Nonimmigrant Business Visas and Adjustment of Status

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NONIMMIGRANT BUSINESS VISAS AND
ADJUSTMENT OF STATUS
HEARi:
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND REFUGEE POLICY
OP THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
FIRST SESSION
ON
NONIMMIGRANT BUSINESS VISAS AND ADJUSTMENT OF STATUS
DECEMBER 11, 1981
Serial No. J-97-86
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE

9M88 O WASHINGTON : 1982
COMMITTEE ON THE JUDICIARY
[97th Congress]
STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Maryland JOSEPH R. BIDEN, Delaware
JR., JR.,

PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts

ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia

ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio

ALAN K. SIMPSON, Wyoming DENNIS Arizona
DECONCINI,

JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont

CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana

JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
Chief Counsel
VINTON DKVANE LIDE,
Jr., Staff Director
QUENTIN CROMMEUN,
SUBCOMMITTEE ON IMMIGRATION AND REFUGEE POLICY
ALAN K. SIMPSON, Wyoming, Chairman

STROM THURMOND, South Carolina EDWARD M. KENNEDY, Massachusetts

CHARLES E. GRASSLEY, Iowa DENNIS Arizona
DECONCINI,
W. Chief Counsel and Staff Director
RICHARD DAY,
M. Counsel
DONNA ALVARADO,
O. Counsel
CHARLES WOOD,
H. Special Counsel
ARNOLD LEIBOWITZ,
(II)
? 1-&29/0
KFJL
5 II ?i*
CONTENTS
OPENING STATEMENT
"^ Simpson, Hon. Alan K., a U.S. Senator from the State of Wyoming, chairman Page

^^ of the Subcommittee on Immigration and Refugee Policy 1

"^ CHRONOLOGICAL LIST OF WITNESSES
Asencio, Diego C, Assistant Secretary for Consular Affairs, Department of
State 2
Meissner, Doris, Acting Commissioner, Immigration and Naturalization Serv-
ice, Department of Justice 15
Cagney, William F., National Foreign Trade Council, New York, N.Y 37
Fragomen, Austin T., chairman of the board, American Council on Interna- .
tional Personnel, New York, N.Y 39
Ammond, director, Council of Engineers and Scientists Organization, Haddon-
fieldN.J 59
Feerst, Irwin, president, Committee of Concerned Electrical Engineers, Massa-
pequa Park, N.Y 66
Bernsen, Sam, Esq., Fragomen, Del Ray and Bernsen, Washington, D.C 82
Foster, Charles C, Esq., president, American Immigration Lawyers Associ-
ation, Houston, Tex 89
Goldstein, Richard, Esq., president, New York Chapter, American Immigra-
tion Lawyers Association, New York, N.Y 107
Kaufman, Esther M., Esther M., Esq., Law Offices of Esther M. Kaufman,
New York, N.Y 128
ALPHABETICAL LISTING AND MATERIALS SUBMITTED
Ammond, Harold J.:

Testimony 59

Prepared statement 62
Asencio, Diego C:

Testimony 2

Prepared statement 5
Bernsen, Sam, Esq.:

Testimony 82

Prepared statement 85

Cagney, William F.: Testimony 37
Feerst, Irwin:

Testimony 66

Prepared statement 68
Foster, Charles C:

Testimony 89

Prepared statement 92
Fragomen, Austin T.:

Testimony 39

Prepared statement 41
Goldstein, Richard, Esq.:

Testimony 107

Prepared statement, with exhibits 110
Kaufman, Esther M.:

Testimony 128

Prepared statement 130
r-1
Q
2
IV

Meissner, Doris: Page

Testimony 15

Prepared statement 16
APPENDIX

Prepared Statement of the Interfaith Coalition for Justice to Immigrants 145
NONIMMIGRANT BUSINESS VISAS AND
ADJUSTMENT OF STATUS
FRIDAY, DECEMBER 11, 1981
U.S.
SENATE,
SUBCOMMITTEE ON IMMIGRATION AND REFUGEE POLICY,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 1:45 p.m. in room 2228, Dirksen
Senate Office Building, Hon. Alan K. Simpson (chairman of the
subcommittee) presiding.
Present: Senator Grassley.
OPENING STATEMENT OF HON. ALAN K. SIMPSON, A U.S. SENA-
TOR FROM THE STATE OF WYOMING, CHAIRMAN, SUBCOMMIT-
TEE ON IMMIGRATION AND REFUGEE POLICY
Senator We will now continue the hearings on the var-
SIMPSON.
ious aspects of the Immigration Act. We are focusing today on an
increasingly important area of concern, and that is the nonimmi-
grant visas generally used by executives and technical personnel to
obtain entrance into the United States.
These visas are more popularly known by the letters of their sub-
sections in the INA. B-l, visitor for business; E-l and E-2, treaty
traders and treaty investors; H-l, persons of distinguished merit
and ability; and the L visas, geared to the multinational corpora-
tions. Not to mention the ones I left out, which sound like alphabet
soup, A through what, J? Yes, the rest.
We have heard of the importance of these visas in connection
with American business and growth and our economy and those
issues.
Conversely, we have heard of the abuse of these visas. The use of
them where American skilled personnel is already available and
for the purpose of entering the United States for other than tempo-
rary purposes, and this raises then the adjustment of status ques-
tion:
Should one be able to adjust status within these nonimmigrant
categories, or adjust to an immigrant category? This can be done
under the present law. These adjustments take up a good portion of
INS time and encourage the rather prevalent idea that once you
get to the United States, there is a way to stay there, and we have
found throughout 16 hearings that that is a rather prevalent note
in America's immigration and refugee policies: Just get there.
So, finally, we want to review these categories themselves. Are
they really separate categories, or are there very real overlaps that
(l)
make their separation of little worth? And might it be easier to
have one visa covering all of these, or, perhaps, one for longer du-
ration and one permitting multiple entries, or should we have
tighter use and control of all of them?
Finally, should we have assurances in the statute, or administra-
tively, that these nonimmigrant visas would not have an adverse
effect on the economy of the United States?
Well, those are some interesting questions, and I think we can
pursue some of them today in our hearing I think this will be the
last hearing of the session. This will be the 16th hearing, some 75-
plus hours, 195 witnesses. No trophies or awards have been given.
[Laughter.]
And from that, I think we are on our way toward•and my col-
league in the House, Congressman Mazzoli, conducting a similar
array of hearings, and I fully perceive that we will be on our way
toward markup soon after taking up in late January.
Well, we have the dynamic duo from the Department of State
and the Department of Justice, Diego Ascencio, the Assistant Sec-
retary for Consular Affairs, and Doris Meissner, Acting Commis-
sioner of the Immigration and Naturalization Service.
And I note a new sparkle and enthusiasm as the continuing reso-
lution has gone to the President's desk containing a pay raise for
all Federal employees. [Laughter.]
There's just a new lilt to your walk.
So please proceed, if you will.
STATEMENT OF DIEGO ASENCIO, ASSISTANT SECRETARY FOR
CONSULAR AFFAIRS, DEPARTMENT OF STATE, ACCOMPANIED
BY CORNELIUS D. SCULLY
Mr. Mr. Chairman, I'm saddened in a way by one por-
ASENCIO.
tion of your remarks. I was hoping that we could design a cam-
paign ribbon for this series of hearings and discussions we have
had for both sides. We thought that would only be just and appro-
priate.
Senator We'll have a design contest for that. [Laugh-
SIMPSON.
ter.]
Mr. Mr. Chairman, I would like to say that this particu-
ASENCIO.
lar hearing is one that has varying levels of complexity and depth,
I think best exemplified by my prepared statement that I ask you
to allow me to present for the record, and by my summary that I
will give now. But in view of the possibility of these greater depths,
I have come today loaded for bear. I brought with me my Deputy
for Visas, Mr. Louis P. Goelz, and also the head of my Legislation
and Regulations Office, Mr. Cornelius D. Scully, and Mr. Cecil
Braithwaite.. I would think that among us, if the questions get com-
plex, w«> wilj either be able to answer or obfuscate the issue suffi-
ciently so that nobody knows what we are talking about.
But our topic today is the temporary entry of aliens for business
purposes and, as you have mentioned, the question of adjustment
of status to permanent resident by aliens temporarily in the
United States.
Temporary entry for business purposes is of increasing signifi-
cance and complexity, apparently due to the increasing
3
internationalization of trade and business activity generally, and to
the increasing importance of both foreign investment in the United
States and American investment abroad.
These factors produce not only more temporary business travel,
but also more complex situations which require careful considera-
tion under our law.
Briefly, each of the nonimmigrant classifications concerned is as
follows:
B-l, temporary visitor for business. A visitor for business is an
alien having a residence in a foreign country which he has no in-
tention of abandoning, who is coming to the United States for a
business purpose other than to perform skilled or unskilled labor.
This very broad general statement covers a multitude of possible
activities, such as contract negotiations, consultation with business
associates or subordinates, the placing or taking of orders for goods
to be exported from or imported into the United States, inspection
of work being performed under contract in the United States, and
attendance at business meetings of various kinds, including semi-
nars and conferences.
E-l, treaty traders, and E-l, treaty investors. Section 101(a)15(e)
of the INA extends nonimmigrant classification to aliens who are
nationals of a country with which the United States has an appro-
priate treaty of commerce, and who wish to enter the United
States to engage in certain business activities.
H-l, workers of distinguished merit and ability.
H-2, other qualified temporary workers.
And H-3, trainees.
Section 101(a)15(h) of the INA applies to aliens who wish tempo-
rary entry into the United States to perform specified services or
labor or for training.
H-l classification is limited to aliens of distinguished merit and
ability, including members of the arts and professions, as well as
entertainers and athletes of exceptional stature in their fields of
endeavor.
H-2 classification encompasses the performance of temporary
services or labor not of an exceptional nature and an individual
case determination that workers in this country capable of per-
forming such services or labor are not available.
H-3 classification includes aliens invited to enter the United
States by some firm, organization or individual to undertake train-
ing in commerce, agriculture or any other type of activity.
I, information media representatives. Under section 101(a)15(i) of
the INA, nonimmigrant visas are issued on a reciprocal basis to
bona fide representatives of foreign press, radio, television, film
and other information media, but not to entertainers and their rep-
resentatives, because the media content must be informational or
educational in nature.
The applicant must establish to the satisfaction of the consular
officer that he is a nonimmigrant and is a bona fide representative
of a foreign information media organization, usually by a letter
from the employer stating that the alien is a full-time employee
going to the United States to perform his professional functions.
L-l, intracompany transfers. Section 101(a)15(l) of the INA per-
mits the issuance of a nonimmigrant L-l visa to an alien employee
of a firm, corporation or other business entity who is being trans-
ferred temporarily to the United States to continue rendering serv-
ices to the same employer or to its affiliate or subsidiary.
The alien must have been continuously employed by the employ-
ing entity for at least 1 year, performing managerial or executive
services or involving specialized knowledge.
Adjustment of status is a mechanism. It is not, in and of itself, a
substantive provision of law. The INA provides a primary method
of acquiring permanent resident status through the immigrant visa
process, but it also allows an alien in the United States who meets
certain conditions to acquire permanent residence through the ad-
justment of status process.
It is important to recognize, however, that whichever procedure
an individual alien follows, immigrant visa issuance or adjustment
of status, the substantive requirements are the same.
The Department considers this provision as a necessary element
of our immigration system, the absence of which would likely
create other problems.
In order to understand this point, one must look into history
which is set forth in full in my written statement.
I am convinced on the basis of history that if there were no ad-
justment of status provisions, or if the qualifying requirements
were excessively high, we would see a similar system develop once
again.
I'd be pleased to respond to any questions, Mr. Chairman.
Senator Thank you very much, Ambassador.
SIMPSON.
Ms. Meissner?
[Mr. Asencio's prepared statement follows:]
C.
PREPARED STATEMENT OF HON. DIEGO ASENCIO
Mr. Chairman, members of the Subcommittee, it is a pleasure to
appear before you once again. Our topics today are (1) the tempo-
rary entry of aliens for business purposes; and (2) the question
of adjustment of status to permanent resident by aliens temporar-
ily in the United States.
Temporary Entry for Business Purposes
The first of these topics • temporary entry for business pur-
poses • i of increasing significance and complexity, apparently
s
due to the increasing internationalization of trade and business
activity generally and to the increasing importance of both
foreign investment in the United States and American investment
abroad. These factors produce not only more temporary business
travel, but also more complex situations which require careful
consideration under our law.
Among the authorized purposes for temporary entry which are
set forth in section 101(a)(15) of the Immigration and Nationality
Act (the nonimmigrant classifications are all defined in terms of
purposes for temporary entry), five include virtually all tempo-
rary entry for business purposes: B-l (visitors for business);
E-l (treaty traders); E-2 (treaty investors); H-l (workers of dis-
tinguished merit and ability); H-2 (qualified workers whose ser-
vices are needed in the United States temporarily); H-3
(trainees); "I" (media representatives); and L-l (intra-company
transferees). As all of these are nonimmigrant classifications,
the visa application procedure is the same for all. The applicant
nust prepare and submit the standard nonimmigrant visa application
form, together with whatever additional required documentation or
other supporting evidence may be appropriate to establish his en-
titlement to the nonimmigrant classification he is seeking and his
eligibility to receive a visa of that classification.
6
In certain cases • H-l, H-2, H-3 and L-l • there is a con-
dition precedent which must be fulfilled, i.e., the prospective
em- ployer, or trainer in an H-3 case, must file a petition with
the Immigration and Naturalization Service and the Service must
ap- prove the petition and notify the appropriate consular officer
of the approval. Unless the consular officer has been notified
that the required petition has been approved by the Service, he
cannot issue an H-l, H-2, H-3, or L-l visa to an applicant who
claims to be entitled to one of those classifications. In the
other cases • B-l, E-l, and E-2 -- no petition is required and
the consular officer has the sole authority and responsibility for
making the decision on all aspects of the application.
When the approval of a petition is required, there are three
ways in which notification of the approval can be communicated
from INS to the appropriate consular officer. The traditional
(and time-consuming way) is to have the petition form itself, with
the approval stamp, sent by mail to the consular office. Alterna-
tively, if the employer (or trainer) will pay the costs involved,
the notification can be communicated by telegram or telephone.
Finally, about ten years ago INS and the Visa Office worked out a
third procedure. Whenever a petition is approved, INS sends a
notice to the petitioner informing him of the approval. In the
early 1970's it was agreed that the petitioner could furnish a
notification to the applicant who could, in turn, present it to
the consular officer at the time of visa application. This is
Immigration and Naturalization Service Form I-171C and instruc-
tions concerning this procedure are printed on the Form for the
benefit of the petitioner and the applicant. This third method of
approval notification is widely used, especially in cases in which
the applicant has already entered the United States and will have
to revalidate his visa during a temporary absence abroad.