DOS Cable with Overview of H.R. 2202
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Subject: H.R. 2202 - Overview of New Immigration Legislation
1. Summary: The Congress passed the Omnibus Authorization Bill (PL 104- 208) and the President signed it on September 30, 1996. This Act contains most of the provisions of the “Illegal Immigration and Reform and Immigrant Responsibility Act of 1996”. All significant changes from the original version concern the Affidavit of Support. Although this cable lists many of the consular related issues, additional information and guidance will follow as needed. End summary.
2. Visa Waiver Pilot Program:
This Act made several changes to the VWPP. The most significant concerns the extension of the program for one more year. Until September 30, 1997, by signing the bill on September 30, 1996, the President extended the life of the program without interruption. Other WMPP-related changes will be explained SEPTEL.
3. Foreign Students:
The creation of INA 214 (i) narrows the scope of the 161(a)(15)(F) student visa classification by withholding such status from aliens who seek to study at a public elementary school or a publicly funded adult education program, or 2) at a public secondary school unless the aggregate period of study at that school is 12 months or less and the alien has reimbursed the school authorities for the full, unsubsidized cost of the education. The status of aliens switching from privately funded schools to publicly funded schools is deemed void, unless the aliens meet the 12 month test and the reimbursement requirement stated above. Posts should await implementing instructions that will follow SEPTEL. (See also paragraph 4J below. The corresponding ground of ineligibility becomes effective 60 days after enactment.)
4. Ineligibilities:
The majority of the changes involve INA 212(a) grounds of ineligibility and waivers of ineligibility, whereas several were created, others were amended. Unless otherwise stated, the Sections below have a delayed effective date.
A. 212(a)(9) aliens previously removed:
Previous 212(a)(9) has been renumbered as (10). New 212(a)(9) Subsection “A” renders ineligible for 5 or 20 years (depending on the particular circumstances) those aliens who have been removed (deported) from the United States under the new INA 235(b)(1) or INA 248 provisions. Subsection “B” addresses aliens who have overstayed their authorized period of admission to the United States and aliens who are present in the United States without being admitted or paroled are ineligible for periods of 3 to 10 years depending on the circumstances. Subsection “C” applies to aliens unlawfully present after previous immigration violations. This section (which was a delayed effective date) will be more fully explained SEPTEL.
Exceptions and waivers do exist.
B. 212(a)(6)(A) & (B) Illegal Entrants and Immigration Violators:
Subparagraphs (A) and (B) dealing with “aliens previously deported” and “certain aliens previously removed” have been replaced. Subparagraph (A) renders ineligible aliens present in the U.S. without admission or parole, whereas subparagraph (A) renders ineligible aliens present in the U.S. without admission or parole, whereas subparagraph (b) makes ineligible aliens who fail or refuse to attend a deportation hearing. The changes to 212 (a)(9) and (6) require a more comprehensive explanation that can be provided in this summary of Act. In brief, these amendments were made as the result of the congressional restructuring of the deportation and exclusion procedures. These provisions have a delayed effective date and have a lesser impact on consular responsibilities.
C. Proof of Vaccination Requirement for Immigrants:
INA 212(a)(1)(A) is amended by inserting a new subsection (ii). This new subsection renders ineligible immigrant applicants who have not received a vaccination against vaccine-preventable diseases. The INA 212(g) waiver provisions were also amended. This provision will apply to aliens who have filed visa applications after September 30, 1996. Posts are to proceed with normal processing until more definitive guidance is forthcoming.
D. Incitement of Terrorist Activity:
INA 212(a)(3)(B) is amended to render ineligible aliens who have indicated an intention to cause death or bodily harm or incited terrorist activity. This section is effective immediately.
E. Certification Requirements for Foreign Health-Care Workers:
INA 212(a)(5) has been amended by the insertion of a new subsection ( c). All health-care workers, other than physicians, must present certification verifying that the alien has all appropriate or required training, experience, licenses, etc., and has necessary English language skills.
F. Labor Certifications for Professional Athletes:
Amendments to the INA, including 212(a)(5)(A), were made to accommodate the movement of professional athletes within the top professional leagues. The validity of a labor certification approved on behalf of professional athletes is preserved when the athlete changes employers (teams).
F. Falsely Claiming U.S. Citizenship:
INA 212(a)(6)( C) now specifically renders ineligible any alien who falsely represents him/herself to be a citizen of the United States for any purpose or benefit.
Under the INA, this applies to representations made on or after September 30, 1996.
H. Unlawfully Voting:
Aliens who unlawfully voted in violation of any federal, state , or local constitutional provision, statute, ordinance, or regulation are ineligible under 212(a)(10)(D). This section applies to voting occurring before, on, or after September 30, 1996, the effective date of this Act.
I. Citizens Who Renounce to Avoid U.S. Taxation:
212(a)(10)(E) has been added to exclude former U.S. citizens who by determination of the attorney general renounced their U.S. citizenship to avoid U.S. taxation. This section is applicable to persons who renounce U.S. citizenship on or after September 30, 1996.
J. Ineligibility for Certain Student Abuses:
INA 212(a)(6)( C) has been added to render ineligible students who violate the provisions of INA 214(l) described in paragraph 3 above. The violators of these provision must remain outside the U.S. for a continuous period of 5 years after the date of the violation. This section becomes effective 60 days after the effective date of this Act applying prospectively to all visa applications and applications for extensions of status.
K. 212(a)(4) Public Charge:
The amendments to INA 212(a)(4) in PL 104-208 incorporate some of the same provisions of the Welfare Act (See State 198231). The Affidavit of Support is indeed contractual. The sponsor must be a petitioner, although provision is made to permit a non-petitioning joint sponsor. An affidavit must be filed in all family based cases with two minor exceptions and in an employment-based preference case in which the relative holds a significant ownership interest in the petitioning entity. The affidavit must demonstrate the means to support the alien at not less than 125 percent of the federal poverty guidelines. This section has a delayed effective date of 150 to 180 days.
L. Elimination of Consulate Shopping for Visa Overstays:
INA 222(g) has been amended by adding two subsections which are immediately effective. This is a separate and distinct ground of ineligibility, not to be confused with the amended 212(a)(9) provisions. Under this section the visa of an alien, admitted into the U.S. on the basis of that nonimmigrant visa, and who has remained in the U.S. is rendered void immediately after the conclusion of that period of authorized stay. In order to be readmitted in the U.S. as a nonimmigrant, the alien must apply for a visa at a consular post in the country of the alien’s nationality, repeat, nationality (not residence). (If no consular services are provided in that country, the Secretary of State shall designate the Post.) The ineligibility for readmission may be waived where “extraordinary circumstances” are found by the Secretary of State to exist. This entire provision applies to visas issued before or after the enactment of this bill. More detailed guidance will be provided.
M. Waiver of Foreign Country Residence Requirement With Respect to International Medical Graduates:
The waiver of INA 212(e) Foreign Residence Requirement for certain foreign medical graduates was created by the Immigration and Nationality Technical Corrections Act of 1994. This Act extends the waiver program through fiscal year 2002. The explanation of the extensive amendments to the procedures and requirements for implementing INA 214(k) will be forwarded SEPTEL.
N. Immigrant Visa Waivers:
The scope of both the 212(h) and the 212(I) waiver provisions has been narrowed by this Act. The 212(h) waiver is amended to preclude waivers to U.S. permanent resident aliens either who from the date of admission have been convicted of an aggravated felony or who have not lawfully resided in the U.S. for 7 years prior to the initiation of deportation proceedings. The 212(i) waiver can not be granted to aliens who are ineligible under the new 212(a)(6)( C) described above. Furthermore, this Act repealed subsection 212(I)(2) which extended the waiver to aliens who had committed the fraud or misrepresentation at least 10 years prior to the visa application. These provisions are effective immediately.
O. Waiver for INA 274C violations:
The INA did not provide an immigrant visa waiver for aliens ineligible under 212(a)(6)(F) for receipt of a final order for violating INA 274C. That section establishes penalties for unlawful creation of documents or unlawful use of documents to obtain a benefit under the INA. The new 212(o)(12) waiver is granted in the Attorney General’s discretion to certain permanent resident aliens who have been abroad temporarily and not under order of deportation, and to aliens seeking admission or adjustment of status as immediate relatives or family-based family beneficiaries. The fraudulent document offense must have been committed solely to assist the alien’s spouse or child.
P. Criminal Alien Provisions:
The definition of aggravated felony has once again been amended. A separate cable will provide the new extensive 101(a) 1431 definition. The term “conviction” is defined at 101(a)(48)(A) to comport with the interpretive standard now being administered by the Department.
R. Validity Period of Visa:
A. INA 221( C) is amended to allow the Secretary of State to promulgate regulations to extend the validity period of immigrant visas to a maximum of six months rather than the current maximum of four months. Note that this is not effective until such regulations are promulgated. Post will be so notified.
B. Nonimmigrant: INA 221( c) is amended to authorize the Secretary of State, on a reciprocal basis, to provide for the issuance of nonimmigrant visas pursuant to the reciprocity schedule of the country of residence of aliens who (A) either are granted refugee status and are firmly resettled in that foreign country or (B) to aliens who hold permanent resident status and reside in that foreign country.
6. Changes Regarding Visa Application Process:
INA 222( c) has been amended to clarify the Secretary of State’s authority to devise nonimmigrant visa application forms, including the soliciting of information.
7. Diversity Program:
Fees: The Act grants the Secretary of State the authority to collect a fee to defray the costs of implementing the diversity program. The discussion of the imposition and collection of the fee will be communicated at a later date.
8. Border Crossing Card:
INA 101(a)(6)(15) amended to impose new requirements on the BCC. 18 months after the effective date of this act all BCCs issued must contain a biometric identifier and be machine readable. 3 years after the date no one with a BCC will be admitted unless he/she has such a card. State and INS are working jointly on this issue and will provide affected posts with further information as soon as possible. We expect this to have significant workload implications in Mexico and to a lesser extent in Canada and will be in touch with Posts directly as planning goes forward.
9. Preinspection at Foreign Airports:
Subject to certain conditions, INS is to establish preinspection facilities at 5 of the 10 foreign airports which INS identifies as serving as last points of departure for the greatest numbers of inadmissible aliens who arrive from abroad by air at U.S. ports of entry.
10. The Department will transmit a series of cables providing copies of the sections and available guidance for each provision of the new law. In the interim, cases should be administered pursuant to current procedures and interpretations.
Minimize Considered
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