Over the past several months, we have reported on possible policy changes by the Immigration and Naturalization Service in the handling of Iranian employment-based nonimmigrant and immigrant visa cases. The INS indicated that it might revoke certain visas or deny extensions for Iranians.

In our September report, we asked readers to let us know if they had specific information to confirm an INS change in policy. Recently a reader sent us a denial letter for a case involving an application to change from a student to an H-1B professional worker's visa. The case was denied in the late spring. The language of the denial was as follows:

"On January 15, 1998, the Office of General Counsel, Immigration & Naturalization Service, issued a policy memorandum. The policy memorandum titled "Prohibition on employment-based immigration from Iran" is signed by Acting General Counsel, Lori L. Scialabba. The memorandum outlines restrictions limiting the approval of certain employment based petitions for Iranian nationals. Those limitations are outlined below. The basis for these limitations is Executive Order 12,959,60 issued by the President of the United States in 1995. The trade sanction regulations are codified at 31 Code of Federal Regulations, Part 560.

Executive Order 12,959 prohibits "the importation into the United States...of any goods or services of Iranian origin." E.O. 12,959 also prohibits "any transaction...by a United States person relating to... services of Iranian origin." Furthermore, the President of the United States directed all Executive agencies "to take all appropriate measures within their authority to carry out the provisions." E.O. 12,959, 3, of the Iran trade sanctions.

The Office of Foreign Assets Control, United States Department of Treasury (OFAC) has reviewed the executive order and OFAC found that an employer in the United States may not lawfully make a binding offer of employment to an Iranian national residing in Iran.

It follows from this finding that the Service has determined employment-based immigrant or nonimmigrant visa petitions filed by United States employers on behalf of Iranian nationals residing in Iran must be denied in compliance with the executive order. Additionally, the Service find that Iranian nationals presently in the United States in nonimmigrant classifications that specifically require the maintenance of a foreign residence must also be denied in compliance with the executive order.

It has been determined that the petition in question is an employment based which seeks to employ an Iranian national. Additionally, if it is found that the beneficiary's residence or foreign residence requirements make the petition subject to the executive order outlined above.

Therefore, this petition must be denied based on Executive Order 12,959."

The denial appears to contradict earlier INS assertions from INS officials that there is no bar to Iranian citizens not physically residing in Iran from applying for extension of status, change of status or adjustment of status to an employment-based visa. Specifically, the INS told the American Immigration Lawyers Association that in the case of a student switching status to H-1B status, there would be no bar unless the student was residing in Iran in fact. That was not the case in the above example. Whether this is an isolated case or not has yet to be determined. Readers who are aware of other similar cases are encouraged to inform us by sending e-mail to gsiskind@visalaw.com.

In related news, the organization Iranians for International Cooperation is seeking grassroots support to urge INS not to take an overly restrictive approach in its interpretation of the sanctions requirements. On the group's web site at http://www.iic.org, readers can find a sample letter to Congress to let Congressional representatives to let them know they are unhappy about the current situation.