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2003 Summer Update On Immigration Policy And Procedures

by Cyrus D. Mehta

We provide you with a roundup of some of the recent developments on policy and procedural issues.

Expedited Handling of Special Immigrant Religious Worker Petitions Before the October 2, 2003 Deadline

There are three categories of religious workers: ministers, professional religious workers and other religious workers in a religious vocation or occupation. The “professional” and “other religious worker” categories have a current sunset date of October 20, 2003. Noncitizens who qualify for special immigrant status under these two categories of religious workers must either adjust status or immigrate on or before September 30, 2003. This also includes the accompanying spouses and children of such religious workers. On or after October 1, 2002, there will be no provision to allow for the immigration of these two classes of religious workers.

It is, therefore, important that the immigrant visa petition, Form I-360, as well as the subsequent Form I-485 adjustment of status or consular processing applications be processed by September 30, 2003. Fortunately, the BCIS has issued a memo that instructs its officials to adjudicate such petitions by the deadline.

Applicants should indicate when filing a new petition that they are subject to the sunset clause. Also, it would be advisable for applicants to alert the BCIS with respect to applications that are already pending if the fall in the enumerated categories. Ministers are not subject to the sunset provision, and their cases will not be expedited under this memo.

Of course, the need to rush these applications would be obviated if Congress extends the provisions as it has done previously.

Expedited Handling of Religious Worker Petitions Memo.

DHS Announces One-Year Discretionary Waiver of the New Certification Requirement for Certain Non-Immigrant Health Care Workers

§ 343 of the 1996 Immigration Act mandated a certification requirement for foreign health care workers such as nurses, physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists, medical technicians and physician assistants seeking to work in the US.

The DHS has announced that such health care workers who are entering will be required to comply with the new certification requirements on or after September 23, 2003.

Notwithstanding the new rule, the DHS will continue to exercise its discretion to allow affected nonimmigrant health care workers sufficient time to obtain the requisite certification. For one year after publication of the final rule, the DHS will admit and approve applications for change of status or extension of stay without certification. The admission, extension or change of status may not be for a period longer than one year and the nonimmigrant health care workers must obtain their certification within that time.

Consular Visa Processing Changes

The Department of State has changed its policy with regards to waiving personal appearance at visa interviews at consular posts. This policy, influenced as a result of post- September 11 security, will create tremendous backlogs at consular posts overseas. The waiver of the personal interview requirement is now limited to a very narrow of six specific categories. They are: (1) children of age 16 and under; (2) persons of age 60 years or older; (3) most of the applicants within a class of nonimmigrants classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the exception of attendants, servants and personal employees); (4) aliens applying for diplomatic or official visas, as defined in 22 CFR 41.26 and 41.27, respectively; (5) applicants who within twelve months of the expiration of their previous visa are seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien’s usual residence, and for whom the consular officer has no indication of any noncompliance with US immigration laws and regulations; and (6) aliens for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.

Invariably, the changes will have the effect of increasing the processing time required, both to obtain an appointment, where needed, and to issue the visa. For instance, in Chennai, India, interview appointments are scheduled more than two months later.

It is incumbent on potential visa applicants to check the relevant consular websites, especially those with concrete travel plans that may fall by the wayside due to the impending delays. Applicants must therefore apply early for visa appointments, in hope by the interview date that they have the requisite documentation.

BCIS Clarifies Foreign Equivalency Requirements for US Advanced Degrees

In a recent exchange between New York attorney Naomi Schorr and BCIS official Efren Hernandez III, BCIS clarified what may constitute the foreign equivalent of an advanced degree for purposes of 8 CFR § 204.5(k)(2), confirming, among other things, that receipt of a 3-year bachelor’s degree, followed by the completion of a PONSI recognized post-graduate diploma program may be deemed the equivalent of a 4-year US degree.

This is the second letter from Mr. Hernandez III,1 confirming that completion of a 3-year university course of study resulting in a bachelor’s degree followed by the completion of a PONSI2 recognized post-graduate diploma may be deemed the equivalent of a 4-year US bachelor’s degree. In the past, there was doubt as to whether the BCIS would accept such an equivalency in the case of an alien beneficiary who was filing an I-140 petition under the employment-based second preference. One qualifies for the employment-based second preference, among other things, by demonstrating either an advance degree (such as a masters or a JD) or a bachelor’s degree plus 5 years of progressive experience. If the alien did not possess a 4-year bachelor’s degree, BCIS would not recognize such a degree as a foreign equivalent even though the alien was able to combine it with a post-graduate diploma program.

Notwithstanding this memo, not all the offices within the DHS have acknowledged the Hernandez opinion. For instance, this writer has learned that the Appeals Administrative Office (AAO) of the BCIS will still deny such an application if an alien presents a 3-year bachelor’s degree combined with a 1-year post-graduate diploma program.

Practitioners are advised to make sure in such situations to insist that the job on the labor certification application requires either a “bachelor’s degree or equivalent” and the equivalent be defined as a 3-year bachelor’s degree plus a 1-year post-graduate diploma.

Secretary of Homeland Security Tom Ridge Announces Citizenship and Immigration Ombudsman

Secretary Tom Ridge has announced the appointment of Prakash Khatri of Florida to serve as the Citizenship and Immigration Ombudsman at the Department of Homeland Security. The Citizenship and Immigration Ombudsman is an advocate for the public and immigrants to the Department of Homeland Security on immigration issues. According to the Homeland Security Act, this position is responsible for fostering positive liaison activities related to citizenship and immigration by making recommendations to resolve justified complaints and for establishing formal and informal channels for exchanging information between the DHS and other entities and for providing policy, planning, and program advice to the Secretary, Deputy Secretary, office heads and other officials.

Mr. Khatri is known to immigration practitioners, as he has been one himself! He has also been an active member of the American Immigration Lawyers Association. Mr. Khatri was most recently the Manager for Immigration and Visa processing for the Walt Disney World Co. Before working with Walt Disney World Co., Mr. Khatri ran a private practice as an immigration law specialist. Mr. Khatri has a B.A. from Stetson University and his J.D. from Stetson College of Law.

We welcome Mr. Khatri’s appointment. As a seasoned and well respected immigration attorney, he fully understands the problems that noncitizens face within the bureaucracy of the BCIS and other offices of the DHS. We do hope that the DHS takes seriously the role of the Ombudsman.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.