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E&M Visa Update for August 27, 2003 Volume
Three, Number Nine sign
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Department Of State Finalizes
Rule On Automatic Visa Revalidation for Travelers to Canada &
Mexico California Bill Allowing
Driver's Licenses for Illegal Immigrants Stalled in Legislature "No Match" Social
Security Letters Lead To 200 Employees Losing Their Jobs Florida Police Participate
in Pilot Program to Enforce Federal Immigration Law All Service Centers Update Processing
Time Reports Mayock to Present Seminar on US Visa and
Entry Issues Post 9/11 to European-American Chamber in SF
On October 1, 2003, travelers entering the US under the Visa Waiver
Program (VWP) must have a machine-readable passport. Any traveler without a machine-readable passport will be required
to either get such a passport or obtain a visa before coming
to the US. This applies
to both adults and children. Citizens of VWP countries are permitted to enter the US for general
business or tourist purposes for a maximum of 90 days without needing
a visa. VWP citizens may obtain a US B1/B2 visa, but new regulations
requiring personal interviews have caused delays. The 27 countries
currently in the Visa Waiver Program are: Andorra, Australia, Austria,
Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland,
Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New
Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain,
Sweden, Switzerland, and the United Kingdom. A machine-readable passport can generally be identified by the presence
of two typeface lines printed at the bottom of the biographical
page that can be read by machine. These lines electronically provide
some of the information contained on the upper part of the biographical
page. The machine-readable passport requirement applies to all categories
of passport: regular, official or diplomatic. If a traveler has
any doubt about whether a passport qualifies as machine-readable,
he or she should check with the passport issuing authority for that
country. The
Department of State (DOS) has received assurances from participating
visa waiver governments that the transition to MRPs will not create
a burden, and on average, eighty percent of all travel documents
held by their nationals are machine-readable. However, recent
data collected by US carriers with service in visa waiver countries
suggests that 80% of all visa waiver nationals boarding flights
to the US do not have MRPs. Further, the French government
estimates that only 50% of its nationals have MRPs. Machine-readable passports enhance security as they can be scanned
at entry and exit points to verify the integrity of the passport
data. Because machine-readable passports facilitate rapid and precise
identification, they enable faster processing of travelers at ports
of entry. They also provide for advance passenger information, so
border inspectors can do much of their processing before a flight
arrives. Travelers planning to visit the US after September 2003 using the
Visa Waiver Program should check their passports NOW to determine
whether a new passport or a U.S. visa must be sought. The Visa Waiver Program requirements can be found at the Department
of State's Visa Services web site, http://travel.state.gov/vwp.html.
Green Card Lottery Goes Electronic; Russia Excluded; Application Window Is November 1 to December 30, 2003 On August 18, the Department of State (DOS) issued regulations requiring
that applications for Diversity Visa, DV-2005, the upcoming "green
card lottery", be submitted online. DOS will no longer accept paper entries or mail-in requests
for diversity visa registration.
DOS made the changes in hopes of improving accuracy and decreasing
fraud. Applicants must
also submit digital photographs.
This year the lottery application period will start on November 1,
2003 and end on December 30, 2003.
The Diversity Visa Program allows applicants from eligible
countries to petition DOS for the opportunity to apply for one of
55,000 immigrant visas made available annually.
Only those selected at random and notified by DOS will then
be eligible to apply for an immigrant visa. Each year, approximately
6 million people worldwide register to participate in the program.
Because of an approximately 50% "no-show" rate, DOS notifies
100,000 winners, ranks them by "priority date," then allocates
the 55,000 immigrant visas on a "first-come, first-served"
basis. This year Russia has been added to the list of countries from which
nationals may not apply. For
DV-2005, natives of the following countries are not eligible to apply because they sent a
total of more than 50,000 immigrants to the U.S. in the previous
five years: Canada, China (mainland-born; persons
born in Hong Kong Sar, Macau Sar And Taiwan are eligible), Colombia,
Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico,
Pakistan, Philippines, Russia, South Korea, United Kingdom (except
Northern Ireland) and its Dependent Territories, and Vietnam.
For more information about DV-2005, please visit http://travel.state.gov/dv2005.html.
Arizona Supreme Court Hands Hospitals "A
Significant Victory" in Broadening the Definition of Emergency
Care Reimbursable by Medicaid for Undocumented Aliens The Arizona Supreme Court has ruled that federal Medicaid law was
interpreted too narrowly in denying reimbursement to Arizona hospitals
for care provided to undocumented aliens after they were transferred
from an acute to a sub-acute care ward. The court rejected as "impractical" a test that focuses
on patient stabilization or the type of ward to determine when an
"emergency medical condition" ends. The court held that
the focus must be on the patient's current condition and whether
that condition satisfies the criteria for Medicaid coverage under
the law. The cases were remanded back to the trial court for review
using the new standard. Andy Gordon, general counsel for the Arizona Hospital and Healthcare
Association, said the decision was "a significant victory"
in broadening the definition of "emergency care" for which
the Medicaid program must reimburse hospitals for the care of uninsured
undocumented aliens. The opinion can be found online at http://www.supreme.state.az.us/opin/pdf2003/CV_02_0190_PR.pdf.
Department Of State Finalizes Rule On Automatic
Visa Revalidation for Travelers to Canada & Mexico On August 18, the Department of State (DOS) adopted as finalized, an interim rule amending
the regulation pertaining to Automatic Visa Revalidation, a process
that permits certain non-immigrants to re-enter the United States
after a visit of 30 days or less to Canada or Mexico, without
having to obtain a new visa prior to re-entry. The rule was
proposed in order to allow increased screening of visa applicants
following the September 11 terrorist attacks. The new rule significantly limits the accessibility of automatic visa
revalidation, and makes travel to DOS consulates along the US border
for non-immigrant visa issuance much more risky. Automatic visa revalidation is no longer available to those
applying for a new visa while traveling temporarily to Mexico or
Canada [an area covered
by the automatic revalidation privilege]. It
is also no longer available to nationals of the Group of Seven
countries listed as state sponsors of terrorism: Iran, Iraq, Syria, Libya, Cuba, North Korea,
and Sudan. DOS
officials believe that the new restrictions will protect against
the possibility that ineligible visa applicants will return to the
US using the automatic revalidation privilege while an application
is pending. DOS said that automatic visa revalidation "became a vehicle for
aliens whose visas had expired and who wanted to travel to more
distant countries not within the scope of the automatic revalidation
regulation." However,
those holding valid I-94s but without a valid visa [who are not
members of the Group of Seven or applying for a new visa in Mexico
or Canada] will continue to be able to "game the system."
Abuse of the auto revalidation rule involves departing through Canada
or Mexico, continuing on to other more distant countries, then coming
back to the US via Canada or Mexico within the 30-day limit.
Careful inspection of passports by US border officials, particularly
if combined with Canadian or Mexican entry/exit data, can help detect
this abuse.
California Bill Allowing
Driver's Licenses for Illegal Immigrants Stalled in Legislature A fast-track bill that would allow illegal
immigrants to become licensed drivers has stalled in the California
Assembly. The bill
was slowed down by worries that the new fingerprinting system could
be used to identify illegal residents to immigration officials. The bill proposes that the driving privilege
be extended to undocumented immigrants. It is estimated that as many as 2 million persons may be driving
illegally. Advocates
claim that the bill would enhance highway safety and reduce insurance
costs because illegal immigrants who are driving unlawfully would
apply for licenses, and be required to buy automobile insurance.
The bill was slowed down after some legislators raised concerns
that the information collected on illegal immigrant drivers could
go to federal databases and be used to track down or target illegal
immigrants. Last year, Latino Democrats succeeded in beating back
a similar plan.
"No Match" Social Security Letters Lead
To 200 Employees Losing Their Jobs Recently the Social Security Administration (SSA) notified Peco Foods
Inc. in Canton, MS that the Social Security numbers of at least
200 employees were not valid, and the company let the workers go
earlier this month. The SSA issued 900,000 "No Match" letters, to US companies
nationwide last year. This was a record for the agency. However, this year, after complaints from
immigration advocates, SSA plans to only send out 130,000 letters
and drop language that warned of fines against companies for providing
incorrect numbers. Last
year, the letters were sent to employers even if one employee's
number came back mismatched. This year, companies receive letters
only if at least 10 numbers are rejected. SSA spokesman, Mark Lassiter, said the
reduction in warnings this year is not in response to complaints
from employers and employees. "We are just trying to balance
the use of our resources versus the cost of sending letters out
and based on the volume of corrections," he explained.
The “No Match” letter from the SSA issued this year makes
clear to employers that no action can be taken against their employees
based solely on the letter. The letter states
"IMPORTANT: This letter does not imply that you or your
employee intentionally gave the government wrong information about
the employee's name or Social Security number. Nor does it make
any statement about an employee's immigration status."
The letter further states, "You should not use this
letter to take any adverse action against an employee ... such as
laying off, suspending, firing, or discriminating against that individual.
Doing so could, in fact, violate state or federal law and subject
you to legal consequences." The SSA has been issuing the letters to employers since 1994 and does
not share the information with other government agencies. "We
don't report, we don't make any statements" to immigration
officials, Mr. Lassiter explained.
A fact sheet issued by the National Employment Law Project
(NELP) also assures workers that the information won't be shared
with immigration officials. There are an estimated 8 million illegal aliens in the country, but
there are no figures on how many are employed, according to the
BCIS (Bureau of Citizenship and Immigration Services.)
Florida Police Participate in Pilot Program
to Enforce Federal Immigration Law Florida Department of Law Enforcement (FDLE) officials are participating
in a controversial pilot program to enforce federal immigration
law. Florida police officers are federally deputized and their authorization
is limited to domestic security cases.
The officers have participated in federally organized sweeps
of undocumented workers at airports and seaports, checked the immigration
status of groups of Middle Easterners and helped bust a phony-document
ring in the Naples, FL area.
They have made more than 165 arrests. Immigrant-control advocates want to expand the program nationwide. Proposed programs call for hundreds of
thousands of state and local police officers to join the 2,000 federal
immigration agents in reining in the estimated 8 million undocumented
immigrants living in the US.
Clear Law Enforcement for Criminal Alien Removal Act of 2003,
a bill pending in Congress, could pave the way for more state-federal
agreements and strip police agencies of federal funding if they
fail to report immigration violations to federal authorities. Some immigrant and civil rights advocates say domestic security is
already being interpreted too broadly. Critics fear that further
expanding the role of local police in immigration enforcement would
cause public safety to deteriorate by discouraging many immigrants
from reporting crime.
All Service Centers Update Processing Time Reports
The
Texas Service Center Processing Time Report was
updated on August 21 for the period ending August 15. The
California Service Center Processing Time Report
was updated on August 19 for the period ending August 15. To
view and print out the most recent INS service center processing
time reports, please visit http://www.emvisa.com/bcisreports.htm
Mayock to Present Seminar on US Visa and Entry Issues Post 9/11 to
European-American Chamber in SF Jim
Mayock will present a seminar on “US Visa and Entry Issues
Post 9/11” as part of the European American Chamber of Commerce’s
EU Lunch Series. The luncheon seminar will
be held at Hotel Nikko, 222 Mason Street in San Francisco on Tuesday,
September 9, beginning at 12 noon.
The luncheon seminar is $25 for EACC members and $35 for
non-members. Please RSVP by September 2 via email or by calling (415) 983 9566.
Elliot
& Mayock LLP
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© 2003 Elliot & Mayock LLP