Copland and Brenner

Table of Contents

1. Visa Revalidation Office to Discontinue Service
2. ICE Becomes Fee Collector Under SEVIS
3. Southwest Border Enforcement Programs Begin

1. Visa Revalidation Office to Discontinue Service

   By notice published in the Federal Register on June 23, 2004, the U.S. Department of State announced the discontinuation of its domestic visa reissuance (also called “revalidation”) service for certain nonimmigrant classifications. Affected by the discontinuation are aliens holding C, E, H, I, L, O or P visas. Applications in these classifications that are properly documented, are accompanied by the appropriate fee(s) and filed with the DOS application acceptance facility in St. Louis, Missouri no later than July 16 will be processed. Applications received after July 16, 2004 will be returned to the sender.

   The notice states that the reason for discontinuation of the service is “because of increased interview requirements and the requirement…that U.S. visas issued after October 26, 2004 include biometric identifiers. It is not feasible for the Department to collect the biometric identifiers in the United States.”

   The DOS will “continue to receive applications for reissuance of qualifying diplomatic and official visas in Washington, DC” after July 16. Eligible classifications include A-1, A-2, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6. Revalidation applications in these classifications may still be processed domestically because diplomatic visas are exempt from the biometrics requirement.

   In a practice advisory to its members, the American Immigration Lawyers Association (“AILA”) offered additional information provided by the Chief of the Visa Revalidation Unit (Posted on AILA InfoNet at Doc. No. 04062363, June 23, 2004). The Chief, Jane Tannenbaum, advised that the filing deadline is not a postmark deadline but requires physical receipt of the visa revalidation application in the St. Louis drop box building by 5:00 p.m. on July 16, 2004. Any application that fails to meet the receipt deadline will be returned.

   The DOS notice states that “[1]n order to mitigate the inconvenience to applicants, we will direct all visa adjudicating posts to accommodate on a priority basis applicants who would have benefited from our visa reissuance services,” and “encourage[s] all applicants to apply in their home country.” A separate DOS letter dated June 23 suggests this benefits the applicant, since if there is “an unanticipated delay in the visa process…the applicant will be in a familiar environment with a support network while the additional processing is completed.” Further, “[a]ll should keep in mind that if there is an unanticipated delay in visa processing, they will need to spend more time overseas than originally planned.”

   For those interested in seeking visa revalidation before the impending deadline to avoid potential complications of overseas travel, we offer the following reminders:

   - applications for revalidation will be processed if received either sixty days or less before visa expiration or no more than 12 months after visa expiration
   - the estimated processing timeframe is approximately 10 – 12 weeks
   - a strict first in, first out policy is in place; there is no expedite procedure. An applicant requiring return of his/her passport prior to revalidation must withdraw the application.

   In a letter also dated June 23, the Managing Director of the DOS Visa Office advised that it will continue to accept “re-applications following a refusal made by the Visa Revalidation Division under section 221(g) of the [Immigration and Nationality Act] through the close of business on Thursday, September 30.” This limited exception “applies only to applicants who received a refusal letter from this office stating that the applicant could re-apply here.” (emphasis in original)
   

2. ICE Becomes Fee Collector Under SEVIS

   By notice published July 1 in the Federal Register , a final DHS rule authorizes U.S. Immigration and Customs Enforcement to collect a $100 fee from most aliens seeking student and exchange visitor status in the U.S.A. under the Student and Exchange Visitor Program (“SEVP”). The final rule follows the proposed rule of October 23, 2003, regarding which DHS received 239 comments. An earlier proposed rule, issued December 21, 1999, drew 4,617 comments.

   The mandate for SEVP arose with passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in September 1996. Section 641 of IIRIRA established the electronic reporting provisions regarding foreign students, and also mandated that the costs for SEVP be funded by collection of fees. It was the PATRIOT Act, enacted in October 2001, that required the electronic reporting provisions of foreign students under IIRIRA to be integrated with other alien information, including date and port of entry. Authority over SEVP was granted to ICE rather than to the immigration benefits bureau, Citizenship and Immigration Services.

   The new rule, which goes into effect on September 30, “will apply to potential nonimmigrants who are initially issued a Form I-20 or Form DS-2019 on or after that date.” “Potential nonimmigrants” includes “those aliens who will apply to the [DOS] or DHS for initial attendance as an F, M, or J classification, and current J-1 nonimmigrants that will apply for a J-1 category change on or after that date. If a Form I-20 or Form DS-2019 for initial status in a new program is issued on or after the effective date, the nonimmigrant traveling on that document will be required to pay the fee.”

   Participants in federal government sponsored exchange programs identified by program identification prefixes of G-1, G-2, or G-3 will be exempt from payment of the fee. Aliens in the classifications subject to the fee are not subject to payment if “Form I-20 or Form DS-2019 for initial attendance was issued on or before May 31, 2004.” Immediate family members of F-1 and M-1 students and J-1 exchange visitors, holding F-2, M-2 or J-2 derivative status, are not subject to payment of a separate fee. J-1 nonimmigrants admitted to the U.S.A. as au pairs, camp counselors, or participants in summer work/travel programs will be subject to a reduced fee of $35.

   For those subject to the fee, payment is statutorily mandated prior to visa issuance, admission or change of status . The Supplementary Information to the rule states that DHS is unable to establish a workable arrangement for fee collection by DOS prior to the effective date of the rule. However, DHS and DOS are working on a pilot project for DOS collection of the SEVIS fee overseas. In seeking to “build in as much flexibility as possible for the payment of the fee,” DHS offers two options:

   - the fee may be paid 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. currency
   - the fee may be paid electronically, by completing Form I-901 via the internet and using a credit card

   For either option, DHS will accept fee payment from a third party in the U.S.A. or overseas. In this context, the notice states that many foreign banks can issue checks or money orders drawn on a U.S. financial institution. Any “Visa, MasterCard, or American Express credit card, whether issued in the United States or overseas, can be used to pay the fee over the Internet.” In addition, J-1 exchange visitor program sponsors may pay the fee for their participants using a bulk or batch fee payment for a specified number of participants, under an “automated fee payment system [that] has been successfully tested.” DHS appears amenable to evaluating such an option for F-1 and M-1 educational institutions should they express interest.

   The statute requires that nonimmigrants be able to produce proof of fee payment upon being granted certain benefits (a visa, admission to the U.S.A., or a change of nonimmigrant status). Accordingly, “DHS will issue an official paper receipt acknowledging every payment regardless of payment method used. The paper receipt will be mailed or sent via express delivery service to the address provided on the Form I-901.” The DHS, in theory, will be able to verify all payments electronically. In addition, DOS will be able to verify some – but not all – payments electronically.

   While the rule states that a paper receipt is not required when proof of payment can be verified electronically, an applicant will have no way of knowing in advance whether electronic verification can be obtained. The best practice, therefore, will be for an applicant to present the paper receipt at the time of application. A telephone hotline will be used as a “backup means” for verification. Ultimately, the paper receipt system may be eliminated “at some time in the future, if it has been clearly demonstrated that it is no longer necessary.”

   If an applicant has applied to more than one school or exchange visitor program and therefore has multiple I-20s or DS-2019s with multiple SEVIS numbers, “fee verification will allow for a fee payment made on one SEVIS identification number to be applied to another SEVIS identification number issued to the same individual . Nonimmigrants are strongly encouraged to bring proof of both SEVIS identification numbers to the consulate or port-of-entry when payment has been made on a SEVIS identification number that is different than the one being used to obtain a visa or entry.” (emphasis added)

   We encourage those affected by this new rule to review the Federal Register notice, and contact us with any questions.
   

3. Southwest Border Enforcement Programs Begin

   In late June, the Department of Homeland Security (“DHS”) announced two initiatives intended to secure the southwest border between Mexico and Arizona. The first, announced in a June 25 press release, involves “the first sustained civilian use of unmanned aerial vehicles (UAVs) to curb illegal activities along Arizona’s southern border.” The UAVs represent an addition to existing border surveillance activities including manned aircraft, helicopters and ground sensors. According to the press release and a DHS fact sheet, the UAVs are equipped with sophisticated electro-optic sensors, GPS and communications systems that allow for long-range, day and night surveillance and site-specific coordination of ground enforcement activities, all of which may be monitored by live video feed. With a cruise speed of 91 miles per hour and up to 20 hours of flight endurance, the UAVs will be able to cover a significant area on each flight. The use of UAVs is expected to be a significant advantage for U.S. Customs and Border Protection officers responsible for border enforcement in Arizona’s rugged and desolate landscape. The flights are scheduled to run through the summer of 2004.

   The second initiative, announced in a June 29 DHS press release, involves a pilot program for “voluntary interior repatriation” of Mexican nationals. The announcement, the product of a bilateral agreement between the U.S.A. and Mexico, involves the following:

   - the program begins in July and is limited to the Arizona – Sonora region
   - only Mexican nationals are eligible
   - Mexican migrants charged with a crime other than illegal entry will not be eligible
   - aliens willing to be repatriated to the interior of Mexico will be referred to the Mexican consul in Nogales, Arizona
   - the Mexican consul will interview the person to confirm that he or she wants to be returned to the interior of Mexico
   - transport from Tucson, Arizona to Mexico City or Guadalajara via charter aircraft
   - DHS “officers will not handcuff nor restrain Mexican nationals repatriated under this program unless exceptional safety conditions warrant it in an individual case”
   - those who decline repatriation in this manner “will be repatriated to the northern border of Mexico through regular means”
   - the “program will end no later than September 30,” after which it will be evaluated by the Mexican and U.S. governments for future recommendations.