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Immigration Update Spring 2003

by Cyrus D. Mehta

As the Department of Homeland Security (DHS) has begun to administer the nation's immigration laws, we are getting some sense of changes in the culture of enforcing the laws or granting immigration benefits.

Culture of No

Much is being said of the growing "culture of no" in the Bureau of Citizenship and Immigration Services (BCIS), which is the office in the DHS that grants benefits such as green cards and citizenship. Adjudicators are increasingly unwilling to exercise favorable discretion, and often seem to be reaching for reasons to deny applications.

We are also beginning to see the same culture in the new Bureau of Customs and Border Protection (BCBP) at various ports of entry. The American Immigration Lawyers Association (AILA) has reported examples of refusing admission to permanent residents; using expedited removal where parole, deferred inspection or withdrawal of the application for admission should have been appropriate; and refusing to exercise discretion or shifting the responsibility for that exercise to another agency. Our own office is also beginning to see very strict enforcement at the ports of entry. Thus, an H-1B visa holder who was out of status earlier, and is now entering on a new employer's H-1B approval notice should expect intense scrutiny at the USA-Canada border.

The new BCBP is a merger of the former US Customs, Department of Agriculture and Immigration and Naturalization Service. Thus, officers who were previously part of customs may now be cross-trained in the BCBP to do immigration inspections. They may not be as knowledgeable and experienced as the personnel who have been doing only immigration inspections for a long period of time and could be prone to making mistakes.

Student Adjustment Act Proposed

In an interesting development in Congress, a bipartisan Student Adjustment Act was introduced in the House of Representatives. Representatives Chris Cannon (R-UT), Howard Berman (D-CA), and Lucille Roybal-Allard (D-CA), introduced the Student Adjustment Act of 2003 on April 9, 2003. This bill would allow young people who have good moral character, have lived in the US at least five years, are in school in 7th grade or above, and are under 21 years old, to adjust their status. The Student Adjustment Act also would amend the earlier 1996 provisions to permit states to determine residency for in-state tuition purposes. If this bill is passed it would recognize that some of the country's best and brightest students are prevented from reaching their potential. Because of their undocumented status, thousands of young people each year are prevented from pursuing their dreams of going to college and, without the option of in-state tuition, lack sufficient resources. The young people who would benefit from this legislation have done nothing wrong. They may have arrived in this country with their parents, who may then have remained here and let their childrens' statuses lapse. It is hoped that this bill gains momentum and gets passed into law.

No Registration For Those Who Leave Before April 25

In our article dated April 4, 2003, we reported about the extended special registration deadline of April 25, 2003 for citizens or nationals of Group 4 countries. The Group 4 countries include Bangladesh, Egypt, Indonesia, Jordan and Kuwait.

A community relations official at the Bureau of Immigration and Customs Enforcement (BICE) has informed this office that an individual subject to Group 4 call-in Special Registration does not have to register under that Group's extended deadline if he departs the US prior to April 25. This was not reflected in the Federal Register notice that extended the Group 4 deadline to April 25, but it is in a notice on the BCIS website at that indicates that special registration is only applicable to one who "will remain in the United States at least until April 25, 2003." It is still not clear from this notice whether persons who depart on April 25, must register.

Study At Multiple Schools Can Constitute A Degree

Proving that the beneficiary of an employment based immigrant petition, Form I-140, has the US equivalent of a foreign degree has always been a nightmare. Under the employment-based second preference (EB-2), the alien beneficiary of an I-140 petition has to establish that he or she has an advanced degree. Under 8 C.F.R. Section 204.5(k)(2), "advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate degree. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree."

INS officers were interpreting the regulation to mean only a foreign equivalent of United States baccalaureate degree for qualifying under the employment-based second preference. Thus, where an alien beneficiary presented a three-year foreign degree combined with a diploma, INS officers rejected such credentials even though they constituted the equivalent of a US degree.

On January 7, 2003, Efren Hernandez III, Director, Business and Trade Services, INS, responded to a query from attorney Aron Finkelstein, indicating that a foreign degree equating to a US degree need not have been in the form of a single degree. The letter also indicated that "five years of progressive experience" for advanced degree EB-2 equivalency can be obtained either in the US or abroad.

Although such letters are not binding, it would be able to influence INS officers who have been rejecting credential evaluations and finding that foreign degrees resulting from the combination of more than one educational program do not equate to a US degree.

While this letter pertains to I-140 petitions under EB-2, it should also be able to positively impact the adjudications of employment-based I-140 petitions under the employment-based third preference (EB-3).

8 C.F.R. Section 204.5(l)(3)(C) defines "professionals" under the third preference as one who "holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions."

One would hope that an alien presenting a combination of one educational program under the employment-based third preference for professionals would also be able to establish that he or she has a "foreign equivalent degree."

Finally, even if the INS has adopted a more generous view of accepting a foreign equivalent degree through multiple education programs, there is still no acceptance of establishing a foreign equivalent degree based on only work experience or a combination of education and work experience. While such a combination may be permissible to establish a foreign degree equivalent for H-1B visa purposes, an alien beneficiary can only establish foreign degree equivalency under an EB-2 or EB-3 petition through education.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.