January 1998

Workplace Labor Update - Visa Notes – January 1998

4 min

In 1994, Congress enacted Section 245(i) of the Immigration and Nationality Act. This section enabled certain aliens who had failed to maintain lawful status to apply for permanent residence within the United States upon payment of a $1,000 penalty. Although Section 245(i) was scheduled to expire on September 30, 1997, Congress extended it until October 23, 1997, and then again until November 14, 1997 in successive continuing resolutions while the question of permanent extension was delayed pending consideration of a final appropriations bill. On November 13, 1997, Congress passed the final appropriations bill and Section 245(i) has only been extended until January 14, 1998, at which time it will cease to exist. The effect of the expiration of Section 245(i) is that after January 14, 1998, aliens will be forced to resort to consular processing abroad for an immigrant visa in order to become permanent residents if they have previously failed to maintain lawful status by exceeding lawful stay for more than 180 days.

 INS and DOS Publish Final Rules For "E" Nonimmigrants

After years of internal negotiations over points of disagreement, the INS and Department of State have each published final rules governing the "E" nonimmigrant, effective November 12, 1997. (62 Fed. Reg. 48137-155, Sept. 12, 1997). The E nonimmigrant category covers treaty traders and investors. The new rules were formulated in order to promote consistency in the adjudication of E visa applications by both agencies, thus facilitating trade with and investment in the United States by businesses and individuals in treaty signatory countries. This integration of regulations has long been necessary because both agencies play an integral role in the visa process and inconsistency of interpretation of the law has adversely affected many legitimate foreign businesses attempting to obtain E visa status for key employees.

The most significant change is that the INS and State Department rules will now be as uniform in substance and form as possible, particularly in the definitions of "primary treaty alien," "manager," "treaty country nationality." "substantial trade," and "investment," to name but a few. The INS will soon issue a revised form I-129 to be compatible with the Department of State’s current visa application supplement, Form OF-156E. Especially encouraging is a provision allowing the Advisory Opinions Office of the Visa Office at the State Department to give advice and share knowledge with the INS in order to provide the INS with the expertise it now lacks in applying treaty law. The effect of these new rules will be a more consistent adjudication of E visas and a more predictable adjudication process for international businesses.

 Alert Regarding Changes in I-9 Processing

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) required numerous changes to the I-9 procedure, three of which will have significant impact on employers in the United States. First, Congress created a good faith defense to excuse technical "paperwork" errors made in good faith by employers when completing Forms I-9. Second, Congress added an "intent" standard to the previously per se violation of "document abuse." In the past, document abuse penalties were imposed on employers who requested more or different documents than those approved on the I-9, even when it was clear that they did so with no intent to discriminate. Finally, Congress eliminated the use of several documents from List A that new employees were previously able to present to employers for I-9 purposes. For example, IIRIRA eliminates the use of an unexpired foreign passport used in conjunction with a Form I-94 Arrival/Departure Record to establish employment eligibility for a lawful foreign employee. This combination is the typical form of documentation that E, H and L nonimmigrants use to establish identity and employment eligibility. Understandably, the changes to List A have raised concerns for employers and employees alike.

Prompted by the removal of previously approved documents from the list of acceptable documents, INS has requested an extension of time to prepare interim regulations that will hopefully provide workable alternatives. In response, Congress passed a bill on October 1, 1997 extending the time for implementation of INS’s interim regulation as to the application of the changes in the law until March 30, 1998. An update of INS actions on this topic will follow in upcoming issues of the Workplace Labor Update.