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Law and INS giveth and INS taketh away

In two recent developments, the U.S. Immigration and Naturalization Service (INS) made one for the better and one for the worse.On the positive side, it granted work privileges to the spouses of indiv...

In two recent developments, the U.S. Immigration and Naturalization Service (INS) made one for the better and one for the worse.

On the positive side, it granted work privileges to the spouses of individuals who qualify for certain temporary work permits. On the negative side, filing fees have increased slightly across the board on many types of applications.

Let’s take the bad news first. The INS announced an increase in filing fees and fingerprinting fees for many types of applications and procedures. Prominent in the increased fees is a US$50 overall increase in the cost of filing a waiver application. This applies to those individuals seeking to overcome grounds of inadmissibility to the U.S., such as a criminal record or previous immigration law violations. Previously, the filing fee was $170 and the fingerprint fee was $25, for a total of $195. Both fees have increased by $25, making it $195 for the waiver application and $50 for the fingerprint fee: a new total of $245.

The increases are part of a general fee increase for most types of Immigration applications, prompted by three reasons.

First, there is a $5 per application surcharge for “quality assurance and information technology.”

Second, there has been a general cost of living increase since 1997, the base year for the last general fee increase in 1998. The $25 increase in the waiver application fee can be attributed to these two factors.

The third factor is the desire to recover the operating costs of various INS activities from individuals who actually utilize those services. The fingerprint fee is an example of that. The INS initially estimated the appropriate fee for fingerprinting at $25 per individual. However, it soon determined that it was not recovering the full costs of the fingerprint program, necessitating an increase to $50.

We know that this is unwelcome news to those who are still required to apply for waivers annually. We can only hope that the extra payments for “quality assurance and information technology” are used for that purpose, to enable the INS to come out with a multi-year waiver document that eliminates the need for annual renewals.

On the bright side, the spouses of certain U.S. visa holders are now eligible for work authorization. Specifically, spouses of L-1 and E-2 visas can now receive work authorization. The L-1 visa relates to transfers within an organization. (For example, managerial transfers from the Canadian office to a U.S. branch office or subsidiary.)

The E-2 visa is for individuals who establish a U.S. business on the basis of either a significant investment or significant trade between Canada and the U.S. There are many Canadian trucking company managers and business owners who work in the U.S. on these visas. (Unfortunately, these categories are not available to drivers and owner/operators.)

The general rule is that temporary work permits are very specific, pertaining only to the primary applicant. Often, the visa candidate has a spouse and/or teenage children who are accustomed to working in Canada. Due to INS restrictions, a family could move temporarily to the U.S. under the work visa, without the ability of the spouse or children to work. In two-earner families, this was a deterrent to the move. Even in families where the second income was not a necessity, the ability of the spouse to socialize and remain active was limited by the restrictions.

Under the new rule, spouses, but not dependent children, will have the ability to apply for a work authorization card during the time that the primary visa holder remains in valid status.

The announcement was surprising based on the general cautious attitude toward expansion of rights for temporary visitors, students or workers in the U.S., after Sept. 11. The announcement is also surprising because of its timing. Although the measure undoubtedly was initiated during a time of greater economic prosperity, the signing of the law by President George W. Bush occurred at a time when the U.S. was reacting to a hopefully temporary recession and period of increased unemployment.

Unlike the more specialized work performed by L-1 and E-2 visa holders, it can be presumed that spouses of these folks are likely to compete in the unskilled labor market, head-to-head with the general U.S. workforce.

Apparently, Congress decided the benefit to U.S. economy gained by business expansion from foreign investment, outweighed the relatively minor effect on the general workforce from working spouses.

The procedures for obtaining work authorization have not been announced, but I do know it is not automatic. Interested spouses will have to apply for a work authorization card.

Please keep in mind this is a rather limited expansion of rights, applicable only to spouses of L-1 or E-2 visas. It does not apply to business visitors to the U.S., students, or any other visa category.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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