Haynes and Boone, LLP
  May 24, 2002 - Dallas, Texas

IMMIGRATION ALERT: Recent News from DOS, DOL and INS
  by Cindy Kang

Department of State: * DOS Visa Revalidation Unit is rejecting cases subject to the 30-day “Condor” security check. Certain responses on the supplemental visa application Form DS-157 trigger the 30-day “Condor” security check. Applicants receiving rejections for this reason must apply for the visa outside of the U.S. and will be subject to the 30-day “Condor” security check. Due to security issues, the DOS cannot divulge the basis for “Condor” triggering responses. * DOS Third Country National processing of visa applications in Mexico and Canada is functioning, although appointments must now be secured at least two weeks in advance to facilitate a DOS determination regarding whether the applicant is a national of a country subject to additional security clearances. If it is determined the alien is from a country whose nationals are subject to additional security clearances, the alien will be notified that he or she must apply for the visa in the home country. For a list of the countries reportedly affected by these additional clearance checks, please refer to our November, 2001, Alert. * DOS Machine Readable Visa (MRV) fee of $65.00 becomes effective on June 1, 2002; this is a $20.00 increase. The MRV fee is the nonrefundable application fee required by U.S. Consulates for processing of each nonimmigrant visa application. Department of Labor: * DOL recently issued a memorandum clarifying that its Certifying Officers should determine worker availability, and consequently the suitability of an occupation for RIR treatment, at the time the Labor Certification is or was submitted rather than at the time of adjudication. Immigration and Naturalization Service: * All INS petitions and applications must now undergo a security check. This new security check procedure will have a substantial impact on adjudications and will result in delays on final adjudications. The delay in sending out approval notices will be agency wide, and one INS regional service center (Vermont) expects the delay will be at least one additional month. * INS has recently confirmed that the American Competitiveness in the 21st Century Act allows the employer of an H-1B nonimmigrant to seek an extension of the H-1B worker’s stay beyond the 6 year limit as long as the alien is the beneficiary of any labor certification application or any immigrant worker petition. * INS has begun to implement a Zero Tolerance Policy wherein INS adjudicators will no longer exercise discretion to consider an immigration status violation de minimus and thus approve the benefit being sought. This effort to follow the law precisely is the result of tremendous pressure brought to bear upon the INS by the Administration, the Congress, and the agency itself.


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