New DHS Proposal Increases Fees for Certain F, M and J Visa Applicants

A new rule proposed by the Department of Homeland Security (DHS) intends to amend fee rates for certain nonimmigrants applying for F-1, F-3, M-1 and M-3 student visas, along with certain J-1 visa applicants. This rule will implement a fee of $100 per application for F and M visa applicants, with certain J-1 applicants paying a reduced fee of $35. The proposed fee increase will assist in covering administration and maintenance fees related to the SEVIS system.

F-1, F-3, J-1, M-1 and M-3 applicants will be subject to this new fee. In addition, aliens already in the United States who are applying for a change of status to one of these classifications will also pay the fee prior to applying for the change of status. However, aliens who have already paid the $100 or $35 fee prior to obtaining one of the above visas will not be again subject to the fee.

Applicants applying for a J-1 visa as part of an exchange program sponsored by the Federal Government are exempt from the $35 fee. However, individuals applying for a J-1 visa as an au pair, camp counselor, or participant in a summer work travel program will be subject to the $35 fee. Dependent aliens (F-2, J-2, and M-2) will also be exempt from any of the above stated fees.

According to DHS, the fee may be paid in one of the following two ways:

(1) The alien may pay the fee by mail, by submitting Form I-901, Fee Remittance for Certain F, M, and J Nonimmigrants, together with a check or money order drawn on a U.S. bank and payable in U.S. dollars to “I-901 Student/Exchange Visitor Processing Fee;” or
(2) The alien may submit the fee electronically, by completing Form I-901 through the Internet and using a credit card.

Written comments must be submitted on or before December 26, 2003. Comments should be submitted to: Director, Regulations and Forms Services Division, Department of Homeland Security, 425 I Street, NW., Room 4034, Washington, DC 20536. ICE Reference number 2297-03. Comments may also be submitted electronically to rfs.regs@dhs.gov. Please include in the subject box of your email ICE No. 2297-03.

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USCIS to Increase Audits and Visits in Coming Months

The United States Citizenship and Immigration Services (USCIS) has implemented a new policy that will increase the amount of visits or audits to visa petitioners. These random visits/audits will be based on one of the following three reasons: (1) USCIS Fraud Profiles, (2) FBI Initiatives, or (3) I-9 Audits. The USCIS is currently planning to develop a fraud profile by application type; if any applicant falls within the profile’s definition of presumptive misrepresentation, they will be subject to a full investigation.

(1) USCIS Fraud Profiles: Audits/Visits based on the fraud profile will be carried out by the Immigration and Customs Enforcement (ICE) unit. The first two visa petitions subject to this inquiry will be the I-129 and I-360 visa petitions. ICE plans to broaden this focus within one year.

(2) FBI Initiatives: While regulations previously only allowed the FBI to enact audits and visits when incidences were criminal in nature, new regulations passed by the Attorney General now allow the FBI to arrest individuals without a warrant when they believe these individuals are violating immigration laws. This FBI initiative will first focus on H-1B visa petitioners, specifically from Muslim-dominated regions of the former Soviet Union and Middle Eastern countries engaged in the IT, health and bio-professions.

(3) I-9 Audits: I-9 Audits, utilized as a pretense to learn more facts about targets of audits, have become much more common in recent months. The USCIS has used these audits to focus on employees at airports (restaurants, hotels, kiosks, etc.) and at landmark buildings and locations. These audits have been intensive and have led to hefty fines for employers.

Note to J-1 Sponsors: Second J-1 Training Programs May Not Be Issued

Sponsors of J-1 Exchange Visitor visas should take special note of new information provided by the Department of State (DOS). According to the Department’s Bureau of Educational and Cultural Affairs, a large amount of third party organizations (most of these in the hotel/motel industry) are requesting second J-1 Training programs for their trainees. These second J-1 training programs are NOT permitted.

According o the DOS, regulations for the J-1 Visa are as follows: “The duration of participation shall correspond to the length of the program set forth in the sponsor’s designation. The maximum period of participation in the Exchange Visitor Program for a trainee shall not exceed 18 months total.” In other words, a J-1 Visa may be issued for a period of no more than 18 months; no extensions or “second” visas may be issued that will result in a total period of stay more than 18 months. Any sponsor that issues a “second” J-1 training program will be subject to sanctions.

The DOS further clarifies this information with the following two examples:

(1) If a sponsor has been designated by the Department to administer a 12- month training program, a participant can be issued a Form DS-2019 for a one-time 12-month training program. Exchange Visitor Regulations contain a provision for consideration for an exceptional extension beyond the 12 months to a period not to exceed 18 months. In such cases, a sponsor must submit a request for an “Extension Beyond the Maximum Duration of Program Participation” through SEVIS as set forth in the “User Manual for Program Sponsor Users (RO/ARO) of the Student and Exchange Visitor Information System” dated April 30, 2003.

(2) If a sponsor has been designated by the Department to administer a program for a period “up to 18-months”, and a participant entered the US to participate in a 12-month training program and the sponsor determined that the trainee needs to receive additional or advanced training in the same area, that sponsor can extend the participant’s training program by 6 months without coming to the Department for approval. In this case the sponsor is required to have in their file a copy of the advanced training plan.

The J-1 visa is designed to provide educational and cultural exchange programs, and to promote the sharing of individuals, knowledge and skills in education, arts and sciences. This visa enables people to participate in exchange visitor programs in the United States

BCIS Requests Comments Regarding Collection of Data for SEVIS

In accordance with the Paperwork Reduction Act of 1995, the Bureau of Citizenship and Immigration Services (BCIS) is requesting comments from the general public regarding proposed information collection for the Student and Exchange Visitor Information System (SEVIS).

According to the BCIS, written comments from individuals and affected agencies should address one of the four following concerns:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

[Federal Register: October 2, 2003]

Written comments will be accepted for a period of 60 days, ending December 1, 2003. Additional information may be requested by contacting:

Richard A. Sloan 202-514-3291
Director, Regulations and Forms Services Division
Bureau of Citizenship and Immigration Services
Department of Homeland Security,
425 I Street, NW., Room 4034
Washington, DC 20536