The “Real
ID Act of 2005" was signed into law (Pub.
Law No. 109-13) on
May 11, 2005, as Division B of the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Tsunami Relief,
2005, and
became effective on the date of enactment.
Machine-readable
passports (MRP) - Starting October 26, 2004, visa waiver travelers
from ALL 27 Visa
Waiver Program countries must present either a
machine-readable passport or a U.S. visa. In the interest of facilitating
travel, the Department of Homeland Security's Customs and Border
Protection Bureau (CBP) has given officials at ports of entry the
discretionary authority to grant one-time exemptions on a case-by-case
basis to certain VWP travelers without a visa or MRP, who are nationals
of twenty-two (22) of twenty-seven (27) VWP countries. Nationals
of the following five (5) countries are already required to present
an MRP for admission under the VWP, and therefore this one-time
exemption procedure will not apply to VWP travelers from Andorra,
BelgiumFri, February 2, 20072003 the INS ceased to
exist. All of the agency’s
immigration functions were divided and transferred into three
bureaus within the Department of Homeland Security. The three
bureaus (Citizenship and Immigration Services (CIS), Immigration
and Customs Enforcement (ICE), and the Customs and Border Protection
(CBP) are now responsible for all the immigration services and
enforcement functions.
Citizenship and Immigration Services (CIS):
This bureau is responsible for immigration services and benefits
including: the adjudication of family- and employment-based petitions;
issuance of employment authorization documents; asylum and refugee
processing; naturalization; and implementation of special status
programs such as Temporary Protected Status. At least during
the transition phase, the bureau’s structure and functions
will remain fairly similar to the old INS. The former INS District
Offices (newly titled local CIS offices), Application Support
Centers (ASC), Service Centers and Asylum offices will remain
open and in the same locations for this transition period.
This bureau will continue to process pending applications previously
filed with the INS, and will maintain the validity of documentation
issued by the former INS, such as: green cards, certificates
of citizenship, employment authorization documents, travel and
advance parole documents, Form I-94 Arrival and Departure Records,
and others. The former INS customer service functions also will
remain functional under CIS. CIS will be comprised of 15,000
employees nationwide and will be headed by a Director who reports
directly to the Deputy Secretary of Homeland Security.
Immigration and Customs Enforcement (ICE): ICE
handles the investigative and interior enforcement functions
of the former INS, U.S. Customs Service, and the Federal Protective
Services. The bureau is responsible for the detention and removal
of criminal aliens, dismantling smuggling operations or trafficking
of aliens, building partnerships to solve local problems, minimizing
immigration benefit and document fraud, and conducting INS raids.
The bureau consists of approximately 14,000 employees, and is
headed by an Assistant Secretary, who reports directly to the
Undersecretary for Border and Transportation Security.
Customs and Border Protection (CBP): CBP is
responsible for the Border Patrol, immigration investigations,
and the inspections process at the borders. Prior to March 1,
the ports of entry were supervised by several distinct chains
of command and inspections personnel for the U.S. Customs, INS
and other federal agencies. As of March 1, CBP became the sole
governmental presence along the border and at the ports of entry.
The new bureau fused the old agencies’ chains of command
at each port of entry into one common chain and put all inspectors
under a single port director. The bureau also put the former
INS enforcement personnel at the border in a supervisory position
above former INS investigators. This is the first time that the
immigration investigations functions are subordinate to enforcement.
However, it still remains unclear how this change will affect
admissions to the U.S. The bureau consists of 30,000 employees
and the Commissioner reports directly to the Undersecretary for
Border and Transportation Security.
BIA:
Procedural Reform to improve case management, Final Rule (8-26-02)
The new regulations go into effect on September
25, 2002.
These regulations reduce the size of the Board to 11 members,
mandating
review by single Board members instead of panels of three; impose
very
tight briefing schedules (detained persons must submit their appeal
briefs within 21 days, simultaneously with the government’s
brief and
without the chance to see the government’s arguments),
and severely
circumscribe the discretion of BIA Members to review the facts
of the
case before them. (Printable
pdf version)
The
CAIR Coalition and AILA file a Lawsuit Challenging New BIA Regulations
(10/29/02) (Printable pdf version)
FALLS CHURCH, Va, August 13, 2002
(Printable
pdf version)
Proposed Rule Published to Implement Supreme
Court's St. Cyr Decision.
St. Cyr Rule Rule Implements Procedures for Certain Criminal Aliens
Seeking Section 212(c) Relief from Deportation or Removal.
The Executive Office for Immigration Review published
a proposed rule in
the Federal Register establishing procedures for eligible lawful
permanent residents (LPRs) with certain criminal convictions,
prior to
April 1, 1997, to apply for relief from deportation or removal
under
former section 212(c) of the Immigration and Nationality Act.
This
relief is available to eligible individuals who are currently
in
immigration proceedings, who may be placed in removal proceedings,
or
who have completed immigration proceedings and are under final
orders of
deportation or removal. It does not apply to those who have already
been
deported from the United States. This proposed rule implements
the U.S.
Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001).
It
sets forth procedures for certain lawful permanent residents to
apply
for discretionary relief from deportation or removal under former
section 212(c) of the Immigration and Nationality Act (INA)
Until 1996, under section 212(c)
certain LPRs, who resided in the United
States for at least seven years and had committed a crime, could
seek
relief to avoid deportation on criminal grounds. In considering
a grant
of relief under section 212(c), an Immigration Judge would weigh
negative factors, such as the severity of the crime, against positive
factors, such as the individual's rehabilitation and ties to the
community.
Congress sharply curtailed section
212(c) relief through provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
and
then eliminated this relief in the Illegal Immigration Reform
and
Immigrant Responsibility Act of 1996 (IIRIRA).
On June 25, 2001, the Supreme
Court decided in INS v. St. Cyr that LPRs
– whose criminal convictions were obtained through plea
agreements prior
to April 1, 1997 – would be eligible for section 212(c)
relief if they
would have been eligible for this relief at the time they were
convicted
by plea agreement. The decision provides the broadest form of
section
212(c) relief to those with criminal convictions prior to April
24, 1996
(the effective date of the AEDPA legislation). More limited section
212(c) relief is available to those with criminal convictions
entered
after April 24, 1996, and March 31, 1997 (the period immediately
preceding the effective date of the IIRIRA legislation).
The St. Cyr decision affects
thousands of pending cases in federal and
Immigration Courts, as well as a potentially large number of individuals
who have not yet come before an Immigration Court. This proposed
rule
establishes a fair and efficient process to restore section 212(c)
relief to those who are eligible. It is important to note that
eligible
individuals under final orders of deportation or removal who are
still
in the United States must apply for this relief within 180 days
after
the publication of the final rule.
The proposed rule is available
on the Internet at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&
docid=02-20403-filed.pdf.
CHILD PROTECTION ACT
- June
14, 2006 USCIS memo: Clarification of Aging Out Provisions
as They Affect Preference Relatives and Immediate Family Members
Under The Child Status Protection Act Section 6 And Form I-539
Adjudications for V Status (Opting out under the CSPA: The
effect of naturalization in family-based immigration. U.S.
Citizenship and Immigration Services issued a memo on June
14, 2006, clarifying that the children of a lawful permanent
resident will not automatically lose V-2 or V-3 status when
the parent naturalizes.)
- INS
Guidance on Child Status Protection Act (09/20/02)
- Department of State
Cable on Child Status Protection Act (09/08/02)
- Revised Cable on Child
Status Protection Act, Department of State ALDAC #2 (01/03/03)(pdf)
- Department of State ALDAC
#3 (05/03/03)(pdf)PROCEDURAL INSTRUCTIONS
- Department of State ALDAC
#4(05/03/03)(pdf)WHAT CONSTITUTES
A "FINAL DETERMINATION" ON AN APPLICATION ADJUDICATED
PRIOR TO THE EFFECTIVE DATE
- Section 6 of
the Child Status Protection Act, Joe Cuddihy
/s/ Director, International Affairs, HQOPRD 70/6, March 23, 2004.
Section 6 of the CSPA allows for unmarried sons or daughters
of lawful permanent residents (LPRs) to remain classified as
second preference aliens, even if the LPR parent naturalizes.
The purpose of this memorandum is to provide guidance on adjudicating
requests tendered pursuant to section 6 of the CSPA.
- CHILD STATUS
PROTECTION ACT, PUBLIC LAW 107--208
[H.R. 1209] AUG. 06, 2002
On August 6, 2002 President Bush signed the
Child Status Protection Act.
This new law addresses the problem of minor children losing their
eligibility for certain immigration benefits as a result of INS
processing delays. (when children of U.S. citizens turn 21 years
of age,
they "age-out" of their immediate relative status to
the status of
family-first preference: the Fl category.) Public
Law (P.L. 107-208), 08/06/02
The new act provides that the determination of
whether an unmarried
alien son or daughter of a US citizen is considered an "immediate
relative child" (under 21 years of age) will be based on
the age of the
alien at the time the Petition for Alien Relative (Form I-130)
is filed
on his or her behalf, rather than on the date the petition is
adjudicated, as is the case under current law.
The new law also provides similar determinations
in the case of
permanent resident parents who subsequently naturalize after having
filed petitions for their sons or daughters and citizen parents
who file
petitions for married sons or daughters where such sons or daughters
later divorce. In the first situation, the age determination will
be
made at the time of the parents' naturalization. In the latter,
the
alien beneficiary's age will be determined as of the date of his
or her
divorce.
For the children of legal permanent residents,
or those who are
accompanying or following to join on a petition for an immigrant
visa,
their eligibility will be determined based on the date that a
visa
becomes available to them, but only if they seek to acquire permanent
resident status within one year of such availability.
In addition, the new law provides age-out protection to alien
children
who accompany or follow to join parents who have filed for asylum
or
refugee status.
Finally, the new law provides that the family-sponsored
petition of an
unmarried alien son or daughter whose permanent resident parent
subsequently becomes a naturalized US citizen will be converted
to a
petition for an unmarried son or daughter of a US citizen, unless
the
son or daughter elects otherwise.
Premium
Processing Service: guarantees
15 calendar day processing of
certain employment-based petitions or applications. If you request
Premium Processing Service within 15 calendar days of the date
of
receipt, the Bureau of Citizenship and Immigration Services
(BCIS) will issue an
approval notice, notice of intent to deny, request for evidence,
or
issue a notice if an investigation for fraud on the relating petition
or
application is deemed necessary. If it is unable to process your
petition or application within 15 calendar days, the fee paid
for
premium processing will be fully refunded.
Employers may use Form I-907 to request faster
processing of certain
employment-based petitions. You may use this form if
you are the petitioner, the applicant, or an attorney or representative
acting on behalf of the petitioner or applicant. This request
may be
filed with the relating application or petition, or it may be
filed
after, as long as the relating petition or application is still
pending.
Currently, those eligible to request this service
are the following
categories of nonimmigrants whose employers file on their behalf
using
INS Form I-129: E-1; E-2; H-2A; H-2B; H-3; L-1; O-1; O-2; P-1;
P-3; and
Q-1. As of July 30, 2001, the following nonimmigrant categories
are
also be eligible to request this Premium Processing Service: H-1B;
TN;
and R.
Form
I-907 (download .pdf form)
Effective July 31, 2002, INS
has published an interim rule allowing the
concurrent filing of I-140 immigrant petitions and I-485 adjustment
of
status applications. Under the proposed rule, applications
for
employment authorization and advance parole will also be accepted.
Requiring Change of Status From B to F-1
or M-1 Nonimmigrant (April 12, 2002) pdf
file
This interim rule amends the Bureau of Citizenship and Immigration Services
(Service) regulations by eliminating the current provision allowing
a
B–1 or B– 2 nonimmigrant visitor for business or
pleasure to begin
attending school without first obtaining approval of a change
of
nonimmigrant status request from the Service.
The amendment will ensure that no B nonimmigrant
is allowed to enroll in
school until the alien has applied for, and the Service has
approved, a
change of nonimmigrant status to that of F–1 or M–1
nonimmigrant student.
INS Issues V Regulation
(September 7, 2001, PDF)
INS Issues Interim K-3/K-4
Regulation (August 14, 2001, PDF)
Adjustment
of Status Under Revived Section 245(i)
INS
Issues Interim Final
Regulation on Section 245(i), March 20, 2001
Detention
of Aliens Ordered Removed - Final Rule, December 21, 2000
New
H-1B law,(October 17, 2000): the "American
Competitiveness in the Twenty-First Century Act of 2000" increases
the existing visa quotas as follows: FY 2000 -increase from 115,000
to 195,000 FY 2001-increase from
107,500 to 195,000 FY 2002 -increase from 65,000 to 195,000.
For
text of H-1B Bill click
here: S.2045 (.pdf file)
H-1B
Regulations: Final
Rule, 12-20-00, 20 CFR Parts 655 and 656/Temporary Employment
in the United States of Nonimmigtts under H-1B Visas (693
KB .pdf file, be patient on download)
Asylum
Procedures - Final Rule, December 6, 2000
Exercising
Prosecutorial Discretion, by the departing Commisioner of
the INS, November 17, 2000
