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Interim Rule Issued on Biometric Program
Establishing the VISIT System
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The VISIT system requires fingerprints, photographs or
other biometric identifiers upon arrival in or departure from the U.S.
as part of the new program for non-immigrant visa holders traveling
through designated air and seaports. Although the interim rule exempts
travelers under the Visa Waiver Program (VWP), such persons will not be
admitted under the VWP after October 26, 2004 without a machine-readable
tamper-resistant passport (81 IR 1;1/5/04).
Social Security Administration (SSA)
Systematic Alien Verification of Entitlements (SAVE)
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SSA regulation 20 SFR 422.105 presumes the authority of a
non-immigrant to accept employment but the Systematic Alien Verification
for Entitlements (SAVE) program was adopted by SSA to improve the
integrity of the issuing process to verify that the Immigration Service
document submitted to the SSA is authentic (AILA InfoNet; 1/21/04).
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Individuals with permission to work in the United States
who have applied for a social security number can obtain a letter from
SSA indicating depending status of the application to be presented to an
employer (AILA InfoNet; 1/21/04).
Social Security Administration “Mismatched”
Letters
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Code V “mismatched” letters were sent to 800,000
employers in 2002 and to 133,000 employees in 2003. Present SSA policy
is to send such mismatched letters where employees report W-2 data that
do not match SSA’s records in at least 10 individual cases which
comprise at least .5% of the total employer’s work force. Language
referring to IRS enforcement of penalties for mismatched data has been
removed from the current version of the letter (AILA InfoNet; 1/21/04).
Drivers Licenses and Social Security Numbers
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The Federal Court decision in Iyengar v. Barnhart; USDC
DC November 26, 2002 requires SSA to issue SSN’s for drivers licenses in
states having laws requiring such a number as a condition for licensure
provided the state properly verifies the need for such a number. Those
states requiring a number for license include Delaware, Georgia, Hawaii,
Illinois, Pennsylvania, Utah and West Virginia. SSA issued a Notice of
Proposed Rule making (NPR) which would eliminate a driver’s license as a
“valid non-work purpose” for an SSN (AILA InfoNet 1/21/04).
Exports Through Foreign Nationals
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Export Administration Regulations (EAR) and the
International Traffic and Arms Regulations (ITAR) control exports and
re-exports of technical information, technologies and services related
to commercial items of interest regarding national security, foreign
policy and military industries (15 CFR Part 734; 22 CFR Part 120).
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The technology alert of critical fields includes
conventional munitions, nuclear technology, rocket systems, unmanned air
vehicle subsystems, navigation/avionics/flight control systems,
chemical/biotechnology/ biomedical engineering, remote sensing/imaging
and reconnaissance systems, advanced computer/microelectronic
technologies, materials technology, information security, laser and
directed energy systems technology, sensors and sensor technology,
marine technology, robotics, and urban planning.
Changes In The Application Process For A TN Visa
For Mexican Citizens
H1-B Official Cap Reached
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Effective February 18, 2004, USCIS announced no more H1-B
petitions for initial visa classification will be approved after the
close of business. The cap does not apply to, change of employers,
extensions, employment and institution of higher education, nonprofit
entity, nonprofit research organization or governmental research
organization (2004 AILA, Washington D.C., Doc. No. 04021711
(2/17/2004)).
Employment Authorization Documents –
Applications in South Carolina
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Starting January 29, 2004, the Charleston, South Carolina
office no longer handles routine renewals of employment authorization
documents (EAD’s). The application form is still to be submitted to the
Greer, South Carolina or Charleston office but then shall be forwarded
to the National Benefits Center (NBC) (Chicago, Illinois) which will
issue a notice to schedule biometrics identification. If the NBC has not
issued the new EAD and the biometrics have been completed, applicants
may go to the Charleston office on Tuesday or Thursday mornings to
obtain their card (AILA Announcements 2/4/2004).
New VisaScreen Certificates Required To Extend
Healthcare Worker Visas
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The USCIS issued a final rule July 25, 2003 to take
effect July 26, 2004 requiring certification for non-immigrant
healthcare workers to be administered by the Commission on Graduates of
Foreign Nursing Schools (CGFNS). The “VisaScreen” is administered by the
International Commission on Healthcare Proficiency (ICHP) as the only
organization approved to certify all seven groups of healthcare
applicants to include nurses, physical therapists, occupational
therapists, speech/language pathologists, medical technologists, medical
technicians and physician assistants. The three-part certification
program is comprised of an educational review, a licensure review, an
assessment of competency and English and proof for nurses of passage of
the NCLEX or the CGFNS test. The certificates are valid for five years
from the date in which they are issued and certification process will
normally take at least six months (“Health Law Analysis”, January 2004,
Pinchak & Associates).
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Immigration
U.S.:
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The Social Security Administration
published a proposed rule December 16, 2003 to clarify the assignment of
social security numbers to students in F-1 status (80 IR 1710;
12/19/03).
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The Executive Office for
Immigration Review issued a proposed rule December 30, 2003 to register
attorneys and representatives as a condition of practicing before
immigration judges and the Board of Immigration Appeals (81 IR 37;
1/12/04).
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HR 3561 is a measure to account
for undocumented aliens present in the U.S. by giving incentives to
register with the Department of Homeland Security and provide immunity
from prosecution for the employers if the employers pay all taxes and
penalties owed by reason of such employment (81 IR 43; 1/12/04).
Dumping
U.S.:
Sources:
IR - Interpreter Releases, Federal Publications, Inc.; ITR - International
Trade Reporter, Bureau of National Affairs, Inc.; IB-Bender’s Immigration
Bulletin; ILT - Immigration Law Today, American Immigration Lawyers
Association Monthly Journal; IL - International Lawyer, SMU School of Law;
FT- Financial Times; KTF - Korea Trade Focus Monthly Newsletter (Korea
International Trade Association) TE - The Economist Magazine; GATM -
German American Trade Magazine published by the German American Chamber of
Commerce; MAPI - Manufacturers Alliance Legal Analysis and Regulations;
WSJ - Wall Street Journal; ILN/ABA-International Law News, American Bar
Association; TMIJ-Tax Management International Journal, Bureau of National
Affairs, Inc.; AILA - American Immigration Lawyer’s Association
International Law Bulletin
is an
international legal news digest published monthly as a service to Nelson
Mullins’ clients and friends. The articles are summaries of particular
developments in the law and are not intended to be a solicitation or to
render legal advice. This publication can be considered advertising under
applicable laws. Copyright 2003
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Nelson Mullins Riley & Scarborough, L.L.P.
has offices located in
Charleston, Columbia, Greenville, and Myrtle Beach, South Carolina
Atlanta, Georgia; Raleigh, Winston-Salem, Charlotte, North Carolina
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