CHANGES TO VISA PROCESSING
PROCEDURES AND SPOUSAL WORK AUTHORIZATIONS

By Caroline E. Taylor, Esq.

As usual in the ever-changing world of immigration law, there have been several recent developments that significantly affect visa processing procedures.

I. International Travel and Consular Processing:

In response to the September 11, 2001 terrorist attacks, there have been several significant changes to consular processing procedures. In addition, several government agencies, including the Department of State, the Immigration and Naturalization Service ("INS"), the Customs Service and various law enforcement agencies have coordinated their efforts to address security and travel-related issues.

As a result, foreign national travelers are experiencing significant and intensified security measures at airports and at the United States-Mexico/United States-Canada borders when processing through United States Immigration. At airports, foreign nationals are being thoroughly questioned, before both domestic and international flights, and asked to provide documentation showing their legal status in the United States. A little known provision of the Immigration and Nationality Act ("INA") requires every non-citizen over the age of 18 to "carry with him and have in his possession any certificate of alien registration or alien registration receipt card issued to him" at all times. INA § 264(e), 8 U.S.C. § 1304(e). Failure to comply with this requirement may result in misdemeanor charges, fines or imprisonment of not more than 30 days.

The registration documentation required differs depending on visa status. 8 C.F.R. § 264.1(b). We recommend that all non-immigrant workers holding E, H, L, O, P or R classification carry their passport (valid for at least six months), INS Approval Notice (Form I-797), valid I-94 admissions card, and some documentation evidencing employment in the United States, such as a recent payroll stub, when travelling. International travelers may also wish to take with them a current job verification letter from their employer. Permanent residents (green card holders) are advised to carry one or more documents in addition to their "alien registration card" (green card) to confirm their identity.

Another little-known immigration provision requires all non-citizens to notify the INS within 10 days after they move. INA § 265(a), 8 U.S.C.§ 1305(a). Address changes should be reported by filing Form AR-11, which can be downloaded from the INS web site at http://www.ins.gov. Failure to report an address change subjects a person to deportation unless "such failure was reasonably excusable or was not willful." INA § 237(a)(3)(A), 8 U.S.C. § 1227(a)(3)(A). While the INS has not traditionally enforced this provision or the "registration documentation" provision, it is prudent to be cautious in this new heightened-scrutiny environment.

There also have been many significant changes to visa processing procedures at United States Consulates abroad. The Department of State has implemented new visa issuing procedures known as Special Processing Requirements (SPRs), for those who fit a profile based on gender, age, and country of birth or citizenship. The new SPRs include a mandatory background check entailing a 20-day processing delay applicable in the case of male visa applicants who are between the ages of 16 and 45, and who were born in, or are citizens of, the following countries: Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Lybia, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates, and Yemen (known as the "list of 26"). As the SPRs significantly delay visa processing, it is critical that foreign nationals subject to the mandatory background check be aware of the new changes to plan for extended stays outside of the United States when visa processing.

In addition, effective January 2002, all male non-immigrant visa applicants between the ages of 16 and 45, regardless of nationality, must complete a new DS-157, Supplemental Non-immigrant Visa Application Form during the visa application process, with limited exceptions for diplomats and persons from visa waiver countries. The form supplements the standard Form DS-156 and seeks to gather additional information about the applicant's specialized skills or training in connection with firearms, explosives and nuclear, biological or chemical agents; the applicant's educational history; and the applicant's movements over the past ten years. Among other things, the DS-157 also asks applicants to indicate whether they performed military service or whether they have been in armed conflict.

Some posts, including Israel and London, are also requesting that female non-immigrant visa applicants holding Chinese, Cuban, Iranian, Iraqi, Libyan, Russian, Somali, Sudanese or Vietnamese passports complete the Form DS-157. Form DS-157 may be downloaded from the Department of State's website at http://travel.state.gov/DS-0157.pdf.

Most recently, on March 7, 2002, the Department of State amended the provision for automatic revalidation of expired visas for non-immigrant aliens returning from short visits to other North American countries or adjacent islands ("contiguous territories") under 22 C.F.R. § 41.112(d). Commonly referred to as the "contiguous territory" rule, the automatic revalidation provision of 22 C.F.R. § 41.112(d) allowed aliens who were out of the United States for less than thirty days in a contiguous territory to re-enter the United States with an unexpired I-94 card. Such non-immigrants may have been applying for readmission in the same classification or in a new classification authorized by the INS prior to their departure, as indicated on their INS Form I-797 Approval Notice of a Change or Extension of Status.

As part of the Department of State's efforts to tighten security at the borders, the Department of State has amended the "contiguous territory" provision in two ways, each of which went into effect on April 1, 2002. First, the automatic revalidation provision is no longer applicable to foreign nationals who apply for new visas during visits to contiguous territories. Commonly, aliens of all nationalities have chosen to apply for non-immigrant visas at the United States Consulates in Mexico and Canada as Third Country Nationals ("TCNs"), rather than processing a visa application at the United States Consulate in their home countries. In the past, the automatic revalidation provision has served as a "safety net" for these aliens to ensure that they could re-enter the United States even if the non-immigrant visa for which they were applying was denied, as long as they had a valid, unexpired I-94 card. Now, as a result of the Department of State's amendment to the "contiguous territory" provision, if a TCN visa applicant is denied a non-immigrant visa in Mexico or Canada, the applicant must depart through Mexico or Canada and will not be permitted to re-enter the United States using an INS Form I-797 Approval Notice of a Change or Extension of Status. Obviously, this amendment can turn TCN visa processing in Mexico and Canada into a very risky proposition.

Secondly, the "contiguous territory" provision is no longer available to persons born in, or citizens of, countries identified as state sponsors of terrorism, currently designated as Iraq, Iran, Syria, Libya, Sudan North Korea and Cuba. In addition, TCN visa processing is no longer available to nationals and citizens of the "list of 26" countries set forth above. Citizens of these countries must apply for visas in their home countries.

In these turbulent times, it is essential that employers and foreign nationals consult with counsel before visa processing abroad.

II. Spousal Work Authorization Changes:

On January 16, 2002, President Bush signed into law Public Law 107-124 and Public Law 107-125, which amended sections 214(e) and 214(c)(2) of the Immigration and Nationality Act to authorize the "open market" employment of spouses of E-1 treaty trader or E-2 treaty investors, and spouses of L-1 intracompany transferees. The Spousal Work Authorization laws apply to spouses within the United States who have been admitted into the United States in dependent E or L status, or have changed their status to that of E or L subsequent to their last entry into the United States. Prior to these new laws, spouses in E or L status were barred from seeking employment within the United States. It should be noted that the new laws do not authorize employment of dependent children in E or L status.

On February 22, 2002, the INS issued a Memorandum implementing the new laws and defining the procedure for applying for spousal work authorization. As set forth in the INS Memo, Applications for Spousal Work Authorization must be filed with the INS Service Center with jurisdiction over the dependent spouse's place of residence, with some exceptions for Applications being filed concurrently with Petitions for E-1 or E-2 status for the primary beneficiary. The INS Memo provides that a dependent E or L spouse will be granted employment authorization for the period of admission and/or status of their spouse, but not to exceed two years.

By regulation, the INS Service Center has up to 90 days from the date the Service receives the Application for Spousal Work Authorization to adjudicate the application. If the dependent spouse does not receive an Employment Authorization Document within 90 days of his/her Application, the INS Memo provides that the dependent spouse can go to a local INS District office and receive an interim Employment Authorization Document that will be valid for 240 days.

Caroline E. Taylor is an associate with AGG and is a member of the firm's Immigration Practice Group. For more information regarding the issues addressed in this article or your immigration-related needs, please contact Teri A. Simmons, Chair of AGG's Immigration Practice Group, at 404.873.8612 or by e-mail at Teri.Simmons@agg.com, or Ms. Taylor at 404.873.8658 or by e-mail at Caroline.Taylor@agg.com.

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