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March 1, 2003

This newsletter, edited by Theodore Sherman, Esq., and published strictly in an electronic format, contains information pertinent to immigration issues for physicians and scientists who desire to reside in the U.S. on a temporary or permanent basis.

Readers who wish to obtain more information on topics are encouraged to forward your queries to us by completing the online consultation form on our website. We will respond to your particular queries as soon as possible.

Improved Website design for MDgreencard.com - In January 2003, we significantly improved the design and contents of our website. If you have not visited our site for a few months, please take a moment to access our newly designed site, and let us know what you think. Our web designers, C2G Media (www.c2gmedia.com), have been instrumental in assisting in creating the new look and feel of our site. For those of you who have interest in creating or improving your own site, I highly recommend that you contact these folks - just tell them that Ted recommended you, and I'm sure that Chris and Ellie would be most happy to work with you.

Current Immigration Climate in US: Difficult, with INS processing delays increasing substantially in nearly every US immigration category due to increased security checks. For example, it is not unusual for I-140 (immigrant) petitions to require 240+ days for processing at all of the INS Service Centers.

Table of Contents
Topics for Physicians / Scientists

1.1 Tougher US Immigration Policies for Canadian Landed Immigrants

Effective March 17, 2003, all landed immigrants of Canada will have to present a valid passport and visa to enter the United States. Canadian citizens will continue to be exempt from the passport/visa requirement.

In a major shift in US immigration policy toward permanent residents (landed immigrants) of Canada, these individuals no longer are exempt from the passport/visa requirement to enter the US Previously, nationals of 54 countries who had were considered to 'share a common nationality with British' were not required to previously have obtained a visa to the US prior to arriving at a US port of entry. Instead, individuals who were national of the countries listed below, were required only to establish their eligibility for entry to the US upon arrival. These countries are:

Prior to the enactment of this new law, thousands of individuals who were nationals of the above countries first immigrated to Canada (due to its much easier immigration requirements). Immediately upon entering Canada as landed immigrants (permanent residents), these individuals would be allowed to enter the US without the need to formally apply for a visa at a US Consulate or Embassy abroad. No longer.

With the new regulations, the US government is taking further steps to prevent anyone from entering the US (with the exception of Canadian citizens) without first being prescreened by US Consulate/Embassy officials. These steps are being taken directly as a result of heightened border security concerns following the Sept. 11, 2001 terrorist acts.
Under the new regulations, nationals of the 54 countries who reside in Canada will now need to apply for and obtain nonimmigrant visas from a US Consulate to enter the United States, unless they are entering for less than 90 days as short-term visitors for business (B-1) or pleasure (B-2) and are eligible to enter under the Visa Waiver Program (Visa Waiver Program countries include: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay).

This new policy is expected to result in an increase the number of visa applications at US Consulates in Canada by more than 100,000 in the first year alone. The queue for visa issuance at these Consulates is expected to increased drastically.

1.2 Update on Special Registration

Since our last newsletter, the special registration program of the INS has been increased to include nationals of some 25 countries who are residing in the US The countries were divided into groups as noted below.

First Group

• Registration deadline: December 16, 2002
• Iraq, Iran, Libya, Sudan and Syria

Second Group

• Registration deadline: January 10, 2003
• Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the United Arab Emirates and Yemen

Third Group

• Registration deadline: February 21, 2003
• Saudi Arabia and Pakistan

Fourth Group

• Registration deadline: March 28, 2003
• Bangladesh, Indonesia, Egypt, Jordan and Kuwait

(please note that the above deadlines for registration are subject to change by the INS)

About 350 of our physician/scientist clients met the criteria and have been required to register so far. Fortunately, none have been unduly hassled or questioned upon registration. The INS did, however, request detailed personal information from a few of our clients (bank account numbers, credit card numbers, mortgage information, etc.), and one of our clients had his passport temporarily seized due to the similarity of his name with that of a wanted terrorist (our Nephrologist client was a bit unnerved by the experience, but nonetheless pleased that the INS was able to clear his name within a few days).

So, all in all, special registration has not created undue hardships for our physician/scientist clients. Earlier worries about potential undue detention and harassment seem now to be unfounded.

1.3 The E Visa - A potential option for certain physicians previously on J1 visa

First, a bit of a primer on the E visa. Over the years the United States has signed treaties with many countries in the world, in particular treaties of 'Friendship, Commerce and Navigation'. These treaties are designed to promote trade and investment between the USA and the other contracting state, thereby encouraging good relations. Nationals of countries with such treaties with the US are often eligible to obtain visas in order to develop and/or direct their investment in and/or trade with the US These visas are called E visas, and are divided into two sub-classifications: E1 (treaty trader) and E2 (treaty investor).

E1 (Treaty Trader). Nationals of qualifying treaty countries who undertake a substantial amount of international trade with the US may qualify for this type of visa. The following countries have treaties with the United States that allow qualifying nationals to apply for Treaty Trader status:-

E2 (Treaty Investor). Nationals of qualifying treaty countries who have made a significant investment in the United States may qualify for the E2 treaty investor status. E2 visas may only be applied for by people or companies from the following countries:

Both the E1 and E2 visas have particular documentary requirements that must be met in order to qualify for visa issuance.

Lately, we have been increasingly successful in obtaining E visa approval for our physician clients who are nationals of the countries listed above who incorporate their own medical practice, and then contract their services to hospitals or other medical groups in the USThis visa option is particularly attractive to individuals who have held the J1 visa in the past and who are not eligible for the H1B visa, since they have not yet satisfied or obtained a waiver of the two-year home residency requirement.

Due to the complexities of the process involved in securing E visa approval, please contact me by email or phone so that I may determine if your situation warrants E visa consideration.

Due to increasing delays in J1 waiver processing, some of our clients are beginning to find themselves in situations whereby their stay on J1 visa is about to expire and are not yet eligible to obtain the H-1B visa since their waiver has not yet been given final approval by the INS. Even though J1 visa holders are given a 30 day grace period beyond the conclusion of their program/training in which to leave the country or change to another visa status, delays in waiver processing nearly always exceed this 30 day grace period.

The danger in overstaying beyond the 30-day grace period should not be minimized, for overstays of more than 180 days lead to three-year bar to reentry to the US, while overstays of more than 360 days lead to a 10 year bar. Hence, the physician/scientist should be very careful in considering the following options when it appears that he/she will fall into the situation as set forth in the first paragraph.

Here are some options.

(1) Consider obtaining a J1 extension, especially for physicians who are eligible to sit for a Board medical examination. Usually, the request for extension and issuance of an corresponding IAP=66 form for the few month period leading up to the Board exam will not be denied even if the physician has applied for a J1 waiver, unless the waiver has already been approved.

(2) Consider obtaining an O or E visa, since O and E visa applicants need not have fulfilled or obtained a waiver of the two-year home residency requirement.

(3) Depart the US and wait until your waiver has been approved, since you can reenter the US on H-1B visa upon waiver approval, and subsequent H visa approval by the INS.

(4) Apply for the H-1B visa prior to final approval of your J1 waiver application, and therefore be able to remain in the US pending adjudication of your H-1B petition. So long as the H-1B application is filed prior to the expiration of your J1 visa as shown on your IAP-66 form, you are legally able to remain in the US during the period in which your H-1B visa is being adjudicated. Due to requirement that you not have any break in employment, I strongly recommend that you contact me directly to discuss in this option may apply to you.

Due to heightened tensions with Iraq and other Muslim countries, the US State Department has issued a number of additional travel warnings for American citizens urging them to stay away from several Muslim countries. Travel warnings now exist for the following list of countries:

For physicians/scientists from any of these countries who have US citizen spouses and/or children, the hardship waiver is an option for J1 waiver that should be seriously considered. Based on our experiences with the INS and US State Department, we have found that both agencies are much more likely to act favorably on hardship waiver applications when a travel warning is in place.

A war in Iraq will undoubtedly result in the issuance of additional travel warnings for additional countries. For the a list of the latest travel warnings issued by the US Dept. of State, visit the following website:

http://www.travel.state.gov/travel_warnings.html

(1) Total immigration to the US in the decade beginning in 1820 is set forth in the table below.

In viewing the above data, please note that the US population in 1820 was just over 9 million. In the latest census, the US population is now approximately 290 million.

Source: Statistical Yearbook of the Immigration and Naturalization Service for 1994 and updated for 1997 data.

2. Other interesting facts/statistics

The 1850 decennial census was the first census in which data were collected on the nativity of the population. From 1850 to 1930, the foreign-born population of the United States increased from 2.2 million to 14.2 million, reflecting large-scale immigration from Europe during most of this period. As a percentage of total population, the foreign-born population rose from 9.7 percent in 1850 and fluctuated in the 13 percent to 15 percent range from 1860 to 1920 before dropping to 11.6 percent in 1930. The highest percentages foreign born were 14.4 percent in 1870, 14.8 percent in 1890 and 14.7 percent in 1910.

From 1930 to 1950, the foreign-born population of the United States declined from 14.2 million to 10.3 million, or from 11.6 percent to 6.9 percent of the total population. These declines reflected the extremely low level of immigration during the 1930s and 1940s. The foreign-born population then dropped slowly to 9.6 million in 1970, when it represented a record low 4.7 percent of the total population. Immigration had risen during the 1950s and 1960s, but was still low by historical standards, and mortality was high during this period among the foreign-born population because of its old age structure (reflecting four decades of low immigration).

Since 1970, the foreign-born population of the United States has increased rapidly due to large-scale immigration, primarily from Latin America and Asia. The foreign-born population rose from 9.6 million in 1970 to 14.1 million in 1980 and to 19.8 million in 1990. The estimated foreign-born population in 1997 was 25.8 million. As a percentage of the total population, the foreign-born population increased from 4.7 percent in 1970 to 6.2 percent in 1980, to 7.9 percent in 1990, and to an estimated 9.7 percent in 1997.2

Source: US Census 2000.