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US IMMIGRATION UPDATES

IMMIGRATION / 25 APR 2002

Important Changes To INS Rules Governing Tourists and Students

By Vanessa S. Barcelona

		New rules have been implemented by the INS in an effort to maintain greater control of visitors entering the U.S. on tourist and business visas. These rules are intended to strike a balance between the government interest in welcoming legitimate visitors into the country and at the same time, the government's mission to limit the entry of those whose actual intentions upon entering the U.S. are not reflective of their stated intentions at the time of entry.

While it is obvious that these changes have been brought about by the terrorist attacks of September 11, they will be felt across the board, and will affect not just Filipinos wishing to take extended vacations to visit friends and family across the country, but also business men/women seeking to conduct legitimate business activities, and even foreign retirees who have purchased homes and stay in the U.S. for 6 months or more without any intentions of establishing permanent ties in the United States.

These changes may be considered burdensome by many. It is important, in these trying times, to remember that all of these changes are made not only as part of a more concerted effort on the part of the INS to ensure that those who enter as tourists do not end up staying in the country permanently and in many cases, illegally; but also as a matter of national security - for our protection.

No student will be allowed to attend school until their B-1 or B-2 change of status application has been approved. Further, no change of status from B-1 or B-2 will be allowed unless the intention to attend school in the future was made known to the INS at the port of entry.

This is a significant change, and will mean many changes in the way we apply for student status in the United States. Note that this change only applies to B-1 business visitors or B-2 tourists.

Those in the United States in other statuses (e.g. H-1B, J-1) will be exempted from these new rules. Also, this change applies to those wishing to change status to that of an F-1 academic student or an M-1 vocational student.

For its part, INS has announced that it will change the way it processes these applications, and will impose on itself a targeted processing time of 30 days. It also announced that all of its 4 regional service centers (in Texas, Vermont, Nebraska and California) will achieve this targeted processing time within the next 60 days following announcement of this rule on April 12, 2002.

If you are here as a tourist or business visitor, you thus can no longer apply for admission to a school and start attending classes simply because they have issued you an I-20 document and your application for a change of status is pending with the INS.

Following the effective date of this rule on April 12, therefore, you must file for your request early enough to obtain an approval before classes begin, or else you will not be allowed to attend class.

More importantly, however, you will not even be allowed to apply for a change of status to that of a student UNLESS you stated at the port of entry that you wished to apply for student status eventually, and were only entering the U.S. as a visitor for the purpose of determining which school to attend (i.e., tour campuses, attend interviews for admission, etc.). The INS officer will then mark "prospective student" on your I-94 card.

Thus, those presently in the U.S. in B-1 or B-2 status who have yet to apply for a change of status to that of a student will no longer be allowed to do so, effective April 12, 2002. They will simply have to apply to the school, secure the necessary I-20 document from the school, depart from the United States, and appear at the U.S. consulate abroad so that an F-1 or M-1 visa can be issued to allow them future entry in that status.

However, it is important to note that those who have already done so, and are in the U.S. attending schools in reliance of the old rules while their applications are pending, will not be negatively impacted by these changes.

A proposed rule will soon be implemented, and will mean changes to shorten the 6-month admission period presently in place for B visitors, as well as changes to the standards for an extension of stay.

Soon enough, gone will be the days when a 6-month stamp on the I-94 card was more the rule than the exception. Visitors will soon be required to clearly explain to the INS officer at the port of entry, the intended purpose of the visit and provide sufficient explanation and/or documentation for the period of time needed to accomplish such purpose.

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The INS inspector will then make every effort to determine a fair and reasonable time period to allow admission, given those stated reasons for entry. If none is sufficiently given, a 30-day admission period will be granted.
Extensions of stay will also be limited and will not be given, in most cases, for a period of stay totaling more than 6 months.It is interesting to note that INS specifically recognizes that a group of people - specifically, retirees --- may need to remain in the United States for longer than 6 months, and exceptions to the rule will be allowed in these instances.

It remains to be seen, however, what standards will be implemented to allow for these exceptions. Of course, it follows that applicants for extension of stay in B-1 or B-2 status will need to provide documentation when the extension is filed: that there are adequate financial resources to finance the extended stay; that there is a permanent residence and that there are permanent ties that remain in the home country (i.e., family, employment, property); that the application was filed timely and non-frivolously.

But with the proposed rule, there is a higher standard that will be implemented to allow for a grant of the extension: It will soon be necessary to prove that "unexpected or compelling humanitarian reasons" warrant the request for extension and its grant.

Now more than ever, it is important to notify family and friends seeking to enter the United States for reasons other than those limited to the conditions under which they are entering, that these new requirements may or will affect them. Anyone entering as a tourist but who will eventually wish to become a student will now have to make this intention known at the port of entry (and provide the necessary supporting papers to prove this), or else face having to return to the home country and re-enter under a student visa.

Likewise, anyone entering as a tourist or business visitor with the intention of seeking employment in the U.S. may have to rethink their strategy, and perhaps look into the possibility of entering under a different kind of visa to avoid the limitations imposed by the soon-to-be implemented rules governing B-1 or B-2 admissions and extensions of stay.

Those who enter with the intention of staying illegally will also have to contend with the much-limited avenues for relief, or more specifically - avenues for legalization - once they have become out of status. Section 245(i) of the INA has expired, and while it would have allowed most who have been out of status in the U.S. to legalize their stay with a payment of a fine, it is no longer available and it remains to be seen whether it will be resurrected again. Even if it is resurrected, Congressional discussions surrounding its extension leave very little room for doubt as to the limitations that will be imposed, and thus the limited number of people who will be positively affected by such an extension.

In the last few months, we have all felt the impact of these changes following September 11. Police officers are now given broader powers, even a mandate to look into the immigration status of those who violate the law, to see if any INS action is appropriate in those instances. Driver licenses can no longer be issued without proof of lawful status in the United States. Even with a showing of lawful status, licenses are now issued with their expiration dates consistent with the expiration date of the INS document evidencing lawful stay.

Without a valid driver license, one is not able to obtain car insurance, much less purchase a car. Without a valid driver license or state-issued identification, one is not able to fly even on domestic flights.

It is no longer possible, as it had been in the past, to obtain a social security card without evidence of INS authorization to work.

It is also now a requirement to obtain many professional licenses to show a valid social security number or card. We have thus seen a more concerted effort on the part of government's agencies, and even the private sector, to work together, to share resources, in an attempt not only to identify those who are in the United States in violation of the law and to stamp out future illegal immigration, but to make it more difficult for those without lawful status to live a normal life in the United States.

These matters need to be given serious consideration, especially since it is not only those who violate that are affected, but their spouses and children as well.
Now more than ever, every effort must be made by all of us to maintain status, to prevent a lapse in status, to correct a problem immediately in the event of a lapse, and to do all possible to prevent any violation of the country's immigration laws

VANESSA S. BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net

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