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U.S.-India State-to-State Engagement Begins in New Delhi

Special Representative for Global Intergovernmental Affairs Reta Jo Lewis landed in New Delhi Saturday to begin a trip throughout India as part of a plan for U.S.-India state-to-state partnerships. This initiative engages Indian state and local leaders throughout the country in a discussion of topics of mutual interest and partnership with their counterparts in the United States, such as trade and investment, infrastructure, education, science, and technology. Special Representative Lewis will travel to several cities within the Indian states of Assam, Orissa, Andhra Pradesh, Tamil Nadu, Kerala, and Maharashtrato meet with chief ministers, mayors, and panchayat leaders, as well as with leaders in the business and academic communities.

This initiative follows the momentum for bilateral engagement built by Secretary Clinton, who returned from the second round of the U.S.-India Strategic Dialogue just a few weeks ago. Since the inaugural Strategic Dialogue in 2010, the U.S.-India partnership has flourished, resulting in advances in nearly every area of human endeavor. As Secretary Clinton and India’s Minister for External Affairs Shri S.M. Krishna expressed in a joint statement during her visit to India, “through this dialogue, we have expanded our strategic consultations and witnessed an expansion of the already robust people-to-people ties; scientific, space, and technology collaboration; clean energy cooperation; and connections among entrepreneurs and social innovators.”

Special Representative Lewis has worked on similar state-to-state initiatives in Brazil, South Africa, Nigeria, and most recently China; however, this is her first visit to India, where she hopes to establish similar state-to-state collaborations as her office carries out Secretary Clinton’s vision of 21st Century Statecraft utilizing state leaders as sources of innovation, talent, resources, and knowledge towards a new era of global engagement that takes an imaginative look at how we conduct our foreign policy.

The Department of State (DOS) sees this two-week engagement tour throughout India as one of the many steps taken to continue to broaden and deepen the U.S.-India global strategic partnership since President Obama’s historic visit to India in November 2010. Special Representative Lewis explained that her goal for the trip is “to listen and to learn how state and local leaders in India hope to engage their U.S.counterparts. I’m very excited about this state-to-state engagement, but I need [their] vision for linking together regional leaders.”

DOS Announces New Requirement for Passport Applications

The Department of State (DOS) announced that an applicant's parent(s)' full name(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship, regardless of the applicant’s age. Certified birth certificates without this information are not acceptable as evidence of citizenship. Applications submitted or accepted before April 1, 2011, are not affected.

DOS Announces U.S.-Russian Agreement on Visa Issuance

Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov today announced an agreement on the issuance of nonimmigrant business, tourist, private and humanitarian visas to the Russian Federation, and for business and tourist visas to the United States, as well as short-term official travel visas to both counties in keeping with the joint statement issued during the meeting of President Obama and President Medvedev in Deauville, France on May 26, 2011.

This agreement will facilitate travel between our two countries and establish stronger ties between our people. The agreement benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.

The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding between our societies.

This agreement will go into effect after an exchange of diplomatic notes in Moscow.

DOS Temporary Suspends Certain J-1 Exchange Visitor Program Requirement For Libyan Students

Recent political turmoil in Libya has affected Exchange Visitor Program college and university students studying in the United States. Many of the students dependent upon financial support originating in their home country have found themselves without funds. To ameliorate the hardship arising from this lack of financial support and facilitate these students’ continued studies, the Department is suspending the application of the full course of study requirement set forth at 22 CFR 62.23(e), the application of the requirements governing student employment set forth at 22 CFR 62.23(g), and the application of the duration of participation requirements set forth at 22 CFR 62.23(h) effective until December 31, 2011.

The temporary suspension of certain requirements governing program status and on-campus and off-campus employment for J-1 Libyan students does not apply to Federal Work-Study jobs.

College and university students in J-1 status whose means of financial support come from Libya and whose financial support has been disrupted, reduced, or eliminated due to turmoil in their home country may be authorized by the Responsible Officer of their academic institution to pursue full-time or part-time on-campus or off-campus employment.

A reduction in the students’ academic course load may also be necessary due to this employment and accordingly, such students will be deemed to be in valid J-1 Exchange Visitor Program student status if they are:

an undergraduate student and enrolled for not less than six semester hours of academic credit or its recognized equivalent;
a graduate student enrolled for not less than three hours of academic credit or its recognized equivalent;
a non-degree student actively participating on not less than a halftime equivalent basis in the prescribed course of study for which the student was initially authorized J-1 student status; or
a non-degree student actively pursuing English language instruction on not less than a half-time equivalent basis.

Responsible officers who authorize on-campus or off-campus employment for these students should update the students’ SEVIS record by notating in the remarks box of their electronic record: “Special Student Relief work authorization granted until December 31, 2011.” If a reduced course load is also authorized due to employment, the responsible officer should also record this fact in the SEVIS record comment box as: “reduced course load authorized.”

The Department’s suspension of the application of the requirements set forth in 22 CFR 62.23(e), 22 CFR 62.23(g) and 22 CFR 62.23(h) for these identified students will remain in effect until December 31, 2011.

India's EB-2 Cut-Off Dates will Advance

Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed AILA of a dramatic reduction in the use of EB-1 numbers. He stated:

“USCIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010.

Source: AILA

Applicants looking to file form I-485 Adjustment of Status as a result of EB-2 priority dates becoming current can contact VisaPro.

If you have any questions about what steps you should take once your priority date becomes current, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

H and L Visa Appointments No Longer Available at the Mumbai Consulate

The current Mumbai Consulate's aging infrastructure has led to limited operations at this consulate. If applicants already have a scheduled H or L visa interview appointment at the Mumbai Consulate, applicants may keep that interview date and time. However, no new H or L visa appointments will be made at the Mumbai Consulate. New H and L interviews will have to be scheduled at the other U.S. Consulates in India or the Embassy in New Delhi. The U.S. is constructing a new multi-million dollar Consulate for Mumbai and it is scheduled to open later this year.
Appointments may be scheduled via VFS at https://www.vfs-usa.co.in/USIndia/Index.html. Appointment times can be found on the VFS website.

DOS Visa Policy Update: Guidance on L Visas and Specialized Knowledge

1. The following guidance is in response to a request [redacted] for specific guidelines for L visa adjudications, particularly in regard to evaluating claims of "specialized knowledge," and will be useful to all posts. There is a concern about the potential for inconsistent adjudicatory standards at different constituent posts and clear standards would allow for more consistent adjudication.

2. Unfortunately, the statutory language defining "specialized knowledge" is not simple or clear. Specialized knowledge is defined in INA 214(c)(2):

(B) For purposes of section 1101 (a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.

3. The phrase "specialized knowledge" is not otherwise defined in the law, and there have been few administrative or judicial opinions interpreting it. This statutory definition has been called tautological, in that it states an alien will serve in a capacity involving specialized knowledge if the alien has special knowledge. As the DHS/AAO noted, "the definition is less than clear, since it contains undefined, relativistic terms and elements of circular reasoning." A decision by a District Court in Washington, D.C. was even more critical: "Simply put, specialized knowledge is a relative and empty idea which cannot have a plain meaning."

4. Given the relative lack of statutory clarity or interpretative guidance, determinations as to specialized knowledge by necessity will often depend on the consular officer’s expertise in the context of the specific case’s circumstances. Again, this has been noted by the AAO: "By deleting this element in the ultimate statutory definition and further emphasizing the relativistic aspects of "special knowledge." Congress created a standard that requires USCIS to make a factual determination that can only be determined on a case-by-case basis, based on the agency’s expertise and discretion. Rather than a bright-line standard that would support a more rigid application of the law, Congress gave legacy INS a more flexible standard that requires adjudication based on the facts and circumstances of each individual case.

5. Despite the lack of simple, bright-line, legal criteria, there are factors which have been cited by INS/DHS sources as valid for making specialized knowledge determinations. Post can use the following criteria to assist in making this adjudication:

6. The proprietary nature of the knowledge - While it is not strictly required that specialized knowledge involve knowledge of procedures or techniques proprietary to the petitioning company, the possession of significant proprietary knowledge can in itself meet the specialized knowledge requirement. This is expressly stated in INA 214(c)(2), which makes reference to "special knowledge of the company product and its application in international markets" or "advanced level of knowledge of processes and procedures of the company." Legacy INS has in the past indicated that proprietary knowledge will meet the L requirement when it "would be difficult to impart to another without significant economic inconvenience." This knowledge can be acquired through on-the-job training.

7. If everyone is specialized, then no one is – The legislative history indicates that the specialized knowledge requirement was intended for "key" personnel. While it could be true in a small company that all experienced employees are "key," for a larger company there should be a distinction between "key" and normal personnel. This could be made based on length of experience, level of knowledge, or level of responsibility - e.g., the person has been made responsible for more complicated and/or sensitive projects. If a company is claiming that all the employees working on technical issues should be considered to have specialized knowledge, the company is probably employing too low a standard. On the other hand, there is no legal basis to require any specific limit on the number of employees that can be considered key. As indicated, for a small company, all employees with responsible positions may be key. A large company can have a large number of key employees who would meet the specialized knowledge criteria, but there should be a distinction between those employees and ordinary skilled workers.

8. The concept of "more than ordinary" - The use in the INA of the terms "special" and "advanced" implies that the employee has more skills or knowledge than the ordinary employee. This does not require an "extraordinary" level of skills, merely more than that of the ordinary employee in the company or the field. This could involve knowledge of special company projects or greater than normal experience and/or knowledge of software techniques.

9. [Redacted]

10. Job shops - In addition to specialized knowledge criteria, the issue of job shops is important to the determination of ineligibility and is of apparent concern to Post.

11. Employer/employee relationship - L is a status for persons being transferred to work within a company structure and not for another company, and the issue of employer/employee relations has always been critical to the L adjudication. The INA flags the importance of this issue in INA 214(c)(2):

(F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101 (a)(15)(L) of this title and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101 (a)(15)(L) of this title if -

(i) the alien will be controlled and supervised principally by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

12. The INA restrictions on job shops reflect general legal definitions of the employer/employee relationship. Standards on making employer/employee determinations can also be found in the L FAM notes:

The essential element in determining the existence of an "employer-employee" relationship is the right of control; that is, the right of the employer to order and control the employee in the performance of his or her work. Possession of the authority to engage or the authority to discharge is very strong evidence of the existence of an employer-employee relationship.

The source of the beneficiary’s salary and benefits while in the United States (i.e., whether the beneficiary will be paid by the U.S. or foreign affiliate of the petitioning company) is not controlling in determining eligibility for L status. In addition, the employer-employee relationship encompasses a situation in which the beneficiary will not be paid directly by the petitioner, and such a beneficiary is not precluded from establishing eligibility for L classification.

A beneficiary who will be employed in the United States directly by a foreign company and who will not be controlled in any way by (and thus, in fact, not have any employment relationship to) the foreign company’s office in the United States does not qualify as an intra-company transferee.

13. The issue of control by the sending employer is critical. When the employment is off-site, there can be two ways of determining control, both indicated in the INA definition. The employee can be directly controlled by a supervisor from the sending company. The employee may also work off-site without direct supervision at that site, but in "connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary." This could mean, for example, that the employee would be working for an off-site, unaffiliated company that has no IT department, and therefore the employee would be using specialized knowledge that only the petitioning company can oversee or evaluate. It could also mean the employee is working on a proprietary project involving knowledge and skills specific to the petitioning employer and not possessed by the unaffiliated company. On the other hand, an off-site employee working in the IT section of an unaffiliated company who is not under the direct supervision of the petitioner or working on a proprietary project involving knowledge and skills specific to the petitioner would probably not qualify for L status based on job shop concerns.

Registration Period Closed for DV Lottery 2012

The U.S. Department of State (DOS) has informed that the period for DV-2012 is over and thus DOS has stopped accepting electronic registrations for the DV Lottery for fiscal year 2012 at 12:00 pm EDT (GMT -4) on Wednesday, November 3, 2010.

2012 Entrant Status Check

Applicants who participated in the DV Lottery 2012, may check the status at this link http://www.dvlottery.state.gov/ESC/ on or after July 1, 2011.

2011 Entrant Status Check

Applicants who participated in the DV Lottery 2011, may check the status at this link http://www.dvlottery.state.gov/ESC/.

State Department Announces Online Immigrant Visa Application

The US Department of State (DOS) has announced Form DS-260, a new, completely electronic application for foreign nationals seeking immigrant visas at U.S. consulates abroad. The new form has not yet been made available for use by the public, but is expected eventually to replace Form DS-230, the paper-based immigrant visa application. Initially, DOS will accept either the paper-based or the electronic version of the application.

Form DS-260 has been in development at the State Department for several years and follows implementation of Form DS-160, the electronic nonimmigrant visa application form that was introduced in late 2008 and became mandatory for all nonimmigrant visa applicants in April 2010. The DS-260 form is expected to resemble its nonimmigrant counterpart.

When Form DS-260 is fully implemented, users will electronically complete, sign and submit their applications online; they will not submit a paper application to DOS. Applicants will be permitted to have their immigration counsel assist them in filling out the form, but will be required to complete the electronic signature portion themselves. The completed application will then be transmitted to DOS, where it will be visible to officers at the National Visa Center – the DOS division that administratively processes immigrant visa applications – and to adjudicating officers at U.S. consulates.

Fee for Visa Waiver Program Increases from September 8

U.S. Customs and Border Protection today announced an interim final rule that amends Department of Homeland Security regulations to require travelers from Visa Waiver Program (VWP) countries to pay operational and travel promotion fees when applying for an Electronic System for Travel Authorization (ESTA) beginning September 8.

A fee of $4 will recover the costs incurred by CBP of providing and administering the ESTA system and is in addition to the mandatory $10 travel promotion fee established by the Travel Promotion Act of 2009, enacted as Section 9 of Public Law 111-145, the United States Capitol Police Administrative Technical Corrections Act of 2009. The total fee for a new or renewed ESTA will be $14.

DHS published a notice of the interim final rule in the Federal Register today and will accept comments through October 8. Collection of the fees will begin for ESTA applications filed on or after September 8.

Nonimmigrant Visa Application Fees to Increase from June 4

The Department of State published an interim final rule in the Federal Register on May 20, 2010 to increase nonimmigrant visa application processing fees, also called the Machine-Readable Visa (MRV) fee, and Border Crossing Card (BCC) fees.

The Department is increasing fees to ensure sufficient resources to cover the rising cost of processing nonimmigrant visas. This increase applies both to nonimmigrant visas placed in passports and to border crossing cards issued to certain applicants in Mexico.

The new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas. The Department is required to recover, as far as possible, the cost of processing nonimmigrant visas through the collection of the application fees. For a number of reasons, including new security enhancements, the $131 fee set on January 1, 2008 no longer covers the current, actual cost of processing nonimmigrant visas.

Under the new schedule of fees, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.

Applicants for petition-based visas will pay an application fee of $150.

These categories include:

H visa for temporary workers and trainees

L visa for intracompany transferees

O visa for aliens with extraordinary ability

P visa for athletes, artists and entertainers

Q visa for international cultural exchange visitors

R visa for religious occupations

The application fee for K visas for fiancé(e)s of U.S. citizens will be $350. The fee for E visas for treaty-traders and treatyinvestors will be $390.

Concurrent with the publication of the interim final rule, the Department will also release additional cost of service data and re-open the public comment period for an additional 60 days. At the conclusion of that period, the Department will consider public comments and publish a final rule.

Entries Up for DV-2011 Program

In the first week of the DV-2011 Program, Department of State (DOS) has received over 900,000 entries, submitted by people around the world submitted, which marks 63 percent increase over the same period last year. DOS expects to receive more than 13,000,000 entries for the DV-2011 Program.

The U.S. Department of State launched DV-2011 on October 2 and will conclude the registration period on November 30. This Congressionally-mandated program makes available 55,000 immigrant visas annually, drawn randomly from all entries and issued to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States.

Successful DV-2011 entrants will receive notification of their selection via mail between May and July, 2010, and will be permitted to commence the Immigrant Visa application process in October 2010. The deadline for visa issuance is September 30, 2011.

The Diversity Immigrant Visa Program is open to persons meeting simple, but strict, eligibility requirements. Nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years are not eligible.

For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Brazil, Canada, China (Mainland-Born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

NOTE: Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

There is no fee to enter DV-2011. Successful entrants, however, will be required to pay all applicable application fees and costs, including those for medical examinations, for themselves and qualifying immediate relatives. Entries must be submitted online. Paper entries are not acceptable. All successful entrants will be notified by mail, but entrants who retain their online confirmation page will be able to check their entry status through the internet.

DOS Published Final Rule on Amended Requirements for Religious Workers

SUMMARY: To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. This rule establishes the requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services Form I-129 petition from the Department of Homeland Security before issuance of a visa.

DATES: This rule is effective October 6, 2009.

FOR FURTHER INFORMATION CONTACT: Lauren A. Prosnik, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-2951.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

On November 26, 2008, the Department of Homeland Security (DHS) promulgated regulations requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. 73 FR 72276. As a result, the requirements for an R-1 nonimmigrant visa now include establishing that the applicant is the beneficiary of an approved petition. U.S. Citizenship and Immigration Services (USCIS) has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the United States and to determine that a religious worker will be admitted to the United States to work for a specific religious organization at the request of that religious organization. This rule amends the Department regulations to ensure consistency with the regulations set forth by DHS.

Regulatory Findings:

Administrative Procedure Act:

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business:

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for R-1 nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6).

The Unfunded Mandates Reform Act of 1995:

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996:

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104- 121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Executive Order 12866:

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this final regulation justify its costs. The Department does not consider this final rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism:

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Executive Order 12988: Civil Justice Reform:

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Paperwork Reduction Act:

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Part 41

Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas.

For the reasons stated in the preamble, the Department of State amends 22 CFR Part 41 as follows:

PART 41--[AMENDED]

1. The authority citation for part 41 continues to read as follows:

Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681- 795 through 2681-801; 8 U.S.C.1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).

2. Revise Sec. 41.58 to read as follows:

Sec. 41.58 Aliens in religious occupations.

(a) Requirements for ``R'' classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:

(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and

(2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or

(3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.

(b) Petition approval. The approval of a petition by USCIS does not establish that the alien is eligible to receive a nonimmigrant visa.

(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not precede or exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.

(d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien's application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.

DOS Cable on Revised J-1 Visa Exchange Visitor

Pursuant to the provisions of Section 212(e) of the Immigration and Nationality Act (INA), as amended, 8 U.S.C. 1182(e) and 22 CFR 41.63, the Secretary of State designated on April 25, 1972, and revised on February 10, 1978, a list of fields of specialized knowledge or skills (referred to as the Exchange Visitor Skills List) for countries which clearly required the services of exchange visitor participants engaged in one or more of the designated fields. Any national or resident of a country on the skills list who obtained a J-1 exchange visitor visa and/or became a participant in an exchange visitor program involving a designated field of specialized knowledge or skills after the effective date of those public notices is subject to the two-year foreign-residence requirement of Section 212(e) of the INA, as amended.

The revised 2009 J-1 visa Exchange Visitor Skills List was published in the Federal Register (Volume 74, Number 82) on April 30, 2009 and the The new Skills List is effective on June 28, 2009.

Exchange visitors who entered the United States on a J-1 visa prior to June 28, 2009 shall continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. Exchange visitors whose countries were removed from the revised 2009 skills list are retroactively not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the United States prior to the effective date.

For residents of countries who remain on the revised 2009 Skills list, if the exchange visitors obtained a J-1 visa based on a previous skills list, they remain subject to Section 212(e) of the INA. This is true even if their country has removed that skill from the revised 2009 Skills List. Exchange visitors are subject, based on the skills list that was in effect when they first obtained the J-1 visa.

DOS Opens Twenty-first Domestic Passport Issuance Facility for Americans

The Department of State (DOS) opened its twenty-first domestic passport issuance facility in Minneapolis, Minnesota, on May 18. The Minneapolis Passport Agency is located at 212 South Third Avenue in downtown Minneapolis and is designed to provide in-person passport services to American citizens throughout the North Central border region.

The Minneapolis location provides gateway access to Canada. Its proximity to a major domestic and international airport will be instrumental in helping American citizens with their travel plans.

The Minneapolis Passport Agency serves U.S. citizens who have urgent/emergency travel needs and has the capability to issue passport books and passport cards on-site to qualified applicants. With the final phase of the Western Hemisphere Travel Initiative scheduled to be implemented June 1, 2009, this agency will greatly improve their ability to meet the travel needs of the customers in several of the northern Border States.

Information on the cost and how to apply for a passport book and/or a passport card can be found at www.travel.state.gov. U.S. citizens may also obtain passport information by calling the National Passport Information Center toll-free at 1-877-487-2778.

DOS Releases Cable On Student and Exchange Visitor Update

Student and Exchange Visitor Update

Reference Document: STATE 017314, Date 2/09

TO ALL DIPLOMATIC AND CONSULAR POSTS

1. SUMMARY: The F, M, and J FAM notes have been extensively updated to reflect current guidance. VO/P has established a Student and Exchange Visitor Visa Center to answer F, M, and J case inquiries. Please remember that while the SEVIS record is the definitive proof of F, M and J eligibility, applicants currently are required to present accurately completed I-20 or DS-2019 paper forms. The CCD reports for SEVIS lookups have been enhanced. While not required for F or M applicants, medical insurance could help establish an applicant's eligibility. Admission to a lesser-known college or English language program is not in itself a reason for refusal, although all applicants should be able to explain their school choice and educational plan. The J-1 Skills List has been updated and is nearing publication in the Federal Register. This cable also provides reminders on the Summer Work/Travel program, an overview of F/M/J validation studies, and an update on two J-1 pilot programs. End Summary.

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UPDATED FAM NOTES
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2. As part of the extensive 2008 9 FAM revisions, the 9 FAM notes for 41.61 and 41.62 have been updated to include all recent guidance on F, M, and J visas. Suggestions for further revisions or clarifications are always welcome and should be sent to VO/L/R and your VO/F/P post liaison officer.

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NEW: THE STUDENT/EXCHANGE VISITOR VISA CENTER
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3. VO's Public Inquiries Division has created a unit to respond to inquiries about individual student and exchange visitor visa cases. The Center can be reached via email at fmjvisas@state.gov and typically receives almost 900 inquiries a month.

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FORMS
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4. The SEVIS record is the definitive record to determine student or exchange visitor visa eligibility (see 9 FAM 41.61 N2.2 and 41.62 N 8.1). The new version of SEVIS, expected to be released by spring 2010, will remove the requirement for the paper forms, but until then F/M/J visa applicants must present signed I-20 or DS-2019 forms. If there are minor errors on the form (e.g., a program start date that is off one day) you can process the case using that form. However, if the form indicates an unrealizable program start date, or has a typographic error in the bio data, you must verify that the information is correct in SEVIS. You should then consider whether the error on the form would cause the traveler difficulty at the port of entry. If it would, you should request that the applicant travel with a corrected hard copy of the form. 9 FAM 41.61 N3.1 and 9 FAM 41.62 N3.1 will be updated to include this information.

----------------------------------
STUDENTS AND LESSER-KNOWN PROGRAMS
----------------------------------

5. Please remember that, as noted in 9 FAM 41.61 N 7.2, attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education. A plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.

6. We encourage you to welcome community college or other university recruiters to brief your section on their schools and programs. You may wish to ensure your post website has links to USG sites such as www.exchanges.state.gov, www.educationusa.state.gov, www.ed.gov, and educational association sites such as www.communitycollegeusa.com, www.edupass.org, or www.iie.org.

----------------------------
MEDICAL AND TRAVEL INSURANCE
----------------------------

7. Per 22 CFR 62.14, J-1 and J-2 travelers are required to have adequate medical insurance in order to participate in an exchange program. While F and M students and their dependants are not required to have U.S. medical or travel insurance in order to qualify for a visa, most universities require students to have medical insurance. Assurance that a student would be able to afford any health care expenses in the United States could certainly help a student overcome public charge concerns. 9 FAM 41.61 N6.1-3 and 41.62 N 8.1 (c) will be added to reflect this reminder.

------------------------
CCD SEVIS REPORT CHANGES
------------------------

8. You may have already noticed enhanced ways to check an applicant's SEVIS status using the CCD. The CCD now has an expanded "NIV Applicant SEVIS Status" search function that allows you to search by additional fields. In addition, the existing "SEVIS Lookup" function allows you to search for a SEVIS number by school or program name as well as applicant name. SEVIS reports now should indicate whether an F or M visa applicant has been approved for Optional Practical Training (OPT) or Conditional Practical Training (CPT), as well as the status of a school (active or terminated). Please let us know if you would like additional functionality in these reports

------------------------
[Paragraphs 9 and 10 redacted]
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REPORTING SUSPICIOUS SCHOOLS
----------------------------

11. Consular officers who uncover patterns of abuse or suspicious activity from a particular school should send that information to VO/F/P and FPP. We can pass along information from the field that sometimes leads SEVP to reevaluate a school's SEVIS status.

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J-1 SKILLS LIST
---------------

12. The Exchange Visitor Skills List has been updated and is nearing publication in the Federal Register. Once it is published, we will notify posts and provide details about when it will take effect.

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SUMMER WORK TRAVEL UPDATE
-------------------------

13. Thank you to all posts that have been working hard to remind sponsors of the requirement that Summer Work Travel (SWT) programs may only take place during a student's summer leave period, and may not exceed four months. Please note that, as explained in 9 FAM 41.62 N 8.6, the SWT program must end before the next school term begins. However, each J participant is allowed to remain in the U.S. for a 30-day grace period after the program ends. Any validation studies about J overstays must take into account this allowed grace period, which in some cases would extend into the next school year (9 FAM 41.62 N4.12-3).

14. SWT applicants are not required to have a job placement at the time of their visa application. However, it is reasonable, especially in this economic climate, that applicants without job placements may have a more difficult time establishing their ability to support themselves during their program, as well as their intent to return abroad after the program ends. One effective way to minimize potential SWT abuse is to verify job offers for SWT applicants who have them. Additional information about the types of employment permitted on SWT can be found on the ECA site at www.exchanges.state.gov/jexchanges/programs/swt.html.

15. As noted in Ref A, posts should establish uniform SWT program dates and send to [redacted] VO/F/P. We have received SWT program dates from approximately 50 posts. We will share this with the U.S. sponsors and have provided it to ECA.

-----------------------------------
SUMMER AU PAIR PILOT PROGRAM TO END
-----------------------------------

16. The Summer Au Pair Pilot Program that began in the summer of 2005 and provided participants a four-month au pair program during the U.S. summer will be discontinued at the end of the 2009 summer placement period.

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J-1 TEACHER PROGRAM: PILOT EXTENDED
-----------------------------------

17. ECA has authorized a two-year extension of the Pilot program being conducted by the Center for International Education (ref E). The pilot was originally authorized through February 15, 2009. The two-year extension authorizes it through February 15, 2011, and adds a second teacher exchange sponsor, Foreign Academic and Cultural Exchange Services (FACES). 9 FAM 41.62 N 4.13 will be updated to include paragraph c, as follows:

c. Pilot Program for Exchange Visitor Teachers

In February 2007 ECA announced a two-year Pilot Program for Exchange Visitor Teachers to provide an opportunity to evaluate the need for and acceptance of a reduced experience requirement. The Pilot period, scheduled to conclude February 15, 2009, has been extended for an additional two-year period to February 15, 2011. The Pilot is being conducted by the Center for International Education, Inc. and Foreign Academic and Cultural Exchange Services (FACES), Department-designated Exchange Visitor Program sponsors. The Pilot is limited to nine countries: Australia, Canada, Columbia, New Zealand, South Africa, Spain, United Kingdom, Ireland, and Venezuela. Only nationals from these countries who apply in their country of nationality may participate.

Participants in this pilot program are not required to have three years of prior teaching experience. Participants are required to be eligible for employment as a teacher in their home country as demonstrated by a provisional or full teaching certificate, license, or other credential that permits employment as a teacher in the respective home country. They must also present a signed letter of acceptance for a full time teaching position from a U.S. accredited school (K-12), on school letterhead and signed by the appropriate school official. All other eligibility requirements for this exchange category must be met (Teacher - 22 CFR 62.24).

Pilot program participants are not exempt from the usual MRV and reciprocity fees or the SEVIS I-901 Fee.

---------------------
APPOINTMENT PRIORITY
---------------------

18. As has been the case for the past several years, please ensure that student and exchange visitor visa applicants are given priority when scheduling appointments for interview. Information on the availability of expedited appointments should be available on post's website, recorded information and via call centers. Whenever possible, every applicant should be able to receive an appointment before his/her program starts. Priority should go to first-time applicants, while repeat applicants can be placed on a lower-priority tier.

19. Questions on F, M, or J visas may be directed to your VO/F/P post liaison officer; questions on J programs may be directed to ECA/EC.

State Department Releases June 2009 Visa Bulletin

The State Department has recently released the Visa Bulletin for June 2009. As per the June 2009 Visa Bulletin, the waiting period for the second employment-based green card (EB-2) category will increase considerably for India next month. The State Department will impose a cut-off date of January 1, 2000 for EB-2 India – a retrogression of more than four years – in order to make sure that annual quotas are not exceeded. The third employment-based preference category (EB-3) will remain unavailable for all countries and waiting periods for all other employment-based categories will be unchanged.

In June, priority date cut-offs for the first three employment-based categories will be as follows:

EB-1: Current for all countries.
EB-2: China – February 15, 2005; India – January 1, 2000; all other countries – current.
EB-3 Professionals and Skilled Workers: Unavailable.
EB-3 Other Workers: Unavailable.

Because of heavy demand for employment-based immigrant visas, the State Department is projecting that availability of visa numbers in all categories and for all countries could become more limited in the last three months of Fiscal Year (FY) 2009, which ends on September 30. In the coming months, the State Department could impose waiting periods on employment-based categories that are now current and lengthen waiting periods for categories that are already backlogged.

Read the complete Visa Bulletin for June 2009.

DOS Announces Upcoming Passport Day

On Saturday, March 28, the Department of State will celebrate “Passport Day in the USA,” a national outreach event to inform the public about the upcoming changes to U.S. travel document requirements, provide passport information and accept passport applications from U.S. citizens from coast-to-coast and border-to-border.

All Department of State Passport Agencies, and many Passport Acceptance Facilities around the country, will host passport application acceptance events. U.S. citizens without a valid passport book or passport card are encouraged to apply on this day.

U.S. citizens will receive passport information and can apply for their passport at “Passport Day in the USA” events. For this day only, appointments and expedite fees are not required for those applying at a Passport Agency. Applicants can expect to receive their passport in approximately four weeks for routine service and about two to three weeks for expedited service.

The hours of operation for each Passport Agency for this event may vary across the country. Times may also vary for Passport Acceptance Facilities, so U.S. citizens should check with their local acceptance facility for event information.

Information on the cost and how to apply for a passport book and/or a passport card is available at travel.state.gov. U.S. citizens may also obtain passport information by phone by calling the National Passport Information Center toll-free at 1-877-487-2778.

As of January 23, 2007, everyone traveling in and out of the United States by air needs a passport. On June 1, 2009, U.S. citizens must present a passport book, passport card, or other travel documents approved by the U.S. government to enter the United States from Canada, Mexico, the Caribbean, and Bermuda at land borders and sea ports of entry.

The Department of State, together with the Department of Homeland Security, the U.S. Postal Service, and non-postal Passport Acceptance Facilities, are working together to ensure that citizens are aware of the new requirements effective June 1.

Department of State Issues April 2009 Visa Bulletin

As per the State Department's April 2009 Visa Bulletin, priority date cut-offs for the third employment-based preference (EB-3) subcategory for professional and skilled workers will advance more than four months for China and will advance 16 days for India.

All other EB-3 subcategories will retrogress substantially; cut-off dates will retrogress five months for Mexico and more than two years for the Philippines and all other countries. There will be no change in priority date cut-offs for the second employment-based preference category (EB-2) for India and China. The first employment-based preference category (EB-1) will remain current for all countries.

The cut-off dates for the retrogressed EB-3 subcategories – which cover all countries except India and China – are effective immediately. Beginning today, USCIS will not accept applications for Adjustment of Status in the retrogressed EB-3 subcategories unless the priority date is current under the April 2009 Visa Bulletin. Immigrant visa applications overseas should be processed according to the March 2009 Visa Bulletin, as the March 2009 visa numbers were allocated to the consular posts by the State Department at the beginning of the month.

In April, priority date cut-offs for the first three employment-based categories will be as follows:

EB-1: Current for all countries.
EB-2: China – February 15, 2005; India – February 15, 2004; all other countries – current.
EB-3 Professionals and Skilled Workers: India – November 1, 2001; all other countries – March 2003.
EB-3 Other Workers: All countries – March 1, 2001.

In addition, cut-off dates for the Regional Center Pilot Program for employment-based fifth preference (EB-5) immigrant investors and the special immigrant category for non-minister religious workers appear as "unavailable." The State Department indicates that these two categories will remain unavailable until Congress passes legislation to extend the programs. Congress is currently considering legislation that would extend both categories until September 2009.

DOS Publishes Final Rule on Diversity Visa Program

This rule makes final an interim rule published in the Federal Register on August 18, 2003, amending the Department's regulations pertaining to the manner in which aliens may petition for the opportunity to participate in the Diversity Visa Program. The rule changed the standard mail-in system previously used to an entirely electronic system for the purpose of making the process less prone to fraud, improve efficiency and significantly reduce the processing costs to the Government. This rule is effective on January 15, 2009.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

The Department published an interim rule, Public Notice 4446 at 68 FR 49353, Aug. 18, 2003, with a request for comments. The comment period expired on October 17, 2003. No public comments were received during the comment period.

What did the rule do?

The rule amended the Department's regulations at 22 CFR 42.33 to establish an entirely electronic system utilizing a specifically designated Internet Web site, by which aliens can petition for the opportunity to participate in the Diversity Visa Program.

Why was the petitioning process changed?

There are three main benefits to changing the mail-in process to an electronic format. First, it helps eliminate multiple applications, prohibited under INA Section 204(a)(1)(I). Secondly, it greatly reduces the cost of administering the system. Finally, it benefits the petitioners by immediately notifying them of the receipt of the petition, impossible under the mail-in system.

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

Accordingly, the interim rule amending 22 CFR part 42 which was published at 68 FR 49353 on August 18, 2003, is adopted as final without change.

Increase in Student and Exchange Visitor Visa Issuances

In fiscal year 2008, the U.S. Department of State (DOS) issued a record high of 710,631 F, J, and M student and exchange visitor visas. This represented a 9.1 percent increase in F, J, and M student and exchange visas issued in fiscal year 2008 than in fiscal year 2007; and a more than 26 percent increase over fiscal year 2001.

This is the third fiscal year in a row the Department of State (DOS) has broken records in this area. The Department of State (DOS) continues to issue student and exchange visas well above highs before 9/11.

The Department of State (DOS) issued almost 40 percent more student and exchange visitor visas to Chinese nationals than in fiscal year 2007, and that is after an increase of 40 percent from fiscal year 2006. The Department of State (DOS) is also continuing to see significant increases in student and exchange visitor visa issuances from the Middle East, where they issued 26.2 percent more student and exchange visitor visas in fiscal year 2008 than in fiscal year 2007.

The Department of State (DOS), along with the Department of Homeland Security (DHS) and other U.S. government agencies, recognizes that one of the foundations of the U.S. academic and scientific communities is vibrant international participation. America’s outstanding academic and research institutions are as valuable to U.S. national security as protection of our borders.

I130 no longer accepted at U.S. Consulates

The recent legislation has led to changes in the procedures American citizens resident abroad follow, if they wish to sponsor an immediate relative (spouse, parent or minor child) for an immigrant visa. Effective immediately, the immediate relative petition (I-130) must be filed with the USCIS office responsible for the petitioner's place of residence (that is, the place of residence of the American citizen who is filing the petition). American citizens should submit their I-130 at the CIS office responsible for their place of residence. Consular offices at U.S. embassies and consulates are no longer authorized to accept I-130s, although they will continue to provide guidance to American citizen petitioners and their family members. Responsibility for acceptance and approval of immigrant visa petitions rests solely with USCIS. This procedural change may result in a processing delay for some applicants.

The USCIS have completed a thorough analysis and come to the conclusion that posts must cease accepting or adjudicating any I-130 petition for family-based immigrant status that was not adjudicated by USCIS, and inform any individual wishing to file such a petition that it is necessary to file it with the appropriate USCIS office and refrain from assisting further. In any case in which a post has already accepted an I-130 from a petitioner but has not yet issued a visa, post must forward the petition to the appropriate USCIS overseas office as "not clearly approvable." USCIS may provide subsequent guidance on processing I-600 petitions and previously approved I-130 petitions. This change is expected to cause difficulties and distress.

Final rule on consular interviews for NIV Applicants

Effective December 18, 2006, the rule amends guidance to consular offices for the waiver of personal appearance of applicants for nonimmigrant visas to conform to the requirements of Section 222(h) of the Immigration and Nationality Act, as added by section 5301 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The final rule replaces the interim rule published in the Federal Register on July 7, 2003.

Section 222(h) sets out detailed statutory requirements for personal interviews of nonimmigrant visa applicants in the INA for the first time. Previously, INA Section 222(e) left the question of personal appearance of nonimmigrant visa applicants to be defined by regulation. According to the interim rule published on July 7, 2003 there was a requirement for personal appearance. This final rule replaces the previous interim rule to reflect the requirements of IRTPA and the new INA Section 222(h).

The most significant change is that the persons in the same age ranges as persons covered by the biometric collection requirement must be interviewed by a consular officer. However, personal interview for the NIV applicants from third countries may not be waived for NIV. This requirement also holds good for the applicants who have been previously refused visas or found ineligible for visas, where that ineligibility was not overcome.

The regulations continue to permit exemptions from the interview requirements of persons in A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO- 1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and applicants for diplomatic or officials visas.

DOS update on green card lottery registrations

The U.S. Department of State (DOS) announced that over 6.4 million entries for the 2008 Diversity Visa Lottery were received during the two-month electronic registration period, from October 4, 2006, through December 3, 2006. Taking dependents into account, there are more than 10 million participants in the 2008 Diversity Visa Lottery.

Most of the applications were from Africa and Asia with 41 percent of the total from Africa, 38 percent from Asia. The largest number of applicants came from Bangladesh (more than 1.7 million) followed by Nigeria and Ukraine. The number of winning entries by country will be available after the random lottery process is conducted next year.

The electronic registration process continues to increase the Department’s ability to screen against duplicate and other fraudulent entries. Anti-fraud technology using facial recognition and data mining will be used to eliminate duplicate cases.

There have been several attempts to defraud Diversity Visa Lottery entrants. Lottery entrants selected as winners in the Diversity Visa random drawing are notified only by the Department of State's Kentucky Consular Center. No other organization or company is authorized by the Department of State to contact winning entrants.

Notification of winning entries will be sent to the winning entrants by mail only between April and July 2007 and will provide further instructions, including information on fees connected with immigration to the United States.

DOS announces changes in fee structure

In a recent announcement in the Federal Register, the U.S. Department of State announced a number of changes in their fee structure, effective March 8. The changes include increase in the surcharge for DV Lottery winners from $100 to $375 and the introduction of the new $500 anti-fraud fee for principals in L blanket visa cases.

Most of the other changes are nominal, including the fee to search Department of State files to verify an applicant's U.S. citizenship (from $45 to $60); the Affidavit of Support Review fee (from $65 to $70); the fee for determining returning resident status (from $360 to $400); the fee for a transportation letter issued to a Legal Permanent Resident Alien (LPRA) who needs a transportation letter to reenter the U.S. (from $300 to $165); the fee for waiver of the two-year return residency requirement (from $230 to $215); the fees for processing Letters Rogatory and Foreign Sovereign Immunities Act (FSIA) judicial assistance cases (from $650 to $735); the fee for consular time (from $235 to $265) and the new immigrant visa surcharge of $45 to enhance the security of the immigrant visa.

The fraud prevention and detection fee of $500 has both a domestic and an overseas component. Abroad, the State Department, through its consuls, will collect the fee from a principal applicant for an "L" nonimmigrant visa who is covered under a blanket petition. This fee will take effect for nonimmigrant visa applications filed on or after ninety days from enactment of the Consolidated Appropriations Act i.e., on or after March 8, 2005 (90 days from Dec. 8, 2004)

The final rule will be effective March 8, 2005. All changes in the Department's existing fees will take effect at that time.

For complete text of the Federal Register notice and schedule of fees click here

DOS exempts families of Injured workers from NIV fee

Schedule of Fees for Consular Services; Exemption From the Nonimmigrant Visa Application Processing Fee for Family Members of Individuals Killed or Critically Injured While Serving the United States

AGENCY: State Department.

ACTION: Interim rule.

SUMMARY: This rule amends the Schedule of Fees for Consular Services ("Schedule of Fees'' or "Schedule'') to include an exemption from the nonimmigrant visa application processing fee for family members traveling to the United States for the funeral or burial of a U.S. Government employee killed in the line of duty or to visit a U.S. Government employee critically injured in the line of duty.

DATES: Implementation Date: This interim rule is effective September 2, 2004. Interested parties are invited to submit written comments by September 24, 2004.

ADDRESSES: Comments may be submitted in writing to the Office of the Executive Director, Bureau of Consular Affairs, Department of State, Suite H1004, 2401 E Street NW., Washington, DC 20520. Comments may also be forwarded via e-mail to fees@state.gov. In addition, this document may be viewed and comments submitted by going to the "Regulations.gov'' Web site at http://www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Phillip Min, Office of the Executive Director, Bureau of Consular Affairs, telefax: 202-663-2499; e-mail: fees@state.gov.

SUPPLEMENTARY INFORMATION:

Background

This rule amends the Schedule of Fees for Consular Services, 22 CFR 22.1, effective immediately. In addition, the amendment made by this rule will be incorporated into the proposed Schedule of Fees published as a proposed rule for comment in the Federal Register (Public Notice 4765) on July 19, 2004. See 69 FR 42913-42919.

Consular officers are required by law to charge fees as established in the Schedule of Fees for Consular Services, and they may not grant exemptions from fees set forth in the Schedule except as specifically authorized in the Schedule. The Schedule includes nonimmigrant visa reciprocity fees established pursuant to Section 281 of the Immigration and Nationality Act (8 U.S.C. 1351), and a nonimmigrant visa application processing fee, commonly known as the "machine readable
visa'' or "MRV'' fee, which generally recovers from the visa applicant the full cost of processing the visa application on the assumption that in most cases nonimmigrant visa services are provided primarily for the benefit of the individual applicant. Current exemptions from the MRV fee exist only for applicants for A, G, C-3, NATO, and diplomatic visas; applicants for J visas participating in U.S. Government-sponsored exchanges; persons who need replacement visas when the original visa was not properly affixed or needs to be reissued through no fault of the applicant; applicants traveling to provide charitable services as determined by the Department of State; and U.S. Government employees traveling on official business.

The new exemption from the nonimmigrant visa application processing (MRV) fee will provide a waiver of the fee for an applicant who is an immediate family member of a U.S. Government employee killed in the line of duty and who is traveling to attend the employee's funeral and/or burial. The new exemption will also be applicable to a family member visiting a U.S. Government employee who has been critically injured in the line of duty during the period of emergency treatment and convalescence. The exemption will extend to a surviving parent, sibling, spouse, son, or daughter of the deceased or injured U.S. Government employee. This exemption appropriately shifts the cost of visa processing in such cases to the general public because it is in
the national interest to assist close non-U.S. citizen relatives of U.S. Government employees killed or critically injured in the line of duty traveling to the United States for funeral and/or burial events or for visitation during emergency treatment and convalescence.

Regulatory Findings

Administrative Procedure Act
The Department is publishing this rule as an interim rule effective upon publication under the good cause authorities of 5 U.S.C. 553(b)(B) and (d)(3) and the exemption provision of 5 U.S.C. 553 (d)(1).

Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). Adding the exemption will have no economic impact on such entities.

Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 801-808, which constitute the Congressional Review portion (Subtitle E) of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.

Executive Order 12866
The Department of State does not consider this rule to be a "significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Order 12988: Civil Justice Reform
The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Order 13132
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 22

Consular services, Fees, Schedule of fees for Consular Services, Passports, Visas.

For the reasons set forth in the preamble, part 22 of title 22 of the Code of Federal Regulations is amended as follows:

PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF STATE AND FOREIGN SERVICE

1. The authority citation for part 22 continues to read as follows:

Authority: 8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; Pub. L. 105-277, 112 Stat. 2681 et seq.; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570.

2. Section 22.1 is amended in item 22 of the table by adding paragraph (g) to read as follows:

Sec. 22.1 Schedule of fees.

* * * * *
Schedule of Fees for Consular Services

Item No. Fee

* * * * *
0

22. * * *
(g) A parent, sibling, spouse, or child of a U.S. Government employee killed in the line of duty who is traveling to attend the employee's funeral and/or burial; or a parent, sibling, spouse, son, or daughter of a U.S. Government employee critically injured in the line of duty for visitation during emergency treatment and convalescence.
[24-MRV EXEMPT] * * * NO FEE * * * * *

DOS launches new website in Spanish language

The U.S. Department of State launched spanish.state.gov, a new website for Spanish-speaking members of the U.S. and international public. The site features a selection of information from the Department’s English-language site at www.state.gov, including:

About the State Department
Readers can access biographies of Department of State senior officials; information about the agency, including an organization chart, "Diplomacy: The State Department at Work," and "Diplomacy at Work: A U.S. Embassy;" information about U.S. embassies and consulates and tours of the Department; and related links, such as the U.S. Agency for International Development.

Secretary of State
This section features key press releases from Secretary of State Colin L. Powell, along with his biography and duties.

Background Notes
All Background Notes on the countries of the Western Hemisphere have been translated into Spanish, with plans eventually to translate into Spanish Background Notes prepared on all countries in the world.

International Business Support
Information in this section includes: Doing Business in International Markets, Trade and Investment in Middle East, Iraq Reconstruction Contracts (U.S. Government), Global Corruption, Secretary's Award for Corporate Excellence, Business-Related Contacts, and Frequently Asked Questions.

Western Hemisphere Affairs
This section focuses on key material about this region, such as the U.S. and Organization of American States, U.S.-Mexico Partnership, Plan Colombia, and the Summit of the Americas.

For more information about this website, contact the Public Affairs Bureau’s Electronic Information Office, Mr. Dan Schaub at (703) 875-5087.

Released on August 26, 2004

DOS reminds Posts of Student & Exchange Visitor Processing policies

U.S. Department of State

R 151338Z JUL 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KABUL
AMEMBASSY BUJUMBURA
AMEMBASSY BAGHDAD
AMEMBASSY KHARTOUM

UNCLAS STATE 154060

E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: STUDENT AND EXCHANGE VISITOR PROCESSING REMINDER

REF: (A) 04 STATE 70079 (B) 03 STATE 349930 (C) 03 STATE 279071
(D) 03 STATE 144850 (E) 03 STATE 144850

1. This cable was cleared by SEP.

1. SUMMARY: With the summer student and exchange visitor visa season in full swing, the Department would like to remind Posts of several important visa processing policies to ensure that applications for these categories of visas are handled in the most expeditious way.

INITIAL ENTRY STUDENTS MUST NOT ENTER BEFORE 30 DAYS

2. While students may apply for F visas at any time, consular officers may not physically issue them until ninety days before the program start date. More importantly, initial entry students may not use these visas to enter the United States for the first time until thirty (30) days before their program start date. This rule does not/not apply to returning students, who may be issued an F visa at any time, and who may return to school at any time.

3. While J visas may be applied for and issued at any time, initial- entry J visitors also may not enter the United States for the first time until thirty (30) days before their program start date.

4. Immigration inspectors have turned around qualified students who have attempted to enter the United States for the first time as a student before the thirty-day period. In order to prevent this from happening, Posts should attach the following notice to F, M or J visas issued to initial-entry students more than thirty days before their program start date:

"To all recipients of an F, M, or J student or exchange visitor visa: Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the United States until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). An immigration inspector may deny you entry into the United States if you use this visa earlier than this thirty day period. Please consider that date carefully when making your travel plans to the United States."

5. Students who are still interested in traveling to the United States before the thirty-day period may do so on B visas, as described in para 17, reftel(A). They may have both a B and an F, J or M visa in their passport at the same time. Students coming in to the United States early on a B should be reminded that they cannot begin their programs in B status. As it is unlikely they could receive change-of-status before the start of their studies, they will have to depart the United States and re-enter on their F no more than thirty days before their program start date.

PRIORITY SCHEDULDING

6. Posts are also reminded to give priority scheduling to persons applying for F, J and M visas. These visitors are often subject to deadlines, and consular officers should give them every opportunity to arrive in the United States on time to begin their programs. While there may be a number of ways to offer expedited processing to these visitors, all Posts should have procedures in place to do so.

7. Posts must insure that procedures for obtaining priority appointments for students and exchange visitors are well-publicized and transparent. At a minimum, these procedures should be posted on the consular section's web page. Outside agencies contracted to provide interview scheduling for the consulate should also be briefed on how to give priority appointments for students and exchange visitors. Instructions should be given to local educational groups, exchange visitor programs and other interested parties about how to do this.

8. Several posts have expressed concerns about abuse of the special scheduling for students and exchange visitors by persons hoping to get an earlier appointment to apply for a visa in another category. One way to screen out such applicants is to ask for their SEVIS number. All applicants for Fs, Js and Ms will have a SEVIS-generated I-20/DS-2019 with a unique SEVIS number. If this is a potential problem, Posts have the discretion to request SEVIS numbers when giving priority appointments. However, this is not a requirement; students and exchange visitors may wish to make visa appointments before they receive their actual form. Posts may give priority appointments to these individuals if it is apparent that they are in fact bona fide students or exchange visitors.

9. More than ever before, visa processing for students and exchange visitors is not only an important consular function, but an important and visible part of the Department's overall mission. We are counting on our consular officers overseas to make sure that these applicants are accommodated to the greatest extent possible.

Bush okays biometric passport deadline extension

President Bush yesterday signed H.R. 4417 to extend by one year, the requirement for Visa Waiver Program (VWP) countries to include biometrics in passports. H.R. 4417 was passed by the House of Representatives on June 14, 2004, and by the Senate on July 22, 2004.

The requirement for Visa Waiver travelers to have biometrics included in passports was mandated in the Enhanced Border Security and Visa Entry Reform Act of 2002. The passage of H.R. 4417 and the signing by the President extends for one year, to October 26, 2005, the deadline by which new passports issued must be biometrically enabled. This extension was necessary to avoid potential disruption of international travel and provide the international community adequate time to develop viable programs for producing a more secure, biometrically enabled passport. The original legislation required that Visa Waiver Program country passports issued on or after October 26, 2004 be biometrically enabled for use in Visa Waiver travel.

To mitigate security concerns related to this extension, the Department of Homeland Security will begin enrolling Visa Waiver Program travelers through the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) program at all airports and seaports on or about September 30, 2004. Enrollment in US-VISIT allows the United States to continue international efforts to enhance border security while facilitating legitimate travel. The US-VISIT system is a fast and easy process that requires two digital index finger scans and a digital photograph from a traveler to verify his or her identity.

Another requirement for Visa Waiver Program travel will still come into effect on October 26, 2004. On and after that date, all passports used for travel in the Visa Waiver Program must be machine-readable. Last year, the Secretary of State granted a postponement from October 1, 2003, until October 26, 2004, as the date by which Visa Waiver Program travelers from 22 countries must present a machine-readable passport to be admitted to the United States without a visa. Four eligible countries did not request a postponement of the effective date. Belgium was not eligible to request a waiver.

Although the addition of biometrics to the U.S. passport is not covered by the Enhanced Border Security and Visa Entry Reform Act, the Department of State has been working diligently towards developing U.S. biometric passports. The United States recognizes the benefits of biometric identity verification and strives to remain at the forefront of international travel document security. By the end of 2005, all domestically produced U.S. passports will be biometric passports.