Last month we posted a very brief article at the end of our newsletter simply stating the following:

"Directors of the INS Service Centers have confirmed to the American Immigration Lawyers Association that they intend to revoke previously approved employment-based immigrant or nonimmigrant visa petitions that would not be approvable under Executive Order 12959. The Service Centers have also indicated that they will deny nonimmigrant extension applications submitted by Iranians in those nonimmigrant categories requiring maintenance of a foreign residence. The Executive Order outlines a boycott on Iranian goods as well as services. The issuance of employment-based nonimmigrant visas to Iranian nationals is considered to be a violation of the rule. If any readers get a revocation notice from the INS, please let me know by e-mailing me at gsiskind@visalaw.com."

In the last month, we have received more feedback from this one paragraph than perhaps any other article ever written in this publication's history. The Iranian Sanctions are particularly harsh and, understandably, developments in this area make many people nervous. The range of interpretation of this article has varied widely and we should have provided more analysis to put the statements in context. To address this concern, we are now addressing the matter further Also, on the Siskind, Susser, Haas & Devine web site at http://www.visalaw.com/docs we have posted a number of key primary source documents relating to Iranian sanctions rules.

Special thanks go to Jan Pederson (http://www.ilw.com/pederson.html) who wrote an excellent article on this subject in the May 1998 issue of the AILA Monthly Mailing and who provided me with very helpful information when we spoke recently on this subject.

The economic boycott against Iran stems from two Executive Orders - one signed by President Reagan 11 years ago and one signed by President Clinton in 1995. The Clinton Order prohibits "the importation into the United States ... of any goods or services of Iranian origin." The issue of what constitutes the importation of services has, unfortunately, been interpreted differently by the INS, State Department and Office of Foreign Assets Control, the agency administering the sanctions and the agency that INS and the State Department are supposed to be following on this issue. OFAC has not stated much on this question except for a short policy statement in a July 29, 1997 letter from OFAC to the Secretary of State. Specifically, that letter states that "it is unlawful for a prospective U.S. employer to issue a binding offer of U.S. employment to an Iranian resident in Iran or to advance funds for him to enter for that purpose, as such actions would constitute an unlawful importation (or attempted importation) of Iranian-origin services into the United States."

The OFAC letter also carves out a huge exception for persons in the United States. It reads:

"That section [of the Iranian Trade Regulations] excludes from the definition of the term "goods or services of Iranian origin" any services provided in the United States by an Iranian national "resident in the United States." As a result of that definition, it is not a violation of the prohibition on importing Iranian- origin services to offer employment to an Iranian national once that person is resident in the United States. By "resident," we mean any Iranian national living in the United States, irrespective of whether the Iranian national is a U.S. permanent resident alien or a temporary resident. Further, if the U.S. employer of an Iranian national resident in the United States has not caused or arranged with others for that person to enter the United States from Iran to work, it is not a violation of the ITR for the U.S. employer to hire the Iranian national."

Aside from the general philosophical question of whether sanctions are good or bad, there is a serious problem with differing interpretations of the OFAC letter's use of the term "resident." The INS and the State Department have taken opposite approaches.

The INS has taken the more liberal view. Pearl Chang of INS Headquarters met with AILA representatives in April and clearly indicated that the INS view is that sanctions only apply to Iranian citizens physically residing in Iran. There would be no bar, for example, to someone changing from F-1 status to H-1B status as long as the applicant is not "residing in Iran" in fact. This is a clarification of an INS General Counsel Memorandum issued in January on the subject.

The State Department has taken a much more restrictive view on the subject. Rather than focus on whether an applicant is "residing" in Iran, the State Department asks whether the applicant is "resident" in Iran. This means that people physically residing in the US but who are here on visas requiring maintenance of a foreign residence are subject to the sanctions. A State Department cable on the matter states the following:

"It would be a violation for a U.S. employer to offer employment to an

Iranian national in valid nonimmigrant status in the U.S. who, by definition of his or her immigration status, must have an unabandoned residence abroad (B, F, I, H, M). Hence, Iranians who were recently in the U.S. in one of these valid nonimmigrant categories cannot be considered resident in the U.S. This does not include those Iranians already in the U.S. in a nonimmigrant category that does not require an unabandoned residence abroad by definition (H-1, L-1, C, D, E, G, R, S NIV Immigration status or parole)."

The State Department interpretation means that certain Iranians in the US in categories requiring an unabandoned residence abroad could be held subject to the sanctions if they leave the country. This would also cover people who may have changed to another category like an H-1B visa if they were previously in one of the restricted visa categories. People could very well find themselves unable to get back into the US.

The State Department also has discussed the issue of whether an Iranian resident in a third country may still be subject to the sanctions. It looks to the Immigration and Nationality Act's definition of "residence" which is defined as a "place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." Consular officers are to look to the totality of the circumstances so expect to be questioned on whether the person has, in fact, taken up residence in that country as opposed to simply obtaining a legal right to residence in a third country and whether they have family and financial ties to the third country.

So what about the INS statement to AILA reported in our last issue? Has the INS changed its policy somehow? All indications are that the INS has not changed its policy and is, in fact, only revoking visas and denying extensions for a very limited number of people that should have been denied visas because they were residing in Iran at the time the visa was approved. Because the State Department would presumably have denied issuing the visa stamp to enter the US, only a very small number of people should be affected. Calls to AILA and NAFSA confirm this and neither organization is reporting any revocations and visa extension denials. We also called on our readers to let us know of specific examples of revocations or denials and none of you have responded. Should this change, we will try and let readers know quickly.

That is not to say that there is not a serious problem. Many Iranians in the US are, in essence, trapped here. If they leave the country, they will be barred from returning. In some cases, they cannot become permanent residents because they have status violations and are ineligible for Section 245i of the Immigration and Nationality Act. And they cannot process their green cards at US consulates abroad because they could become subject to the sanctions.

So the good news is that there does not appear to be a new crisis. On the other hand, the State Department's overly restrictive interpretation is causing a genuine hardship and it needs to be remedied. Part of the solution will lie in the American Iranian community making its voice heard on the subject. Our firm has already been in contact with several such groups to discuss potential action that can be taken and as news develops on this front, we will, of course, inform readers.