rules and procedures for immigrant visa processing, an alien in the United States can initiate the processing of his application by mail from the United States and may remain in the United States throughout the course of the processing up to the day on which his appointment for final action is scheduled. At that point, it is necessary, of course, that the alien proceed abroad for the interview and visa issuance, if he is eligible in all respects. Thus, a prohibition against adjustment of status will not delay an alien's acquisition of permanent residence, but will rather cause him to undergo whatever degree of hardship or inconvenience may be involved in travelling abroad for final action in his case. Depending upon the sums of money involved and the alien's financial situation that may amount to a minor irritation or a major hardship. On the other hand, there appears to be a great deal of symbolic value attached to the ability to adjust status. Many people are unaware of the details of the immigrant visa procedures and tend to view the question in an emotional way. Also, the cost of travelling abroad to complete the immigrant visa process can be very great for a large family group whose cases are being processed at a distant consular office, especially so if no valid basis is perceived for imposing the requirement upon them. In summary, we believe that the prohibition against adjustment of status should be confined to situations in which the governmental interest in imposing the additional hardship or inconvenience upon the alien is so clear as to outweigh possible arguments against it. Prohibitions against adjustment of status by aliens admitted in transit without a visa, by alien crewmen, and by aliens who have been illegally employed in the United States seem to us to meet that standard. A prohibition against adjustment by alien students, temporary workers and trainees and intra-company transferees on a general basis does not seem to us to meet the standard. Nevertheless, the Department recognizes that there are cases of aliens admitted as nonimmigrants who subsequently apply for adjustment of status and who can be seen to have used their admission as nonimmigrants for the sole purpose of subsequently acquiring permanent residence. In short, their cases would be viewed as non-meritorious cases even though under existing law they were legally qualified to obtain permanent residence. This is unquestionably a matter of concern and is, we presume, the aspect of the situation which has motivated this proposed amendment. There are several possible ways of addressing this issue other than through an amendment of this kind. The most immediately obvious one is through tighter screening of applicants for nonimmigrant visas in these categories. This is a continuing process and the Department makes periodic efforts to remind consular officers of their responsibilities in this respect. Another possible means of addressing this issue would be appropriate amendments to the definitions of these nonimmigrant classes to restrict their use in ways designed to prevent abuses of this kind. Also, consideration could be given to applying the provisions of section 212(e) of the Act to aliens admitted in these nonimmigrant categories. Finally, it might be possible to formulate appropriate amendments to section 245 of the Act to establish additional criteria for application by the Attorney General in determining whether the discretionary authority to grant adjustment of status should be exercised in individual cases. If it should prove possible to formulate such additional criteria, consideration might be given to applying them to all applications for adjustment of status and not merely to those filed by alien students, temporary workers and intraworker transferees. These latter three possibilities would all require action by the Congress and the Department is not now in a position to advocate any of the three or to provide specific language which might be used to effectuate any of the three. We wish merely at this time to point out the possibility that one or another of the three might prove to be an appropriate means of addressing the concerns which lie behind this proposal. Your bill would also amend section 101(a)(15)(L) to delete therefrom the provision for according that classification to a corporate employee who was not at a managerial or supervisory level but who possessed specialized knowledge and to add a proviso limiting the number of aliens having this status who could be employed by any firm to five percent of the total or executive and managerial personnel employed by the firm. We find it difficult to comment upon these proposals. We presume that they are intended to correct abuses of this classification which have been observed to occur and certainly if such abuses have occurred, remedial action to correct them would be warranted. Since we are not aware of the existence of such abuses, we are unable to evaluate whether the proposals made in your bill are necessary or will have the effect of curing the abuses. In this connection, I might reiterate the comment I made earlier concerning the fact that the approval of a petition to accord status under this section is prima facie evidence that the alien is entitled to the classification and will be accepted by the consular officer in the absence of information that the beneficiary either does not possess the qualifications set forth in the petition or does not intend to perform the services specified therein. We would suggest that, if a five percent limitation is to be imposed, it be imposed upon petition approvals, not upon L visa issuance. The record-keeping involved in trying to monitor this at some 250 visa-issuing posts would be a virtually impossible task. This concludes my opening statement, Mr. Chairman, and I am now prepared to respond to any questions you may have. APPENDIX A NONIMMIGRANT VISA ISSUANCE AND REVALIDATION BY THE VISA OFFICE IN WASHINGTON The Accreditation and Issuance Branch of the Visa Office performs the service of issuing and revalidating all A, G, and NATO visas. Additionally, the Visa Office also revalidates visas in the E, H, I, and L classifications. The requirements and processing are essentially the same as those used in overseas posts. PROBLEMS Hundreds of requests for change of status to A and G classification are received by the Accreditation and Issuance Branch each month. Many large international organizations and to an extent foreign diplomatic and consular missions hire aliens who are in the United States either as tourists or who initially entered as tourists and have overstayed. Many aliens who have been years unlawfully in the country find employment as domestics in households of persons in the "A" or "G" classification. An officer from the Immigration Service spends two days each month in the Branch working with our office in effecting the requested changes of status. Registration of the alien and his occupation with our Protocol Office results in his being considered to be entitled to the classification requested. Normally the Department is not confronted with repeated problems relating to the revalidation of visa requests save one. It is recognized by the Department that a number of aliens in "H" status who forward their passports and approved petitions for revalidation of their visas have applied for immigrant visa petitions as well. Section 214(b) of the INA would apply to these cases and visas should normally be refused except for the fact that the Department is unable to determine whether the alien has or has not filed such petition to obtain permanent status in the United States. The procedure is handled through the mail and consequently there is no opportunity for a personal interview. APPENDIX B LIST OF FORMS USED IN NONIMMIGRANT VISA PROCESSING I-20 A-Certificate of Eligibility (for Nonimmigrant "F-1" Student Status). I-129 B-Petition to Classify Nonimmigrant as Temporary Worker or Trainee. I-134-Affidavit of Support. I-171 C-Notice of Approval of Nonimmigrant Visa Petition or of Extension of I-190-Application for Nonresident Alien's Mexican Border Crossing Card. DSL-836A-Information Regarding Posting of Public Charge Bond. DSL-851-Information Sheet "Classes of Aliens Ineligible to Receive Visas." DSL-856-General Information Sheet for Temporary Workers. DSL-856A-General Information Sheet for Intra-Company Transferees. DSL-857-General Information Sheet for Students. DSL-859-General Information for Applicants for Visitor Visas. DSL-999-Form Letter for Treaty Traders and Treaty Investors. DSL-1011-General Information Sheet for Financees/Fiances. 2. 3. FORM APPROVED OMB NO. 43-RO397 CERTIFICATE ELIGIBILITY (FOR NONIMMIGRANT "F-1" STUDENT STATUS) a. Initial attendance at this school. b. Continuation after a temporary absence outside the United States. His presently authorized stay. as it appears on Form 1-94 in his possession, expires (month, day, year). c. Other (specify). The student named herein has been accepted for a full course of study in this school. (If he must appear on or before a specified date, specify that date here. His major field of study is normally requiring (specify length of proposed course) and he is expected to complete his studies at this institute not later than. The school has determined by a careful evaluation of the student's qualifications that the student has sufficient scholastic preparation to enable him to undertake a full course of study. a. Proficiency in the English language is required and the school has determined that the student has the required proficiency. b. per until The student has been offered employment on the campus which will not displace a United States resident. The rate of pay is $. per The school has made no arrangement for the student to receive an income, but is satisfied on the basis of the evidence submitted that he has the financial ability to pursue the above course of study full time. His expenses will be met by (explain) 7 This school (or if approval not in its own name, the School District under which it operates or School of which it is a part) was approved for attendance by nonimmigrant students by the Immigration and Naturalization Service on FORM 1-20A CERTIFICATE BY NONIMMIGRANT STUDENT UNDER SECTION 101 (a) (15) (F) (i) OF THE IMMIGRATION AND NATIONALITY ACT Page 2 1. I seek to enter or remain in the United States temporarily and solely for the purpose of pursuing a full course of study at the school named on page 1 of this form. 2. Please print name in full 3. My maximum anticipated stay is (Months or Years) 4. My educational objective is 5. I am financially able to support myself for the entire period of my stay in the United States while pursuing a full course of study. (State source and amount of support) (Documentary evidence of means of actual support must be attached to this form) 10. The person most closely related to me who lives in the United States is: (If you have no relative in the United States, give the name of a friend.) (Name) (Relationship) (Address) 11. I understand the following: a. b. C. d. e. f. g. A nonimmigrant student applying for admission to the United States for the first time after being issued an F-1 (student's) visa, will not be admitted unless he intends to attend the school specified in that visa. Therefore, if before he departs for the United States the student decides to attend some other school, he should communicate with the issuing American consular office for the purpose of having such other school specified in the visa. Any other nonimmigrant student will not be admitted to the United States unless he intends to attend the school specified in the Form 1-20 or Form 1-94 which he presents to the immigration officer at the port of entry. A nonimmigrant student is not permitted to work off-campus for a wage or salary or engage in business while in the United States unless permission to do so has first been granted by the Immigration and Naturalization Service. A student who requires employment (1) because of economic necessity due to unforeseen circumstances arising after admission, or (2) to obtain practical training, may apply to the Immigration and Naturalization Service on Form 1-538 for permission to accept such employment. Additional information concerning employment is set forth in Form 1-538. The alien spouse or child accompanying or following to join a nonimmigrant student is not permitted to work in the United States. A nonimmigrant student is permitted to remain in the United States only while maintaining nonimmigrant student status, and in any event not longer than the period fixed at the time of admission (or change to student classification) unless he applies to the Immigration and Naturalization Service on Form 1-538 in accordance with the instructions on that form between 15 and 30 days prior to the expiration of the period of his authorized stay and obtains an extension of his stay. Each year, every nonimmigrant student in the United States on the first day of January must submit by the 31st day of January a written notice of his address to the Immigration and Naturalization Service. In addition, a notice must be sent within 10 days after every change of address. Regardless of whether he moves, each nonimmigrant student is required to file written notice of his address every 3 months. Printed forms obtainable at the United States immigration office or post office should be used in making the annual address report, the change of address report, and the 3-month address report. At the time a nonimmigrant student departs from the United States, his temporary entry permit (Form 1-94) is to be surrendered to a representative of the steamship or airline if he leaves via a seaport or airport, to a Canadian immigration officer if he leaves across the Canadian border, or to a United States immigration officer if he leaves across the Mexican border. A nonimmigrant student may remain in the United States temporarily only for the purpose of pursuing a full course of study at a specified school. If, after being admitted, the student desires to transfer to another school. he must make written application on Form 1-538 for permission to make such a transfer. The application must be submitted to the office of the Immigration and Naturalization Service having jurisdiction over the area in which the school from which he wishes to transfer is located. The application must be accompanied by Form 1-20 completed by the school to which he wishes to transfer. He may not transfer until his application is approved. The application will be denied if the student failed to actually take a full course of study at the school he was last authorized by the Service to attend, unless he establishes that his failure to do so was due to circumstances beyond his control or was otherwise justified. A student who seeks to re-enter the United States as a nonimmigrant student after a temporary absence must be in possession of the following documents: (i) (!!) A valid unexpired student visa (unless exempt from visa requirements); A passport valid for six months beyond the period of readmission (unless exempt from passport requirements): (i) A current copy of Form 1-20 (A and B). However, only the "A" copy of Form 1-20 is required in the case of a nonimmigrant student returning from temporary absence outside the United States to continue attendance at the same school which the Immigration and Naturalization Service last authorized him to attend, in such case. Form 1-20A may be retained by the student and used by him for any number of reentries within twelve months from the date of issuance, the certificate on page 2 of Form 1-20A need not be com. pleted, and Form 1-20B should be destroyed. A nonimmigrant student who does not register at the school specified in his temporary entry permit (Form 1-94), or whose school attendance is terminated, or who takes less than a full course of study, or who accepts unauthorized employment, thereby fails to maintain his status and must depart from the United States immediately. I CERTIFY THAT THE ABOVE IS CORRECT. I hereby agree to comply with the above and any other terms and conditions of my admission and any ex tension of stay. I also hereby authorize the named school and any school to which may subsequently transfer to release to the Immigration and Naturalization Service any information requested bearing on my status as a nonimmigrant student and my places of residence in the United States If any nonimmigrant student in the United States has any questions concerning his immigration status, he should not hesitate to call or write to the nearest immigration office. That office will be pleased to help the student. 2. PART III-REPORT BY SCHOOL CONCERNING "F-1" STUDENT (B) (C) is carrying less than a full course of study or is attending classes to a lesser extent than normally required (explain in Remarks). Do not report temporary discontinuance of attendance during a visit abroad, or because of acute illness or injury. However, if student fails to resume attendance this report must be submitted. A student who, on the basis of the recommendation of your school, has been authorized to accept employment for practical training in a field related to his course of studies is considered to be in attendance at your school during the authorized period of such employment. Please be guided accordingly in submitting reports concerning students who have been permitted to engage in practical training. The student's last residence address in the U.S. was: (Apt. number and or in care of) (Number and street) (City or town) (State) (Zip Code) 3. The following information is furnished concerning the student's departure or planned departure from the United States: Address abroad Name of ship. airline, or transportation company |