Copland and Brenner

Table of Contents

1. Special Registration Update: Pakistan And Saudi Arabia
2. NSEERS Summary, NSEERS Summar, NSEERS Summar
3. NSEERS Summary, NSEERS Summar, NSEERS Summar
4. NSEERS Summary, NSEERS Summar, NSEERS Summar
5. Student and Exchange Visitor Information System Implemented
6. In Passing: Homeland Security and The INS

1. Special Registration Update: Pakistan And Saudi ArabiaOn December 18, 2002, the Immigration and Naturalization Service (“INS”) published a notice in the Federal Register concerning Phase Three of the National Security Entry-Exit Registration System (“NSEERS”). The notice applies to any male citizen or national of Pakistan or Saudi Arabia, 16 years of age and older, admitted to the U.S.A. as a nonimmigrant on or before September 30, 2002, who will remain in the U.S.A. until after February 21, 2003. Males who meet each of the above criteria must appear for registration at a designated INS office between January 13, 2003 and February 21, 2003.
   
   When anyone appears for an NSEERS registration, he or she has the right to be accompanied by an attorney. For our local readers, please note that the INS office located at 1086 Troy Schenectady Road, Latham, New York is among the offices designated for the registration program.
   
   NSEERS mandates that affected aliens must:
   - answer under oath all questions of an INS officer, be fingerprinted and photographed, and present travel documents and any other government-issued identification, proof of residence and, if applicable, matriculation at an educational institution and/or proof of employment at the time of registration
   - report annually to the INS within ten days of each anniversary date of initial registration
   - report to an inspecting INS officer when departing the U.S.A.from a designated port.
   - advise the INS in writing on Form AR-11 of each change of address, employment or education within ten days of any such change
   
   Excluded from this latest mandate are aliens from Pakistan and Saudi Arabia who satisfy any one of the following criteria:
   - females of all ages, or a male who
   - holds lawful permanent resident status, or
   - had an application for asylum pending on the date of publication (i.e., December 18, 2002), since such aliens have “already provided sufficient information…including fingerprints, to warrant exclusion” from the registration requirement, or
   - has been granted asylum, or
   -was admitted to the U.S.A. as a government official such as an ambassador, diplomat or consular officer under INA Section 101(a)(1)(15)(A) or a principal resident representative of a foreign government under INA Section 101(a)(1)(15)(G) (i.e., nonimmigrants in the “A” and “G” classifications).
   
   There is a debate as to whether aliens holding dual nationality or citizenship are required to register. Such persons should seek advice from a qualified immigration practitioner regarding the risks of failing to register. It is up to affected aliens to become informed of their obligations under NSEERS and the potential consequences of registering as required, mindful that failure to register as required carries harsh penalties.
   
   After registration is completed, an alien may be referred to the INS Investigations Section and, if deemed appropriate, placed in removal proceedings. According to an INS Headquarters Memorandum dated November 27, 2002, grounds for such action include, but are not limited to, a law enforcement “hit” indicating that the alien has a history involving some sort of law enforcement activity, failure to maintain nonimmigrant status, failure to timely appear for registration, or “giving evasive or inconsistent answers.”
   
   A “willful failure” to abide by the registration requirements will constitute an alien’s failure to maintain nonimmigrant status under Section 237(a)(1)(C)(i) of the INA. An alien’s failure to comply with the registration requirements will render him deportable from the U.S.A. unless he can establish that the failure was “reasonably excusable or was not willful.” Failure to properly notify the INS of any change of address will render an alien deportable and subject to prosecution. If an alien fails to comply at a designated port of departure with the reporting mandate upon departure, he will be presumed inadmissible to the U.S.A. on security grounds involving an “unlawful activity.”
2. NSEERS Summary, NSEERS Summar, NSEERS SummarTwenty countries are now covered by NSEERS. The registration period for the initial five countries (Iran, Iraq, Libya, Sudan and Syria) expired on December 16, 2002.
   
   The registration period for the thirteen countries designated in Phase Two expires on January 10, 2003 (Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunesia, United Arab Emirates, and Yemen).
   
   We recommend that readers from all 20 countries refer to our November 2002 newsletter and the INS web site at http://www.ins.gov/graphics/lawenfor/specialreg/index.htm to review requirements and procedures applicable to them, as well as learning about INS and its forms.
   
3. NSEERS Summary, NSEERS Summar, NSEERS SummarTwenty-five countries are now covered by NSEERS. For Groups I and II, the registration periods have been reopened as indicated below.
   
   Group I - Iran, Iraq, Libya, Sudan and Syria: The registration period was reopened on January 27 and now expires on February 7, 2003.
   
   Group Two – Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunesia, United Arab Emirates and Yemen: registration period was reopened on January 27 and now expires on February 7, 2003.
   
   Group Three – Pakistan and Saudi Arabia: Registration period expires on February 21, 2003.
   
   It is important to note the following:
   
   - Group I aliens already in the U.S. and who were registered at a port of entry on or after September 11, 2002 are subject not only to the registration procedures mandated upon entry to the U.S.A., but also those applicable during any stay in the U.S.A.
   - aliens subject to special registration must use specially designated ports of departure when they leave the country and must report in person to an INS officer at the port on their departure date. Failure to comply may result in an alien being presumed inadmissible to the U.S.A. on security grounds involving an “unlawful activity”
   - aliens from affected countries who have applied for, but have not been granted, lawful permanent resident status must register
   - according to the INS, “[T]hose who claim citizenship from countries included in the Call-In Groups are required to register even if they are also citizens of another country.”
   
4. NSEERS Summary, NSEERS Summar, NSEERS SummarTwenty-five countries are now covered by the Special Registration Program under the National Security Entry-Exit Registration System (“NSEERS”). For Groups III and IV, Special Registration expires this month as follows:
   
   Group III – Pakistan and Saudi Arabia: Registration period expires on March 21, 2003.
   
   Group IV - Bangladesh, Egypt, Indonesia, Jordan or Kuwait: Registration period expires on April 25, 2003.
   
   Aliens covered by the Special Registration program must be sure to comply with the requirement to appear for processing, as failure to do so is punishable by fine or imprisonment and/or deportation. Information regarding Special Registration is currently available on the CIS web site at http://www.immigration.gov/graphics/shared/lawenfor/specialreg/index.htm. As always, persons with any concerns regarding their immigration history or status should seek advice from a qualified immigration practitioner.
5. Student and Exchange Visitor Information System ImplementedBy notice of final rule published in the Federal Register on December 11, 2002, the INS requires that all educational institutions authorized to enroll foreign students comply with new registration, reporting and record-keeping requirements effective January 30, 2003 to implement the Student and Exchange Visitor Information System (“SEVIS”) no later than the end of this month. The Department of State (“DOS”) published its own interim rule on December 12, 2002 regarding the obligations of J-1 exchange visitor sponsors under SEVIS.
   The new regulations affect the attendance of “M-1,” “F-1” and “J-1” nonimmigrants at U.S. educational institutions. The regulation also applies to the new “F-3” and “M-3” classifications for Canadian and Mexican citizens who continue to reside in their home country while commuting to the U.S.A. to attend an approved school, on a full- or part-time basis.
   
   While the INS rule requires that all schools “use SEVIS in order to issue a new Form I-20,” the agency does not intend or require that all students be entered into SEVIS by that date. In addition, “a Form I-20 issued prior to January 30, 2003 will be accepted for visa issuance, admission, or change of status prior to August 1, 2003.” Effective August 1, 2003, however, or if there is a reportable action (e.g., extension or change of status, practical training, employment authorization, or a new visa has been issued) prior to that date, a new SEVIS Form I-20 must be issued to F-1, F-3, M-1 and M-3 students, and SEVIS Form DS-2019 must be issued to J-1 exchange visitors under the new INS rule.
   
   On August 1, 2003, the INS states, “all provisions and processes related to non-SEVIS schools will become void.” Likewise, the DOS requires that all exchange visitor sponsors enroll in SEVIS no later than January 30, 2003, to use only SEVIS-generated forms after that date, and “to enter information on all exchange visitors continuing to participate in their program after that date,” including those who previously entered the U.S.A. on non-SEVIS forms (emphasis added).
   
   The new INS rule establishes the creation of two categories of designated school official: principal designated school official (“PDSO”) and administrative school official (“ASO”). Persons holding these positions must be citizens or lawful permanent residents of the U.S.A. While the rule imposes a limit of one PDSO and nine ASO’s per school or campus, the INS “may reconsider” those limits after SEVIS is fully operational and schools have entered all current students into the system. The “rule does not prohibit a school from choosing to place counsel in the authorized positions or from conferring with counsel regarding SEVIS requirements.
   
   Under the new INS rule, the agency will explicitly authorize “ F-1 students to transfer schools during the 60-day grace period following completion of studies or after completion of optional practical training.” Such transfers require that the student has been accepted at the transfer school, and that the current school timely indicate in SEVIS the transfer school which the student plans to attend. However, a student may not remain in the U.S.A. between programs unless he or she will resume classes within five months of transferring, or within five months of the program completion date set forth on the I-20, whichever is earlier. If a student has completed optional practical training, he or she must be able to resume classes within five months of transferring from the school that authorized the OPT or the date the OPT authorization ends, whichever is earlier. By contrast, M-1 and M-3 students must apply directly to the INS to transfer schools.
   
   Additional requirements establishing a maximum 30-day advance admission time frame, authorizing withdrawal from a course of study, limiting on-line and distance and education courses, restricting the studies permitted of F-1 and M-1 dependents, and clarifying the period of authorized optional practical training are also codified in the new rule. Regarding all the reporting requirements under SEVIS, the responsibility for updating and maintaining records is clearly ascribed to school officials. Unfortunately, however, “while the [INS] recognizes that a DSO may make a mistake in a student’s record that causes the student to fal out of status, the [INS] does not believe that such errors merit an administrative correction.” Accordingly, “it is the student’s ultimate responsibility to ensure that he or she remains in status and is in compliance with the regulations at all times.”
   
   In “instances where the DSO was neglectful or inadvertently failed to update or extend a student’s status, the student is permitted to file for reinstatement and establish that the actions on the part of the DSO were beyond his or her control.” If the INS finds that a DSO has repeatedly violated its regulations or has committed malfeasance, the agency may withdraw the approval of that DSO. There is a general five-month limitation for seeking reinstatement. However, the INS “recognizes that there may be legitimate situations in which [it] is not possible” for a student to become aware of and remedy the situation. In such cases, there is a rebuttable presumption against reinstatement unless the student can provide a “substantial reason for the delay and an explanation of how the student filed the request for reinstatement as promptly as possible under the circumstances.”
   
   Educational institutions, foreign students, exchange visitor sponsors and participants have much at stake in ensuring their ongoing compliance with the new requirements. Given the many requirements imposed by SEVIS, all affected parties can expect months – or longer – of acclimation to the new system. In addition, as we discuss below, all of these changes, and more, pale in comparison to the overhaul of U.S. immigration law that will soon be upon us.
   
6. In Passing: Homeland Security and The INSAs we have reported over several months, the executive and legislative branches of our government have struggled with proposals for a mammoth restructuring of agencies involved in all aspects of national security, including those related to immigration. On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002. It may be some time before any meaningful benefit is reaped or it becomes apparent to all that the legislation was a shortsighted attempt to gain political capital. In the meantime, critical optimists can hope that the legislation will be the equivalent of Seward’s Folly, the U.S. – Russia treaty for the purchase of Alaska – ridiculed by many at the time, but later viewed as a tremendous achievement.
   
   The law creates the new Cabinet-level position of Secretary of Homeland Security, and will entirely restructure authority for implementing U.S. immigration laws. By March 3, 2003, the “functions” of the INS are to be transferred to the new Department. We look forward to providing our readers with progress updates and analysis regarding the new law over the next several months.