Copland and Brenner

Table of Contents

1. New Photograph Requirements Effective August 2, 2004
2. CIS Amends Rule for EAD Validity Periods
3. F-1’s, J-1’s Benefit from H-1B Change of Status Provision
4. I-130’s to be Processed as Visa Numbers Become Available

1. New Photograph Requirements Effective August 2, 2004

   On August 2, 2004, U.S. Citizenship and Immigration Services (“USCIS”) issued a press release and informational flyer, suddenly announcing a change in photograph requirements for all immigration benefits applicants. The change requires passport-style photographs – “a standard, full frontal face position” - instead of the ¾ profile view photographs required for so many years. The change was effective immediately.

   The release states that ¾ style photographs filed with petitions or applications prior to August 2 will not be affected. In addition, from August 2 – September 1, 2004, USCIS will accept the old ¾ profile style photo or the full frontal style photo with new filings. However, after September 1, 2004 any ¾ profile view photographs for new filings will no longer be accepted.

   The minimal information provided by USCIS states that all photographs “must be of just the person.” Photographs may not be more than 30 days old at the time of filing the application. If more than one photograph is required for a particular petition or application, “all photos of the person must be identical.”

   As stated above, the announcement was made in the form of a press release - not a regulatory change. In this context, we note that existing regulations for naturalization specify the ¾ profile requirement. However, with regard to all other immigration benefits, regulatory language generally refers to photograph requirements “as described in the instructions” or “meeting the specifications on the application form.” It is unclear whether or how the agency will address this deficiency by publishing a notice in the Federal Register or updating its forms. However, it seems reasonable to anticipate that the sudden change, with such short notice concerning non-acceptance of the ¾ profile photographs after September 1, will cause problems for some applicants.

   In addition to the unsatisfactory notice it offers, USCIS points those who do ferret out the information from its web site to that of the Department of State (“DOS”). Specifically, there is a link to the following DOS page, which provides a wealth of information regarding photo requirements: http://travel.state.gov/passport/pptphotos/index.html. For those who do not want to slog through the 24 pages linked to that site, we offer the following summary of requirements, which provides that the subject of the photograph must:

   - be positioned directly facing the camera
   - have his/her head centered within the frame, with the captured image from slightly above the top of hair to the middle of the chest; height of head should measure one inch to 1 – 3/8 inches; with eye height 1 – 1/8 inches to 1 – 3/8 inches from the bottom of the photo
   - be against a plain white or off-white background
   - have a “natural expression” – this means “neutral (non-smiling) with…mouth closed. A smile with closed jaw is allowed but is not preferred.”
   - have eyes open and looking at the camera
   - be alone in the photo, even if an infant, without any visible means of support whether mechanical or otherwise
   - not wear eyeglasses unless “normally used by the subject;” dark or tinted lenses are not acceptable unless [needed] for medical reasons” and a medical certificate may be required (see comment below)
   - not wear any headpiece unless “worn daily for religious purposes;” but “no item or attire should cover or obscure any part of the face” (see comment below)
   - be in “normal street attire” - not in uniform unless the religious attire exception applies

   The photographs themselves must be:

   - in color, reproducing natural skin tones
   - 2 inches x 2 inches in dimension
   - printed on thin photo paper or stock
   - clear, focused and not retouched, enhanced or softened
   - without distracting shadows on the face or background
   - printed with continuous-tone quality; if digitally printed must be produced without visible pixels or dots (“a digital camera with a resolution of 1 megapixel will be more than adequate”)

   Those familiar with “immigration-style” ¾ profile photos are aware that USCIS has not accepted photos where the subject is wearing any eyeglasses, earrings or hat. We strongly recommend that persons submitting photographs for any immigration benefit continue to abide by the “no hats, no earrings, no eyeglasses” policy. Moreover, USCIS has in the past imposed a more strict limitation on the wearing of religious headpieces than has the DOS. USCIS regulations concerning naturalization applications state that photos must “clearly show…the features of the applicant with head bare (unless the applicant is wearing a headdress as required by a religious order of which he or she is a member ).” (emphasis added)

   Because of the confusion that is likely to ensue, we would like to think that USCIS will offer its own, more detailed instructions for photograph requirements than those provided in its press release and flyer. If and when the agency does so, we look forward to informing our readers.
   

2. CIS Amends Rule for EAD Validity Periods

   By notice published in the Federal Register on July 30, 2004, the U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, announced an interim rule that makes several changes to the validity periods applicable to employment authorization documents (“EADs”). Under the new rule, most validity periods will be extended by either eliminating the usual one-year limitation or, for certain aliens, affirmatively authorizing a significantly longer validity period. The rule was effective upon publication.

   The rule amends 8 CFR Section 274a.12(a), which requires certain aliens authorized for employment incident to status to nonetheless apply for a document evidencing such employment authorization. Affected aliens include refugees, asylees, parolees, fiancées, those granted voluntary departure or temporary protected status (“TPS”), and “V” nonimmigrants. The rule also affects CFR Section 274a.12(c), which affects aliens who must apply for employment authorization (as opposed to being authorized for employment incident to status). Such aliens include adjustment of status applicants, F-1 and M-1 students, J-2 spouses or minor children, and asylum applicants. Such aliens are eligible for employment only if approved by USCIS.

   Previously, affected aliens were largely limited to employment authorization for increments not to exceed one year, either by regulation or policy. It was therefore necessary to apply for an extension of employment authorization each year. It is fair to say that this requirement in many cases easily resulted in a lapse in employment authorization, whether an alien simply filed too late to avoid a lapse, or because agency priorities or procedures changed to achieve the same result. A good example is the recent change in family-based adjustment cases, now processed remotely at the National Benefits Center (“NBC”) instead of at local USCIS offices. NBC adjudication of Form I-765 is regularly taking more than 90 days. Too often, changes in agency priorities and adjudications procedures and time frames have resulted in periods during which an otherwise eligible alien would lack evidence of employment authorization.

   In addition to the foregoing problems, renewal applications for employment permission made it necessary to pay a filing fee each time. Since the I-765 filing fee is now $175, an initial filing and just one renewal for a family of five would cost $1,750. As the interim rule states, the need to apply for renewal each year creates “a burden on the applicant and an additional workload for BCIS.”

   Under the new rule, EAD validity periods will be established based upon criteria including the “applicant's immigration status; general processing time for the underlying application or petition; required background checks and response times for background checks by other agencies, as necessary; other security considerations and factors as deemed appropriate by BCIS. BCIS will have discretion to modify EAD validity periods both for initial, renewal, and replacement cards. BCIS also will be able to establish EAD validity periods for classes of aliens and for individuals within those classes whose cases warrant a lesser validity period.” The agency “reserve[s] the right to periodically expire such documents and, where appropriate, issue new cards. This will allow BCIS to address any security concerns and to ensure the integrity of the EADs process by preventing fraud or misuse of such documents.”

   It is unclear whether or how security clearances may further slow I-765 adjudications. In this context, the rule notes that USCIS plans “to compensate for the lack of a yearly EAD renewal application from affected aliens by ensuring that certain security and background checks are generally completed prior to issuance of EAD [sic] that is valid for more than one year.” Overall, however, the rule appears to represent good news for the vast majority of aliens subject to the EAD requirement.

3. F-1’s, J-1’s Benefit from H-1B Change of Status Provision

   On July 23, 2004, USCIS published a notice in the Federal Register affecting certain F-1 students and J-1 exchange visitors being petitioned for a change of status to H-1B nonimmigrant status. This notice follows the very early attainment of the fiscal year 2004 H-1B cap on February 17. The notice affects F-1 and J-1 beneficiaries whose “prospective employer has timely filed a request for change of nonimmigrant status to that of an H-1B nonimmigrant alien that is received by [USCIS] on or before July 30, 2004 and contains an employment start date of no later than October 1, 2004. This measure will prevent a lapse of status for aliens who have maintained their status and would otherwise be eligible for a change to H-1B status if the annual H-1B numerical limitation had not been reached.” (emphasis added)

   Additional details are as follows:

   - a failure to maintain lawful nonimmigrant status (for example, by working without permission) renders an F-1 or J-1 nonimmigrant ineligible under the notice
   - a J-1 nonimmigrant who is subject to the two year home residence requirement under Section 212(e) of the Immigration and Nationality Act is not eligible
   - an H-1B petition filed after an F-1 or J-1 nonimmigrant’s status has already expired makes the alien beneficiary ineligible
   - an alien benefiting from the notice may not work for the petitioning employer or otherwise engage in activities inconsistent with those that would be allowed during the ordinary 60-day (for F-1’s) or 30-day (for J-1’s) grace period accorded at the completion of his or her program
   - if the H-1B petition is approved before October 1, 2004 the “grace period” under the notice will continue until October 1
   - an otherwise eligible H-1B petition approved after October 1 that includes a change of status request continues the beneficiary’s authorized period of stay such that unlawful presence will not accrue
   - F-1 and J-1 dependents for whom an I-539 to change status has been timely filed also benefit from the notice

4. I-130’s to be Processed as Visa Numbers Become AvailableBy Public Notice dated July 15, 2004, USCIS advised that it will process relative petitions as visa numbers become available. The change is intended to “allow USCIS to concentrate resources first on cases where visas are actually available.” Accordingly, efforts should first focus upon petitions on behalf of immediate relatives of U.S. citizens (spouses, minor children and parents of citizens over 21 years of age), who are not subject to any annual quota, and only thereafter upon the several family-based classifications that are subject to quotas. This change means that the estimated processing time on a previously issued receipt may no longer be accurate. Information on visa availability may be found on the Department of State web site at http://travel.state.gov/visa/frvi_bulletin.html