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February 2005
Immigration News

US CIS ANNOUNCES CHANGE IN PHOTO STANDARDS

On August 2nd, US CIS announced a change in photo requirements for all applicants from a three-quarter face position to a standard, full frontal face position. As of that date, US CIS began accepting both types of photos for all applications; after September 1st, only full frontal face photographs will be accepted. The application process of applicants who have already submitted materials that include color photos with the three-quarter standard will not be affected by this change. Furthermore, photos must be no more than 30 days old when an application is filed.

US CIS EXTENDS VALIDITY PERIOD OF EMPLOYMENT AUTHORIZATION DOCUMENTS

USCIS has published an interim rule permitting most Employment Authorization Documents (EADs), also popularly referred to as work permits, to be issued for time periods of over one year. The rule, published on July 30, 2004, is effective immediately. The rule amends the regulations regarding the issuance of EADs to allow the USCIS to establish validity periods for EADs based upon a number of stated factors. Before this adjustment, EADs generally were valid for one year, except in certain cases like for spouses on E-2 or L-2 status who were able to obtain EADs for longer than one year. Now, under the interim rule, an EAD may be issued for a period longer or shorter than the one year timeframe. This rule applies to applications for initial EADs as well as extensions and replacement cards.

This change is part of the ongoing effort to streamline the USCIS and reduce the case processing backlogs. EAD filings represent a substantial portion of the USCIS workload. They receive over 950,000 EAD requests each year. Thus, permitting validity periods in excess of one year should help to considerably reduce the USCIS workload.

Under the interim rule, the USCIS will have discretion and flexibility to establish the length of EADs for various categories of eligible individuals. They will be able to consider relevant factors such as security considerations, application processing times, response times for background checks, the individuals' immigration statuses, or other factors that they deem relevant. The regulation allows the USCIS to both increase and decrease the validity of the EAD period, as appropriate to the situation.

US CIS ALLOWS STATUS EXTENSIONS TO STUDENTS WHO ARE WAITING FOR H1B1 EMPLOYMENT TO COMMENCE ON OCTOBER 1ST

On July 23, 2004, USCIS published a notice in the Federal Register regarding students who are waiting for changes of status to H 1B, which may not occur before October 1, 2004 due to the cap being met early this year. "...If the prospective employer has timely filed a change of status...to H 1B...that is received by DHS on or before July 30, 2004 and contains an employment start date of no later than October 1, 2004..." The duration of status [D/S] for F 1 and J 1 students [not subject to the two year home residency requirement] will be extended until October 1, 2004 unless the H 1B petition is denied prior to that date.

On August 8, 2004, Associate Director of Operations of US CIS issued a memorandum to Service Center Directors and Regional Directors addressing questions which have arisen since the publication of the above-mentioned Federal Register notice.

"Q1. If an eligible F-1 or J-1 nonimmigrant remains within their respective 60- or 30-day grace period, is he or she eligible for a change of status (COS) to H-1B nonimmigrant with an effective date of October 1, 2004?

A[1]. Yes. If...still within their 60- or 30-day grave period at the time of filing... the request for change of status is considered timely filed.

Also, as long as the alien was in status on the date that the COS application was originally filed, the alien may benefit from the notices even if duration of status had expired before the issuance of the Federal Register notice, or has expired after the issuance of the notice, provided the application is still pending with USCIS, including those...that may be considered by USCIS pursuant to a Motion to Reopen as discussed in this memorandum.

Q2. Many petitions for H-1B nonimmigrant status have been approved by USCIS with an effective employment start date of October 1, 2004 for F-1 and J-1 non-immigrants who are currently in the [U.S.]. However, many concurrent COS requests for these same F-1 and J-1 nonimmigrants have been denied... What remedies are available to petitioners and beneficiaries in this situation?

A[2]. Any COS request denied by USCIS prior to July 23, 2004 based upon unavailability of H-1B status due to the annual cap is a correct decision. However, in light of the Federal Register notice applicants may file a motion to reopen/reconsider the COS denial... Such motions must contain the applicable fee of $185, and must be received by USCIS no later than August 23, 2004.

Q3. Motions to Reopen (MTR) ordinarily take 4 to 8 months under ordinary circumstances. Will any priority be given to these MTRs so that they can be completed by October 1?

A[3]. Yes. Because October 1 is less than two months away, Service Centers will identify these [MTRs] and will adjudicate these requests expeditiously such that all are adjudicated by October 1.

Q4. If a Motion to Reopen is already pending on one of these cases (on a different basis), does a separate one need to be filed with respect to the Federal Register notice?

A[4]. No. The petitioner should supplement the pending motion, with all pertinent case identifying information included, and the Service Center will adjudicate it as described in the preceding question.

Q5. If the original underlying petition was filed premium processing, can the new application for COS based upon that petition be handled under the same premium-processing fee?

A[5]. No. The premium processing fee covered the expeditious processing of the original request. Action on that request was completed. However, as stated above, USCIS will give priority to any motions filed in the original COS was denied based upon unavailability if H-1B status, due to the annual cap. If the original petition remains pending then the petitioner my elect premium processing by filing Form I-907...with the appropriate fee. If the petition has been denied the petitioner may either file a new petition or file a MTR with the appropriate fee."

ONE-TIME PAROLE CAN NOW BE GRANTED TO VISA WAIVER

PROGRAM OVERSTAYS

On August 12, 2004, U.S. Customs and Border Protection (CBP) issued a Press Release announcing that CBP officers will now have discretion to grant one-time parole to "no-risk travelers" who overstayed under the Visa Waiver Program (VWP).

The CBP Commissioner Robert C. Bonner stated: "A number of situations have come to my attention where CBP officers have denied entry to travelers from Visa Waiver Program Countries...because of brief overstays...although these travelers posed no threat whatsoever to the U.S." The treatment is this case involves detention and handcuffing, which is "grossly disproportionate to the inadvertent prior overstays," said Bonner. He has "directed CBP [officers] to see that parole is granted...except where the person poses a threat for terrorism, criminality, or is likely to become an economic migrant."

This one-time parole is based upon the discretion of the CBP port directors and supervisors at ports of entry and is granted on a case-by-case basis.


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