According to the USIA, the programs must be canceled because there is no longer an appropriate category under the 1993 regulations. The USIA claims it "has bent over backwards" to find a slot for these old programs, but some just won't fit. Q visas are being suggested in some cases.

- ECFMG Issues

AILA asked what the basis is for the one year bar to come back in to the ECFMG program. AILA claims that regulations barring reentry in a J program for a year only apply to scholars. ECFMG claims that the USIA is telling them to apply to doctors as well. This was basically confirmed by Stanley Colvin of the USIA who noticed that a notice of policy will be published in the Federal Register regarding this issue. AILA requested that a notice of proposed rule making first be issued. The USIA does not appear to be interested in having any public input on the matter and said it will stick to the publication without comment position. But Les Jin did agree to let AILA preview the policy memorandum before publication. AILA commented that logic tells us that it is desirable to have doctors with both research and clinical experience and that the one year bar on reentering and switching programs is not in the public interest. The USIA did indicate that a clinical to clinical switch does not trigger the bar (e.g. clinical fellow) if new program is accredited clinical program. The USIA commented that all J-1 doctors in clinical programs must be in a clinical leading to board certification and all clinical work must be accredited.

AILA and the USIA discussed the designation of clinical programs for J-1 purposes. The USIA uses the "Green Book" from the Department of Health and Human Services as a guide. The USIA stated it does not have expertise to designate acceptable programs, but the Green Book provides for provisionally approved programs being allowed. The recognition of specialty boards is accepted and they accept correspondence from accrediting specialty boards in emerging specialization areas.

- Section 214(l) Change of Employer Issues

AILA noted to USIA that it is unhappy that the USIA has been notifying the INS when waiver physicians leave a position before three years have been completed. The INS appears to be reading the notice as an indication that the USIA will be revoking its waiver recommendation. AILA requested the USIA include a letter indicating the notice should not be construed as an intent to revoke a waiver and that a transfer of employers is permissible in certain cases of hardship. Marcia Price of the USIA stated that she had no problem with including such a letter, but the language on hardship would be troublesome.

AILA asked whether USIA would entertain a new waiver request if a physician was originally sponsored by an interested government agency and then seeks a hardship waiver. This might be the case if the physician has lost his or her job and is at risk of getting the waiver revoked. A new waiver based on hardship might be a way to avoid this problem. The USIA stated that it will not adjudicate a waiver a second time and that this would be an INS issue. But Les Jin indicated he would work with AILA to see if a compromise could be reached.

- Section 212(e) Waivers and O-1 Classification

AILA noted to the USIA that the Department of Veterans Affairs was not handling some waiver requests because it mistakenly believed that only facilities in underserved areas were eligible for waivers. The USIA reported that Dr. Toni Mitchell at DVA is now satisfied and is not denying applications anymore just because a VA facility is not in Health Professional Shortage Area or a Medically Underserved Area. The DVA also now recognizes that waivers can be for positions other than those relating to primary care.

O-1 issues. AILA noted a problem with some states giving licensing problems to physicians subject to the J-1 home residency requirement reentering the US on O-1 visas. This is perfectly legal and the states are misinterpreting the law. The USIA indicated that it will send a letter to the New York Department of Health and any other states that AILA tells the USIA are giving doctors such problems.

- Hardship/Persecution Waivers

The USIA indicated that physician hardship waiver requests should NOT present as a factor that the person is over-trained to work in the home country. This will actually be perceived negatively, not favorably since the physician presumably should have known about the job market in the home country at the time of coming to the US.

AILA questioned the USIA over its perfunctory denials of hardship waiver cases due to "Program and policy considerations" even after the INS has recommended a waiver approval. AILA questioned the USIA on the fact that cases from the same countries with very similar facts were now being denied. AILA inquired whether the USIA was now applying tougher standards. The USIA indicated that in the particular case raised by AILA, there was a substantial improvement in the conditions in the home country and the hardship was no longer as severe..

AILA asked whether there was a backlog in approving hardship cases. The USIA indicated that there is no backlog per se. They are down one officer and two new officers being trained. The USIA should be back on track soon. 120 days is the normal processing time, but difficult cases may take longer.

AILA asked whether the USIA would automatically approve cases where the INS recommended a waiver and no government funds were involved. The USIA told AILA to forget it.

AILA asked the USIA how it determines country conditions when it reviews hardship cases. The USIA indicated that it uses a wide variety of sources. All hardship cases with medical arguments are being sent to the applicant's state department of health for their opinion.

- Home Residence Requirement Compliance

AILA asked the USIA whether nationals of the People's Republic of China can satisfy the home residency requirement in Hong Kong. The USIA indicated that the State Department's guidelines would govern here. A similar issue was raised with respect to the Former Soviet Union and Yugoslavia. If you are technically a citizen of one country, but in the ethnic group of another, where can you satisfy the home residency requirement. For example, if you are a Russian born in Latvia to Russian parents, can you satisfy the home residency requirement in Russia where you have all of your family and cultural ties. The current policy would seem to dictate that the requirement be satisfied in Latvia. Les Jin indicated that he personally disagreed with this (though he has not indicated he will do anything about this). AILA indicated that it wishes to discuss the matter further with USIA.

Communication Issues

AILA asked whether USIA officers will communicate via e-mail with lawyers and the public. The USIA indicated that e-mail not being encouraged now for fear of overload on officers.

AILA/INS Headquarters Meeting

AILA met with high-ranking INS officials in Washington on September 24th. The main issue on the agenda was the implementation of the new Immigrant Services Division within the Office of Field Operations. The INS indicated to AILA that customer service is chief on the mind of the agency and that the reorganization will result in more consistent and efficient service.

The new ISD will be charged with everything having to do with INS field services, a new national telephone system for the public, and improving consistency at the INS District level.

The INS warned that problems could be expected during the transition and the INS was unwilling to make any pledges or commitments about the benefits that can be expected.

AILA criticized the INS over Operation Last Call in Texas. Readers of this newsletter may recall from our September issue that this involved the round up and placement if deportation proceedings of hundreds of green card holders with drunk driving convictions. The INS is claiming these individuals are aggravated felons subject to deportation. The INS defended the operation as legitimate, but admitted it was not handled perfectly. The INS asked AILA to help in composing guidelines to cover these cases.

The INS indicated that it is working on regulations governing Section 245i and that it will issue a memorandum in advance. The memorandum and regulations will provide clarification on matters such as grandfathering, substituting of beneficiaries and new spouses.

AILA also requested that the INS begin processing DV cases at the beginning of the fiscal year or earlier even if no numbers are currently available in the State Department Visa Bulletin.

AILA/INS Immigrant Services Division Meeting - 11/5/98

INS Service Centers are frequently requesting information from US Consulates in India to verify education and experience credentials in certain H-1B cases. AILA reports that turn-around times vary from as little as a week to as long as ten weeks in unusual cases. The average response time is 30 to 45 days.

AILA reports that the Vermont Service Center received a substantial number of applications on Saturday, October 10, 1998 just before the INS fee increase went into effect. The VSC rejected the cases claiming the fee was incorrect. The VSC admitted this was an error and that the proper date to determine the fee is the date of physically delivery, not the filing date. For example, H-1B petitions received on any day up to November 30, 1998 do not need to have the $500 fee, but applications physically received after that date must contain the additional fee. The VSC is willing to remedy problems and the minutes outline special procedures for AILA members to follow to remedy the problem.

AILA/INS Immigrant Services Division Meeting - 11/19/98

AILA complained about the wide disparity in INS Service Center processing times. The INS indicated that it was performing a study to help prioritize and establish uniform processing time standards for the four service centers. The INS would like to establish uniform times for the following case types: I-129, I-130 (Immediate Relative), I-765, I-485 (aging-out only), I-730, I-131, I-539 (on a seasonal basis), I-140, I-751 (non-interview). The INS expects to announce uniform standards by the end of the year, though no timelines for compliance were noted.

The INS reported that it will have a new version of its software in place by the end of this month and should be able to handle the new $500 H-1B filing fee.

The INS announced that its CLAIMS software will be Y2K compliant by January 1, 1999.

AILA/Executive Office for Immigration Review - 11/5/98

The EOIR reports receiving several hundred comments on its proposed Rules of Professional Responsibility for attorneys published earlier this year. In response, a number of changes have been incorporated and final rules will soon be sent to the Attorney General for her review and approval. AILA expressed concern that the proposed rules do not cover INS trial attorneys and there is no stated duty of zealous representation. AILA is concerned that the rules will have a "chilling effect on aggressive advocacy." EOIR assured AILA the final rules will address the latter issue. As for trial attorneys, they will be covered in rules implementing the contempt powers of the Immigration Judges. Those rules are in draft stage.

The EOIR circulated a memo to twenty-five immigration judges asking them what were the top complaints they have about immigration lawyers. The number one complaint is lack of preparation. One judge found that attorneys sometimes do not appear to have done any advance preparation and seem to be doing an initial client interview during the direct examination of the client in front of the Immigration Judge.

AILA members reported that several clerk offices are having problems logging in appeals and requests for additional time for briefs in a timely manner even though the applications were submitted on time. EOIR asked AILA members to report these problems immediately to the Office of the Clerk, 703-605-1007 or call Neil Miller at 703-305-0287.

AILA/State Department Visa Office - October 30, 1998

AILA complained that some consular posts have an inflexible rule that the INS hard copy of both L and H petitions be received by the consulate before a visa will be issued. AILA asked DOS to name which posts require this so that AILA members could warn clients about potential delays. DOS noted that many high fraud posts will require this in all "suspect" H-1B cases, but to their knowledge, only Manila has a policy of requiring both L and H petitions in all cases.

The DOS has advised that the comment period for the proposed new OF-156 form has passed and that the new form will soon be distributed to consular posts and to the public.

AILA asked the DOS to comment on H.R. 4539, a bill that would create a new court to review consular decisions. The DOS is firmly opposed stating

"Although the VO was not asked by Congress to comment on H.R. 4539 after it was introduced, AILA should be aware that VO has consistently opposed all forms of this bill as unnecessary, too costly and too time-consuming. We believe that the current requirement for review by a supervisory consular officer of a visa denial and the opportunity through counsel or on one's own to obtain an advisory opinion from the Department provides sufficient relief to the applicant."

[Editor's note: The DOS position is not surprising. Consular posts have basically unfettered discretion to deny cases and getting an advisory opinion from Washington (which are not binding on consular officers) is unreliable at best. H.R. 4539 would finally introduce an independent judge to ensure that the State Department complies with the law. Virtually every other administrative agency has the same setup.]

The DOS will add comprehensive notes to the Foreign Affairs Manual in the next few months incorporating previous guidance memoranda on the subject of the unlawful presence reentry bars.

DOS has made a special e-mail address available for AILA members needing assistance. That e-mail address is available on the AILA Infonet on the web in the AILA/DOS minutes for October 30th.

AILA/INS General Counsel 9/25/98

Though this meeting occurred two months ago, the minutes have only recently been released.

The INS agrees that with respect to INA Section 245i, after-acquired spouses of grandfathered aliens who are accompanying or following to join grandfathered aliens are eligible to adjust status. The INS current policy on persons who have withdrawn or had a denial of a labor certification petition filed by January 14th is that such persons on not grandfathered. The INS is considering changing this policy based on AILA's brief on the subject. They expect to issue a guidance memorandum on the subject soon.

The INS indicated that where people file extensions for employment authorization documents in a timely manner, the EAD cards will be dated back to the expiration date of the previous EAD card in order to avoid an employment gap. This policy will be put in writing.

The INS defended the Matter of Izumi decision which says the INS is not bound by opinions of the INS General Counsel or written statements of policies from officials in authoritative positions at the INS.

The INS may parole in an alien into the US for public interest or for humanitarian reasons. As long as the alien complies with the terms of the parole, no time will accumulate to trigger the three and ten year re-entry bars.

A person with a bona fide asylum application does not accumulate time toward the 3 and 10 year reentry bars while the application is pending. If an asylum application was filed many years ago, the application was denied and an Order to Show Cause or Notice to Appear was not served or filed with the court, the INS MAY accept AILA's position that the alien is still protected from the bars until the alien can renew the application with the judge. The INS is still considering this.