Copland and Brenner

Table of Contents

1. USCIS Improves Online Features
2. USICE Amends Special Registration Requirements
3. Holiday Wishes

1. USCIS Improves Online Features

   Over the past month, U.S. Citizenship and Immigration Services has implemented two online service features intended, according to Director Eduardo Aguirre, to “underscore USCIS' commitment to providing world-class customer service.” The new features, as it turns out, are all about time and money.

   The first feature involves online posting of processing time frames for applications and petitions. The reports provide information regarding processing times for not only the four USCIS Service Centers, but also the National Benefits Center and the many District (local) Offices nationwide. Unfortunately, the reports currently offer only general processing time frames rather than case-specific information. However, when used in conjunction with the “Case Status Service Online” feature for cases pending at the Service Centers, it is possible to obtain an estimate of when a decision may be expected in a particular case.

   The second new feature involves the ability to make online credit card payments for electronically filed applications for employment authorization (Form I-765) and replacement green cards (Form I-90). E-payment options include actual credit cards (VISA, MasterCard, American Express and Discover), debit cards associated with the accepted credit cards, and electronic funds transfer. While this is another step in the right direction, we note that, given the ongoing necessity to appear at an Application Support Center for collection of digital biometrics (photographs, signatures and fingerprints), the e-payment alternative hardly seems to be a time-saver or to otherwise streamline the process.

2. USICE Amends Special Registration Requirements

   By interim rule published in the Federal Register on December 2, 2003, U.S. Immigration and Customs Enforcement amended the requirements for aliens subject to special registration under the National Security Entry-Exit Registration System (“NSEERS”). Despite some early reports to the contrary, and as we advised on our home page on the day the rule was published, the new rule merely changes, rather than ends, the obligations of affected aliens. The rule should not be misunderstood as eliminating the special registration requirement. In addition, as we also advised, the new rule does not change any of the penalties for failing to comply with the Special Registration provisions, nor does it excuse prior failure to comply. The regulation does suspend the 30-day and annual re-registration requirement for those previously registered, and makes certain other favorable changes. Ultimately, however, the changes may be viewed as making matters worse rather than better.

   NSEERS Background

   For those unfamiliar with “special registration” under NSEERS, the program was announced by Attorney General John Ashcroft on June 6, 2002. A rule implementing the program was published in the Federal Register on August 12, 2002. NSEERS was implemented one month later, affecting males over the age of 16 from Iran, Iraq, Libya, Sudan and Syria. By January 2003, 15 more countries were added to the list during separate “call-in” registration periods.

   The program requires nonimmigrant male citizens or nationals from the 20 affected countries, who are 16 years of age or older, and who will remain in the U.S.A. more than 30 days, to appear for registration at a designated immigration office. There, an alien must be photographed and fingerprinted, and interviewed under oath by an immigration officer. Risks inherent in the mandate for registration (or re-registration) include being referred for investigation, being detained, and/or being placed in removal proceedings.

   The New Rule

   The major provisions of the new rule include the following:

   30-day and annual re-registration requirements are suspended: Aliens subject to NSEERS registration are no longer automatically required to re-register on the 30-day and annual anniversary dates of initial registration. Instead, the new rule “will allow DHS, as a matter of discretion, to notify nonimmigrant aliens subject to NSEERS registration to appear for one or more additional continuing registration interviews in those particular cases where it may be necessary to determine whether the alien is complying with the conditions of his or her nonimmigrant visa status and admission.”

   Appearances before DHS may be more frequent than the 30-day and annual re-registration requirements under the prior rule: Whether “an alien will be subject to additional registration requirements will be made on a case-by-case basis.” Any alien subject to NSEERS “may be required to appear for future continuing re-registration interviews at the discretion of DHS.” Affected aliens will be separately notified regarding additional re-registration requirements, “which for a small number of aliens may be more frequent than the 30-day and annual re-registration requirements set out in the prior rule.” (emphasis added) Notification will be “upon ten days notice, and at the Department of Homeland Security’s discretion.” Notice “may be given to the alien in a manner reasonably calculated to reach the alien, which shall include, but is not limited to, notice by publication in the Federal Register, a letter sent via standard U.S. postal mail to the last address provided by the alien to DHS using regular mail, an email to the address the alien provided to DHS during a previous NSEERS registration interview, or in-person delivery.”

   Port of entry registration requirements remain in place: The interim rule does not eliminate the port of entry registration requirement. Since 20 countries are now covered by NSEERS, affected aliens from each of those countries should presume that port of entry registration will apply. Previously, port of entry registration applied apply only to citizens or nationals of Iran, Iraq, Libya, Sudan and Syria.

   Port of departure registration requirements remain in place for all NSEERS aliens: The interim rule does not eliminate the port of departure registration requirements for aliens affected by NSEERS. Accordingly, all aliens subject to NSEERS must report their actual departure from the U.S.A. as mandated by prior regulations. “An alien who is subject to the special registration requirements who has failed, without good cause, to report his or her departure with DHS is presumed inadmissible to the United States.” An alien may seek to overcome the presumption of inadmissibility by establishing to the Department of State and DHS “that he or she does not seek to enter the United States to engage solely, principally, or incidentally in any unlawful activity.” However, inspecting officers at the U.S. port of entry are not bound by a State Department finding of good cause (though such a finding will be “a significantly favorable factor”).

   Certain aliens subject to NSEERS may apply for relief from registration departure requirements: Under NSEERS, affected aliens are required to report to an inspecting immigration officer at a designated port of departure, on the day of departure. In certain cases, however, doing so may be impractical or impossible. The interim rule provides that an alien seeking relief from the departure registration requirements must do so before the U.S. Customs and Border Protection field office director for the port from which the alien intends to depart, or “from an official designated by DHS.”

   Frequent travelers may seek exemption from future port of entry arrival and departure registrations: This exemption may apply to “an alien who has been registered and who makes frequent trips to the United States, based upon a showing of good cause, exigent or unusual circumstances.” In making his or her decision, the director “will consider the mode of travel, business and economic concerns, purpose of travel, or other factors as determined by the director.” As in all immigration benefit matters, “the alien bears the burden of establishing he or she warrants a favorable exercise of discretion.” Until any request is granted, the alien must continue to comply with the requirements for port of entry/departure registration. If granted, the requested relief may be terminated “by providing notice to the alien.” The interim rule states that information and materials to seek such exemptions are available on the USICE web site (www.ice.gov) under the Special Registration link. At the time of this writing, however, no such link could be located.

   The rule retains affected aliens’ obligation to notify DHS of any change of address, residence, educational institution or employment within ten days, but SEVIS participants are allowed limited exemptions: The Student and Exchange Visitor Information System (“SEVIS”) requires that all F-1, F-3, M-1, M-3 and J-1 nonimmigrants at U.S. educational institutions report certain changes in their circumstances to the appropriate authority at the institution they attend. In turn, the educational institution is required to update SEVIS records with the new information. The interim rule provides that, when aliens subject to NSEERS timely provide change of residence, change of address, or change of educational institution information under SEVIS, such notification will also constitute compliance with NSEERS such that no Form AR-11SR must be filed with USICE. However, it is important to note that any change of employment must still be reported on Form AR-11SR, as change of employment “is currently not captured in the SEVIS system.”

   All penalties under prior regulations remain in place: The interim “rule does not change any of the penalties for failing to comply with the special registration provisions,” and “does not excuse any prior failure to comply with special registration provisions.”

   For those curious as to why the re-registration requirements have been suspended, the supplementary information to the interim rule offers the following:

   - U.S-VISIT, mandated by the PATRIOT Act, will “soon become operational”

   - SEVIS, “a student monitoring system,” “is now fully operational”

   - the rule does not amend the procedures for NSEERS at ports of entry, which has “provided important law enforcement benefits, which have included the identification of a number of alien terrorists and criminals”

   - suspending the re-registration requirement “will reduce the burden on those required to register under the current regulations, as well as to DHS”

   - the DHS will be able to schedule re-registration interviews on a more targeted and effective basis, only in those particular cases where it may be appropriate for additional scrutiny to ensure that an alien remains in compliance with the terms of his or her nonimmigrant visa and admission”

   Recommendations

   Given the notification options for re-registration, it is essential that NSEERS participants remain informed and provide accurate contact information. In addition, despite the exemption from change of address notification requirements for SEVIS aliens, we recommend that they continue to timely file Form AR-11SR to reflect not only any change in employment, but also any change of address. Doing so will insure that the required notification was timely filed with DHS in the event of any failure in the SEVIS system.

   Conclusion

   Whatever its flaws, the interim rule was effective upon publication. It may be read in its entirety at the Federal Register web site, www.access.gpo.gov/su_docs/fedreg/frcont03.html, and clicking on the link to December 2, 2003. Written comments regarding the rule may be submitted until February 2, 2004.

3. Holiday Wishes

   To all our readers, we extend our wishes for a joyous holiday season and a healthy, happy and prosperous year 2004. In doing so, we ask that you remember those less fortunate now and throughout the New Year.