Visa Application Fee Increase

The Department of State is raising the visa application fee for nonimmigrants from $45 to $65, effective June 1, 2002. The State Department is required by Federal regulations and law to recover the costs of most consular services through user fees. According to the Department, the new fees are essential to maintaining and improving high quality customer service while at the same time taking advantage of IT advances and security enhancements related to homeland security. The change in fees is global and will affect American consular offices in every nation. Applications submitted on or after June 1 that contain less than the $65 fee will be returned with no action being taken on them.

Other changes include the following:

· Nonimmigrants wishing to enter the U.S. must now submit Form DS-156, as opposed to the previously used Form OF-156.
· All male applicants between the ages of 16 and 45 must complete and submit Form DS-157.

Applications will only be accepted by mail, and should be sent by courier envelope and contain another envelope for return of the visa and supporting materials. Beneficiaries and dependents of approved visa candidates must submit evidence that the candidate’s petition has been approved.

Two exceptions to the new fee may apply to some nonimmigrants:

· Additional reciprocity fees (based on amounts charged by the applicant’s nation to U.S. citizens applying for visas) may apply. Please check the Department of State’s web site [http://travel.state.gov] for a full and updated list of reciprocity fees.
· Candidates whose nations are part of the Visa Waiver Program may be able to visit the U.S. for business or tourism purposes for up to 90 days without a visa.

INS Proposes New Rule to Streamline Reporting of Information for Foreign and Exchange Students

The Immigration and Naturalization Service (INS) has released a proposed rule detailing changes in regulation for F, J and M visa holders. The proposed rule will implement a new INS system to track the status of foreign students called the Student and Exchange Visitor Information System (SEVIS). SEVIS will provide designated school officials an easy-to-use method to electronically report required information about foreign students. This change in INS procedure, aimed at improving the record keeping and tracking of F, J and M nonimmigrants, also includes measures to strengthen accountability and create “reasonable and clear standards governing the maintenance, extension and reinstatement of student status.”

In 1996, INS passed the Illegal Immigration Reform and Immigrant Responsibility Act. Section 641of the Act directly called for a program to “collect current information, on an ongoing basis, from schools and exchange programs relating to nonimmigrant foreign students and exchange aliens during the course of their stay in the United States, using electronic reporting technology to the fullest extent practicable.” Designed as an internet-based system that enables access to the most current, accurate information on foreign students, exchange aliens and their spouses and dependents, SEVIS represents an attempt to respond to this directive. Schools and exchange programs will be able to utilize SEVIS to electronically transmit information and event notification to the INS and Department of State for the entirety of a student’s residence in the U.S.

According to the new rule, Forms I-20 (for F-1 and M-1 students) and DS-2019 (for J-1 exchange aliens) can be entered and submitted to INS via the internet, cutting down on the paper trail and ensuring up-to-date and accurate data. Participation with SEVIS will be voluntary starting on July 1, 2002. However, as of January 30, 2003, participation will be required of all schools and exchange visitor programs enrolling nonimmigrants. As of January 30, 2003, students and exchange aliens will only be able to use Forms I-20 and DS-2019 for entry into the U.S., change of nonimmigrant classification, reinstatement, transfer, extension or any other immigration benefit.

INS is soliciting comments from schools regarding the amount of time necessary to convert to the SEVIS system. Written comments should be submitted to INS by June 17, 2002.

DOL PUBLISHES PROPOSED RULE TO SIMPLIFY LABOR CERTIFICATION

On May 6, 2002, the US Department of Labor (DOL) published a proposed rule to simplify the foreign labor certification process.

The proposed rule is designed to streamline the labor certification process, which has been lengthy, complicated and labor-intensive for both employers and the government. Under the current system, government backlog can force employers to wait up to four years for labor certification approval. Even cases filed under the Reduction in Recruitment (RIR) process – created by the DOL to speed up labor certification – are taking over one year because of an increased case load over the past several months, as well as the fact that the system requires review by both a state agency (now referred to as State Workforce Agencies, or “SWAs”) and the Federal regional counterpart.

Under the proposed system, employers will submit applications directly to an Employment and Training Administration (ETA) application processing center at the US DOL after they have obtained a prevailing wage determination from the applicable SWA. Employers will no longer be required to submit evidence of recruitment efforts in each case. Instead, they will simply attest that they have complied with all mandated recruitment efforts and be required to maintain records of their recruitment in the event of a DOL audit. The automated process will review applications based on certain predetermined selection criteria. Applications with problems will be flagged during the automated process for further review and/or audit. Some applications, regardless of criteria, will be marked for review to ensure a correct flow of automation. For applications not audited or reviewed, the process can be completed in approximately three weeks, according to DOL officials.

Employers whose applications are audited and/or reviewed must submit documentation that verifies the information included in the application. The DOL will then either certify or deny the application, or request supervised recruitment. Employers whose applications are denied will be given the opportunity to appeal the decision.

The proposal will not take effect until after the DOL receives and incorporates public comments. Written comments may be submitted to the DOL up to July 5, 2002.

INS Delays Are Expected to Increase

Security Check and Zero Tolerance Policies Will Make Visa Approval Process Slower and More Difficult. In the course of an April 17, 2002 conference call between the American Immigration Lawyers Association and the Vermont Service Center (VSC) of the Immigration and Naturalization Service (INS), it was disclosed that all cases must now undergo a security check which is expected to significantly delay the approval process.

Vermont Service Center (VSC) management indicated that as of April 17, there were approximately 40,000 cases at the VSC that required security clearance before a final decision could be rendered. Similar backlogs likely exist at INS’s other Service Centers in California, Nebraska, and Texas. INS indicated that security clearance procedures are expected to have a substantial impact on adjudication, probably resulting in at least an additional month in sending out approval notices. Unfortunately, the delay is expected to impact all cases except N-400 naturalization applications and cases filed under INS’s new Premium Processing program.

INS also indicated that while “Premium Processing” cases will be adjudicated within 15 days, the 15-day clock will stop until the investigation has been completed in cases where a preliminary security check indicates a need for further investigation. INS stated that it intends to notify the petitioning employer when a case is referred for further investigation.

In another development, INS indicated that it has begun to institute a “zero tolerance” policy. This means that if a person is out of status, adjudicators will not exercise discretion to consider the status violation de minimus and approve the benefit being sought. INS states that there is tremendous pressure being brought to bear by the Bush administration, Congress, and INS headquarters to ensure that the present state of the law is being followed precisely.

Needless to say, we will provide additional details as they become available.