Dedicated Professionals in Immigration Law

(03/01/2000 - 06/30/01)

Reported by Matthew Oh, Esquire.

Current Page[03/01/2008 - Present]/Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05/Archive X [09/15/04 - 02/28/05 /Archive IX [03/01/04-09/14/04]/Archive VIII [08/01/03 - 02/29/04]/Archive VII [03/01/03 - 07/31/03]/Archive VI [11/01/02 - 02/28/03]/ Archive V [07/01/02-10/31/02]/Archive IV [03/01/02 - 06/30/02]/Archive III [07/01/01 - 02/28/02]/Archive II [03/01/00 - 06/30/01]/Archive I [through 02/29/00]

The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

The posting in the Breaking News requires visitors' some level of knowledge of immigration issues. Reading one posting without closely following previous postings will result in reading it out of context. The laws, policies, and practices of agencies are constantly changing and people should be careful in reading old postings. People should not take the news in this page as a legal advice. The purpose of Breaking News is to feed into the immigrant communities up to the minute news, especially inside information of agencies' decision making. Just like any other news reporting, the life span of the news can be very short. This is not a text book or a law book. It is a "news report." This site will welcome "only" those visitors who follow the news reports everyday just like the subscribers of daily newspapers. The sole purpose of this site is to serve the immigrant communities and not immigration law professionals.

Warning: The INS policy change posted 03/07/00 has turned a number of postings in our Old Breaking News page (now Archive) obsolete. People should ignore our previous postings on these issues.

Warming: The INS Memorandum posted 03/27/00 below concerning EB-2 MS Equivalency has turned a number of postings in our Old Breaking News page (now Archive) obsolete. People should ignore our previous postings on these EB-2 issues in the Archive.

Warning: The INS HQ decision on Post-03/14/00 new H-1B filing as reported on 04/06/00 affects the INS H-1B regulation of 03/14/00, and PEOPLE SHOULD NOT READ 03/14/00 REGULATION WITHOUT OUR POSTING OF 04/06/00!!

Warning: The INS HQ, on 05/16/00, superseded and amended in part the foregoing 03/14/00 Memorandum, reversing its position on the effect of travel of EB-485 applicants on employment authorization and extension of H/L status upon return to the U.S. The new rule will be valid until the INS finalize this issue in a final regulation to be published in the future!!!! Please ignore all the prior posting on these issues on this web site.

Current Page[11/01/2007 - Present]/Archive XVI[08/01/2007 - 10/30/2007/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05/Archive X [09/15/04 - 02/28/05 /Archive IX [03/01/04-09/14/04]/Archive VIII [08/01/03 - 02/29/04]/Archive VII [03/01/03 - 07/31/03]/Archive VI [11/01/02 - 02/28/03]/ Archive V [07/01/02-10/31/02]/Archive IV [03/01/02 - 06/30/02]/Archive III [07/01/01 - 02/28/02]/Archive II [000 - 06/30/01]/Archive I [through 02/29/2/00]

Updated 06/28/01: "Sense" of INS on Key AC 21 Substantive Issues

• As reported, the INS AC 21 Guidance memorandum of June 19, 2001 left many key substantive questions open for the enactment of AC 21 Regulation. It is unclear when this regulation will be released and in what format (proposed regulation vs. interim or final regulation.).
• However, the AILA discussion with the INS leaders on March 21, 2001 gives some clues on the direction of upcoming AC 21 Regulation.
• Readers are reminded that the discussions here are neither INS official opinion nor decisions. People should not rely on this posting to make any decision. The purpose of this posting is to figure out the "sense" of the INS leaders as to which direction they were heading. People may take this discussion purely as a guesswork. Until the regulation is released, all the discussion here remain 100% a guesswork.
• 180-Day Rule for 485 Waiters:
  • When 180 days should start to run remains a big unanswered question. The INS keeps a tight lip on this issue. The INS denies that it has decided not to apply it retroactively. This will remain a big unanswered question until the regulation is released.
  • Regarding change of employer for similar or identical occupation classification, the determination of "occupation" may rely on the DOL definitions of occupation classifications and one big question on whether it will limit to the same location may be answered in favor of the immigrants, according to the INS leadership. It means that the regulation may provide that change of location is within the parameter of the AC 21 legislation on this issue inasmuch as the nature and type of duties and responsibilities are same or similar.
  • Regarding corporate name change or restructure pending 485 application, the regulation may accomodate the business realities and incorporate such situations either within the context of AC 21 provision on change of employment or the current H-1B policy not requiring amended or new petition. Currently, the INS official position is that when the name of employer changes, employer needs to file amended or new I-140 petition. In this regards, the NSC has been taking a liberal approach as opposed to the hardline approach of VSC. Where there is a corporate structure change, the current policy also requires amended or new I-140 petition. However, it is likely that the regulation may follow the suit of H-1B policy, not requiring amended or new petition in the situation of change.
• H-1B 7-Year Extension:
  • The question as to whether the INS will process extension "petition" (I-129H) has been answered by the AC 21 memorandum, answering to the DOS that a valid petition may be issued for the qualified H-1B professional so that DOS can issue an extended visa for travelling. However, there is still a lingering issue with the DOS as to when 365 should be reached. The DOS opines that at the time 365 days reaches, the alien's H-1B I-94 should remain valid and if the alien's 6-year limit has already reached by the time 365 day reaches, such alien may not be qualified for extension of a "visa." Accordingly, people with the 7th year extension should review their situation before they make a trip.
  • There is a question as to whether the 7th extension should also apply to H-4 family members. It appears that the regulation may answer positively on this issue.
• H-1B Portability:
  • As announced in the AC 21 memorandum, the INS made it clear that the AC 21 regulation will take a liberal approach on the gap between the current job and the new job for jumpting upon filing of a new H-1B petition by a new employer. It will take a concept of "reasonable" interpretation approach, which is interpreted to encompass a 60-day out-of-job leniency. However, "reasonable" will incorporate requirement for "no-fault" of the alien. Alien who voluntarily jump for another employer to earn more money may face a problem of the scope of this upcoming policy.
• People are reminded that the foregoing discussion is based on this reporter's observation, not necessarily representing the views of the agencies. All the substantive issues discussed here should wait for the official answers in the upcoming AC 21 Regulation. Let's hope for the best. Back to Top

Updated 06/28/01: Warning! AC 21 and Out-Of-Status

• As reported on this Website on June 20, 2001, the INS issued the long awaited AC 21 Memorandum on June 19. For the summary, people should revisit our previous posting on June 20.
• Apparently, a Staff Writer of Washington Post wrote a news on June 27, yesterday, that the INS was considering 60-day window for H-1B professionals who lose the job but find another job during the period and utilitize H-1B portability. Some people misread this news as if it is the current INS policy. However, as we summarized on June 20, the AC 21 memorandum made it clear that such provision was being considered as a part of the AC 21 regulation which has yet to be released and until there is released a "final" regulation, the INS would not consider such leniency!!!
• People are cautioned not to act too quick based on misinformation or misreading of news reports. The consequence can be deadly. Back to Top

Updated 06/25/01: INS AC 21 Guidance of 06/19/01 Full Text

• The AC 21 memorandum was officially released on the 20th, as this website already reported, in time for the AILA Annual Conference in Boston which started on the 20th. This information was not accessible to most of the legal counsels because they were in Boston being busy away from the computers.
• This website was accessible to the Guidance immediately before this reporter's departure for Boston and was able to post the summary versions of the Guidance. The summary fairly well covered the three hot issues of 180-day rule, H-1B portability, H-1B 7th-year extension (365-day rule).
• However, this website will report the full text for those who have a fairly good skill in reading legalese documents.
• Most of all, what better news one can have from this type of memorandum than the news that at last the INS HQ lifted its freeze order holding the applications related to these three cases in abeyance of the release of the regulation?! At least, since the 20th of June, the Service Centers could adjudicate these cases on the advice of the special unit in HQ which currently acts similar to the Legal Advisory Unit within the U.S. Department of State that offers legal advice and guidance to all the American posts throughout the world. Now door is tentatively opened and people will see adjudication of these cases. This is the biggest gain out of this memorandum. People should not expect any answers to the substantive issues from this memorandum. For the substantive issues, they should still wait for the release of regulation. Back to Top

Updated 06/23/01: Upcoming On-Line Services of INS, DOL, and DOS

• INS Web Manager states that people may expect the following to happen with reference to on-line services:
  • In about two weeks, the INS website will launch online "fillable"forms. Currently, people can just download the blank forms and must complete the forms by typewriter. Soon, the INS forms can be completed online and the "completed" forms can be printed out from the INS website. This fillable form services will be similar to the current commercial form software services.
  • Additionally, the INS is working on development of online filing system. However, because of the technogical complexity and legal issues, it is not expected to happen for a few years.
  • INS is also working on development of online individual case status checking system, turning the current telephone status checking system obsolete. This is expected to happen in year 2002. This new online checking system is expected to affect the current monthly report of processing times by the Service Centers and private online "tracking" system.
• Uninformed sources indicate that the DOL is also working on H-1B LCA online filing system, which will more or less overcome the current faxback LCA filing system problem. No information is available about exactly when the DOL will be able to launch this new system. Please stay tuned to this website.
• DOS (NVC) is also currently developing online case status checking system, making the NVC's current processing times report on its website somewhat obsolete. Back to Top

Updated 06/22/01: AC 21 Memo and Opening of Door for 7-year H-1B Professional's Travel

• People may recall that DOS Visa Office opined not too long ago that the AC 21 allows extension of H-1B "status" but "not extension of petition" beyond six years in certain circumstances. It also opined that since the Consulate could not issue a visa without a valid extension "petition," the American Consulates would not be able to issue visa once such alien leaves the U.S.
• The INS AC21 Memorandum should change the situation in that since the INS will grant extension "petition," such H-1B professional should be able to obtain an extended visa with the "valid" extension petition, I-797. This view is informally confirmed by the Legal Advisory Division Chief of DOS in Boston. It is hoped that the DOS releases its formal opinion on this issue soon.
• People should remember that if their 6-year limit has reached and they filed 7th year extension petition under AC21, they should not depart from the U.S. until the extension petition is approved. Better yet, they may want to apply for the 7th year H-1B visa extension through the visa revalidation proceedings at the State Department in the U.S., just for safeside. Back to Top

Updated 06/22/01: I-140 Premium Processing in Doubt

• Considering the INS plan to launch I-140/EB-485 one-step filing, the INS doubts whether they should expand Premium Processing to I-140 petition proceeding. Currently, the INS does not consider expanding Premium Processing to immigrant proceeding, according to the responsible INS officer.

Updated 06/22/01: I-140/EB-485 Concurrent Filing?

• The responsible INS officer disclosed today that the INS had already completed this regulation and is waiting for the INS Commissioner's signature. However, since the INS is expected to have a new Commissioner and it also has to complete the OMB process, reportedly it still needs several months to launch the one-step filing procedure. Once this is launched, those who obtain labor certification will be able to apply for EAD and AP upon filing this one step-filing "inasmuch as the priority date is current" for his/her case. It will also help to reduce the total turn-around time for I-140 and I-485. Please stay tuned to this website for further development. Back to Top

Updated 06/22/01: Premium Processing Service Fee Revenue and Processing Times Reduction

• As reported earlier on this website, President Bush made a commitment to reduce processing times of applications/petitions to six months. For the commitment, the Bush administration had proposed $500 million for five years, $100 million a year.
• INS sources indicate that $80 million out of the proposed $100 million will be funded from the Premium Processing Service Fees. The INS projects that it will successfully achieve $80 million within the next one year. The responsible INS sources state that the entire amount of the Premium Processing Fees income will be committed to the benefits functions and not enforcement functions.
• The INS is targeting at the reduction of processing times within two years rather than five years using this fund. The INS will hire 950 new officers within a year for the Service Centers.
• However, this sounds overly optimistic. It gives impression that the INS is projecting the workloads based on the current situation. However, a number of factors will make this projection unrealistic. For instance, should the DOL launch the PERM program and decides 80% of the labor certification applications within a week or so, the Service Centers will be flooded with I-140 petitions, affecting the volume of I-485 caseloads along the way. Additionally, it is unclear how much of the new fund will be spent for the new Service Center, called Missouri Service Center in St. Louis, Missouri, which will handle LIFE Act cases. The new Service Center has already affected the existing Four Service Centers negatively in their processing times. A number of immigration officers have been temporarily taken out of each Service Center and assigned to the Missouri Service Center, affecting the processing times. We will see how it works. Back to Top

Updated 06/21/01: Continuing Sluggish Economy and Rough Road Ahead for RIR Labor Certification

• Slowing-down economy and continuing rise of unemployment, particularly in high-tech industry, has apparently motivated DOL to review the current RIR processing practice. The DOL appears to be very concerned with employers filing RIR labor certification when they either laid off or are laying off workers. Informed sources indicate that DOL HQ will schedule a meeting with Regional Certifying Officers next week to review a number of issues, including RIR under slowing economy.
• DOL is also concerned with the mounting workloads and its impact on processing times in the future. We have already reported that they have received more than 230,000 cases during the 245(i) rush period. They are currently very conscious of two potential upcoming events which will affect their workloads tremendously. The first is further extension of 245(i) legislation which will increase filings tremendously. The second is the on-going political negotiation between the current Administration and the Mexican government to accept essential temporary workers from Mexico. This is likely to increase en masse temporary labor certification applications (H-2B), adding workloads to the DOL.
• All indications reflect that people will growingly experience a tough road ahead in labor certification and it is likely that the backlog of labor certification may mount dramatically. Back to Top

Updated 06/21/01: What Did AC 21 Bring to Immigrant Community?

• As reported yesterday, the INS did not release the rules on substantive issues and these rules are still up in the air. However, this Memorandum has brought one important consequence on the immigrant community. The Service Centers are now cleared to process the so-called 7-year H-1B extention petitions which have been held in abeyhance pending release of the regulation. So is the 485 applications involving applicants who have changed employers. This memo sends a go-ahead signal to the Service Centers to adjudicate these cases, subject to an advice by the INS HQ in each individual case, until the regulation is released. It implies that the INS has already decided most of the important substantive issues, but it needs more time to get its clearance at political and administrative levels within the government. Release of the Memo was better than nothing under the given cirumstances, wouldn't you say? Back to Top

Updated 06/20/01: INS AC 21 Memorandum Released

• AILA has reported that the INS has just released AC 21 Guidance Memorandum of June 19, 2001.
• As stated earlier by the INS spokesperson, the rules of "substantive" issues are left to the regulation which has yet to be released and this memorandum focuses on the procedural matters.
• SUMMARY OF ISSUES OF INTEREST

• I. Effective Dates: All provisions in AC21 are effective upon the date of enactment, October 17, 2000.
• II. AC21 Section 104(c) - "One-Time Protection" Benefits, Extension of H-1B Status Permitted where Adjudication pending under Per Country Limitations:

• *The AC21 104(c) enables H-1B nonimmigrants with approved I-140 petitions who are unable to adjust status because of per-country limits to be eligible to extend their nonimmigrant status until their application for adjustment of status has been adjudicated. An H-1B nonimmigrant is eligible for this benefit even if he or she has exhausted the maximum 6-year period of authorized stay for H-1B noniimmigrants. H-1B employers with such employee must file a Form I-129 with filing fees. Extensions of stay under AC21 104(c) shall be made in increments of three years. The same will apply to H-4 dependents.

• III. AC21 105 Visa Portability

• *This provision will be implemented by to-be-enacted AC 21 regulation. The Service expects to propose a rule that would afford H-1B beneficiaries, who are no longer working for the initial H-1B employer, some reasonable period of time such as 60 days after leaving the intial H-1B employer to begin working for a new H-1B petitioning employer under the portability provisions. Such rule will not take effect until it has been published as a final rule, after notice and comment, and any revisions. This prospective statement of policy is provided solely for information purposes to Service personnel shall not be utilized as a standard of adjudication in cases involving portability issues, unless and until promulgation of a final rule.

• IV. AC21 106 H-1B Extension Beyond 6 Years (365-Day Rule)

• *In order for an H-1B nonimmigrant to receive an extension of stay under AC21 106 beyond the maximum 6-year limit, a petitioner must file a Form I-129 on behalf of the nonimmigrant beneficiary. The petitioner may be either the beneficiary's current employer or a new employer. If the H-1B petition is approved, the petition will be valid for a period of 1 year. One-year extension of the beneficiary's H-1B status may continue until a final decision is made on the alien's lawful permanent resident status. A petitioner is required to file a new I-129 and pay the $110 filing fee.

• V. AC21 106(C) Change of Employment after 180 days (180-Day Rule)

• *The AC21 106(c) provides that the certification or I-140 approval of an EB immigrant petition shall remain valid when an alien changes jobs, if: (a) Form I-485 on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 dys or more; and (b) the new job is in the same or similar occupational classification as the job for which the certification or approval was intitially made.
• *If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present prqactices, it is expected that an 485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the 140 petition. The Serviceshould continue to expect the applicant to submit a letter notifyhing INS of this change in intent. If the Adjudicator has reasons to believe that the applicant's intent has changed, a RFE may be issued to clarify the applicant's intent in regards to employment.
• In instanceswhere the applicant no longer intends to be employed by the employer who sponsored him/her on the 140 petition, the Service should request a letter of employment from the new employer. The letter from thenew employer verifying that the job offer exists should contain the new job title, job description and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground inadmissibility. To determine whether a new job is is in the same or similar occupational classification as the original job for which the certification or approval was initially made, the officer may consult DOL's DOT or its online O*NET classficiation system or similar publications.
• The Service is currentloy formulating proposed regulations to establish a policy framework in which to adjudicate AC21 106(c) benefits. Until the Service promulgates final regulations establishing such a policy framework, adjudicators shall consult, on a case by case basis, with HQs beforfe denying cases on the basis that the new job is not in the same or similar classification. Back to Top

Updated 06/19/01: 245(i) Filing and Prediction of Labor Certification Backlogs

• DOL estimates that SESAs throughout the country have received roughly 230,000 permanent labor certification cases during the recent rush of 245(i) filing that ended on April 30, 2001. My Lord!! Uninformed sources also indicate that New York alone received over 47,000 applications during the time. New Jersey also reportedly received 19,000 applications. Massachusetts also reportedly received approximately 10,000(?). About one half of 230,000 cases were filed, according to the DOL sources, in New York and California.
• Without doubt, such phenomenal filing of new cases will affect the DOL processing times in the future, particularly those cases which were filed on or after April 30, 2001. Unless the DOL starts PERM program soon, people will see a nightmare. Reportedly, without PERM program, it can delay labor certification processing even for two and a half years. I don't want to believe this. DOL should start the PERM by all means. Let's hope for the best.
• One good news for some filers: The soon-to-be-released RIR conversion regulation will allow these filers to convert to RIR inasmuch as they can establish RIR thresholds (1) without losing priority date and (2) without losing 245(i) benefits (if filed before 04/30/01)! Isn't it a beauty?
• Please stay tuned to this website for the development. Back to Top

Updated 06/18/01: New Immigrant and Nonimmigrant Visas Enacted Last Year

• Last year was an election year and both White House and Congress were busy in enacting immigration legislations. Some of these legislations created new immigrant and nonimmigrant categories. The new nonimmigrant categories are to help alien women from abuse and violence and spouse and children of the U.S.Citizens or Permanent Residents who have been suffering from the priority date backlogs and the INS processing delays.
• Today, the U.S. Department of State released a regulation to add these new visa categories to its regulation. The new visa categories are as follows:
  • BC1, BC2, BC3 = International Broadcasters Immigrant Visa
  • T1, T2 = Victims of Trafficking for Illicit Sexual Purposes and Slavery Nonimmigrant Visa
  • U1, U2 = Victims of Battering and Violence
  • V1, V2, V3 = Long-Waiting Spouse and Children of Permanent Residents Nonimmigrant Visa
  • K3, K4 = Long-Waiting Spouse and Children of U.S. Citizens Nonimmigrant Visa.
• If you are interested in learning these new visa categories, please click here to download the DOS Regulation. Back to Top

Updated 06/15/01: Advance Parole Practice Change in Minnesota District for H-1B/H-4 Pending EB-485

• At today's meeting, the INS District Office in Minnesota announced that they will not issue Advance Parole to EB-485 filers in H-visa status at the District Office. Minnesota has been one of a few districts that entertained AP application for EB-485 filers. Under the new practice, unless people show that they are no long in H-visa status, they will insist that people travel on H-visa status.
• However, the notion of when the H-visa people violates their nonimmigrant status is disputed by some legal professionals and people are cautioned not to rely on the District interpretation on this issue. This reporter rather recommend that people still apply for Advance Parole through the NSC just for safeside. Relating this issue, people may want to read the INS Memorandum of May 16, 2000 by Michael D. Cronin, Acting Associate Commissioner, Office Program,which is posted on our H-1B site. Back to Top

Updated 06/15/01: Lift of Russians from Ineligibity for U.S. Transit Without Visa & Passport

• One of the cold war remnants was the U.S. laws disallowing Russians transitting U.S. without passport or visa to fly to a foreign destination for their journey. This TWOV privilege is available to most of other nationals.
• Today, both U.S. Department of State and the INS have released regulations lifting this ineligibility for the Russian travellers passing the U.S. port of entry to futher travel to their destination of another country. Please read DOS and INS regulations. Back to Top

Updated 06/13/01: Evidence of Automatic U.S. Citizenship for Child Born Abroad

• This report is related to our previous report on 06/08/2001. The INS has just released a regulation which went into effect today, relating to evidence of a child who acquires U.S. citizenship through parents or otherwise. Please click here to read the regulation. Back to Top

Updated 06/11/01: H-1C Visa Petition Regulation Just Released Dated 06/11/2001

• The INS has just released this regulation. The H-1C visa allows foreign nurses of upto 500 a year to enter the U.S. to serve in the areas for the underserved population. For the summary this regulation, please stay tuned to this website. Back to Top

Updated 06/10/01: Impact of Priority Date Changes in July and Upcoming PERM LC Program

• As reported on this website, DOS Charles Oppenheim predicted that EB-3 and EB-3EW are "likely" to see the priority dates "current" in July. Even though it is unclear when DOL will start PERM Program, this new labor certification program also promises to complete permanent labor certification from one week to two weeks. These changes will affect the fate of EB immigrants at different stages and this reporter wants to review some of those impacts.
• Should the priority date indeed become current in July for EB-3 and EB-3EW, it is anticipated that demand for the visa numbers in these categories will increase dramatically. DOS thus predicts that because of such surge of demand for visa numbers, the priority dates for "unskilled worker" category, EB-3EW, is anticipated to "retrogress" substantially early next year. This reporter is unsure as to what he meant by "next year," but wishes to presume that he meant calendar year and not fiscal year. Thus the July Visa Bulletin is likely to bring a mixed bag to EB-3EW 485 filers: They will be able to file 485 beginning from July 1 and also remain and work in this country until their green card is approved. Most of these people may also be beneficiary 245(i) since they filed the labor certification before December 21, 2000. Bad news is that they may have to wait a long time before they can get Green Card because of the anticipated retrogression of priority dates and the INS' processing delays in 485 processing. Under the immigration law, Green Card cannot be approved unless at the time of actual determination of 485, the priority date is available for him/her. For instance, assume that the Service Center was about to adjudicate his/her case 1st day of the following month and the visa number is currently available. Assume also that the American Consulate scheduled immigrant interview in the same manner. Hypothetically, assume also that priority dates for his/her category retrogresses in the following months. Neither the Service Center nor the American Consul will be able to approve 485 or IV on or after the 1st day of that following month. However, retrogression will not affect their eligibility for EAD and AP while they continuously wait for their priority date. The only risk is that the underlying employment can be terminated or disappear, jeopardizing 485 eligibility! These people should immediately consult with their legal counsel "as soon as July Visa Bulletin is released" to review whether any options may be available to get immigrant status before the priority date retrogresses, such as consular IV processing without withdrawing pending 485 application.
• Should the priority date indeed become current in July for these categories, the Service Centers will be flooded with 485 applications, seriously affecting the processing times. People will remember previous experience about three years ago when the priority dates became current in August. Probably President Bush did not anticipate this type of change when he announced that he would commit to 6-month processing times for all the applications and petitions, presumably including 485. The turn of the subsequent event can make his announcement an empty-hand promise. It is more true if we consider the impact of upcoming so-called PERM Program of permanent labor certification, which will definitely open a huge flood-gate to the INS and the American Consulates! The INS and the American Consulates are not quite in pace with these on-going and forth-coming changes when it comes to reengineering of immigration procedure and electronic automation of the legal process. It is imperative that the INS immediately commence one-step filing procedure (140/485) and electronic filing system. Otherwise, the INS which is already under fire by the Congress for delays in case handling will face a serious political challenge. Remember that immigration agency restructure bill has been pending in the Congress! Back to Top

Updated 06/08/01: Do You Need More Surprises?

• Charles Oppenheim also reportedly predicted that even EB-32 "Unskilled Workers" category is likely to become current in July! However, people should wait until the July 2001 Visa Bulletin is released since this information is "not formal!"

Updated 06/08/01: Advisory for Parents Travelling with Minor Children

• This advisory is for foreign or U.S. citizen parents planning for overseas trips with minor U.S. citizen children under 14 years of age. Under the U.S. nationality laws, a child born in the U.S. is defined as a citizen of the U.S. A number of nonimmigrants and immigrants in this country have U.S. citizen children in the family. Additionally, when parents are naturalized into the U.S.citizenship, minor children also become automatically become U.S. citizen by the force of the Nationality Act. A child born in a foreign country while his/her U.S. citizen parents are travelling abroad also become a U.S. citizen. There are many other incidents where a child born of a foreign or U.S. citizen parent becomes a U. S. citizen. Recently enacted Child Citizenship Act for adopted children and a child who becomes a U.S. citizen by applying for naturalization for himself or herself are the two of many incidents that make a child U.S. citizen. The parents should consult with a lawyer to learn his/her children's situations. See the regulation.
• In order for the U.S. citizen to travel abroad, they need a U.S. passport. Until now, one of the two parents alone could file application for the minor child's U.S. passport. On June 2, 2001, DOS changed regulation requiring the consent of "both" parents to issue a U.S. passport for such child. The new regulation will go into effect on July 2, 2001 and the parents should read this regulation very carefully.
• The regulation provides exceptions in certain circumstances. There are a number of children who are a dual national. Some parents may want to travel with a foreign passport for such U.S. citizen child. Some parents may disagree each other on the child's citizenship. There are also many circumstances where consent of "both" parents is not available for whatever reasons. All of these parents should read this regulation very carefully to seek answers to their individual special circumstance. For the new regulation, please click here. Back to Top

Updated 06/06/01: Diagnosis of INS Processing Delays - GAO Report to Congress May 2001

• The U.S. General Accounting Office (GAO) has just released its report to the Congress its assessment of the INS services and processing delays. The Report was made in May 2001. It is a 120-page long document(PDF) and this Reporter must say that it is indeed a very extensive review. One thing interesting is that the delay was not necessarily caused by the staff shortage alone. It was caused by combination of several factors, including system failure. Apparently there is no easy answer in sight in the near future. This raises the question of how the President Bush's promise to reduce processing times of applications/petitions to 180 days "can" be achieved. When problem goes to the root which is much deeper than staff shortage and funding shortfall, collection of additional fees such as Premium Processing Fees and other temporary measures do not seem to correct the problem.
• Reportedly, the INS is working hard on the problems and solutions, including reengineering of the system and process. Readers, please do not spare lending your support for the INS efforts and keep your patience. Back to Top

Updated 06/01/01: INS Premium Processing Regulation & Form I-907 of 06/01/01 Released

• As expected, the regulation is released today. The visitors to this website can get access to this regulation by clicking the heading of this posting or go back to our home page and click Today's New Regulation Release and roll down until you get to the Immigration and Naturalization Service.
• For the Premium Processing Form I-907 and filing instructions, including special mailing addresses, either click here (I-907) or go back to our home page and click forms and fees site on the left index. Back to Top

Updated 06/01/01: LIFE Act Regulation of 05/31/01 Released

Updated 05/24/01: Victory for 850 Investor Immigrants Potentially Facing Deportation

• The immigration statute that allows rich foreigners to invest from $500,000 to $1,000,000 in the U.S. and buy a green card has been an embarrassment to the legislators involved in the legislative process. The legislation was without doubt partially motivated by the Hong Kong money. However, it failed to bring in Hong Kong monies when Hong Kong was turned over to China. A lot of these monies went to Canada, Australia and other western nations. Why? Too restrictive conditions. The United States does not have an investment treaty with Hong Kong. Thus, E-2 nonimmigrant visa was an unavailable route for flight of rich Hong Kong people facing fall of the territory to China.
• Initially, when this investor immigration program started, attorneys and brokers were able to see the loopholes in the statute and successfully given a conditional permanent resident status to people. Under this statute, such people do not become a permanent resident until the condition is removed after two years by filing a petition. Apparently in order to block some of these investor immigrants from getting permanent residence status, the INS enacted a regulation of post facto making almost 850 such beneficiaries ineligible for removal of the conditions. What is the next step? What else, potential deportation.
• A federal judge, on May 3, 2001, applied a brake to this smart move of the INS, saying the post-facto regulation cannot be applied to these people retroactively. The legal battle may or may not continue between these people and the INS, but these people are temporarily relieved from the nightmares!
• The term, "retrocative" application of law, is a very tricky term. A lot of people are waiting for the retroactive application of AC 21. However, between the twos, there are miles of difference. Back to Top

Updated 05/18/01: Adoption and Immigration

• The INS has posted an excellent collection of information on the issues, laws, and procedures on immigration for adoptees. We realize that this is not a topic most of visitors to our website is interested in. However, this will serve present or potential parents of foreign adoptees to tackle with the questions of immigration laws for their loved children. Please give this information to your U.S. citizen friends who need help.

Updated 05/15/01: Reuter News of INS AC 21 Implementation Plan

• Yahoo has reported the Reuter News of 05/15/2001 carrying interviews with the INS Spokesperson. The plan of splitting implementation into the two phases: First phase of implementation of limited issues in the form of a memorandum and second phase of implementation of more complicated issues in the form of enactment of a regulation, has yet to be officially confirmed. Even the first phase of memorandum is reportedly not released until June, 2001. The readers are reminded to read this report with caution and not to act in reliance of this news report. For the full report, please click here. Back to Top

Updated 05/13/01: Change of H-1B Employer, Re-Entry to U.S., and Visa Application

• Lately, people see increased incidents of changing employment as affected by the two factors, among others: Slowing-down economy and H-1B portability under AC 21. Slowing-down economy has been creating a downward spiral of employment - lay-off from high-salaried job to reemployment for a lower-salaried job. H-1B portability has also allowed employers and H-1B employees an increased mobility. This reporter wants to review how such change of employer and filing of a new H-1B petition affects the alien's overseas travelling. This discussion does not include travelling over Canada and Mexico. This discussion does not also include those H-1B aliens who filed 485 and has an option to use EAD+AP.
• General Rules for Re-Entry to the U.S. After the Trip: The alien is required to prove that he/she is (1) admissible and not subject to the grounds of removal under the immigration statute; (2) has a valid passport, and (3) has a valid H-1B visa.
  • Grounds for Removal: The U.S. immigration law provides a list of grounds for removal from the U.S., including crimes, frauds, etc. Poeple should make it sure that they are not subject to such provisions.
  • Valid passport: No matter whether one has a valid visa in the passport, such alien cannot be admitted to the U.S. unless the passport is valid.
  • Valid H-1B Visa: Inasmuch as the alien has a valid H-1B visa, he/she can reenter the U.S. using the visa, no matter whether he/she has changed employer and obtained a new H-1B status to work with the new employer. Currently, the INS allows such H-1B alien to return to the U.S. with the H-1B visa issued under the name of his/her old employer. Thus, for the purpose of reentry, he/she does not have to obtain a new visa after changing employer inasmuch as he/she has a valid H-1B visa stamp in the passport.
  • At the time of reentry to the U.S., the immigration inspector gives a new I-94 valid through the expiration date of H-1B approval notice (not visa expiration date) or passport expiration date, whichever comes first. The issue of H-1B alien using AC 21 H-1B portability is discussed separately below.
  • Generally, same rules apply to the H-4 spouse/children.
• General Rules for Issuance of H-1B Visa at the American Consulates: The requirements are identical, except the requirement for a valid H-1B visa: (1) admissible; (2) valid passport (at least 6 months unless the country has an agreement with the U.S. for automatic extension of passport for six months for the purpose of visa application); (3) Valid H-1B Petition - This is the key requirement for the visa issuance. Generally, same rules apply to H-4 spouse/children.
• AC 21, H-1B Portability, and Re-entry to the U.S. and Visa Issuance: Those H-1B aliens who jumped employment to a new employer "upon filing of a new petition by the new employer" are subject to the similar rules with the following additional requirements:
  • The alien also needs a proof that the new petition was "timely filed."
  • Once the alien meets all these requirements, the immigration inspector will allow him/her re-entry to the U.S. and issue I-94 valid through the expiration date of passport or current approved H-1B petition, whichever comes first. The alien does not have to have a new employer's name in the H-1B visa stamp.
  • If he/she wishes, he/she may apply for a new H-1B visa. The new H-1B visa will be issued valid through the date of expiration of the current approved H-1B petition or passport, whichever comes first.
  • Generally, same rules apply to H-4 spouse/children.
  • Caveat: For the purpose of both re-entry to the U.S. at the port of entry as well as the visa issuance at the consulate, "valid" H-1B petition is "absolute" requirement. Consequently, he/she who jumped H-1B employer using H-1B portability provision should never leave the U.S. unless the new H-1B petition has been approved, if his/her current H-1B petition would expire pending approval of the new petition by the new employer. It is extremely important to remember that both the INS and the American Consulate will not allow a H-1B alien to return to the U.S. without either a valid H-1B visa or a valid H-1B petition!
• The foregoing information is intended to give general information and "not" intended to provide a legal advice nor to apply to a specific individual circumstances. This reporter and law firm will not be responsible for consequences of such reliance. People should seek legal counsel for his/her individual situation. Back to Top

Updated 05/12/01: AC 21, 180-Day Rule, and DOS View

• In a recent AILA-Visa Office DOS meeting, the DOS opined that the consulates could adjudicate the IV application "without requiring a new I-140 petition to be approved" if (1) the new job is in the same or similar occupational classification and (2) the IV applicant filed I-485 which remained unadjudicated for at least 180 days prior to the application for a visa.
• This view is important in the two respects: The view was released in March, 2001 and apparently implies retroapplication of the 180-day rule, even if it was not made clear on this specific issue. Second, DOS would not require a new or amended I-140 in applying the 180-day rule.
• Readers are cautioned, though, that this is not a memorandum or official policy release. Back to Top

Updated 05/07/01: 245(i) Candidates and INS Enforcement Policy

• As reported on this website, 245(i) is not an amnesty and simple filing of an application for labor certification or employment immigrant petition (I-140) or family based petition (I-130) does not make their legal status legal until they reach the stage of filing of I-485, whence they will turn into status pending adjudication of 485 application. Therefore, until they reach 485 filing stage, the illegal aliens will continuously remain illegal and subject to the INS enforcement action, including deportation. Because of this, illegal aliens who filed a labor certification or I-130 or I-140 before 04/30/2001 have lived in nervousness for fear of potential arrest and deportation by the INS because of filing of application or petition for 245(i) grandfathering.
• INS HQ released a memorandum on 04/27/2001 to clarify its policy on enforcement with reference to 245(i) filing. The memorandum is addressed to local field offices that enforce deportation statutes. According to the memorandum, INS will not commence deportation proceeding during the period such application or petition is pending on certain conditions. There are several preconditions. First, the alien must be "eligible" for the application or petition. Frivolous filers, including fraudulent filing, will be subject to normal investigation and subject to normal enforcement actions. However, inasmuch as the application or petition is legitimate and a case of perfect eligibility, the INS will not commence enforcement action by reasons of filing such application or petition, at least up until the application or petition is denied.
• Caveat: It does not mean that all the filers who filed "eligible" good cases will remain free from enforcement action under any circumstances. Unauthorized aliens, even if they filed such "eligible" good application or petitions, will still be arrested and subject to enforcement actions of INS if they are encountered in the course of routine enforcement actions, or who otherwise come to the attention of the INS. For instance, if the INS raids business premises and locates unauthorized aliens, they will be subject to enforcement action, no matter whether they filed 245(i) grandfather labor certification application or immigrant petition. If police stops for violation of traffic laws and notifies the INS, the same can happen. If someone calls the INS to inform the agency of the illegal aliens, the INS will enforce the deportation law regardless of one's filing of labor certification application or immigrant petition.
• All this memorandum does are to restrain the INS enforcement officers from commencing enforcement action based "solely" on the information provided by the 245(i) benefit labor certification or immigrant petition filers by reason of the fact that they are seeking to legalize their status under 245(i) law. In this regard, this memorandum removes part of their fears but not all the fears for the "legitimate" and "eligible" 245(i) beneficiary filers. Simply put, if they are unauthorized aliens, they should keep remaining underground until they reach the stage of filing I-485!! Back to Top

Updated 04/30/01: Preservation of Evidence for 245(i) Eligibility

• Now, the deadline for 245(i) grandfathering is about to be over at the midnight of today. Now is the time to sit back and reflect on the issues which are important - preservation of evidence.
• First, let's talk about who are covered by 245(i) in the future. Most of the visitors of this website may be covered by this 245(i), no matter whether he/she realized it or not. Most of the labor certification waiters, most of the I-140 waiters, most of the I-485 waiters, most of the I-130 family petition waiters, most of the religious workers or other special immigrant petition waiters, and other immigrant petition waiters are covered by this law inasmuch as he/she keeps the two evidence very meticulously and carefully. First evidence is the proof that as at the midnight of 04/30/2001, his/her application or immigrant petition is "pending." How to prove it? The best proof would be the Receipt Notice from the agencies. You should keep such notices very safe!
• Most importantly, you should later prove that you were physically present in the United States on December 21, 2000. Prudent people may want to start collecting such evidence "now," no matter whether you are legal or illegal and no matter whether you are currently thinking about taking advantage of this law, 245(i). Who knows? You may one day need it. I'd bet that a large number of the visitors of this website may presently think that 245(i) hoopla is nothing to do with them or something distant from himself/herself. Wrong!! Always remember that law does not protect someone who sleeps on his right!
• What evidence to collect and preserve for this purpose? Please read the following excerps from the 245(i) regulation carefully:

  How Can an Applicant Demonstrate That he or she Was Physically Present
  in the United States on December 21, 2000?

  Applicants for adjustment under Section 245(i) of the Act (8 U.S.C. 1255(i)) who are covered by the physical presence requirement must submit, at the time they file the Section 245(i) application for adjustment of status, evidence that they were physically present in the United States on December 21, 2000.The Act is silent as to the methods by which an applicant may demonstrate his or her physical presence in the United States on that date. This rule provides guidance as to what evidence an applicant may
  submit to prove physical presence in the United States on December 21, 2000. This guidance largely corresponds to the existing regulations at 8 CFR 245.15(i) for aliens who must demonstrate physical presence on a specific date for purposes of the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA). The rule will incorporate, in part, the forms of documentation accepted in HRIFA regarding physical presence (8 CFR 245.15(i) and (j)(2)) and adopt them as examples of possible proof of physical presence for section 245(i). The Department is also soliciting comments on what type of evidence can be best utilized to demonstrate
  physical presence on December 21, 2000.In some cases, a single document may suffice to establish the applicant's physical presence on December 21, 2000. In most cases, however, the alien may need to submit several documents, because most
  applicants may not possess documentation that contains the exact date of December 21, 2000. In such instances, the applicant should submit sufficient documentation establishing the applicant's physical presence in the United States prior to and after December 21, 2000.An alien may make the demonstration of physical presence by submitting a photocopy of a Federal, state, or local government-issued document(s) that demonstrates the alien's physical presence in the United States on December 21, 2000 (or before and after that date). If the alien is not in possession of such a document or documents, but believes that a copy is
  already contained in the Service file relating to him or her, he or she may submit a statement as to the name and location of the issuing Federal, state, or local government agency, the type of document and the date on which it was issued. Examples of such Service issued documents include, but are not limited to, Form I-94, Arrival-Departure Record, Form I-862, Notice to Appear, Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, or Form I-221, Order to Show Cause. Examples of such Federal, state, or local government issued documents include, but are not limited to, a state driver's license or identification card, a county or municipal hospital record, a public college or public school transcript, income tax records, a Federal, State, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was
  present in the United States at the time, or a transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities.If there are no government-issued documents that demonstrate an
  alien's physical presence on December 21, 2000, the Service will accept and evaluate non-government issued documents. Such documentation must bear the name of the applicant, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated. A personal affidavit attesting to physical presence on December 21, 2000, will not be accepted without additional evidence to validate the affidavit. Examples of such non-government issued documents include, but are not limited to, school records, rental receipts, utility bills, cancelled personal checks, employment records, or credit card statements.In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be
  solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to
  obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.

• Good luck to all of you! Back to Top

Updated 04/30/01: Proposed INS Split: Services Function vs. Enforcement Function

• The following is excerpts from Attorney General's testimony before the Congress on 04/26/01
  • The Administration will propose splitting INS into two agencies with separate chains of command, but reporting to a single policy official in the Department of Justice. I support this restructuring, believe its time has come, and look forward to working with the Subcommittee as the proposal moves through the Congress. Back to Top

Updated 04/25/01: TCN NIV Visa Application and Impact of V+K Visa Implementation

• American Consulates in Canada and Mexico have been frequently utilized by Third Country Nationals (Non-Citizens, Non-Residents of Canada and Mexico). However, according to the AILA, the new V and K visas for the Spouses and children of Permanent Residents and U.S. citizens under the LIFE Act are expected to create a substantial increase of the caseloads for the consulates in these contiguous countries and may affect their practice on processing of non-immigrant visa applications by TCNs, particularly the Consulate in Ciudad Juarez. People considering such TCN NIV application should be prepared for the anticipated delays or even temporary suspension of the practice, depending on the increased caseloads of V+K visa applications.
• As reported on this web site, the DOS released V+K visa regulation on 04/16/2001. Pending the enactment of regulation, the American consulates did not process V or K-3 visa applications. The consulates have now started to take and process such visa applications. It is predicted that the number of such applications will be very heavy during the first few months.
• BTW, AILA also reports that the American Consulates in Mexico and Canada are not accepting V and K-3 visa applications from TCNs. Back to Top

Updated 04/16/01: Long-Awaited DOS V+K Visa Regulation Out

• AILA has reported U.S. Department of State Regulation on the new V-visa and K-4 visas which has just been released by the agency. The issuance of V and K visas has been delayed by the American consulates pending this regulation. Very good news for the relatives of U.S. citizen and permanent residents. Back to Top

Updated 04/10/01: Immigration Processing Times and FY 2002 Budget Proposal

• The President intends to implement the first-year portion of his 5-year $500 million initiative to achieve and maintain a universal 6-month processing standards, and proposes $100 million for backlog reduction in FY 2002. Universal standards means all the immigration applications and petitions.
• Additionally, in FY 2002, the INS intends to initiate processing reengineering, use of new technology and implement public accessibility to information and services. Such initiative will balance off the increase of caseloads coming from the LIFE Act this year.
• For the details, please click here to get the INS website. Back to Top

Updated 04/02/01: V-Visa Application Schedules

• Those who apply for the V-visa through the INS in the U.S. will have to wait until May 2001 when the INS is planned to release the regulation. Until that time, the INS will not process such application, according to the INS.
• However, the American Consulates started today, 04/20/01,taking the application for V-visa for the applicants living abroad. For the eligibility, please visit the DOS site. Back to Top

Updated 04/01/01: Benefits of 245(i) for Employment-Based Immigrants

• Depending on what stage he/she is in his/her pursuit of employment-based immigration, he/she will be affected differently. Obviously, for the people who are already "illegal," it is absolutely critical to file such application/petition before 04/30/01, no matter what. Here, however, we will focus on those who may fall out-of-status after 04/30/01 because of the slow-down of economy and on-going lay-offs in the high tech industry. Discussion focuses on labor-certification-based immigration.
• Before we examine the situation of each group, we want to present some premises which people should keep in mind in reading this material through the end, particularly Indians and Chinese.
  • (1) For Indians and Chinese, different groups are affected differently by the events that will take place in the immigration proceeding in the near future. These events are: a) Priority Dates for Indians and Chinese. Everyone crosses fingers that it becomes "current" soon. b) Start of PERM Program in the labor certification, hopefully in October 2001. c) Premium Service Fee, hopefully to cover I-140 in the not distant future. d) One-step concurrent filing of I-140/485, which is reportedly on the horizon. People will learn from this report that priority dates are less important than speedy processing of labor certification and I-140 for the laid-off 485 waiters. On the other hand, speedy processing of labor certification or I-140 is less important than priority dates for those who are at early stage of employment-based immigration proceeding.
  • (2) People should know that the law does not prohibit multiple employers from filing multiple labor certifications or I-140 petitions simultaneously.
  • (3) Approved labor certification or I-140 are valid indefinitely until it is revoked.
  • Now, with these three premises in mind, let's review how people at different stages are affected by 245(i).
• 485 Waiters Temporarily Laid-Off: Underlying I-140 will remain valid unless the employer revokes. If somehow he/she can maintain nonimmigrant status during the period of lay-off, he/she will be able to get through 485 adjudication, even if the employer will have to overcome the issue of continuing existence of the petitioned job. However, if he/she fails to maintain a nonimmigrant status by engaging in unauthorized employment, 245(i) will be able to save him/her by filing a new I-485 with 485A and $1,000 fine. Filing of new 485 may be required since 245(i) excuses violations prior to filing of 485 and not post to filing of 485. It has been the INS practice that the INS continues to process the green card application with minimal loss of processing times.
• 485 Waiters Permanently Laid-Off: Underlying I-140 and labor certification will no longer support pending 485. These people should start labor certification/I-140 all over again through another employer. However, their priority dates are preserved, and all that matter are speedy processing of new labor certification/I-140. It is hoped that PERM Program in labor certification, Premium Service Fees for I-140 , and one-step I-140/485 come to reality soon for these people. The violation between the two proceedings will be excused by 245(i), and they will be able to file a new 485 once the new proceeding reaches that stage. Again, for these people, priority dates are less important than speedy completion of labor certification and I-140.
• Priority Date Waiters after I-140 Approval and Temporarily Laid-Off: Underlying I-140 petition remains intact unless the employer revokes it. Once priority date arrives, he/she will be able to file 485, using 245(i) benefit, assuming that he/she violated the status during the period of lay-off.
• Priority Date Waiters after I-140 Approval, Permanently Being Laid-Off: Underlying I-140 and labor certification are gone, but the priority dates are preserved. Assuming he/she violates the status but another employer files labor certification and I-140, he/she will be able to file 485, using 245(i) benefit. For these people, priority dates are less important than speedy completition of new cycle of labor certification/I-140. Just as permanently laid-off 485 waiters in the foregoing discussion, it is hoped that the new PERM Program, Premium Service Fees, and one-step I-140/485 come to help them quickly, minimizing the period of out-of-stay.
• I-140 Waiters and Temporarily Laid-Off: I-140 petition remains valid unless the employer withdraws it. Therefore, as soon as the I-140 is approved, he/she will be able to file 485 using 245(i) benefit, assuming that he/she violated status after being laid off, and assuming also that his/her priority dates are current. For these people, the ke y issue is priority date since he/she does not need a new cycle of labor certification/I-140.
• I-140 Waiters and Permanently Laid-Off: I-140 is no longer good since the employer has no intention to call back. He/she needs to start a new cycle of labor certification/I-140 with a new employer. Bad news is that his/her priority dates are not retained. For these people, priority dates are key concerns unless it remains current for Indians and Chinese. However, assuming that he/she violated the status during the period, he/she will still be able to apply for 485 using 245(i) benefit. These people need to make a critical decision: Whether to remain out-of-status in the U.S. until the right time, or return home and wait. If he/she decides to return home and wait, he/she should make it sure that he/she leaves the country before they accumulate 180 days after violation of the nonimmigrant status, because departure after 180 days will trigger the 3-year bar from entering the U.S. The people in this group should seek legal counsel.
• Labor Certification Approved and Temporarily Laid-Off: Approved labor certification remains valid unless the employer withdraws it. The employer will also be able to file I-140 inasmuch as the employer intends to call him/her back to work. These people will be able to file 485 when time comes, even if he/she violates the status in the meantime. There is 245(i) magic. For these people, priority dates and speedy completition of proceedings are equally important.
• Labor Certification Approved and Permanent Laid-Off: The labor certification is gone and the priority date is also gone. He/she needs to start from the scratch. Since he/she will have a long road ahead and there remains the threat of slowing economy, a potential violation along the way can be real. 245(i) will be extremely important for them. They should also pray that all the premises that this reporter started at the beginning become reality soon! This reporter will pray for you.
• Labor Certification Pending and Temporarily Laid-Off: The result is same with those whose labor certification approved and laid off temporarily in that pending labor certification can remain intact and priority date can be retained inasmuch as the employer does not withdraw it. Besides, no matter whaever happens in the long road ahead, 245(i) will protect you.
• Labor Certification Pending and Permanently Laid-Off: Ditto with those above. 245(i) protection will be extremely important for you.
• People Yet to Start Labor Certification, the First Step for Green Card: You'd better make it sure to file before 04/30/01! You have a long, long, long journey ahead, and need 245(i) protection. You should read our yesterday's report on importance of 245(i). It can give you-a lot of room for maneuver and options later on when you face a crisis.
• REMINDER: One can have more than one employer filing labor certification or I-140 petition simultaneously.
• This is a news report. Not legal advice. It is one reporter's interpretation which is not guaranteed by either courts or INS. People should not act on this report. We will not be responsible for the consequences of such reliance. Back to Top

Updated 03/31/01: Need for Correct Understanding of Meaning of 245(i) Deadline

The deadline is not for filing of I-485 but for filing of ETA 750 or I-130(family-based) or I-140 (employment-based) or I-360(special immigrants including religious workers and battered spouses) or I-526(investor-immigrant). Inasmuch as the petitioner has a legitimate and non-frivolous basis to file such application or petition, 245(i) benefit is attached to the beneficiary (alien) by filing such application or petition before April 30, 2001.

• However, attachment of 245(i) benefit (the law uses the term "grandfathered") to the beneficiary does not mean that the alien is automatically entitled or eligible for 485 application (green card). Nor does it mean that the beneficiary's legal status is legalized and unlawful presence status stops. Until the alien beneficiary files 485 based on the approved immigrant petition (I-130, I-140, or I-360, or I-526), the alien's status remains "illegal" or "out-of-status." "245(i)" or "grandfathered" only means that when the alien becomes eligible to file for I-485 because of (1) the "valid" underlying immigrant petition, (2)availability of priority dates, and (3)no grounds for removal other than illegal entry to the U.S. or out-of-status after the legal entry or unauthorized employment, he/she will be able to apply for 485 despite of his/her illegal entry or out-of-status or unauthorized employment, which otherwise would not have been available unless he/she is granfathered by 245(i). The benefit of 245(i) means that when they file I-485, those three grounds for ineligibility for I-485 are excused and forgiven.
• The enormous benefit of 245(i) cannot be discounted, and the importance of filing of labor certification or immigrant petitions before April 30, 2001(if they were present in the U.S. on December 21, 2000) cannot be overemphasized for the following reasons:
  • Even if the alien beneficiary was not illegal on or before April 30, 2001, he/she will be able to use such 245(i) benefit, when one falls out-of-status afterwards.
  • Even if the underlying labor certification application or immigrant petitions are denied, withdrawn, or revoked, the alien will still be able to file I-485 based on another approved I-140 or I-130 or I-360 or I-526. Of course, the initial labor certification application and immigrant petitions should have been "legitimate" "approvable" and "not fraudulent." If the application or petition is revoked on such grounds, the alien will not be able to get I-485, because 245(i) is not grandfathered in such situation.
  • The alien beneficiary carries with him/her the 245(i) benefit indefinitely and permanently, no matter whether the underlying application or petition is changed or replaced. In other words, even if the underlying petition is revoked or denied or withdrawan, he/she will be able to apply for 485 inasmuch as another petition is approved or another basis for 485 application is developed, for instance, political asylum approval or immigration lottery winner. Another petition means any immigrant petition and does not have to be same classification or preference. Caveat: Since the benefit is attached to the alien beneficiary and "not" to the petitioner, only that specific alien and his/her spouse/children can use it. Therefore, the employer or family-based petitioner cannot give 245(i) benefit to the substituted beneficiary or another beneficiary.
  • The benefit is also attached to the spouse and children of the alien beneficiary. Besides, the spouse and children do not have to prove that they were present in the U.S. on December 21, 2000, which is required for the principal alien beneficiary.
  • Even if the alien is subject to the three-year or ten-year bar because of their unlawful presence for six months or one year, the alien and the family can apply for 485 inasmuch as they do not leave the U.S., no matter with or without advance parole! 245(i) does not waive such three-year or ten-year bar once the aliens depart from the U.S.
  • The alien beneficiary may also be able to apply for 485 even if he/she is subject to deportation inasmuch as such grounds for deportation (removal) is waived by the INS or Immigration Judge. 245(i) does not waive the grounds for deportation other than illegal entry or overstay after entry or unauthorized employment. Therefore, those who are subject to the grounds for deportation other than these three grounds should apply for waiver separately and independently from 245(i). Those who are not eligible for such waiver should not file 485 since for these people, 245(i) is meaningless. The people who are subject to deportable grounds other than the listed three grounds should consult with a legal counsel before they consider taking any action. This is extremely important!!
  • Finally, this legislation changed how one can meet the deadline. Previously, 245(i) benefit was not attached unless the qualified labor certification application or immigrant petition was "physically" received by the SESA or INS. However, the deadline under this new law is met by "post mark." Consequently, even though such application/petition does not reach physically the SESA or INS offices within 40/30/2001, it will be considered received if it is postmarked before the deadline. Caveat: Such filing may face a problem of proof unless it is filed at the post office, certified mail return receipt requested. Such last minute filing is "never, never, never" encouraged!!!
  • This site will post a separate summary on implication for employment-based immigrants. Please stay tuned.
  • This posting is not a law or legal advice. People should never rely on this posting to act. The Oh Law Firm, and its lawyers, will not be responsible for the serious consequence of such reliance. People should act "only" on legal advice of a competent immigration lawyer. This posting is a mere interpretation of the law by this reporter with no legal binding force. The interpretation can be wrong and not acceptable by the INS or Courts!!! Back to Top

Updated 03/27/01: Slowing Economy, Lay-Offs, and Delayed AC 21 Regulation

• Today, the CNN website draws a grim picture of foreigh workers in IT industry, including massive layoffs and related immigration problems. (Caveat: The report on the legal consequences of layoffs in this news can be misunderstood unless people seek help from a lawyer in reading this report. People should not hastily act in reliance on this news report.)
• No doubt, we lately see on-going lay-offs of IT professionals around us. Some of those who face layoffs could have benefitted from AC21 legislation, had the INS enacted the regulation promptly to implement the law. It has been almost 5 months and 10 days or so since this law was enacted, but some key portions of the legislation have been crippled by the INS delays in enacting the regulation. In the recent changing economic environment and increasing layoffs, the H-1B portability provisions and change of employers after 180 days of 485 filing could have given some relief to the suffering foreign high-tech professionals. But reality is that these provisions have remained a hostage due to the potential negative interpretation of the law by the INS in the final AC 21 regulation. A huge number of foreign high-tech brains have been agonizing and living in fear because of their uncertain future.
• There is a unconfirmed report that an INS official stated in a lawyer's conference in Washington, D.C. that for the purpose of interpreting 180 days or H-1B portability issues, the officer viewed that it should be applied retroactively. However, it is unofficial views and people have yet to hear official interpretation. Worse yet, whatever interpretation the INS releases in the next one month, the issue of this temporal scope of application of the law will become "moot." Assume that the final regulation is released very shortly and reads that 180 days will apply retroactively. The practical result is just same as the INS interepreted that those provisions would not apply retroactively. In this regard, such issue will have no meaning and impact on most of the high-tech eb-485 waiters after April 20, 2001 or so. The only people who will benefit from such interpretation will be those who have already changed jobs at a great risk of potential violation of the law. For this issue, the AC 21 regulation will come too late to be rejoyced by majority of EB-485 waiters! Let's call April 20 or whatever date which is 180 days from October 17, 2000 as a day of liberation from hostage! Back to Top

Updated 03/26/01: INS Released 245(i) Regulation of 03/26/2001

• The INS has released the 245(i) regulation dated 03/26/2001 to implement this portion of LIFE Act. Remember the 245(i) reinstatement sunsets on April 30, 2001. The 245(i) filers should review this regulation very carefully before they file it.
• Summary will be posted very soon. Back to Top

Updated 03/23/01: INS Collection of 245(i) Issues, Q&A, and Laws

• Lately, the INS has been developing and maintaining a remarkable website to help immigrant community. The web site is turning into a very resourceful and valuable data bank for a number of key issues. The collection of 245(i) will give immigrant community all the information that they want and need to know. Please click here to get to that valuable collection of materials. Back to Top

Updated 03/15/01: Status of Pending 485 Involving Change of Employer After 180 Days

• Sources indicate that the Service Centers are holding 485 applications in abeyance until the HQ decides a firm policy, if the applicant changed employer after 180 days of 485 filing and no new I-140 petition has been filed by the new employer, pursuant to AC 21. It appears that 180-day issue may not be resolved until the new regulation is enacted and those who have already jumped the employer pending 485 may have to endure some delays in getting 485 adjudication. Back to Top

Updated 03/13/01: Good News for "V" Visa Candidates

• The DOS reports that National Visa Center has started sending out letters to V-visa candidates a letter, together a form, to advise that they initiate the process. The K and V visas under the LIFE Act have been in limbo, allegedly pending enactment of regulation. The DOS reports that the Department expects posts to schedule the first V visa appointments in April. The NIV software will permit the issuance of a V visa as of April 1.
  
• Congratulations to the eligible spouse and children of the permanent residents who have endured a long and painful wait over three years. For the eligibility, please visit our 485 page. Back to Top

Updated 03/10/01: Expanded Coverage Area of Minnesota INS District Office in Western Wisconsin

• Areas covered by the postal zip codes, 540-, 544-, 545-, 546-, 547-, 548-. Please check with the Distrct Office in individual situation. Back to Top

Updated 03/08/01: Continuing LCA Filing Problem and Change of DOL Inquiry Number

• According to the AILA, DOL has adopted a new telephone number for the lost LCA applications in the DOL new fax-back system. The new number is: (215) 861-5276. For inquiry, people must give EIN number. Back to Top

Updated 03/08/01: DOL Advisory for Anticipated Significant Increase in New Labor Cert

• AILA has reported the DOL Notice of 03/09/01 addressed to the state SESAs to warn anticipated significant increase in new permanent labor certification applications received in FY 2001 as affected by 245(i) deadline of 04/30/01, and gives guidelines for handling new applications relating to 245(i) provision. People considering filing of new labor certification application "should read" this DOL letter #03-01 before filing such new application. Please click here for the full text. Back to Top

Updated 03/07/01: INS System Reform and Funding Proposal of Whitehouse

Updated 03/05/01: DOL LCA Processing Trouble and Expirising H-1B

• Reportedly, DOL is experiencing a serious trouble in LCA electronic processing. This presents a problem to a number of people whose nonimmigrant status is about to expire and who need to file either change of status, transfer of H-1B, or extension of current H-1B status.
• INS is taking a position that they will continue to accept filing of H-1B petition just with a proof of filing of LCA with the DOL. In other words, the INS will not reject the filing even if the petition is filed "without certified" LCA inasmuch as evidence is attached to prove that LCA has been filed and the petitioner is waiting for the certification. INS will issue RFE asking for the certified LCA, which the petitioner should submit in response to the RFE.
• The people of the subject for this posting should seriously consider this option in order to maintain legal nonimmigrant status (COS) or extension of H-1B (EOS) with automatic extension of work permit for 240 days.
• Caveat: The petitioner must assure itself that the LCA filing was frawless and the DOL certification is a matter of time. This is extremely important because once LCA is denied, the petitioner will not be able to reply to the INS RFE for the certified LCA and H-1B petition will be denied. By that time, the alien will fall out of status. Accordingly, this emergency option should not be considered unless there is a recommendation by a competent legal counsel. This web site and law firm will not be responsible for consequences of reliance on this posting. Back to Top

Updated 03/05/01: Comprehensive INS Analysis of LIFE Act/245(i)

• INS has revised previous summary and released a revised comprehensive analysis of LIFE Act/245(i) in light of the importance of this legislation. The deadline of 04/30/2001 is approaching fast. For review of the INS analysis, please click here.

Updated 03/04/01: AC 21 and H-1B Extension Beyond Six Years

• Without doubt, there must be a number of H-1B professionals who reached the six-year limit and filed the extension for another year based on AC 21. However, these cases are currently in limbo. As a matter of fact, all the future cases of extension beyond six years will face the same limbo until the INS HQ fixes guidelines for the Service Centers. Reportedly, the Service Centers have yet to receive such HQ guidelines, and pending the HQ action, the Service Centers are currently not adjudicating such cases.
• What is the hang-up? The same issue with the 180 days for changing employers pending 485. The attorneys do not see the issue of retroactive application of AC 21 in both contexts, but apparently the INS is still lingering on this issue.
• It appears that until the AC 21 regulation is released, "hopefully" this month, there will be a plenty of people who feel they are walking in the thick cloud. We hope that release of this regulation be not affected by the recent Whitehouse memo freezing finalization of on-going regulation enactment activities. Let's meditate! Back to Top

Updated 03/04/01: INS Processing Backlogs and Congress/Whitehouse Directions

• People know that the INS processing backlogs motivated the Congress to pass a number of legislation, including AC 21 and LIFE Act. Especially in the AC 21, the Congress expressed its recommendations to the INS to reduce the processing times to 180 days. Unfortunately, it was not a mandate and no funding backed such recommendation.
• Now, President Bush is echoing the need for such action in his just released budget statement:
  • To improve INS' focus on service and to reduce the delays in INS processing of immigration applications, the Administration proposes a universal six-month standard for processing all immigration applications. To meet this standard, the Administration supports a five-year, $500 million, initiative to fund new personnel, introduce employee performance incentives to process cases quickly and accurately, and make customer satisfaction a priority. The $100 million proposed in 2002 is the first installment in this effort to provide quality service to all legal immigrants, citizens, businesses, and other INS customers.
• It is not clear how the budgetary policy is tied to the upcoming Premium Processing Fee implementation. For the time being, though, it may be taken as a positive news. Back to Top

Updated 02/28/01: NSC and Aging-Out 485

• Aging-out 485 cases mean those 485 cases which involve a dependent child who may reach 21 years of age before 485 application is adjudicated. Since adult son/daughter cannot adjust status to a permanent resident simultaneously with the principal parent alien, it can result in a forced separation between the parent and the child. Because of the humanitarian concern and the country's placing highest value on "unity of family," immigration proceedings adopt a special procedure to expedite and accelerate adjudication of such cases such that 485 for the whole family members are adjudicated before the child reaches 21st birth day. Back to Top

Updated 02/27/01: West Wisconsin Immigrants and Minnesota INS District Office

• As we have previously reported, INS District Office in Minnesota has expanded its service to the west Wisconsin areas under the agreement with the Chicago INS District Office. The following list includes the INS designated physicians whose medical report will be accepted at the Minnesota District Office:
  • Violeta A. Singson, 414/344-3080, Milwaukee
  • Frank Brodkey, 608/756-6800, Janesville
  • M. Yusif Ali, 262/658-2500, Kenosha
  • Dean Whiteway, 608/782-7300, La Crosse
  • Kenneth Redlin, 414/671-1711, Milwaukee
  • Terry L. Wahls and Wayne E. Thorne, 715/387-5193, Marshfield
  • Amy Johnson and John Frantz, 608/324-2000, Monroe
  • Henry Rosler, 414/931-7112, Milwaukee
  • Hilary Scully, 715/675-3391, Wausau
  • Manuel M. Aquino, 414/782-9326, Brookfield
  • Steven C. Valenti and Manuel M. Aquino, 608/244-1213, Madison
  • Maja A. Juristic, Antonio Pnagilinan, and Manuel M. Aquino, 414/931-7600, Milwaukee
  • George Batayias and Manuel M. Aquino, 414/355-4300, Milwaukee
  • Manuel M. Aquino, 414/483-7777, Milwaukee
  • James F. Mayr and Manuel M. Aquino, 414/786-4422, New Berlin
  • Gregory B. Jackson and Manuel M. Aquino, 262/886-3997, Racine
• The applicants in these cities should first contact with the INS District Office in Minnesota to confirm that their cities are served by the INS District Office in Minnesota before one considers Minnesota jurisdiction. This website will not be responsible for consequence of relying on this information. Please visit INS District Office site in the INS Web site for additional information. Back to Top

Updated 02/24/01: DOL Advises LCA Drafting Tips (Courtesy of AILA)

• DOL has released information that the following are common mistakes in drafting LCA forms. Employers, please pay extra attention to the following:
  • Subsection E requires employer's agreement and attestation to four items. If you do not check "Yes," LCA cannot be processed.
  • Subsection G must be filled out to show where the public disclosure information will be kept. This is an absolute requirement.
  • In Subsection B for the actual wage, bottom-line figure must be equal or higher than the prevailing wage specified in Subsection D.2.
  • When LCA is filed, no matter what method you use, you should not enclosed a cover letter nor form G-28 (where you are represented by an agent or attorney). This is clearly emphasized in the DOL instructions.
  • Three pages must have a same pagelink number.
• Reportedly, there are a huge number of LCAs which could not be processed because of the filers' error above-described. Please read carefully the DOL's instructions accompanying the the new form.
• This law firm is getting certified LCAs in the fax machine which were filed on or after 02/05/01 when there were no errors. Back to Top

Updated 02/23/01: Poverty Income Guidelines for Affidavit of Support Eligibility

• HHES has released a new Poverty Guidelines which took effect immediately. People who file one-step family-based immigrant proceedings must meet this income guidelines in order to execute Affidavit of Support, I-864. Otherwise, the Affidavit of Support will be insufficient to give immigrant benefits to the family members. For the guidlines, please click here. In order to get up-to-date new guidelines for the future years, please click here for link to the primary sources of the regulation.
• In EB-485 proceedings, a different Affidavit of Support, I-134, is used for the dependent family members and this Guidelines do not apply to most of the visitors to this web site. Back to Top

Updated 02/16/01: What You May Want to Know About 245(i)

Updated 02/09/01: Travelling H-1B Portability Professional and Minor Problem with INS Memo

• The INS memo which we reported yesterday presents an issue which the INS should reconsider. H-1B professional who changed employers "upon filing of a new H-1B petition" by the new employer may face problem upon return to the U.S. in the event that the H-1B valid period with the previous employer will expire soon.
• The Memo stipulates that the maximum period of stay (I-94) to be given upon such alien's return to the U.S. will be limited to the validity date of the existing H-1B status plus 10 days. Since the Service Centers take time to adjudicate the new petition for whatever reasons including RFE or processing delays, such returned H-1B professional's new I-94 can run out before adjudication of the new H-1B petition.
• In fact, this policy somewhat contradicts with other existing policy that a non-immigrant applying for extension or change of status remains in status pending adjudication of such application. AC 21 also allows new employment inasmuch as the new H-1B petition is filed "timely." "Timely" means the new petition has been filed before the current status expires. Once it is filed timely, implicitly the AC 21 permits the new employment with the new employer beyond the expiration of current status, pending adjudication of the new petition.
• If the rationale for the INS Memo lies on "portability of the H-1B status," then it should have considered the current regulation which gives work permit for 240 days beyond expiration of the current status if the application for extension of H-1B employment is filed timely.
• Until the INS reconsiders or clarifies this part of the Memo, he/she should reconsider travelling plan if he/she filed the new petition just recently and started working for the new employer, and his/her current status would run out soon. Just precaution. Back to Top

Updated 02/08/01: H-1B Portability and Admissability After Overseas Trip

• AILA has reported the INS HQ memorandum of 01/29/2001 addressed to INS field directors. The title of the Memorandum is Interim Guidance for Processing H-1B Applicants for Admission as Affected by the American Competitiveness in the Twenty-first Century Act of 2000. This memorandum is issued to provide interim guidance to Ports-of-Entry when processing H-1B applicants for admission. The following are excerps from the Memorandum and people should not apply the information in individual situation unless he/she first seek legal counsel. This reporter and law firm will not be responsible for the consequence of such reliance. If you do not know what "H-1B Portability Means," then ask people first to learn what it means before you read on this message!! This message applies only to H-1B portability aliens and not, repeat not, other H-1B professionals changing employers.
• Thresholds for H-1B Portability: As people know, AC 21 requires the following for the eligibility of H-1B portability:
  • Have been "lawfully admitted" into the U.S.
  • "Nonfrivolous" petition for new employment has been filed
  • "before" the date of expiration of the period of stay authorized
  • Have not accepted unauthorized employment "subsequent" to his/her admission and "before" the filing of the new petition.
• Admissibility of such H-1B Professionals at the Port-of-Entry after Overseas Trip: If the following conditions are met, he/she will be admissible to the U.S. to the validity date of the previous H-1B petition "plus" 10 days. The same will be applied to the H-4 dependents. The conditions are:
  • He/she is otherwise admissible.
  • He/she is in possession of a "valid," "unexpired" passport and visa, including a valid, unexpired visa endorsed with the name of the original petitioner.
  • He/she successfully proves that he/she was previously admitted as an H-1B or otherwise accorded H-1B status.
  • He/she presents evidence that a new petition was filed "timely" with the Service Center, in the form of a "dated filing receipt, Form I-797 Receipt Notice" or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B's previous period of admission.
• Illustration of Inadmissible Portable H-1B Professionals After the Overseas Trip:
  • He/she has already changed employers, but does not have I-797 Receipt Notice in his/her possession and neither query of CLAIMS by the inspectors show evidence that a new petition has been filed.
  • The original petition has expired at the time of return from the trip. However, if he/she presents evidence that a new petition has been approved, even if the original petition has expired, he/she will be admitted to the U.S.
  • He/she does not have a valid, unexpired original visa.
  • His/her passport has expired.
• Caveat: Other details will be clarified only by the new regulation which the INS was scheduled to release in March. In the event that he/she needs to travel before receiving approval of the new H-1B petition after changing employers on AC 21 H-1B portability provision, he/she should first seek legal counsel before he/she plans such trip. Back to Top

Updated 02/02/01: Importance of 245(i) for Both Legal and Illegal Immigrants

• People may misunderstand that the only people who will benefit from 245(i) are those who are already "illegal" before 04/30/91 and files labor certification or immigrant petition before 04/30/91. That is not true. People can fall out of status after filing labor certification or immigrant status "on or before" April 30, 2001. This is particularly true when the country is experiencing slow-down in economy. The reinstatement of 245(i) allows people to preserve their priviledge to file 485 application when time comes no matter what labor certification or immigrant petition they use. The underlying labor certification or immigrant petition does not have to be the same labor certification or the same immigrant petition. For illustration, assume that one filed non-frivious labor certification before 04/30/01 through Employer A and then one is afterwards laid-off or fired or one quits or Employer A withdraws such labor certification. Such labor certification is no longer good. However, assuming that another Employer B files a new non-frivolous labor certification on his/her behalf and eventually he/she obtains I-140 approval through the Employer B, even if one fell out of status along the way, he/she still can apply for 485 because of the initial labor certification which was filed before 04/30/01. Revocation or withdrawal or denial of labor certification or immigrant petition does not deprive one of this privilege unless the filing of the labor certification applications or petitions was "frivolous" or "fraudulant." Simply stated, 245(i) privilege, once retained, is preserved for the subsequent I-485 proceedings.
• This privilege can be very valuable to those who can face lay-off from the initial GC sponsor-employer. Remember two things, though: First the privilege does not reinstate one's legal status unless and until I-485 is filed. Second, the 245(i) privilege is extended only up to the point of filing of 485 application. Any violation "post to" filing of I-485 is not covered and forgiven.
• The foregoing discussion focuses on the EB-immigrants. However, the similar principles and rules apply to the family-based immigrants. Assuming that one can fall out of status after 04/30/01 for whatever reasons, it may be critical that the people file labor certification or EB immigrant petitions or FB immigrant petitions before April 30, 2001.
• This reporter must reiterate that 245(i) benefit is not, repeat "not" limited to the current illegal aliens, but also to those aliens who can fall out of status and become illegal aliens after 04/30/01.
• 245(i) is a very complex law which should not be applied to individual cases without the assistance of legal counsels. The foregoing information should never be taken and relied on as legal advice. When it comes to an individual case, one should never apply internet information without legal counsel. Back to Top

Updated 02/01/01: DOS Releases V and K Visa Guidelines

• Pending enactment of regulation, DOS has released guidelines to all the Consulates in the world. NVC will also start sending out documents to certain eligible applicants. For the full text, please click here.

Updated 01/29/01: DOL H-1B Regulation and Consequences of Termination of H-1B Employment

• The new regulation raises a number of concerns to H-1B employers and H-1B professionals in a number of areas. One of such issues includes consequence of termination of employment on the employers and H-1B employees and family members.
• The regulation provides that the H-1B employer's obligation of payment of full-salary for the terminated employees continues until the INS is notified of such termination. Consequently, employers are from now on forced to notify the INS of such termination and revocation of H-1B petition for the terminated employees to avoid such liability. Such notice should be filed immediately upon termination of employment, no matter who brought such termination.
• Such notice and revocation of H-1B petition for the terminated employees affect in many ways the H-1B professionals and his/her H-4 family members. Unless the employment is terminated at the end of the H-1B period, there is no grace period under the law and the H-1B professionals and their family members fall out of status, even though in certain situation, the INS exercises a favorable discretion. If the INS refuses to exercise such discretion, untimely filed new H-1B petition by a new employer may result in cancellation of the H-1B/H-4 visas under the DOS policies. More importantly, the unlawful presence may continue to run with the potential consequences of 3-year or 10-year bar. Such problems have been abated by the old employers delaying or not filing report of termination with the INS. Not any more!
• Another potential consequences are those whose EB-485 is pending. Even though the H-1B temporary job is not necessarily required to prove the offered permanent employment underlying EB-485, once H-1B temporary employment is terminated, "notified," and "revoked," it would be a struggle to prove "continuing existence of the petitioned job" for the EB-485 when such RFE is received! For the EB-485 filers who potentially face change of employers, he/she should review two issues with their legal counsels: (1) AC 21 provision on changing job after 180 days of filing 485. This option will become a reality even if the INS continues to insist that 180 days will count only from 10/17/2000, because those 180 days from 10/17/2000 will approach very soon. (2) Desirability of working on H-1B as opposed to EAD pending EB-485. This is not an easy decision as it involves many advantages and disadvantages, particularly those who may be subject to 3-year or 10-year bar even if 245(i) was available. One issue such EB-485 H-1B people should discuss with their counsel is how EAD option will balance out the advantages or disadvantages of H-1B option. At least, termination of employment while working on EAD does not require employer's notification of termination of employment. However, this should not be a sole consideration in choosing H-1B vs EAD option after DOL H-1B regulation which took effect on January 19, 2001. For some people, this decision can be very real. It will be foolish for anyone to make a decision without a complete review of facts and circumstances by his/her legal counsel, weighing all the potential advantages/disadvantages or legal consequences involved in each option in each specific "individual" case.
• This information is posted just to alert the H-1B employers and H-1B professionals about the aspect of the new DOL H-1B regulation which has not been publicized but can be important to the parties involved. Back to Top

Updated 01/29/01: 245(i) Filing Under LIFE Act

• Delays in implementation of the various relief under LIFE Act have tremendously frustrated the potential beneficiaries of the law. Even the reinstated 245(i) cases were not accepted in some INS district offices throughout the country. The St. Paul District Office has reportedly started to accept such 245(i) cases. The St. Paul District Office has recorded the highest performance rating in the country when it comes to processing procedures and the pace of processing of cases.
• People should remember that the western part of Wisconsin is becoming a part of the St. Paul District office jurisdiction for filing of most of cases, under the agreement between the Chicago and St. Paul District offices. This is a very welcome move for the residents in the area that has experienced delays and delays.
• For LIFE Act 245(i) cases, each district office differs and people should address inquiry to their district offices. Back to Top

Updated 01/16/01: INS Healthcare Regulation Dated 01/16/2001

Updated 01/10/01: Chennai Launches Online NIV Application

• U.S. VISA ON INTERNET, STUDENT VISA EASIER
• CHENNAI - T.T. Services (TTS), the offsite visa application collection
  center for the U.S. Consulate Chennai, announces the launch of a new
  "Express Drop-Box" website at https://www.ttsdropbox.com. All
  drop-box-eligible applicants for United States visas are invited to use the
  TTS website to facilitate their U.S. visa processing. Users will be able to
  submit electronically their biographic information and the address to which
  they want their visas to be sent. The website also gives applicants the
  ability to choose a date and time at which to visit TTS office to deposit
  their passports. T.T. Services has dedicated a number of separate
  counters for processing of these online applications. In addition to the
  above services, website users will have the option of receiving
  passport-tracking information from TTS via email.
• TTS also announced the opening of additional collection centers in Bangalore
  and Hyderabad. Applicants from those cities and surrounding areas are
  encouraged to take advantage of these convenient new centers for submission
  of U.S. visa applications.
• In another change designed to make application for U.S. visas easier, the
  American Consulate General in Chennai announced that it will now accept
  qualified student visa applications via the "Drop-box". Qualified students
  will no longer be required to appear in person at the Consulate. For
  information about drop-box qualifications and procedures, students may
  contact the Consulate at 811-2060, or log-on to the Consular Section's
  website: www.sphynx/madrasus
• (Source: Chennai American Consulate) Back to Top
  

Updated 01/05/01: 245(i) Extension and Impact on EB Immigration

• 245(i) extension will without doubt affect EB immigrant visa availability for Indians and Chinese in the long run, but its immediate impact and concern for non-245(i) EB immigrants will be the anticipated delay in labor certification and INS processing of applications/petitions. People will remember that a huge number of labor certification cases were caught in the flood of labor certification applications which had been filed on or around January 14, 1998, when the section 245(i) sunset. Allegedly a large number of these last minute cases involved frivolous applications. Since the cases had to be processed in the order of receipt, these cases blocked all other cases which were filed after January 15, 1998. This was particularly noticeable in the Regular Labor Certification Appplications. There are a huge number of such filers who are still waiting for the adjudication as delayed by the incident. In the case of RIR applications, most DOL Regions have separated non-approvable cases, particularly 1-14-98 related cases, from approvable cases and processed approvable cases ahead of problem cases. Therefore, the impact of 245(i) deadline was minimal.
• All the indication reflects that DOL may not be able to start PERM program precisely on 04/01/01. Since another flood of labor certification applications are expected to be filed during the next four months, particularly in April 2001, people are advised to start the labor certification applications as soon as possible so that their cases do not become a victim of 245(i) extension. Back to Top

Updated 01/04/01: Widespread Confusion of 245(i) with Amnesty of Illegal Aliens

• This reporter has been extremely tied up with his office relocation. However, this reporter has been receiving a number of e-mails and phone calls from people who were confused with the new law that has extended the validity of 245(i) until 4/30/2001. This reporter is very concerned about misunderstanding of 245(i) relief in the immigrant community.
• Amnesty is a relief which gives green card status inasmuch as an alien entered the U.S. before certain given date which the amnesty law provides and satifies other legal requirement under the amnesty law. In this regard, amensty does not need any underlying immigrant petition, no matter whether it is employment-based or family-based, for elibility of permanent residence.
• Meanwhile, 245(i) has no meaning whatsoever when an alien is not eligible for certain immigrant petition, whether it is employment-based or family-based, or otherwise. Under the immigration law, an alien cannot apply for adjustment of status to a lawful permanent resident even if an alien is eligible for certain employment-based or family-based immigrant petition unless the alien has maintained nonimmigrant status without violation or the alien entered the U.S. legally with immigration inspection at the port of entry. However, 245(i) provision allows such aliens to apply for adjustment of status (485) who are otherwise ineligible for 485 application because of such violation or illegal entry inasmuch as the underlying immigrant petition(in employment-based case, either labor certification application or immigrant petition) is filed before April 30, 2001. The alien has to prove that the alien is eligible for such labor certification application or immigrant petition before the alien can consider filing 485 application. It is a grave misunderstanding if one believes that one can become a permanent resident by simply filing any labor certification application or immigrant petition without any legitimate basis before April 30, 2001. People should remember that 245(i) is related "only," repeat only to 485 application proceeding and has nothing to do with the eligibility of immigrant petition. If the law requires approval of certain immigrant petition as a precondition for filing of 485 application, regardless of 245(i), one has to obtain approval of such petition. In this regard, 245(i) is important only to those who are eligible for immigrant petition (either employment-based or family-based) but who cannot file 485 application because of his/her previous violation of nonimmigrant status or illegal entry. For these people, it is "extremely" important that such labor certification application or immigrant petition be filed before April 30, 2001. If he or she misses the deadline, he/she will not be able to file 485 in the U.S., no matter whether one has an approved immigrant petition or not.
• 245(i) involves so-called "illegal" aliens and very serious legal issues. For instance, even if he/she is eligible for immigrant petition, simple filing of labor certification or immigrant petition does not make such alien "legal," and such alien can be arrested and deported any time before he/she actually files 485 application. In other words, until 485 is filed and pending, such alien's illegal stay continues and he/she can be arrested and deported. It is thus extremely important that people seek legal counsel rather than relying on rumors and internet information in dealing with his/her situation. Back to Top

Updated 12/26/00: Jumping H-1B Employment with H-1B Filing Without Certified LCA

• People will remember this website's question and warning a few days back on this unsettled question relating to the AC 21. Surprisingly, the answer came not from the INS but from the DOL in its new H-1B regulation. DOL interpretes the H-1B portability in the AC 21 extremely narrowly and provides that it cannot be used until a petition is filed with the INS that is supported by a "certified" LCA. This contradicts with the conventional INS practice and policy that have allowed filing of H-1B petition with the proof of LCA filing rather than certified LCA. The DOL interpretation can be controvertial in that it should be the INS jurisdiction to interprete the term "upon filing" of a new H-1B petition and not the DOL jurisdiction.
• Question remains what would happen with those H-1B professionals who have already jumped upon filing of a new H-1B petition but before receiving "certified" LCA. There are a number of people who have filed a new H-1B petition with the proof of LCA filing only because of the unusual delays of DOL in processing LCA and increase of filing fees (from $610.00 to $1,110) on 12/17/2000. The statute AC 21 went into effect on October 17, 2000. However, the DOL's H-1B regulation will not go into effect until January 19, 2001. Retroactive application of this regulation will be very troublesome adding further confusion to a host of unsettled issues of AC 21.
• H-1B professionals are warned again that he/she should take a very conservative approach when one considers jumping H-1B employment on the AC 21 provision of "upon filing" of a new H-1B petition!
• The issue which is raised here applies only to the situation of H-1B portability. It should not affect those who do not jump and wait to take a new H-1B job until after the approval of H-1B petition. In the latter situation, the INS has expressed its policy that they would allows filing of H-1B petition with the proof of LCA filing. People are encourage to review of our previous posting of December 4, 2000. Back to Top

Updated 12/22/00: Proposed TN-Visa for Actuaries and Plant Pathodolotists

• The INS has released on 12/19/2000 a proposed regulation to add these two occupations to the list of TN eligibility by revising Appendix 1605.D.1. of the NAFTA. This was first disclosed by Jaquelin Bednardz, NIB Business Chief, INS, at the AILA's Chicago Conference this Summer. Currently, these two occupations are ineligible for TN status. For the proposed regulation, please visit our NAFTA site or click here.

Updated 12/22/00: New H-1B Fax-Back Form & Procedures (ACWIA)

• The current LCA forms will become "invalid" from 01/19/2001.
• The new forms and procedures are as follows:
  • Beginning January 19, 2001, ETA Regional Offices will no longer accept the currently used Labor Condition Application forms (LCAs). A new H-1B regulation was published December 20, 2000. This regulation changed both the Labor Condition Application form and where it is to be filed.
  • Effective January 19, 2001, neither the one page ETA 9035 initially published in the Federal Register of December 1994, nor the two page forms (ETA 9035) used by the LCAfax system will be accepted by ETA for processing.
  • On February 5, 2001, ETA will begin accepting for automated processing the new three page ETA 9035 either by facsimile or by mail sent to the PO Box shown below. This will allow ETA time to process LCAs received prior to January 19, and to retool the system to process the new form. LCAs that must be processed during the period January 19 - February 5 must be submitted on the new three page form, and mailed to the appropriate ETA Regional Office, or may be mailed to the Philadelphia PO Box shown below, where they will be manually reviewed. For expeditious processing, ETA strongly encourages employers and their representatives to wait until after February 5, 2001 before submitting, and to file LCAs by fax.
  • For further information regarding the new application process and to see the new Form ETA 9035 and ETA 9035CP, please view the web site: OWS.DOLETA.GOV. For information regarding changes in H-1B with respect to compliance, please view the web site: www.dol.gov/dol/esa/public/regs/compliance/whd/whdfs42.htm
  • WHAT DO YOU NEED TO FILE?
    Electronic Process
    • A computer capable of running Adobe’s Acrobat reader, connected to a printer;
      If you choose to Fax the form, A fax machine in operation 24 hours per day, 7 days per week;
      The new three page Form ETA 9035 and ETA 9035CP, which contains the instructions, downloaded from the ETA web site: (these are fillable Acrobat files) OR
      
  • Manual Process
    • The new three page Form ETA 9035 and ETA 9035CP (printed copy) from your ETA Regional Office
      
  • HOW TO COMPLETE AND SUBMIT
    • Employer reads the ETA 9035CP and completes the ETA 9035 (LCA);
      Employer signs the Form ETA 9035 (LCA);
      

To send by Facsimile

• The Form ETA 9035 (LCA) may be faxed to (800) 397-0478 OR
  

To send by Mail

• The Form ETA 9035 (LCA)) may be mailed to ETA-H1B, P.O. Box 13640, Philadelphia, PA, 19101.
  If the LCA is rejected, the returned LCA will include the reasons for the rejection.
  Once LCA is approved, the employer attaches the certified LCA to form I-129 (Petition for H-1B nonimmigrants) and files with the INS.
  

• Note: Beginning Feb 5, 2001, employer representatives will receive the approved LCA only by fax.
  (Source: USDOL) Back to Top

Updated 12/21/00: DOL H-1B Regulation (ACWIA) of 12/20/2000 (oops!)

• For the DOL website report of the full text of this important regulation, either visit our H-1B site or click here or (PDF). Please remember that this is a very long document to download. Back to Top

Updated 12/20/00: Alert to H-1B Employers

• Today, USDOL released a monstrous 144-page regulation to implement the so-called ACWIA of 1998 (American Competitiveness and Workforce Improvement Act) that include nightmares for H-1B employers with respect to compliance of attestations and other scary enforcement issues. The regulation was published in the form of Interim Final regulation and most of the provisions will go into effect on January 19, 2001!! The wage determination rules went into effect as of today, December 20, 2000.
• Due to the humongous volume of the regulation, it will take some time before anyone can release summary analysis of the rules.
• H-1B Employers, please do not neglect to follow through interpretations and analysis of this regulation. Considering the fact that it will go into effect in "only one month," you should seek legal counsel as soon as possible.
• For the full text, either click here or visit our H-1B site. Back to Top

Updated 12/19/00: AILA Summary and Full Text of LIFE Act (Courtesy of AILA)

• Visit our 485 site to read it. Back to Top

Updated 12/15/00: Immigration Bills News (LIFE Act)

• This website reported not too long ago that a chance of compromise between the President and the Republican Congress was looming up. Here we go. AILA has reported that apparently the immigration bills that has presented as one of the key sources for spending bills confrontation between the White House and the Republican Congress have reached an agreement and the Congress is expected to vote shortly and the President is expected sign into law.
  • Measures included in the deal are:
    • 1. Section 245(i) grandfathered until April 30, 2001. Applicants must prove they were physically present in the U.S. on the date of enactment of LIFE.
      • What does this mean to EB immigrants? (1) Those who failed to file either immigrant petition or labor certification application, or those who filed but did not make it, have another chance to get the 245(i) benefits inasmuch as they are physically here in the U.S. as of the date of this legislation (the date the President signs it into law) and file such petition or labor certification before 04/30/2001. Accordinly, those who are not physically present at the time of enactment will not be able to get the extended 245(i) benefits even if they file an immigrant petition or labor certification application between the date of enactment and 04/30/2001. (2) Those who have fallen out of status after 01/14/1998 will be able to take advantage of 245(i) benefits inasmuch as he/she was in the U.S. as of the date of enactment of this law and files an immigrant petition or labor certification application. (3) Those who will be fallen out of status after enactment of this law will also be able to take advantage of 245(i) benefits inasmuch as he/she was in the U.S. at the time of enactment of this law and an immigrant petition or labor certification application is filed before 04/30/2001. The most important information one has to remember is the deadline of 04/30/2001and filing of petition or application! Filing means petition/application is received by the agencies before the agencies close their offices on that date. Illegal immigrants, this is your last chance!
    • 2. New temporary "V" visa created for the spouses and minor children of legal permanent residents in the backlog for three years or more. Recipients of this visa would be protected from deportation, and granted work authorization.
      • What are required to be qualified? (1) You must be a spouse or minor child. Thus if you are 21 years or older, you are not qualified. (2) The petitioner must be a lawful permanent resident. (3) The petitioner must have "filed" FB 2A family petition for the spouse or minor child either on or before this law is enacted. (4) The spouse or minor child must have been waiting for more than 3 years since filing the petition because of priority dates backlog. This includes those spouses or minor children whose petition has been approved but keep waiting due to visa number unavailability.
      • What benefits are given? (1) If you are outside the U.S., you can enter the U.S. on this "V" visa and stay here and work while you wait. (2) If you are in the U.S., even if your status is illegal, you can obtain this V visa status, stay in the U.S. and work while you wait. Remember, though, that these benefits are not available unless you first pass the above-described threshholds!
    • 3. New temporary "K" status created for spouses of U.S. citizens. This provision expands the use of the "K" visa to allow these spouses who married U.S. citizens abroad (and their minor children) and are awaiting approval of their green card applications to enter the U.S. Like current K visa holders, these "K" visa holders would be granted work authorization.
      • What are required to be qualified? (1) Petitioner must be a U.S. citizen. (2) You must be either a spouse or "accompanying" minor child. Thus, a child alone cannot claim this benefit. You must be a "accompanying" child to the spouse who claims the benefits. If you are older than 21 years of age, you are not qualified. (3) The spouse or accompany minor child must be outside of the U.S. Therefore, if you are in the U.S., you cannot apply for this "K" visa. You have to apply for the visa outside the U.S. (4) The U.S. citizen petitioner must have filed an immigrant visa petition (I-130) before the spouse or accompanying minor child can apply for the K visa. (5) You must have a valid non-immigrant visa at the time the K visa issued. This new law is intended to prevent a long separation of a foreign spouse of U.S. citizen while he/she waits for the approval of immigrant petition which has been experiencing a serious backlog.
      • What benefits are given? (1) You can enter the U.S. on a K visa. (2) You can stay in the U.S. while you wait for the petition approval. (3) You can work legally while you wait for the petition approval.
    • 4. Opportunity to apply for adjustment for certain late legalization class members (CSS v. Meese, LULAC v. Reno, and INS v. Zambrano) who meet the new measure's qualifications.
    • 5. Protection from deportation and work authorization granted to the spouses and minor children of late legalization applicants. (Courtesy of AILA)
• What a terrific news! Back to Top

Updated 12/13/00: Third Country National IV Application Procedures in Ciudad Juarez/Mexico

• As people know, non-Mexicans can apply for EB-based immigrant visa application on the Consulate's discretion and on the following two conditions: I-485 should be pending and I-824 has been filed.
• In a recent meeting with the State Bar of Texas, Mr. Santiago Burciaga, the Chief of Immigrant Visa Section, explained the outline of the procedures as follows:
  • Where to send:
    • U.S. Consulate-Ciudad Juarez, Mexico
    • Immigrant Visa Section
    • P.O. Box 10545
    • El Paso, Texas 79995-0545
  • What documents:
    • A complete copy of the I-140 petition
    • I-140 Approval Notice
    • I-824 Receipt Notice from the INS
    • A completed set of Packet 3 (Download the forms/instructions at the Consular website.)
  • Follow-Up Inquiry:
    • Wait for 30 days to find out whether it has been accepted for the discretionary processing
    • Contact by one of the following means:
      • Letter: Above P.O. Box number
      • Fax: 011-52-16-16-90-27 or 16-93-88
      • Phone: 011-52-16-11-30-00, Extension 2232.
  • Aging-out cases are accepted and expedited to accomodate the processing prior to the 21st birthday of the child. Back to Top

Updated 12/13/00: FY 2001 October INS Statistics of Adjudications

• The INS has just released the October 2000 Monthly Statistical Report, which includes information on the status of adjudication of various types of cases. The following are excerps from the Report. Those who are interested in reading full text may click here to get to the INS Report.
  • The INS conducted a labor-intensive audit during the first two weeks of October, which reduced the amount of time available to process applications. Processing will return to normal in November.
    Pending cases for immigration benefits reached a 24-month high of 3,015,320.
    Major volumes in October 2000 receipts include: 94,953 I-765 employment authorizations; 60,414 I-90 Green Card replacements; 55,955 I-130 relative petitions; and 44,785 I-485 permanent resident adjustments.
    Major volumes of pending cases at the end of October 2000 include: 1,004,643 I-485 permanent resident adjustments; 835,038 I-130 relative petitions; 255,221 I-90 Green Card replacements; and 243,511 I-765 employment authorizations. Back to Top

Updated 12/12/00: H-1B Portability Under AC 21 and Its Scope

• INS has yet to release the AC 21 regulation which is not expected until March 2001. However, through various sources, we can gather some information on the INS positions and interpretation of the AC 21 provisions. We have already reported two releases, one, its web site Q&A and the other, Business Bulletin for Employers. To review these materials, people may want to revisit our H-1B page.
• One additional question has been somewhat made clear through the recent teleconference of AILA on 12/06/00. Whether or not jumping to take a new H-1B job "upon filing of a new H-1B petition" would apply to a concurrent employment. Concurrent employment is a situation when alien obtains two H-1B employment and approvals (two H-1Bs) to work for two different employers at the same time. The INS apparently agrees that the portability should also apply to the concurrent employment petition. Good! Back to Top

Updated 12/12/00: H-1B Extension Documentation Beyond 6-Yrs Under AC 21

• According the recent teleconference between the AILA and the INS HQ, the Service Centers should expect to see certain types of evidence to prove that the H-1B alien has "filed I-140" and the petition is pending. Basically, people should submit at least two types of evidence: (1) "I-140 pending proof and (2) "proof of priority date" to establish 365 days or more.
  • Component (1): If one has I-140 approval, I-140 Approval Notice should meet the requirement. If he/she filed I-485, such Receipt Notice will also do. If he/she has filed I-140 but has yet to receive I-140 Receipt Notice, apparently the INS would take proof of filing of the I-140, such as overnite delivery certificate or certified mail return receipt green card, etc.
  • Component (2) The Part A of the approved Application for Alien Employment Certification, ETA 750, which has the date of initial filing which is the priority date for the immigration purpose. (Courtesy of AILA) Back to Top

Updated 12/06/00: INS New Form I-485 Advisory

• INS has stopped taking old I-485 form and currently requires new forms. For specific instructions for family-based vs. employment-based I-485 form preparation, please click here.

Updated 12/04/00: H-1B LCA Faxback Delays, Fee Increases, and H-1B Jump Under AC 21

• LCA faxback processing is currently two weeks behind. This was apparently caused by previous system failures plus filing rush in anticipation of H-1B fee increase on 12/17/00. As of today, DOL is processing the cases which were received on 11/20/00 and those who filed prior to 11/20/00 and still waiting should refax it quickly.
• LCA faxback delay presents two issues: (1) Whether or not the employer will be allowed to pay only $610.00 and file I-129H without certified LCA but with the proof of filing of LCA: Generally, the INS maintains the policy that the employer may file H-1B petition with the proof of LCA filing when the alien's status is about to run out. This policy was reconfirmed by the INS HQ very recently in its conference with the AILA. However, when it comes to filing fee issues, it is unclear at this time. The only information we have is what transpired when the fee increased from $110 to $610. At the time, the INS accepted such filing with the fees of $110. There is, however, no guarantee that the INS will take same policy this time around. (2) More difficult question involves H-1B alien jumping H-1B job "upon filing of a new H-1B petition" under the AC 21. It is more unclear in this situation whether the INS would allow jumping upon filing of H-1B petition with the payment of $110.00 without certified LCA but with the proof of LCA filing. Since it is somehow "incomplete" documentation, one may feel uncomfortable, even if it satisfies the definition of "filing" under the current INS regulation prior to enactment of AC 21. In this situation, the risk will be very substantial in that should the H-1B petition is denied or rejected on the filing issue, the alien will lose legal status. Until the issues get clear, one may take a precaution and act "only" on the advice of a legal counsel.
• The situation is aggravated by the INS' frontlog. People must have noticed that the NSC is experiencing delays in issuing the Receipt Notices. Since the INS seems to require Receipt Notice for proof of "upon filing" of a new H-1B petition, jumping H-1B job will have to consider all these delays. People are cautioned not to submit resignation hastily! Back to Top

Updated 11/28/00: Important INS Advisory for I-485 Waiter Travelling Abroad

• The INS once again released advisory, reminding I-485 waiters travelling and serious consequences in certain situations. For the details, please click here. Back to Top

Updated 11/28/00: INS First Official Views on AC21

• The INS has just released its first release of official opinions on various issues on AC21. According to the release, the INS is currently working on regulation and it is "unlikely" to see the regulation published until after March 2001.
• This release tactfully omitted the hottest issues such as "180 days after 485 filing" starting point. However, at least it answered one question on H-1B change of employer upon filing a new H-1B petition by a new employer. The INS views that the employer should have I-797 Receipt Notice to comply with the I-9 law. This view is consistent with the views of conservative group of immigration lawyers.
• The following is the full text:
  • November 21, 2000
  • Changes to the H-1B Program
  • On October 17 and 30, 2000, President Clinton signed into law several bills which significantly change the H-1B program as well as the employment based immigration program. Prominent among these bills is the American Competitiveness in the Twenty-First Century Act (AC21).
  • Q1: How does AC21 affect the H-1B cap?
  • A1: Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.
  • Q2: Are there new exemptions to the H-1B cap?
  • A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:
  • • Institutions of higher education;
  • • Related or affiliated nonprofit entity, or
  • • Nonprofit or government research organization.
  • AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption.
  • In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. INS estimates that approximately 30,000 petitions were filed during that time frame.
  • Q3: How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY 2001 cap?
  • A3: The Service already electronically captures the date a petition was received by INS. Therefore, our ability to electronically separate cases file before 09/01/00 is already in place.
  • Q4: What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?
  • A4: The Service has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years. We will continue with that process insuring that we conduct the sweep on using H-1B data for the past six years.
  • Q5: The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay. How is INS going to implement this? How does this differ from INS’ current counting methodology?
  • A5: INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay.
  • System changes will be made in order to allow the Adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay. This indicator will enable the Service to properly count an individual toward the cap in these circumstances.
  • Upon approval of the petition, the program will compute the number of H1B visas issued according to the factors as defined by statute.
  • Q6: The legislation states that the limit for FY 99 is increased by "a number equal to the number of aliens issued such a visa or provided such as status" from the time the limit was reached and September 30, 1999. Is INS interpreting this clause to deal solely with the discovered overage or does INS intend to recapture any visas it issued before September 30, 1999 but had given FY 2000 start dates?
  • A6: The Service interprets this language as forgiveness for the number of H-1B petitions approved in excess of the FY99 cap due to counting errors. It is not our intent to recapture numbers for cases approved in FY00 toward the FY00 cap.
  • Q7: When does the law take effect?
  • A7: Almost all of the provisions of AC21 and the related legislation are effective immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.
  • Q8: Are there new exemptions from the ACWIA (now $1,000) fee?
  • A8: Yes. Employers now exempt from paying the fee include:
  • • Institutions of higher education and related or affiliated non-profit organizations;
  • • Non-profit or governmental research organizations;
  • • Any employer who is filing for a second extension of stay for an H-1B nonimmigrant;
  • • Primary or secondary education institutions; or
  • • Nonprofit entity engaged in "established curriculum-related clinical training of students".
  • Although the fee increase does not take effect for 60 days, the new exemptions from the fee are effective immediately. Thus the new exempt organizations are exempt as of October 18, 2000. INS is working to change its forms and systems to accommodate this change but this will take time. In the meantime, petitioners claiming to be exempt should submit a copy of the relevant provision of AC21 with their petition along with evidence that they qualify as an exempt organization. Petitioners should also note on Form I-129W the basis for the exemption, notwithstanding the fact that the form will not initially contain the necessary boxes to check for these new exemptions.
  • Q9: Are there any new filing exemptions?
  • A9: Yes. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
  • Q10: Who is eligible to use the H1B "portability" provisions?
  • A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an
    H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.
  • Q11: Are there any other limitations on the portability provisions?
  • A11: An alien must have been lawfully admitted into the United States. The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the alien must not have been employed without authorization.
  • Q12: How will employers who hire H-1B aliens using the portability provisions comply with their I-9 requirements?
  • A12: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien's I-94 to the I-9 kept on file.
  • Q13: When will the Implementing regulation be published?
  • A13: INS is currently drafting the regulation. Because of the new $1,000 fee increase, it is possible that in addition to the normal DOJ and OMB review, this regulation will have to undergo the additional review required by the Small Business Regulatory Enforcement Fairness Act of 1996. If this is the case it is unlikely that the regulation will be published before March 2001. INS is exploring ways to expedite publication of the regulation.
  • Q14: What benefits are available under AC21 to aliens with Immigrant petitions/adjustment applications?
  • A14: First, § 104 of AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used. The Department of State is charged with issuance of these visas and maintenance of priority dates and availability. This issue will not be addressed in INS regulations.
  • Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made.
  • Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.
  • Q15: Will H-4 dependents of H-1B nonimmigrants be able to receive these extensions?
  • A15: The AC21 does not address this issue but speaks only of aliens issued a visa or otherwise provided nonimmigrant status under the H-1B provisions of the Act. INS is studying this issue, which will be addressed in the implementing regulations currently under development.
  • Q16: How will employers demonstrate I-9 compliance for H-1B aliens granted extensions beyond the six-year period in INA 214(g)(4)?
  • A16: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this involves attaching a copy of the receipt notice for the extension along with a copy of the alien's I-94 to the I-9 kept on file.
  • Q17: The law requires that any visas revoked due to fraud are recaptured and restored to the total available for the current fiscal year. How does INS intend to do this?
  • A17: INS already has the ability to electronically identify those cases that are revoked due to fraud as opposed to those that are revoked for other reasons. Therefore, this should not be an issue.
  • Q18: The law mandates INS processing times of 180 days. Given the current budget situation does INS feel that it can realistically meet this goal?
  • A18: The new law does not mandate any processing times. It does, however, indicate that it is the sense of Congress that adjustment applications should be completed in no more than 180 days and nonimmigrant petitions should be processed in no more than 30 days. This sense of Congress is followed by recognition that INS is in need of appropriations for infrastructure and other improvements. INS will in the process of collecting data in an attempt to comply with the reporting requirements necessary to be eligible for consideration of appropriations that may be granted to aide in the reduction of processing times. There is no guarantee that Congress will appropriate funds for the improvements necessary to reduce backlogs and improve processing time within the Service even if INS complies with all of the reporting requirements set forth in the statute.
  • Q19: Given the large increase in the volume of applications, does INS feel that it can maintain its current processing goals of 60 days for H-1B petitions and 90 days for I-140 petitions given that Congress has only earmarked 4 percent of the new H-1B fee for INS processing?
  • A19: The Service will do its best to maintain current processing times. Much of our ability to maintain the processing times will be a result of the budget that is passed and our ability to direct overtime funds to the offices that will be impacted by the increased filings. Although we have been authorized to hire individuals into term positions to deal with the increased filings, the hiring and training process are lengthy and the true benefits of the hiring will not be realized for several months.

– INS – Back to Top

Updated 11/27/00: Plan for Concurrent I-140/I-485 Filing

• This web site reported quite sometime ago that the INS had been pushing ahead a plan to take I-140 and I-485 filing concurrently. Currently such concurrent filing is available only in family-based cases where priority dates are current. Such FB cases are filed at the INS District Offices.
• The sources indicate that the INS originally planned to start this plan beginning from the FY 2001 (10/01/00). This is admitted by the INS in a recent communication with the AILA. Additionally, it was evidenced by the INS publishing a new form I-140 with the item for such concurrently filing, as blessed by the OMB. Apparently, the INS has decided to delay it and quickly advised on its website that the new item in the new form I-140 was not being implemented and people should ignore it.
• It is however just a matter of timing of implementation of the new program. Latest news indicate that the INS will release rules in December and may start implementing the concurrent filing system sooner or later.
• It is not coincident that the INS FY 2001 budget included "premium processing fees" of $1,000 for I-140 and I-129. People know that for the H-1B the INS will start charging employer $1,000 beginning from 12/17/00. This reporter would not be surprised if the INS attempts to charge similar fees for this concurrent filing. Please stay tuned!
• The Calendar Year 2001 may start with a new era of employment-based immigration procedures, which will include the new electronic filing system of alien labor certification (PERM), the concurrent filing of I-140 and I-485, which may drastically reduce the processing times. The INS sources indicate that in preparation for such new concurrent filing process, the Service Centers have been attempting to remove I-140 cases in the pipeline early in pace with the launch of the new procedure. Sounds unbelievable, doesn't it?
• Do you want to hear more exciting news? The U.S. Department of Tresury has already installed electronic payment systems of government filing fees and electronic signatures, and the INS will in the not-too-remote future start electronic filing of applications/petitions probably modelled after the DOL electronic filing system.
• Welcome, Cyber Age! Back to Top

Updated 11/25/00: H-1B Visa Issuance Policy for Indians in Toronto

• Visa Office reports the American consulate in Toronto issued 1,555 H-1B visas to Indians and refused 208 in FY 2000.
• However, Indians should not be misled by the statistics as the American Consulate in Toronto takes unfavorable policy for Indians for the alleged reasons of documentary fraud. Usually, Indians are considering H-1B visa applications in Canada or Mexico when they changed status from other nonimmigrant status like F-1 or B-visas or H-4. The following are reportedly the policy and practice of Toronto:
  • The key is where the college degree is earned. If it is earned from a college in India, Toronto intends to refuse issuance of H-1B visas.
  • If the college degree is earned from a college in the U.S. or Canada, Toronto will issue the H-1B visa inasmuch as the alien is otherwise eligible for the visa. Typically the people in this category will be those who are here on a F-1 visa status or OPT and applying for H-1B visa stamp in the passport.
  • If the H-1B visa was previously issued by one of the American consulates in India, Toronto may not have any problem in issuing the H-1B visa.
• Consulate practices constantly change, but as of now, unless he/she meets one of the above-described standards, Indians may want to avoid Toronto and rather choose the American Consulate in Ciudad Juarez in Mexico, that is more lenient. Back to Top

Updated 11/24/00: Advance Parole and Extension of H/L Status

• Under the Interim Regulation, the H/L and their H4/L2 family members are eligible for extension of H/L status even if they returned to the U.S. after a trip abroad using Advance Parole inasmuch as they meet all the conditions for H/L. However, people should remember that when they released this Interim Regulation, the INS warned that it would be a temporary rule.
• Report indicates that the INS has been working on the Final Regulation which will not allow concurrent use of AP and H/L status. Once the Final Regulation is released, the people will be required to choose only one. In other words, people who enter on AP will not be allowed to apply for extension of H/L status and continue employment unless one has EAD. The exact time of the release of the Final Regulation is not fixed at this time.
• However, there is nothing for people to panic about. Why? The Final Regulation will reportedly set up a transition period during which people who entered as parolees can change back to H or L status!! Good Lord! Back to Top

Updated 11/24/00: Immigrant Visa Application and Issue of Revocation of H/L Visas

• H/L professionals who apply for immigrant visas at the American Consulate have been agonizing over the issue of their H/L visas when they appear before a consular officer. Report indicates that some consular officers first revoked the H/L visas before they adjudicated the IV application. The U.S. Department of State opines that such practice is wrong.
• The Conoff should revoke the H/L visas only in the following three circumstances: (1) Immigrant Visa is issued, or (2) The alien is no longer entitled to the H/L visa classification (application for immigrant visa in itself should not be a ground for revocation as H/L professionals enjoy dual intent), or (3) The alien is subject to one of grounds for excludability (removal) provisions in the immigration statutes. Consequently, unless he/she falls under one of these circumstances, the IV denied H/L professionals and their H-4/L-2 family members should be able to return to the U.S. to resume their nonimmigrant status.
• People who have faced erroneous revocation of H/L visas against such interpretations may seek "advisory opinion" from the DOS. Back to Top

Updated 11/22/00: TCN IV Processing in Ciudad Juarez, Mexico

• The American Consulate has initiated to accept TCN EB-based IV applications regardless of filing date of I-824. Applicants must prove that I-824 has been filed but the cut-off date 09/20/00 has been removed and no cut-off date has been imposed. People should keep in mind that acceptance of TCN case filing is "not mandatory" and rather "discretionary" and not guaranteed. (courtesy of AILA) Back to Top

Updated 11/16/00: The Monster Named I-824

• I-824 is one of a few legal proceedings that raise a lot of doubts and controversies.
  • The INS HQ policy is to take such filing as a withdrawal of I-485. Other than that, there is no consistent policy among the Service Centers. As we have reported, the NSC takes a somewhat lenient position giving another chance for I-485 waiters to make a decision before the NSC takes action on denial of I-485. In a recent AILA Liaison Q&A, CSC was pushed to answer a similar question and it just answered that such filing was taken as a withdrawal without elaborating when the CSC would take an action when it received such I-824 application.
  • The William Yates' memo required that whenever the permanent residence applicant changes his/her mind between I-485 processing and Consular IV processing, the applicant must file I-824. Consequently, the INS requires filing of I-824 not only when they want to convert from I-485 proceeding to CP, but also when he/she wants to convert from CP to I-485 proceedings. When the memo was released, this reporter thought that the requirement of I-824 in the second situation was an oversight since in such situation it is DOS and not INS that is burdened with the work of transferring the files and one cannot imagine it would create additional burden on the INS other than processing I-485. Until now, some Service Centers have implemented the I-824 requirement either very loosely and even not implemented in the second situation. However, CSC confirms in the above-mentioned Q&A that they require it and the processing times of I-824 are identical between situation one and two. This reporter feels that this policy should be corrected at the HQ level by revising the Yates' memo.
  • There are plenty of the American consulates that process CP without the National Visa Center proceeding and with the simple proof of I-824 filing. This reporter wonders what public interest such requirement for I-824 serves in such situation. When IV is issued without the file transfer from the INS, why would government agency waste its time and tax money and why the immigration applicants should waste their money and time, not to mention the underlying fear related to the INS policy against the concurrent processing of I-485 and CP IV application.
  • It is hoped that the government policy on 485 proceedings and IV CP should be revampted soon not only in the interest of aliens but also for the public interest. Back to Top

Updated 11/15/00: New Labor Certification Program (PERM) and On-Going Changes in SESAs

• As people know by now, the PERM program was scheduled to start on 04/01/00. Since then, there has been some report that it may experience a little bit of delay.
• However, there is some indication that DOL has initiated cutting back SESA employees in preparation for the new program. SESA Alien Labor Certification program is funded by the federal DOL. Under the PERM program, SESA is completely phased out other than prevailing wage determination. Accordingly, SESA employees will be gradually taken off of the alien labor certification unit. It is an open question how this transitional period of one quarter or two will affect the processing times of SESA before the PERM actually starts. Please stay tuned to this web site for additional report on this issue. Back to Top

Updated 11/15/00: Green Card Opportunities for Certain Vietnamese, Laotians, and Cambodians

• For these qualified Indochinese who were paroled into the U.S. before 10/01/1997. a new law enacted on 11/06/00 will give an opportunity to apply for a greencard. For the details, please click here or visit our 485 page.

Updated 11/10/00: Rumors and Misunderstandings Flying Around Discussion Boards of Some Websites

• It appears that there is a wild fire spreading around in some segments of immigrant community relating to the eligibility of 485 adjustment of status pending priority dates.
  • Rumor one: One filed 485 when priority date was available, but the priority dates moved backward and is currently not available for him/her, and INS denied 485 on the "sole" ground that priority date is not available. This is false. The INS cannot deny pending 485 strictly on the ground of priority date retrogression and unavailability.
  • Rumor two which is somewhat opposite to Rumor one: Once 485 was filed while priority date was current, the INS can approve 485 even during the period when priority date is not available for her/him. Again, this is generally false. If the INS approved mistakenly such 485 when visa numbers were not available and somehow learns it in the future, the INS can start revocation proceeding. However, AC21 would have affected a few people whose priority dates were not available in the November Visa Bulletin but who were able to get spill-over visa numbers under the AC 21: SECTION 106 RECAPTURES THOSE EMPLOYMENT-BASED VISA NUMBERS WHICH WERE AVAILABLE BUT NOT USED IN FISCAL YEARS 1999 AND 2000 AND MAKES THEM AVAILABLE TO E1, E2, E3, AND EW APPLICANTS BEGINNING IN FY-2001.
    
• People should be very careful not to listen to rumors. Facts which look similar on the surface can involve different situations, and without having the entire facts and ability to analyze the facts, one can be trapped into acting on rules which do not apply to his/her situation. Back to Top

Updated 11/08/00: DOS Reading of AC 21 Law

• DOS has sent a cable to the posts abroad summarizing its reading AC 21 law. Please click here. Or visit our 485 or H-1B sites. Back to Top

Updated 11/07/00: Controversy Over INA AC21 Interpretation in Business Bulletin

• People are distressed over the INS' recently released Business Bulletin for employers which include statements on AC21 provisions. People should not take it as a policy memorandum or rule-making or any official interpretation of the new law. Informed sources indicate that the INS HQ may clarify its position on a number of controversial issues in the next two weeks or so. People are reminded once again to keep patience and to wait until the official INS statement is released. Pending such clarification, people should not attempt to handle the new law issues on their own hands without the legal counsel. Please do not rely on information on various websites and internet discussions as all of these informations are simple understanding of the new laws of the individuals without any authority. Back to Top

Updated 11/06/00: Presidential Election and "Electoral College"

• This posting has nothing to do with immigration issues. Tomorrow is the election day and immigrant community must have heard a lot about the news on "electoral college" or "a candidate can will popular vote but lose in the election." The presidential election system in the U.S. is so unique that even large number of her population do not understand what it means. I thought the immigrant visitors might be interested in learning what it means so that when they watch the election results tomorrow night and day after tomorrow, they understand the news report better.
• Here is how the U.S. presidential election system works: The president and vice president are elected by the electoral college. Electoral college is consisted of electors which are determined by the number of U.S. Senators in each state (two Senators every state no matter how large or small) and the number of U.S. Representatives, commonly called, Congressmen, which are determined by the number of population in each state. So, large states send large number of Congressmen to the House. Consequently, the smallest population states have at least three (3) electors and no less. The largest population states have double digit electors because of the large number of Congressmen they elect in their states. Here are the number of electors in each State: Total=538. CA=54, NY=33, TX=32, FL=25, PA=23, IL=22, OH=21, MI=18, NJ=15, NC=14, GA=13, VA=13, IN=12, MA=12, MO=11, TN=11, WA=11, WI=11, MN=10, MD=10, AL=9, LA=9, AZ=8, CO=8, CT=8, KY=8, OK=8, SC=8, IA=7, MS=7, OR=7, KS=6,NE=5, NM=5, UT=5, West VA=5, HI=4, ID=4, ME=e, NV=4, NH=4, RI=4, AK=3, DE=3, DC=3, MT=3, ND=3, SD=3, VT=3, Wy=3.
• In each state, a presidential candidate whoever gets most number of votes in his/her state gets all the electors in that state. Remember that electors in one state cannot be split between the candidates. Winner in that state gets all!! Therefore, the winner in CA will get all the 54 electors. The final winner will be the candidate who win in those states that amount to a half of 538 or 270 electors. This indirect electoral system can result in an unusual phenomenon: The winner of the most of the popular votes in number can turn out to be a loser depending on where he or she won. In each state, the total number of votes one candidate gets does not mean much inasmuch as he or she wins the most out of the total number of candidates. However, when it comes to deciding a winner of popular votes, it matters as the total number of his/her total votes nationwide will determine the winner in popular vote. The popular votes determine the winner of president in most of the countries in the world in terms of either "majority" votes or "largest" votes, but not in the U.S. The U.S. system is thus commonly called "indirect" election system of president.
• Now when you watch the election results tomorrow, every time you learn that either Vice President Al Gore or Governor Bush wins in each state, just add the number of electors in that state to his score, forgetting about the size of total votes he earned. You will then find out who the winner will be.
• Some people may call this posting as "trash," but for immigrants, understanding this culture and system can mean a lot to deal with his life and future. No one will "bypass" or "ignore" you. Back to Top

Updated 11/03/00: INS Business Bulletin for Employers Incorporating AC 21 Law

• Thanks to the reader of this site, we were able to report this Business Bulletin for Employers published by the INS HQ and incorporating its understanding of AC 21 laws (S.2045). It is important in that it is the "first" published reading of the AC 21 law by the INS HQ, even though it does not have any legally binding force. Readers are cautioned not to take this Bulletin information as the INS' formal interpretation of the law which will be enunciated sooner or later. For reading of this Bulletin, please visit our 485 page or H-1B page. Thanks, Raj! Back to Top

Updated 11/02/00: NSC Policy on I-824 Pending 485

• NSC also complies with the HQ policy that concurrent 485 and IV Consular Processing should not be allowed. However, its current policy is to give another chance to such 485 waiters to determine between 485 proceeding and CP before they deny 485 application by issuing RFE. Even though such practice is not as good as allowing concurrent proceedings, it gives some mental relief to 485 waiters who have already filed I-824 and have been in mental distress owing to uncertainty on the INS action on the pending 485. Back to Top

Updated 11/02/00: Simple Corporate Name Change or Address Change and Amended I-140 Issue

• NSC also complies with the 1992 memorandum of the INS HQ that required amended I-140 petition where a material change had taken place with the corporate ownership/structure, including merger/acquisition involving successor-in-interest. However, two points need special attention:
  • First, where 485 is pending when such corporate change takes place, NSC will first give an opportunity to I-485 filers to work with the employer to file amended I-140 petition. Adjudication of 485 will be in abeyance pending adjudication of such amended I-140 petition. Additionally, such amended I-140 petition will be "expedited."
  • Simple corporate name change or address change within the area of intended employment (metropolitan area) are not considered a material change and will not, repeat, will not require amended I-140 petitions. Good Lord! However, they expect the alien and employer to explain such changes in a letter. Caveat: This is unpublished opinion of the I-140 Superviser in NSC. Back to Top

Updated 11/02/00: NSC Adjudicating Physicians NIW Cases

• NSC started adjudication of foreign physicans NIW cases implementing the new legislation and its subsequently enacted regulation. Good news for the FMG waiters.

Updated 10/31/00: Visa Waiver Permanent Program is Now Law

• The President signed Visa Waiver Permanent Program Act, making it a law.
• For the full text of this new law, please click here.
• The H.R. 3767 makes the Visa Waiver Program Permanent, and extends the EB-5 pilot program for the next three years.
• More importantly to our readers, it also eliminate the requirement of filing an amended H-1B petition in succeesor-in-interest type of corporate restructuring. Back to Top

Updated 10/31/00: Child Citizenship Act is Now Law

• The President signed Child Citizenship Act of 2000, which affects particularly adopted children. For the whilehouse statement.
• This law automatically gives citizenship on certain foreign-born children, including adopted children, of U.S. citizen. For the text of this law, please click here.

Updated 10/30/00: H-1B LCA Non-Fax-Back Filing Guidance. click here

Updated 10/29/00: President Signed Law to Protect Abused Immigrant Women

• The President signed H.R. 3244 "Victims of Trafficking and Violence Prevention Act of 2000" which provides very important immigration benefits to abused women.
• Summary: The law provides a new nonimmigrant visa category "T" visa for 5,000 victims of trafficking per year. Eligibility requirements include showing of suffering extreme hardship involving unusual or severe harm if returned to their home country. Additionally, some of these victims may be able to apply for green-card several years after receiving the "T" visa if certain conditions are satisfied.
• This law also reauthorizes the current law "Violence Against Women Act (VAWA)" in the immigration statute. VAWA contains important protections for battered immigrants. These protections had been left out of the original version in the House but were part of the Senate measure. While the bill’s final language did not include all of the protections that advocates sought, it is a significant step forward. Among the protections included in the bill are:
  • The removal of the requirement that the victim continue to be married to the abuser and that the abuser maintain their citizenship or legal permanent residency in order for the victim to self-petition or apply for suspension of deportation.
  • The ability of approved self-petitioners to adjust under 245(a) rather than relying on 245(i).
  • Removal of the extreme hardship requirement for self-petitioners, and the ability for a parent to allege extreme hardships to themselves in suspension claims.
  • The availability of waivers for grounds of inadmissibility, deportability, or findings of good moral character for certain acts connected to domestic violence.
  • Establishing a new nonimmigrant “U” visa with adjustment possibility after three years for noncitizens who suffer “substantial physical or mental abuse” as a result of a laundry list of criminal violations
    
• For the summary and other details, please click here. Back to Top

Updated 10/28/00: Post-GC Reminder

• This is a reminder of this web site's previous warning: For the people who receive I-485 approval notice, his/her permanent resident status starts from the notice date of I-485. However, for international travelling purposes, such approval notice is not considered the evidence of a permanent resident! Only the red stamp which the District Office imprints will be taken as the evidence of permanent resident at the airport. The people who travelled just with the Approval Notice are likely to be admitted by the immigration inspectors on "parole." This is particularly true with those who were outside the U.S. when the approval notice was issued. However, those who received approval notice while they were in the U.S. and departed from the U.S. without the red stamp in the passport, "parole" is not always guaranteed. Besides, without the local district office procedures promptly taken care of, the Service Centers will not be able to process and print actual plastic permanent resident card. Back to Top

Updated 10/28/00: H-1B LCA Fax-Back Problem and Alternative Option

• As reported, both San Francisco and Philadelphia LCA Fax-Back Systems (800 number) are experiencing substantial delays and problems. This reporter has been receiving a number of inquiries from the visitors asking for help.
• The conventional LCA system is still in operation in each DOL Region and it is much faster in most of these Regions. Remember that when you file with each Region, you need to use the old form and filed via either mail or overnight delivery services, preferably Federal Express. You will have to follow the procedural requirement, including Form G-28 if represented, and ETA 9035 (old form) in duplicate.
• For safeside, employer may also file the fax-back LCA simultaneously since increased conventional filing will also cause backlogs in each Region and the fax-back filing can be faster than the conventional filing. Without question, the fax-back filing must use the new form generated by the computer!
• When the alien's legal status is about to expire, traditionally INS has been allowing employers to file H-1B petition "with the proof" of LCA being filed and sent out RFE afterwards. It is however unclear whether this will also apply to H-1B alien who wants to jump to a new employer upon filing a new petition since "filing" under the new law can be interpreted by the INS narrowly, meaning a filing without a flaw, even if such interpretation appears to be wrong. Therefore, it is prudent for these people to file a new H-1B petition with the "certified" LCA rather than "proof" of LCA filing. Conservative employers and H-1B professionals may even want to wait until the new H-1B petition is approved as the consequence of denial of the new petition can be very serious. Back to Top

Updated 10/28/00: Canadian/Mexican Software Engineers and Eligibility for TN Visa

• This is the subject which has raised a tremendous confusion among immigration lawyers and Free Trade Officers at the borders. Under the NAFTA, the only computer occupation that is listed for TN eligibility is "Computer Systems Analyst" and when employers attempted to bring the Canadian computer professionals in other occupational titles, the Free Trade Officers and Immigration Inspectors denied TN status. This has continued even after their boss, Jacqueline Bednard, the Chief of Nonimmigrant Branch, INS, wrote a letter as early as March 30, 1995 that Software Engineers are qualified for TN status under a different category in the NAFTA, "Engineers."
• Now, this is permanently and officially settled by the INS HQ. The August 2000 Memo confirms Ms. Bednard's interpretation of the NAFTA, and Software Engineers do not have to disguise or misrepresent their occupations as Computer Systems Analyst to enter the U.S. on TN visa status. This is important in other aspect as well in that employers will no longer have to face the Service Centers' challenge to application for change of status from TN to H-1B for Software Engineers. When a Canadian computer professional entered on TN and submit H-1B petition afterwards, the Service Centers frequently issued RFE demanding the employers to prove that the job was a "specialty occupation" requiring minimum of 4-year college degree. Computer Systems Analyst for TN under the NAFTA only requires two years of post secondary diploma plus three years of work experience. Because of such practice, the employers hiring TN people had to endure some level of discomfort. Back to Top

Updated 10/27/00: Outline of Employment Nonimmigrant Categories & Documentation Requirement

• The INS web site has reported an excellent outline of employment nonimmigrant categories as well as documentation requirement for the public. Please visit the INS site by clicking here or visit our Areas of Practice page on the left index to easily access the information.

Updated 10/21/00: 485 Ineligibility for Public Charge and Checklist

• People will notice that one of the 14 questions which 485 application form asks is "public charge" which is ground for ineligibility of GC. Public charge means receiving certain public benefits from the government, most typically but not limited to "welfare" payment. This question is most typically raised by those who went to school on F-1 student status and received some types of benefits either for themselves or children. Even non F-1 student who delivers a U.S. citizen child receives some helps including WIC program and feels nervous when it comes time to submit I-485 not knowing whether such benefits constitute "public charge."
• Well, this is mostly "women" issue which male head of household does not pay too much attention to. The Massachusetts state govenment released a walk-through check list which will in most cases apply to residents in other states as well. Please check it out by visiting our 485 page or clicking here. Back to Top

Updated 10/20/00: Rule on Use of Electronically Generated INS Forms

• As more and more people use electronically produced INS forms through the INS website or on-line or commercial sources, the INS has just changed the rule as to what forms be acceptable.
• Prior to October 17, 2000, the INS rule required that duplicated and electronically generated forms be produced on the same color paper and in the same printing configuration that is used for the official INS forms.
• Not any more effective October 17, 2000. Under the new rule, (1) people can use just white papers, no matter whether the INS forms are printed in different colors; and (2) in a multi-page form, people do not have to print it head-to-head or head-to-foot configuration. This rule is published in the Federal Register. How nice, huh? Back to Top

Updated 10/19/00: Merger/Acquisition and Issue of Amended H-1B Petition

• This question has presented both H-1B employers and employees headaches. The current practice of the INS requires the employer to file amended H-1B petition even if the new company is 100% "successor-in-interest" entity to the old company.
• Congress has acted on this problem. The Congress passed a legislation which the President has yet to sign, which removes such requirement from the immigration statutes inasmuch as certain conditions are met. The full text of the provision reads: An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
• Again, let's see they are saying: (1) It has to be a successor-in-interest to old company.( If the language "successor-in-interest" is too difficult to understand, please read the next requirement, which defines this term); (2) The new company must take over not only the assets, but also liabilities of the old company; (3) The employment terms of the H-1B employee must remain same. In such case, the employer does not have to file an amended H-1B petition on behalf of the H-1B employee.
• Effective date: Since this section does not have any provision of effective date, as soon as the President signs, it appears it will become effective.
• This new law will make easy the lives of H-1B professionals as well as businesses. The current law is out of touch with reality of the businesses. Good job, Gentleladies and Gentlemen in Congress! Back to Top

Updated 10/18/00: Definition of "Upon Filing"of H-1B Petition Under the New Law

• Under the new law, he/she who is in H-1B status can take a new job with another employer "upon filing" of a new H-1B petition without waiting for approval inasmuch as he/she meets other four conditions. For the four conditions, please visit this reporter's summary in H-1B page of this site.
• This law does not define when"filing" is complete. Since he/she will terminate current employment and jump to new employer upon filing a new H-1B filing, should there be a flaw in "filing," the consequence can be deadly as the petition will be considered "not filed." It is thus important that people understand when it is considered "filed." This is governed by the INS regulation. Relevant section provides that an application or petition received in a Service office shall be stamped to show the time and date of actual receipt and, unless otherwise spcified in part 204 or part 245 of this chapter, shall be regarded as properly filed when so stamped, if it is properly signed and executed and the required filing fee is attached or a waiver of the filing fee is granted. An application or prtition which is not properly signed or is submitted with the wrong filing fee shall be rejected as improperly filed. Rejected applications and petitions, and ones in which the check or other financial instrument used to pay the filing fee is subsequently returned as non-payable will not retain a filing date.
• Now let's see what these legal jargon means: (1) Any filing with either no check or inappropriate amount of check or other deficient check will face rejection and such submission is considered "not filed." Or (2) if petitioner or applicant failed to sign, it will also be rejected and considered "not filed." (3) Otherwise, the petition is considered "filed" and the Service cannot reject the petition. If there are other deficiencies, the Service can issue RFE, but cannot reject the filing. (4) Once these conditions are satisfied, "filing" date is determined as follows: The petition received in Service office should be stamped to show the time and date of "actual (physical) receipt" which is regarded as "properly filed" when so "stamped". In other words, physical receipt by the Service is not enough. It has to be "stamped" at the mailroom of the Service office. Usually, this filing date coincides with the physical receipt date as the Service office promptly stamps mails upon receiving it. However, it is important to give a room to assure "filing" within the meaning of the regulation. Remember that important conditions for taking a new job upon filing include, among others, timely filing and maintenance of status. Rejection of filing will result in this consequence and strictly speaking, resubmission will not meet the legal requirements and continued employment with the new employer can be construed as unauthorized employment, and failure of maintaining nonimmigrant status, not to mention untimely filing. "Haste" is always source of trouble in life. Back to Top

Updated 10/18/00: INS Memo Disallowing Concurrent CP and 485

• This website has been posting similar information based on the sources of Service Centers or individual INS HQ official. In this regard, it was not "official." However, the memo which is posted here is an "official" memo of the INS HQ. The INS HQ issued instructions to take I-824 for consular processing as a withdrawal. Consequences will be very serious as the memo also instructs to terminate EAD which has been issued pending 485 applications. Please click here for the memo posted in our 485 page.
• This memo practically makes the recent DOS policy allowing posts to accept IV consular processing for third country nationals on a condition that I-824 is pending meaningless. It is more so considering the benefits under the new law allowing 485 waiters to change a job in same or similar occupational classification. The INS memo makes TCN IV Consular processing very risky in that he/she can lose not only pending 485 application but also employment authorization document when he/she needs to work on EAD.
• DOS and INS need to work out a coordinated policy not to confuse their customers community.
• Under these somewhat confusing and conflicting policies of two agencies, people need to review very carefully the consequences of consular processing unless the posts are willing process IV applications on original of I-140 Approval Notice and attorney certified I-140 petition, without I-824 proceeding of INS and without NVC proceedings of DOS (for instance, American Consulate in Mumbai). Back to Top

Updated 10/17/00: President Signed and Now Law Effective 10/17/00

• President returned home yesterday evening and signed S.2045 and H-1B Training Fee bills late in the evening! They are law now. The Consitutional mandate of 10 days indeed was to expire on the 17th and not on the 16th. The 2045 bill was presented to the President on the 5th and 10 days should have started from the 6th. This reporter apologizes for the error in counting the dates.
• The bill to increase H-1B training fee from the current $500 to $1000 was also signed at the same time. Under this new law, the employers are mandated to pay $1000 instead of $500 at the time they file H-1B petition starting two(2) months from October 17, 2000.
• For the President statement of signing the bills, please click here. For the White House site, click here.
• This reporter has already cautioned and warned that S.2045 is an election-year legislation, and this can be changed by the Congress. The President already forewarns such possibility. Watch out! Back to Top

Updated 10/14/00: Deadline (11/01/00) Reminder for the Following Group of EB-2 Candidates

• The following information is reposted for the important reminder:
  • Updated 05/09/00: BS+5yr EB-2 Firm by Court Order
  • People may remember that pending the litigation, the INS released its new policy making BS+5 yrs qualified for EB-2. (Please refer to our report of 03/27/00 on this site) However, it was not clear in the INS Memorandum what would happen with the cases that had been denied on this issue. Now, the federal court in Chintakuntla et al. v. INS, in Califonia, made all the cases eligible including those that had been denied. Following the court order, the INS will release "before May 4, 2000" the Federal Register specifing filing requirements.
    Specifically, two classes of people are cover:
    I-140 was "pending" as of 03/20/2000. Case is considered "pending" if an appeal has been either filed or the time for filing a notice of appeal had not expired as of 03/20/2000.
    The second class is those whose cases were denied on or after 07/01/97. This class includes those who filed appeal but affirmed on appeal or who did not appeal the decision of affirmed decision of AAO on appeal. Cabeat: For this group, motion to reconsider must be filed before 11/01/2000!!
    Since any cases filed on or after 03/20/00 are covered by the INS Memorandum to the idential effect, the only group of people who are not benefitted by the court order and the INS memorandum of 03/20/00 are those whose I-140s were denied before 07/01/1997.
  • 
    Updated 07/03/00: INS Notice to Class Members of Chintakuntla v. INS

• Today, the INS published Federal Register to implement the court order regarding the EB-2 relief for certain people who filed I-140 with labor certification application requiring bachelor's degree plus 5 years of experience and got denial. This Federal Register went into effect on 07/03/00. The class members of this litigation should review the INS Memorandum of 03/20/00 which was reported on this web site, the court order of 05/04/00 which was also reported, and this Federal Register. People should remember the following points, among others:

  • The I-140 petition of this class which was denied and finalized before 07/01/1997 is not extended the benefit of the court order and the INS relief.
  • The eligible Class II members must file Motion to Reconsider and I-485 before 11/01/00. Otherwise, the opportunity to get the relief will be permanently gone unless a separate litigation is filed. Class II members can file I-485, EAD, and AP even before the Motion to Reconsider is granted. Important point to remember is that I-485 must be filed before 11/01/00!
  • Effective today, notwithstanding the rule in the 03/20/00 Memorandum that Motion to Reopen should be filed within 30 days from denial, the eligible Class II members can still file Motion to Reconsider until 11/01/00.
  • People should work very closely with their legal counsel if their EB-2 I-140 was previously denied on BS+5yr issues.
  • For the full-text of Federal Register, please either visit our I-140 site or click here(GPO site).

  Back to Top

Updated 10/11/00: New $1000 H-1B Effective Date in the Fee Increase Bill

• The new $1000 H-1B fees for education/training will apply only to petitions that are filed on or after the date that is 2 months after the date of the enactment of this law (President's signature). Therefore employers have a plenty of time to file H-1B petitions with the current rate of filing fees, at least two more months.
• Employers that are exempt from $1000 payment are:
  • (1) a primary or secondary education institution,
  • (2)an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a),
  • (3)a nonprofit entity related to or affiliated with any such institution,
  • (4)a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution,
  • (5)a nonprofit research organization, or
  • (6)a governmental research organization
• The fee of $1000 will be imposed until October 1, 2003. The current $500 fee provision was expected to expire in October 2001. Therefore unless this new law is extended by the Congress before October 2003, it will sunset on October 1, 2003. Back to Top

Updated 10/11/00: Mexico TCN IV Processing News

• American Consulate in Ciudad Juarez now takes only those cases which filed I-824 on or before 09/20/00.
• We have a good news, though. This specific consulate will also take non-485 pending cases on the basis of discretion! Wonderful!

Updated 10/11/00: Anticipated Impact of Suspension of Per Country Limit for India+China

• People may wonder why the priority dates would not move to "current" as soon as S. 2045 is signed. Because of unpredictable number of IV uses by the INS, even after the bill is signed into the law, Indian and Chinese would experience a slow movement of the visa bulletin and it will take time to feel the full impact of the new law, according to Charles Oppenheimer. I suppose people should keep patience. Back to Top

Updated 10/11/00: Congress Passed VWPP

• Congress passed the Visa Waiver Pilot Program and made the program "permanent." The President has yet to sign this bill. WOW, the President should get busy to sign all these immigration bills! Mr. President, please let us know if your hands get tired.
• The list of 29 countries whose nationals are allowed to visit without a visit for 90 days are as follows:
  • Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland, and United Kingdom, Portugal, Singapore, Uruguay. Back to Top

Updated 10/11/00: H-1B Fee Increase to $1000

• Congress passed yesterday a bill to increase the education/training fee from the current $500 to $1,000. This bill is on the way to the White House for signature. This is a good news and a bad news. It is a bad news in that the employer's burden turns heavier. It is a good news in that President Clinton had concern with the S. 2045 bill which the Congress passed because of this issue. Now since Congress accomodated his concerns, it is anticipated that the President will sign the S. 2045 fairly quickly.
• The bill adds the following organizations eligible for the $1000 fee waiver:
  • Elementary/Secondary Schools
  • Nonprofit entity which engages in established curriculum related clinical training of students registered at any higher education institution. (courtesy of AILA) Back to Top

Updated 10/10/00: Matthew Oh, Esq. Reflects on New Legislation, S. 2045 (Click here)

Updated 10/09/00: S. 2045 and Petitions Covered

• The provision that permits change of job whose EB-485 has been pending over 180 days covers the underlying I-140 petitions of EB-12 (Outstanding Researcher), EB-13 (Multinational Corporate Executive/Manager), EB-2 including National Interest Waiver, and EB-3. These are petitions covered by Section 204(a)(1)(D) which is cited in this legislation. Therefore, EB-11 (Extraordinary Worker), EB-4 (Special Immigrant), and EB-5 (Investor Immigrant) are not covered. For instance, EB-11 can be filed either by oneself or by employer, and if it is filed by the employer, it appears that the approved petition may not survive if the 485 waiter changes employer pending I-485, even if the I-485 remained unadjudicated for more than 180 days.
• People should understand that this provision is available "only" when people filed EB-485 and still waiting for over 180 days after this bill becomes a law.
• The new job must be "in the same or a similar" occupational classification. This provision opens a host of questions as to its coverage. For instance, this new legislation says that when this provision becomes a law, those who are eligible under this provision will see that they can change the job without affecting the validity of the approved Alien Labor Certification Application as well as the approved I-140 petition. Question remains: Can I take a job in a different city or state, a location different from the labor certification application? It is a question of interpretation of the statute. It is expected that the meaning of this provision will be defined and implemented by the DOL and INS by enactment of regulations. Until that time, it will remain unclear.
• One thing seems to be clear, though. Once one is eligible under this provision, one will not need to file a new labor certification application nor a new I-140 petition, after changing job, for the INS to adjudicate the pending EB-485 and I-485 for his/her family members.
• Caveat: People should not rely on the message here and apply it to individual situation as this is the interpretation of this site, not even interpretation of INS nor the court. This firm will not be responsible for the consequences of such reliance. Always seek legal counsel rather than relying on internet information! Back to Top

Updated 10/06/00: Flip-Flop Replacement of Underlying I-140 for Pending EB-485

• In the AILA-NSC Teleconference of 09/13/2000, the NSC has stated a very interesting view which will have a significant impact on some of the EB-485 waiters. A number of EB-485 waiters have a spouse who is also the beneficiary of I-140 petition and whose I-485 is pending based on the principal spouse's approved I-140. In some cases, for whatever reasons, the second spouse's I-140 can be more favorable than the principal spouse's I-140 and a question arises as to whether the underlying I-140 can be replaced in such situation without affecting the pending I-485 for both spouses.
• NSC states that it is possible for the dependent to become the principal for the pending I-485 proceedings!! To do that, the NSC needs the names of the petitioner and beneficiary of I-140, the beneficiary's A-number and LIN number for the approved I-140 for the person who will become the principal I-485 applicant. Good Policy, NSC! Back to Top

Updated 10/06/00: Age-Out I-140 Expedite

• Most of the Service Centers have been expediting I-140 adjudication on age-out situation. However, when it comes to the details, the Service Centers differ among themselves. There is even one Service Center that was reluctant to make such expedite a standard procedure.
• Now, we have two issues relating to expedite: (1) When a dependent child should reach 21 years of age to benefit from the expedite; (2) Should it be limited to EB-485 requests only or extended to future consular IV processing cases. The second question is very important in view of the DOS policy allowing TCN IV Consular processings in the border countries.
• For the VSC, the answers to both (1) and (2) are all positive. Therefore, even if one noted on I-140 requesting notice of approval to NVC, the VSC will still expedite such cases inasmuch as it is a age-out case. Good for you, VSC! Back to Top

Updated 10/06/00: 2000-2005 Strategic Plan of DOJ and Picture of Future Immigration Procedure

• This website has already reported that the INS has been working on electronization of immigration services. This Strategic Plan confirms, among others, that they are working on electronic filing system, probably similar to the DOL plan, and the customers' access to the status information on line. People may read the whole text during the weekend by clicking here. It may not be worth taking extra time out to read this material during the week days. Back to Top

Updated 10/05/00: Did You Know Who the Senator Was Voting Against S. 2045?

• The Senator from South Carolina, Ernest Hollings, was the sole Senator who casted "no" vote in 96:1 S. 2045 passage. He certainly was a "lone" star. The State of South Carolina must not be interested in high-tech industry.

Updated 10/02/00: Good News for Non-Physician Health-Care Workers

• The 1996 Immigration Act, called IIRAIRA, made non-physician health workers ineligible for application for permanent residence unless a certification is issued that her/his credentials meet all applicable U.S. statutory and regulatory requirements. This includes medical technologists, medical technicians, speech/language pathodologists, and physicians assistants. Since 1996, however, the INS has dragged out and failed to enact the required regulation to implement this Section 343 of the Act, and these workers have suffered for so many years.
• The American Immigration Law Foundation brought a suit against the INS, Abraham v. Reno, and AILA has reported that INS has settled this litigation. One of the agreement under the settlement is that INS issue regulations governing certification under IIRAIRA Section 343 of Medical Technologists, Medical Technicians, Speech/Language Pathologists and Physicians Assistants applying for permanent residence "by January 19, 2001!"
• What a good news after the long ordeal. Back to Top

Updated 10/02/00: Ciudad Juarez/Mexico TCN Processing News

• AILA has reported that as this web site has reported, pending I-824 is precondition for the TCN consular processing, and the American Consulate in Mexico stated to the AILA that unless he/she had filed I-485 and later filed I-824, the consulate in Ciudad Juarez would not accept TCN IV consular processing applications. However, we do not know whether other consulates would interprete the way that of Ciudad Juarez does.

Updated 09/29/00: TCN IV Consular Processing Procedure in Ciudad Juarez

• We now have the procedure for filing IV application by TCN through the American Consulate in Ciudad Juarez, Mexico, pursuant to the yesterday's VO decision as reported and another posting in the website two days back.
• The IV Consular Processing papers which are normally filed with the National Visa Center in the regular consular processing situation are filed directly to the American Consulate in Ciudad Juarez, attention to the Chief of the Immigrant Visa Section.
• The documents include:
  • Documents listed in the VO cable: (1) Original I-797 Approval Notice of I-140; (2) A copy of I-140 petition and supporting documents; (3) Original Receipt Notice of I-824.
  • Documents required in so-called Packet III: (1) OF 169; (2) OF 230, including Part II. For the details of documentation requirement for IV consular processing, people may want to visit the U.S. Department of State web site or other American Consulate websites. (Courtesy of AILA) Back to Top

Updated 09/28/00: Reminder of Invalid Old I-485 Form

• This is a reminder that the filing of old form I-485 which is "received" after 09/30/00 will be rejected by the INS. People should stop using the old form immediately!

Updated 09/28/00: TCN IV Consular Processing and Difference from INS 485 Proceeding

• There are a few difference between the 485 proceedings and Consular proceedings. A few of these are as follows:

  • 485 proceedings	Consular proceedings
    Finger-print required	Generally not required
    No police clearance certificate required	Police certificates required unless exempted
    245(i) protection for certain people with illegal status record	No 245(i) protection. If unlawful stay exceeded 180 days or 1 year, such people will not be eligible for IV and may be subject to 3-year or 10-year bar from entering the U.S.
    EAD and AP issued pending proceedings.	No EAD and AP issued pending IV consular proceedings.
    Without nonimmigrant status, one can remain, work, travel, pending 485, even if priority dates retrogress. Lawful stay, work, travel, while waiting for the priority dates after it retrogressed.	Unless one has a valid NIV status, one cannot stay, work, and travel, pending IV proceedings. If p/d retrogresses and one cannot maintain a valid NIV status, one has to leave the U.S.
    Dependents (spouse+children) can also work, stay, travel pending 485 and while waiting for the priority date after retrogression	Not available.
    Appeal is available through the administrative/judicial process	Generally not available.

  • Back to Top

Updated 09/27/00: Visa Office (DOS) Released Details of TCN IV Consular Processing

• Visa Office issued a cable addressed to all the immigrant visa processing posts worldwide relating to this subject. It is a 4-page cable and we will just summarize it as follows:
• Non-Discretionary Cases: VO requests that posts begin immediately accepting I-140 cases for which the beneficiary has filed an I-824 request for overseas processing and was last resident in post's consular district. Posts should process such cases on (1) Original of I-797 Notice of Approval (2) Copy of I-140 petition (certified copy not necessary) (3) I-824 Receipt to demonstrate the applicant has requested overseas processing.
• Discretinary Cases: For TCN who was not resident in that district, post may accept the case on a discretionary basis. Visa Office encourages posts to accept these cases for applicants who are homeless or facing hardship as a result of long processing delays. Post should require (1) Original I-797 (2) Copy of the I-140 petition (3) I-824 receipt before agreeing to accept the case. Posts should also be satisfied the beneficiary will be able to remain in the host country for a period of time sufficient to complete processing of the case.
• Posts Unable to Accept such Cases: Such posts should notify the Visa Office immediately of their inability to assume extra cases. Visa Office will then designate another post or posts to assume the case.
• This website comment: This action was driven by the INS backlogs in I-824 processing and it has turned out that the scope will be a "narrow" one. First, to go through the TCN IV application, he/she should have filed I-824. However, unless the INS changes its view on concurrent processing of 485 and consular processing, the Visa Office decision will have a very limited practicality. Considering the fact that INS HQ and some Service Centers expressed views for a number of times that they will deny 485 upon receipt of consular processing request I-824, unless the INS changes its view and accept this Visa Office decision, it will have a very limited applicability, particularly for Indians and Chinese. Secondly, it is discretionary and the posts can refuse to take cases for the reasons that they are overloaded. Third, since the purpose of this decision is premised on the INS I-824 backlogs, the Visa Office can change its decision when they are convinced that there are no longer such backlogs. Fourth, the standards for exercising discretion are either "homeless" or "facing hardship as a result of long processing delays." People should still prove one of the two standards.
• This web site comment: Reportedly Ciudad Juarez has accepted to take such TCN cases. The cable also notes that there are only "a handful" of posts that expressed unavailability for TCN IV processing. Consequently, for the time being, the door is fairly wide opened not only in Ciudad Juarez, but also other outlying posts. It is hoped that two things take place very quickly: (1) INS view of compatibility of concurrent consular processing pending EB-485; (2) VO release of the list of consulates that agree to follow this cable. Please stay tuned. Back to Top

Updated 09/23/00: Expired Visa and Nonimmigrants Travelling in Canada/Mexico and Adjacent Islands

• This information is posted as increasing number of nonimmigrants who left for Canada or Mexico for the purpose of tourism or visa application in the American Consulates have experienced a problem of readmission because of their lack of knowledge of so-called "authomatic revalidation of nonimmigrant visa." The rules are very complex and people should not rely on this posting. They should rather seek legal counsel before they depart from the U.S. Since individual facts are different in each individual situation, this law firm and its legal counsel will not be responsible for consequence of such reliance.
• At the outset, this reporter must warn the readers that there are critical misconception among nonimmigrants that automatic revalidation rule guarantees his/her return to the U.S. from Canada or Mexico or adjacent islands, no matter what. As people will see from this posting, it can be absolutely false.
• All the nonimmigrant foreign national (except Iraq) including a visitor visa are allowed to readmission to the U.S. after travelling in Canada and Mexico for a period not exceeding 30 days only if the following conditions are satisfied to the immigration inspectors at the port of entry. This is a so-called rule of Automatic Revalidation of Expired Nonimmigrant Visas for the sole purpose of returning to the U.S. after travelling in Canada and Mexico within the period.
• This automatic revalidation covers dependent visas such as F-2, H-4, L-2, etc. for the spouse and children of the principal nonimmigrant.
• The rule covers "all" classification of nonimmigrants, including K-1 fiance inasmuch as the fiance is "not" married.
• For a foreign student, such revalidation is expanded to readmission from a trip to adjacent islands except Cuba. Foreign student includes only F-visa, J-visa, and their dependents. It is important to remember that it does not include M-visa students.
• The following conditions must be met in every detail:
  • In possession of a "valid" I-94. Where a nonimmigrant has changed status to another classification by the INS subsequent to initial entry, the alien must also carry new I-94. On readmission, the alien will be admitted in the new nonimmigrant classification and a new validity date.
  • In possession of a school endorsed I-20 or IAP-66 for students.
  • Must return "within" 30 days and only "from" Canada or Mexico, and in the case of F or J students, from Canada or Mexico, or adjacent islands except Cuba. It is extremely important that this also does not include any of the temporary workers, such as H, L, E, O, P, etc. These people should never travel in adjacent islands (cruiseship) unless they have a valid visa in the passport. I-94 will not be enough.
  • "Maintained" the nonimmigrant status. If somehow he/she overstayed or violated nonimmigrant status, such alien will not be able to return to the U.S. unless he/she has a new valid nonimmigrant visa in the passport. As stated earlier, if the alien changed status to another nonimmigrant classification and is in possession of a new I-94 issued by the Service Centers, such person will be readmitted on the new I-94 even if such person carries an old different classification visa or visa has expired. For temporary workers of H or L, they should carry all the evidence to prove their maintainence of H/L status. If he/she used EAD for another employer pending EB-485, they have failed the maintenance of H/L status. This caution must be particularly addressed to the 485 filers of dependent visa status who have started working using EAD. They will not be able to return unless they carry with them Advance Parole.
  • "Must intend to resume the given nonimmigrant status." Even if he/she has not violated his/her nonimmigrant status, he/she will be denied readmission if the officer is convinced that the person has a "preconceived intent" to convert to another nonimmigrant or immigrant classifications. For instance, he/she attempts to return to the U.S. with the intent to marry a U.S. citizen, or to apply for admission to a school when he/she carries a visitor's I-94, or to apply for a temporary worker status when he/she carries a student I-94, etc., etc., Watch out!! If you travel on certain classification and an application for change of nonimmigrant status is pending, you may face this problem at the port of entry.
  • "Valid passport." It is extremely important to remember that he/she cannot be readmitted beyond the date of expiration of the passport. For certain countries, at least six-month valid passport may be required.
• Caveat for 485 Filers:
  • Except H/L visa status aliens, other nonimmigrants pending 485 application will not be readmitted unless he/she carries Advance Parole document. H/L aliens have an option to apply for readmission either on H/L status or Advance Parole. However, if he/she worked for a non-H1B employer using EAD, he/she can be readmitted only on Advance Parole.
  • Those 245(i) filers who have accumulated more than 180 days of unlawful presence before they filed 485 application should never travel outside the country even with Advance Parole which is mistakenly issued by the INS. This has been warned by the INS through its website over and over again. Filing 245(i) type of 485 application tolls running of 180 days but not previous unlawful stay of 180 days as they will be subject to 3-year bar from entering the U.S. inasmuch as such 180 days were accumulated after the starting date of the so-called 3-year bar legislation effective date.
• For future reference, this information is also posted in our Data Bank sites of 485 and H-1B. Back to Top

Updated 09/22/00: Miracle News! IV Consular Processing in Mexico to "Any" National!!!

• AILA Consular liaison has just reported that American Consulate in Ciudad Juarez in Mexico starts accepting IV applications from "any national" repeat "any nationals," if the priority date is current and the following documents are submitted:
  • Original I-797 I-140 Approval Notice
  • "Copy" of I-140 petition and supporting documents filed. It does not have to be certified by an attorney.
  • Copy of I-824 Receipt Notice (it does not matter to which consulate you asked to notify. It can be any consulate!!!!!) Under this Ciudad Juarez policy, those whose EB-485 is pending with the Service Centers can apply for IV without withdrawing their pending EB-485 applications.
• It is more lenient than the current practice in American consulate in Mumbai. This new policy will be officially released by DOS soon. Please stay tuned to this web site.
• Caveat: This is the DOS policy only. The INS policy still maintains its prior position that pending EB-485 conflicts with the concurrent consular IV processing. Another unanswered question: Anticipated processing times in Ciudad Juarez, should Indians and Chinese rush to that consulate en masse.
• More Caveat: Those who are subject to the 3-year or 10-year bar should not consider a consular IV processing, no matter which consulates! Back to Top

Updated 09/20/00: H-1B Approval Cabling Policy

• People should know that the Service Centers do not fax or cable H-1B notice to the American Consulates abroad unless it is an expedited approval case. In the past, if the starting date of employment was less than 30 days from approval, the Service Centers sent cable notice to the posts abroad at the request of the employers. The change of policy is allegedly caused by the increasing volume of H-1B cases. Those who plan to apply for H-1B visas at the posts that "require" the INS notice should take this policy change into consideration. Back to Top

Updated 09/18/00: INS Statistics of H-1B Employers, H-1B by Country, etc.

• The INS has just released in its website a full report of H-1B employers, country of origin, occupational distribution and other statistics. It is a very interesting reading. Please click here to visit the INS web page or our link to that site in H-1B page of our web site in the left index Back to Top

Updated 09/16/00: HHS Release of New Designations of Areas for FMG Waiver

• On 09/15/00, HHS released the Federal Register (65 FR 56027) on these designations. Please click here.

Updated 09/08/00: Age-Out Expedite in Immigration Proceedings

• Currently all the agencies, including Service Centers, District Offices, and American Consulates expedite immigration process when one of the children of the applicant is about to reach 21 years of age. However, when it comes to specific timeline, there is no hard-and-fast rule as to when such I-140 or I-485 must be received.
• CSC reports that for I-140, such case must be filed six months prior to the dependent turning 21. For I-485, the case will be expedited if such dependent applicant will turn 21 years of age within three (3) months, but if the applicant will be turning 21 in more than three (3) months, the case will go through the normal I-485 process! Apparently, it also has a system that generates a list of applicants turning 21 which alerts the officers so that they adjudicate such cases from this Age-Out list. Watch-out, though. The system can fail if I-485 was filed way before three months of turning 21 and remain unnoticed in the regular 485 processing queue. Since the normal I-485 process means a long process, such applications could fail to obtain approval before his/her 21st birthday. It is incumbent upon such applicant to alert the agency so that the officers do not miss the critical point of time. Again, remember that only crying baby receives mother's attention! Back to Top

Updated 09/08/00: List of Consular Posts Requiring Advance Payment of IV Processing Fees

• Effective today, the DOS changed the rule of payment of immigrant visa application processing fee for the immigrant visa applicants at the American Consulates in the following 10 cities: Guangzhou, Montreal, Ciudad Juarez, Manila, Santo Domingo, Port au Prince, Georgetown, Freetown, Tirana.
• For the immigrant visa applicants at these consulates, they must pay the processing fee upon being notified that a visa is expected to become available in the near future and being requested to obtain the supporting documentation needed to apply formally for a visa. The fee must be made before the applicant will receive an appointment to appear and make application before a consular officer. Please beware of this new rule!
• The immigrant visa applicants in other consulares will continue the rule that requires payment of the application fee when they appear for the formal application interview, normally when the applicant is at the embassy or consulate on the date of the visa interview. Back to Top

Updated 09/06/00: Physician Regulation Relased by the INS

• Long awaited physician regulation has been released by the INS as Federal Register dated 09/06/2000. www.immigration-law.com
• Key points are summarized in the regulation. The regulation is effective on 10/06/00. For the summary and full text of the regulation, please visit our Health Professional board on the left index or lick here. Back to Top

Updated 09/05/00: Permanent Labor Certification Reduction Plan, Restrictions, and Desired Changes

• By now, the regular labor certification filers and recent labor certification filers know that two changes will take place in the near future, which will affect their cases. RIR conversion regulation will be finalized and released in the near future. PERM program is also scheduled to run beginning from 04/01/01. RIR conversion is limited to the SESA backlog and has nothing to do with the backlogs in the Regions. Additionally, the proposed regulation has so many conditions attached that practically there will be limited number of people who will benefit from this change, unless the final regulation makes some changes in the proposed versions. RIR conversion regulation has special meaning for Indians and Chinese in that it allows keeping the initial priority date when they convert from regular labor certification case to RIR case.
• The detailed versions of PERM program have yet to be released, especially relating to the issue of keeping priority date when the current long waiters file a new PERM labor certification in April 2001. For the DOL's reduction plan to work as it intended, the PERM program should allow the current long waiters to file a new application in April 2001 without losing their priority dates. It is uncertain whether the final versions of PERM program will be structured this way, even though one of the responsible officials of DOL HQ not too long ago hinted such concept in an immigration lawyers conference. Should this happen, the long waiters may have one layer or two-layer of relief forthcoming in the near future. For those who do not get relief under the RIR conversion regulation because of the restrictions, they may look forward to another chance in April 2001 to refile without loosing priority date and hopefully to get approval within a week or at least one month. For those who are eligible to convert through RIR conversion regulation may have a second layer of relief in the event that their cases are still stuck at the SESA or Region by filing a new application without losing the priority date.
• In fact, in this regard, the specifics of PERM program will be more important to long waiters than RIR conversion regulation. It is hoped that the PERM incorporates such concept in its final versions.
• For the future filers, if they are Indians or Chinese, they cannot afford to wait until April 2001 for a number of reasons. To seize an earlier priority date, they should still file their cases as soon as possible and, should PERM allow new filings without losing priority dates, quickly file a new application under the PERM and obtain approval in a very short period of time.
• Dear DOL, believe me, this is the truly and only workable reduction plan your final versions should incorporate if DOL intends to relieve itself from the current as well as future backlogs! Otherwise, the monster named "backlog" will keep haunting you and you will be entangled in political backfires.
• If the DOL plan is implemented as planned, the Indians and Chinese whose H-1B 6-year limit is approaching may look forward to some relief even if I-140 processing times take more than three months. First, the reduction plan should drastically reduce the processing times of their labor certification applications. Secondly, 245(k) which allows people to file EB-485 even if they overstayed less than 180 days and were not caught by the INS to face a deportation. This is indeed a breath-taking time for all those long labor certification waiters. This reporter hopes that a door is wide opened to see what we discussed here come to reality in the near future. Please keep your chin up! www.immigration-law.com
• Electronic filing and processing in the new millennium brings two big benefits to the consumers of the agencies: (1) Speed of the service, and (2) more importantly, fairness. Currently there are huge differences in processing times depending upon the job sites. The geographical unfairness will be de facto totally eradicated once the PERM is in place. Back to Top

Updated 09/05/00: Four Service Centers Processing Patterns re. EB Green Card Cases, click here

Updated 08/25/00: DOL PERM Guidelines Released!!

• DOL has just released Federal Register dated 08/25/00 laying down the principles and describing in details the outlines of PERM new permanent labor certification program which they have been developing.
• Most of the cases will be processed electronically as this web site posted previously. However, those cases that are accepted as non-audit cases will be certified within 7-21 working days of the date of application!!!! WOW!!!! Audit cases are in two types: One is a case which the computer system reviews for certain criteria and automatically "flags" it. The second is a "random" selection case. These two types of audit cases will be given an opportunity to respond to their request for evidence to verify information, and depending upon the evidence submitted it could be either certied or denied or go through supervised labor certification process.
• SESA is phased out other than prevailing wage determination as outlined at this web site. SESA will not be involved even in those cases that are required to go through supervised recruitment process.
• DOL will go through rule-making process soon, seeking comment from the public and interested parties. The process will involve "proposed" regulation just as the proposed conversion regulation with 30-day comment period before they enact as a legally binding regulation. For the full text, please click here. Back to Top

Updated 08/22/00: DOL H-1C Regulation for Nurses

• This regulation will go into effect on 09/21/2000. For the summary of this regulation, please stay tuned to this web site. Back to Top

Updated 08/21/00: Corporate Merger/Acquisition and Pending EB-485

• One of the trends in the corporate world is a merger/acquisition. Depending on the types of merger/acquisition, some underlying I-140 will not survive and some will survive.
• Lately, there have been numerous reports that EB-485 applications have been denied after the merger/acquisition of the employers. Assuming that the merger/acquisition takes place in such a form to survive such as "successor-in-interest," the Service Centers still require amended I-140 petition, and they can deny the pending EB-485 if they adjudicate the EB-485 before the amended I-140 is granted.
• According to the AILA conference of 08/17/00 with the INS, the INS HQ refuses to take a uniform policy as to how the Service Centers should handle such amended I-140 petition. According to the AILA, each Service Center takes different positions as follows:
  • CSC=willing to delay EB-485 decision until the amended I-140 petition is approved.
  • TSC, NSC, VSC=will consider expediting the amended I-140 petition on a case-by-case basis and would consider such corporate changes as a ground for expedite. In these Service Centers, it is thus imperative that the employer pushes and call the agency's attention to the changed circumstances and strongly request "expedite." Otherwise, there still remains a danger that pending EB-485 is adjudicated and denied, should they learn that such changes have taken place. This reporter's experience indicates that the contractors in the Service Centers are not attuned to this issue for expedite and they tend to deny such request using the tranditional standards for expedite such as aging-out, humanitarian, extreme exigency, etc.
• When a merger/acquisition involves large corporations, because of its impact on the stock market, such changes remain extremely confidential and the process of filing such amended I-140 can be very complicated and slow, seriously affecting EB-485 waiters depending on how far EB-485 has moved forward. EB-485 waiters should push hard the employers to realize the current INS practice and policy and accelerate amended I-140 filing process. Back to Top

Updated 08/02/00: Labor Certification SCA/OES Wage and 50 SESA Contacts

• DOL has developed tremendous sites for access to the Service Contract Act and OES Wage data for alien labor certifications, addresses, phone numbers, and fax numbers of all the 50 SESA offices, labor regulations, and other valuable information. For the access, either click here or go to our Web-Hub on the left index and click the link to the Labor Certification Regulation, etc. It opens a new horizon of access to the valuable information for labor certification processing. Back to Top

Updated 07/26/00: DOL RIR Conversion Regulation Released!

• The proposed regulation was released as of 07/26/00. The 30-day comment period will expire on 08/25/00. Very good news. However, the conditions make some of the applicants ineligible. The following are the key conditions, among others: (For the full text, click here)
  • (1) Regular ETA 750 should have been filed on or before 07/26/00. In other words, the priority date should be earlier than 07/25/00.
  • (2) The recruitment process under the supervision of the SESA as a regular labor certification case should not have been conducted. Therefore, any cases that have conducted such recruitment process as a regular labor certification case including advertisement under the supervision of the SESA will not, repeat, not be eligible.
  • (3) Related to the second restriction, the regular ETA 750 should not have been forwarded to the Regional Certifying Officers for the decision. Therefore, any cases which are in the Certifying Officers as of 07/26/00 will not be eligible.
• Caveat: This is a "proposed" regulation which does not have a legal force. For the definition of this regulation, please refer to our previous posting on this page.
• Please do not rely on this summary as the full text of the regulation will be posted later. This firm will not be responsible for consequences of such reliance. Back to Top

Updated 07/26/00: IV Consular Processing, I-824, and Risk

• This site posted previously that some consulates accept the original of approved I-140 and attorney certified I-140 petition copy to process IV, particularly EB-1 and EB-2 cases. When such arrangement is not available, CP requires filing I-824 with the Service Center to go through the National Visa Center, assuming his/her EB-485 is pending. This poses a serious risk for some people because as we posted previously, the INS HQ takes a view that CP and EB-485 are incompatible. Service Center sources indicate that they are not allowed by the HQ to approve I-824 unless the pending EB-485 is withdrawn. Since EAD and AP are related to the EB-485 application, this will present a serious risk to those who approach or has already reached H-1B 6-year limit and remain working in the U.S. on EAD and AP. Watch out! Back to Top

Updated 07/25/00: TSC Practice of EAD Extension

• This site reported previously that NSC will issue EAD approval notice effective expiration date of the current EAD inasmuch as the extension application was filed "timely." This practice is to keep the record clear that there was no gap between the two EADs. However, there appears to be some misunderstanding that such practice will allow continuing employment after expiration of current EAD and prior to approval of an extended EAD. It appears, though, that unless the alien is in certain nonimmigrant statuses such as H-1B, L-1, etc, the law does not allow employment during the waiting period. Such employment will present a serious problem in the event that EAD extension is somehow denied as the alien is considered to have engaged in illegal employment. Additionally, it is not clear whether when the extension of EAD is retroactively granted, it would cure the unauthorized employment during the waiting period. Extension waiters other than H-1B, L-1, E-2, TN, etc. should rather stop employment until the decision is received.
• AILA has reported that TSC adopts the same practice with the NSC, approving extension retroactively inasmuch as it is filed "timely." The same caveat should be kept in mind, though. Back to Top

Updated 07/24/00: New I-485 Form

• The INS will accept the current I-485 form only until the end of this calendar year and people will have to file a new I-485 form. In fact, the INS suggests that people, even now, use the new form. Please click 485 page in the left index of this web page to down load the new form. People need PDF. Back to Top

Updated 07/11/00: INS Internal Audit and Temporary Processing Halt

• AILA has reported that the INS, including all the Service Centers and District Offices, will undertake inventory of all the forms on file at the offices, and for that purpose, they will open all the files in the pipeline to count the pending forms. This will be taken place during the next one week or longer. While they go through the audit, processing of all the cases will be on halt, except aging-out cases.
• In fact, this is the second internal audit. As previously reported on this web site, VSC was under internal audit during May this year and its processing of cases indeed crawled. People know that the VSC has not even released the processing times report.
• The report also indicates that the INS will undertake another internal audits at the end of September this year, causing another disruption of normal operation.
• People should be prepared to deal with delays during the next several months! Back to Top

Updated 07/06/00: NAFTA Handbook

Updated 07/03/00: INS Notice to Class Members of Chintakuntla v. INS

• Today, the INS published Federal Register to implement the court order regarding the EB-2 relief for certain people who filed I-140 with labor certification application requiring bachelor's degree plus 5 years of experience and got denial. This Federal Register went into effect on 07/03/00. The class members of this litigation should review the INS Memorandum of 03/20/00 which was reported on this web site, the court order of 05/04/00 which was also reported, and this Federal Register. People should remember the following points, among others:
  • The I-140 petition of this class which was denied and finalized before 07/01/1997 is not extended the benefit of the court order and the INS relief.
  • The eligible Class II members must file Motion to Reconsider and I-485 before 11/01/00. Otherwise, the opportunity to get the relief will be permanently gone unless a separate litigation is filed. Class II members can file I-485, EAD, and AP even before the Motion to Reconsider is granted. Important point to remember is that I-485 must be filed before 11/01/00!
  • Effective today, notwithstanding the rule in the 03/20/00 Memorandum that Motion to Reopen should be filed within 30 days from denial, the eligible Class II members can still file Motion to Reconsider until 11/01/00.
• People should work very closely with their legal counsel if their EB-2 I-140 was previously denied on BS+5yr issues.
• For the full-text of Federal Register, please click here. Back to Top

Updated 06/30/00: INS On-Line Access and Filing Plan

• The INS plan appears to be somewhat pushed off according to the following INS report:
• Upgrade technology to provide customers the ability to check the status of their applications/petitions over the Internet and via the INS’ toll-free telephone system (by the end of FY 2001), and to electronically file applications/petitions via the Internet (within the next three to five years). Back to Top

Updated 06/29/00: Most Frequently Asked Questions on Permanent Alien Labor Certifications, Click Here

Updated 06/26/00: Reading Denial of NIV Applications at AmeriCon

• When people apply for a nonimmigrant visa, such as H-1B, at the American Consulate and it is denied, all they receive is a sheet of paper or stamp on the last page of passport with citation of certain section of statute. It gives a clue as to whether the grounds for denial can be easily overcome or very difficult to overcome.
• If you see 214(b), it means that the ConOff thinks you are an "intended immigrant." People applying for H-1B or L-1 visas usually do not face such decision since H/L enjoys "dual intent." 214(b) decision is very difficult to overcome because underlying such 214(b) decision is misrepresentation in most cases.
• In majority of cases of denial, especially in TCN procedings in Canada or Mexico, people see 221(g) in the paper. This involves insufficient evidence to make a decision and usually can be overcome by submitting evidence. In Canada or Mexico, when they deny, they place a red stamp "Application Received" and underneath the stamp they write in either 214(b) or 221(g). Application Received is a code for denial. Usually, when people get such decision in Canada and Mexico with 221(g), they do not experience problem in getting a visa at his/her home country.
• Lately, ConOffs return a number of H-1B visa applications to the INS Service Centers for revocation when they deny the applications. Unless such decision is resolved right away at the consulate, such petition becomes de fact "dead" as the Service Centers take months or a year to get to such cases. People may seek other options in such cases. Back to Top

Updated 06/22/00: IV Consular Processing In Mumbai/India Bypassing NVC

• The Americon in Mumbai follows the following procedures:
• How do I request consular processing of a pending employment-based case?
• On a case-by-case basis, the U.S. Consulate General in Mumbai is accepting employment-based immigrant visa cases for processing when all the following conditions are met:
• (1) INS has already approved an E1 or E2 category immigrant visa petition and (2) the applicant has an original I-797 form; (3) the applicant is a resident of the Mumbai or Calcutta consular districts; (4) the priority date of the case is current or could reasonably be expected to be current within 60 days (we will not warehouse non-current cases); (5) waiting for the INS to process the change-of-status application would cause the applicant hardship; (6) the applicant has attorney-certified copies of all pages that made up the original immigrant visa petition; (7) there does not appear to be any indication that the case is fraudulent; and its workload permits them to take the case.
  
• Your attorney may consider sending certified copies of I-140 paperwork to the Immigrant Visa Unit, U.S. Consulate General, 78 Bhulabhai Desai Rd., Mumbai 400026 India with:
  • (1) the original I-797 Notice of Approval Form
    (2) complete forms OF-169 and OF-230, part 1
    (3) an e-mail address where we can contact the attorney with confirmation that we have accepted the case
    DO NOT send any submissions to any officer or employee by name. Doing so mixes business with personal mail and results in lost paperwork when officers transfer.
• Mumbai is accepting E3 cases that meet the above conditions on a more limited basis, where it is clear that the applicant is highly skilled. Mumbai would accord precedence to applicants who have already received H1-b visas in the same profession or for the same employer.
• NOTE: This procedure only applies in change-of-status cases. If INS has approved an employment-based petition and you had asked from the beginning to apply for the visa in Mumbai, then Mumbai waits for the case to arrive from the National Visa Center. Hmm.........Interesting. (Source: American Consulate in Mumbai) Back to Top

Updated 06/20/00: How Priority Dates Are Determined Each Month? Click here.

Updated 06/19/00: New Rule on Replacement of Underlying I-130 or I-140 for Pending 485

• The INS HQ revised its policy on this rule liberalizing replacement of the underlying petition without affecting the pending I-485. This new policy was released in the legally binding Memorandum dated 05/09/00 and reflected in the Adjudication Manual for the 485 adjudicators throughout the country and overseas posts. The following is a summary of the Memo:
• Preconditions for Replacement: Two conditions must be satisfied:
  • (1) The previous approved I-130 or I-140 should be valid and not have been "revoked" or "denied" at the time of request for replacement.
  • (2) The priority date for the replacement new or subsequent petition must be "current." Accordingly, people cannot request replacement when the priority date is retrogressed and become "not current" for the replacement petition. Very important to remember for Chinese and Indians.
• Replacement Request Deadline: It can be filed until I-485 is adjudicated (approved or denied). Besides, should he/she merits, a motion to reopen or reconsider can be filed within 30 days of 485 adjudication and request such replacement.
• Types of Immigrant Petitions Eligible for Replacement: Existing and a new or subsequent immigrant petitions do not have to be in the same categories or preferences. I-130 can be replaced by I-140, and I-140 can be replaced by I-130, without affecting pending I-485. I-360 for Religous Worker Special Immigrant Petition can be replaced by either I-130 or I-140 or vice versa. However, when the underlying petitions cross between two different types or preferences, the priority dates cannot be transferred between the two different petitions. Very important to remember. As people know, priority dates can be transferred between different categories within the Employment-Based Immigrant Petitions. The same is not true when people cross over to or from other petitions.
• Underlying Philosophy of the New Rule: The Memo states: "While the intent to work for the petitioning employer is a requirement for approval of the I-485, there is no legal requirement that the beneficiary of an approved employment-based visa petition work for the sponsoring employer before receiving permanent residence status. In addition, the transferring of the I-485 adjustment case can be in both the Service's and the alien's interest. If the transfer request is credible and justified, the alien is not gaining a benefit that he or she is not eligible for, especially when no change in the visa category is involved. In such cases, by allowing the transfer of adjustment cases to an eligible family or employment-based petition the Service is saving itself time and work." This reporter cannot agree more!!! Back to Top

Updated 06/19/00: DOL PERM Program Status

• The draft of regulation is very much fixed at this time and the new program will start 'on 04/01/2001.!' As people know from our previous report, PERM Program is designed to reduce the backlog at the Regional level. A complete new labor certification application form which will be 'attestation driven' will be filed by the applicant initially in one of the two modes: Either by fax using 800 number or by mail. This will later be converted to "web on-line" filing. DOL hopes to approve such labor certification application within seven working days. A procedure which is similar to RFE via fax at the NSC will produce questions or requests to the filer. Upon receiving the response, they anticipate to complete the whole proceeding at least within 90 days. Approximately 80% of cases will be handled like this and 20% of cases will be handled by audit process. The eligibility for PERM Program is distinguished from RIR. The past good-faith recruitment record alone will not turn the case into one of the 80% cases. There will be a host of factors which the PERM Program will lay out in the regulation, including the past lay-off history of the company.
• The SESA will be completely phased out other than the prevailing wage determination. However, even the wage determination, the SESA's role will be very limited considering the fact that the DOL new prevailing wage guidelines will alllow use of private surveys somewhat liberally.
• Bad part of the Program: $1,500 fee must be paid for each application. This web site reported a few months ago that the DOL budget proposal had included this user fee revenue. Here we go! Back to Top

Updated 06/13/00: New Filing Locations and Procedures for GC Renewal

• INS has just announced that effective 06/20/00, I-90 Application for GC renewal will be filed and processed at the INS ASCs (Application Support Centers) in the local areas and not District Offices or Service Centers. This upcoming change was reported at our web site sometime ago.
• The green card expires in 10 years and people need to renew it. Failure to renew will not result in loss of permanent resident status, but they may face a problem in proving permanent resident status or obtaining employment, benefits or re-entry into the U.S. after travelling. For the locations of ASCs, people may call 800-870-3676. People living in the following areas have designation of different locations other than the cities and must call 800-375-5283 to find out exact locations: Laredo, TX; Columbus, OH, Jackson, MS, Nashville, TN, Salisbury, MD, Houlton, ME, Sault Ste. Marie, MI. For other details, please visit the INS web site, www.ins.usdoj.gov. Back to Top

Updated 06/13/00: EB-485 and Simultaneous IV Consular Processing Mutually Exclusive!

• AILA reports that it learned through the teleconference of 06/08/00 with the INS HQ that the INS HQ takes a position that the two processes are mutually exclusive and they will assume that EB-485 has been abandoned if it discovers that a case has been sent to abroad! This is consistent with what we reported a few days back. Watch out!
• Such opinion is legally not binding unlike Memorandum, but the INS agencies listened to the HQ opinion and people should be very careful. Back to Top

Updated 06/13/00: How To Read Service Center Notices? Click here.

Updated 06/09/00: Misunderstanding of INS Policy Allowing Entry on H-1B Rather Than AP

• This web site posted so many times that people who opt to enter on H/L-visa rather than AP must carry with them a valid H/L visa stamp in the passport. The fact that the INS policy requires port of entries not to force H/L aliens to enter on AP rather than H/L status does not mean that one can enter the country without a valid visa stamp in the passport if he/she wants to enter the U.S. on H-visa status. When there is no such valid visa stamp in the passport, the only way he/she can enter the U.S. is to use AP! It is amazing how people are confused on the rule by reading web site posting on a piecemeal rather than in a sequence. Back to Top

Updated 06/09/00: Rank 102 H-1B Users (Companies) Click Here

Updated 06/06/00: Eligibility of Software Engineers for TN Visa for Canadians

Updated 06/04/00: Overstay in the U.S. and Risk of Travelling for Visa Applications at Consulate

• DOS released on 05/30/00 two important cables addressed to the posts in foreign countries which all the immigrants and nonimmigrants should pay attention to. The issue involves whether nonimmigrants travelling abroad to apply for a nonimmigrant visa or immigrant visa will be subject to the 3-year or 10-year bar from returning to the U.S. because of their prior unauthorized presence in the U.S.
• Before summarizing the DOS cables, people are cautioned and warned that the subjects involve very delicate issues and rules and misunderstanding of these rules can result in "deadly" consequences. People should not take this posting as a legal advice and under no circumstances should attempt to apply the information to individual situations without legal counsel. This firm will not be responsible for such consequences.
• Rules on EOS/COS Applicants: This web site recently posted a new INS policy that inasmuch as the following three conditions are satisfied, the EOS/COS (Extension/Change of Nonimmigrant Status) applicant will remain in the U.S. lawfully pending the INS decision of such EOS/COS, "no matter how long it takes", even beyond 180 days after expiration of current I-94. Consequently, the consulate will not deny a nonimmigrant visa application on the 3-year or 10-year bar ground even if he/she goes to the consulate to apply for a nonimmigrant visa after overstay of I-94 unless he/she stayed in the U.S. over 180 days after the INS denied the application. The 180 days or one year unlawful presence that triggers the 3-year or 10-year bar will start ticking from the time of denial. The three conditions are as follows:
  • (1) Nonfrivolous application: Generally the consular officer will presume that the application filed was nonfrivolous if such applicant appears at the consulate to apply for a same type of nonimmigrant visa which he/she attempted to apply through the INS but abandoned. It has to be a same type of nonimmigrant visa status. However, should he/she apply for a different type of visa, no such presumption will apply and the consulate will explore potential frivolous filing of EOS/COS by the alien at the INS.
  • (2) Timely filing of EOS/COS: The applicant should have filed EOS/COS before the I-94 had expired. Therefore, the consulate will require evidence such as a copy of I-94, together with a copy of I-797 Receipt Notice of EOS/COS application.
  • (3) No unauthorized employment in the U.S: He/she should not have engaged in any unauthorized employment either prior to or subsequent to filing of such EOS/COS. For E, H, L, O, and P visa status holders, filing of such EOS with the same employer will automatically extend employment permit for 240 days pending the decision of such EOS application. Consequently, inasmuch as the alien worked less than 240 days beyond the expiration of such specific nonimmigrant status, he/she does not have to prove anything other than a copy of I-797 Receipt Notice. However, should he/she have attempted to change employer and filed EOS/COS applications to work with a different employer, he/she should establish by evidence that he/she did not engage in unauthorized employment while he/she was waiting for the decision. The consulate may be interested in learning how he/she financially supported him/her and his/her family during the unemployed period of time.
  • Student (F) and Exchange Visitor (J) have additional protection. Under the INS regulation, their overstay in the U.S. is never considered as unlawful presence in the U.S. until the INS or Immigration Judge decides that the alien stayed in out-of-status in the U.S. Therefore, unless such alien applied for EOS/COS application and the INS denied, no matter how long they have overstayed, it will not trigger 3-year or 10-year bar and the consulate will not deny a visa application on such ground. Caveat. The F or J student should never have engaged in unauthorized employment in the U.S. When they go to the consulate after an extended period of time such as six months or longer, this will be a very challenging inquiry by the consulate.
• Rules on I-485 Waiters: Under the law, the entire period of waiting for I-485 is considered as a lawful presence in the U.S. inasmuch as the application was properly filed and it was before the INS had started a deportation proceeding. In other words, the 180 days or one year for the purpose of the 3-year or 10-year bar do not run while they wait for 485 decision. Therefore, the only unlawful period of presence in the U.S. people will have to worry about before they depart from the U.S. is the period between 04/01/1997 and the date of 485 filing, and the period after denial of 485. Any unlawful stay accumulated before 04/01/1997 is not added in calculating 180 days or one year of unlawful presence because the 3-year or 10-year bar legislation did not come into effect until 04/01/1997. Filing 245(i) application will not save him/her from the 3-year or 10-year bar once he/she departs from the U.S. if he/she overstayed more than 180 days after 04/01/1997 and before submitting I-485. Since 3-year or 10-year bar applies only to aliens who depart from the U.S. and not to people who apply for adjustment of status without departing from the U.S., they will still be able to get a GC if they do not depart from the U.S. However, once they depart either for the purpose of IV consular processing or for a visit with Advance Parole, they will not be able to return to the U.S. for three years or ten years depending on the period of unlawful stay. Possession of Advance Parole will not save them from the bar from returning to the U.S. Unlawful presence is also triggered by violation of other nonimmigrant status such as unauthorized employment, and consequently people who violated NIV status in the U.S. and filed 245(i) I-485 should never obtain Advance Parole and depart from the U.S. if he/she accumulated more than 180 days of unlawful presence under the foregoing rule, not to mention any attempt to apply for a visa through consular processing! Two additional rules deserve special attention: First, F and J visa holders's unlawful presence does not run until the INS or Immigration Judge makes such finding. Therefore, even after 180 days of out-of-status, such F or J aliens can get away from the 3-year or 10-year bar until they expose themselves to the INS or are caught and the Immigration Judge finds him/her in out-of-status. Second, the unlawful presence period is aggregated only for the period of same entry stay. Two differenct stays in the U.S. in two different entries are not aggregated together.
• This is such an important rule for immigration aspirant, especially those who consider IV consular processing or 245(i) waiters considering travelling on Advance Parole that the following illustration will give some guidance.
  • Facts: 06/01/93 entered without inspection and illegally. 06/01/1997, filed 245(i) application. 05/01/99, INS denied 485 application. Alien departed 06/01/1999.
  • Query: Subject to 3-year or 10-year bar?
  • Answer: No. Why? Alien remained in unlawful presence in the U.S. only for three months (04/01/97-06/01/97 and 05/01/99-06/01/99)
• Warning again. Please do not try to apply the foregoing information to your individual situation without legal counsel. It will be foolish! Simply foolish!! Back to Top

Updated 06/02/00: DOL Regions Backlog Statistics and Reduction Plan at Federal Level

• The same report reflects the following statistics and plan at the federal level:

• The plan is proposed to be achieved by the following processing policies and priorities which have been in place at the Regions:
  • Focus on 7 key elements to determine availability of U.S. workers
  • Quickly process certain cases first for certain occupations known to be in shortage from previous experience
  • Stop processing H-1B LCA applications at Regions
  • Overtime funding and temporary hires
  • Allow employers who have cases in the current process to "reapply" using the new (PERM) process without loss of the initial priority date.
• The last policy is very admirable. It is hoped that should the DOL fail to remove all the pending cases at the time it starts PERM program, it will allow the employers in the pipeline to "reapply" using the new process without loss of priority date. The plan which would have been better yet would allow such cases automatically converted to a PERM program case so that cases be certified in 30 days as planned. Back to Top

Updated 06/02/00: SESA Backlog Statistics and Backlog Reduction Plan at State Level

• The following statistics and plan were reported by the DOL HQ to Congress on 02/24/00:

• The backlog reduction was proposed to be accomplished by the following two mechanisms:
  • FY 2000: RIR Conversion Regulation Implementation
  • FY 2001: PERM Program Implementation (Phase-out of SESAs in labor certification process)
• The report reflects the DOL plan as of February 2000. However, what's the reality? Everyone knows by now that the proposed reduction mechanisms for FY 2000 and FY 2001 have been experiencing delays (RIR conversion regulation may not come into effect until 07/2000 or even later, which was initially targeted at 12/1999, and PERM program may not be implemented until 04/2001 or even 10/01/2001, which was initially target at 10/01/2000). Unless the DOL really push it hard, this can turn out to be a simple "plan" rather than reality. Back to Top

Updated 05/29/00: EB-485 Approval and Obligation for Post-GC Employment

• As increased number of people get EB-485 approvals, people wonder the consequences of departing from the employment that provided basis for EB-485. This issue was quite extensively discussed on this web site sometime back and people may visit our Breaking News Archive.
• This issue is likely to arise typically in two circumstances: First, angry employer can contact with the INS charging that the alien committed a fraud and used the employer. Second, most people will apply for naturalization after five years or file immigrant petition for family members and the INS may have a chance to review the immigration history of the alien. Let's review some of the legal points here.
• People become a permanent resident not at the time of stamping in the passport but at the time of the INS approval and receipt of notice. (However, for the purpose of overseas trip, he/she must have the stamp in the passport.) At this point, the alien should have an intention to work for the petitioning employer. How do you prove "intention" or "state of mind" of the alien? The INS would try to prove it by circumstantial evidence. One of the best circumstantial evidence for the INS would be probably the alien's application for employment with another employer before 485 was approved. Acceptance of offer of employment prior to approval of 485 will constitute a more damaging evidence. Another circumstances would be immediate departure from the employment upon approval of 485. Taking a new employment within a short period of time could be construed as the presumptive evidence that the alien did not have any intention to keep the employment at the time the INS approved 485. The presumption will gradually disappear as time passes. In the change of nonimmigrant status context, the INS usually adopts so-called 60-day presumption of misrepresentation rule. Once it reaches 90 days, the INS assumes that the burden of proof shifts to the INS. For the act within 60 days, the INS assumes that they enjoy a rule of presumption of misrepresentation and the alien would have a burden of proof that no such misrepresentation existed. Common sense dictates that one takes time to get an employment offer from another employer and it would not happen overnight.
• Considering the fact that there is no hard-and-fast rule on this issue, people should not act too smart too fast. Morally, it would also be wrong!
• Termination of employment by the employer or by certain circumstances which were beyond the control of the alien such as bankruptcy of the company will not affect the people's GC status. Back to Top

Updated 05/25/00: Nationwide New LCA Fax-Back Number 800-397-0478

• AILA has reported that the DOL has started using one nation-wide number for LCA faxback. Only this number will work for filing LCA for H-1B, no matter where it is filed.
• As this web site previously reported, the Philly LCA Center covering Region I through IV first started using this 800 number to file and fax-back LCA for H-1B. At the time we alerted the people that this 800 system would be expanded to Region V through Region X. There we go. DOL has started using this 800 number for nationwide filing. The 800 number concept was disclosed at the AILA Annual Conference last Summer. We hope that this new nationwide filing system does not experience problems which the DOL first started the fax-back system. Please stay tuned. Back to Top

Updated 05/25/00: Important Notice to CSC 485 Filers

• This web site reported sometime ago that CSC would not require filing of amended I-140 when there was a successor-in-interest type corporate merger/acquisition. AILA reports that CSC is "backing away" from such policy. Thus such EB-485 filers must, repeat must, file an amended I-140 petition. Readers are advised to ignore this web site's prior posting on this issue. Back to Top

Updated 05/18/00: IMPORTANT NOTICE: INS Reverses Prior Policy on Effect of Travelling on AP W/O EAD!!!!!!!!! Please ignore prior posting of this web site on INS Memo of 03/14/00 and other postings relating to these issues.

• The AILA has just reported a "critically" important INS Memorandum dated 05/16/00 reversing its rule on effect of travelling using AP on H/L status, employment authorization, and eligibility for extension of H/L status, "until a final regulation is published on these issues in the future."
• Other than the following changes, its prior 03/14/00 will remain intact until a final regulation is published in the futures.
• Effect of Travelling Using AP and Eligibility for Application for Extension of H/L After Return: He/she may apply for an extension of H-1 or L-1 status "if there is a valid and approved petition". Approval of extension petition will have the effect of terminating the grant of "parole" and admitting him/her in the relevant non immigrant status. In 03/14/00 memo, the INS ruled completely opposite. This new memo immediately reverse's 03/14/00 policy.
• Effect of Travelling and Returning to the U.S. Using AP and Resuming Employment Without EAD: If his/her H-1 or L-1 would not have expired, had h/she not left and returned under the AP, the INS will not, repeat, will not consider his/her failure to obtain a separate EAD to mean that he/she engaged in unauthorized employment by working for the H-1/L-1 employer between the date of his/her parole and the date to be specified in the to be published final regulation. Again, the INS policy was opposite in its 03/14/00 memorandum.
• Caveat, Caveat, Caveat, Caveat: Both 03/14/00 INS Memo and this New 05/16/00 Memo Apply only to H/L EB-485 Waiters and No Others. Back to Top

Updated 05/16/00: FMG NIW EB-2

• Sources indicate that these cases are still on hold pending enactment of regulation. It is indeed a long pause. Somehow a beneficial legislation has turned some of physician cases into a nightmare.

Updated 05/09/00: BS+5yr EB-2 Firm by Court Order

• People may remember that pending the litigation, the INS released its new policy making BS+5 yrs qualified for EB-2. (Please refer to our report of 03/27/00 on this site) However, it was not clear in the INS Memorandum what would happen with the cases that had been denied on this issue. Now, the federal court in Chintakuntla et al. v. INS, in Califonia, made all the cases eligible including those that had been denied. Following the court order, the INS will release "before May 4, 2000" the Federal Register specifing filing requirements.
• Specifically, two classes of people are cover:
  • I-140 was "pending" as of 03/20/2000. Case is considered "pending" if an appeal has been either filed or the time for filing a notice of appeal had not expired as of 03/20/2000.
  • The second class is those whose cases were denied on or after 07/01/97. This class includes those who filed appeal but affirmed on appeal or who did not appeal the decision of affirmed decision of AAO on appeal. Cabeat: For this group, motion to reconsider must be filed before 11/01/2000!!
• Since any cases filed on or after 03/20/00 are covered by the INS Memorandum to the idential effect, the only group of people who are not benefitted by the court order and the INS memorandum of 03/20/00 are those whose I-140s were denied before 07/01/1997.
• For the additional details, please stay tuned to this web site. Back to Top

Updated 05/05/00: DOL Regions Reconfiguration and Fall-Outs

• As reported long time ago, DOL has been developing new labor certification process called PERM which is designed to approve 80% of permanent labor certification cases within a month after electronic filing and only 20% of cases are designed to be picked as those which will have to go through time-consuming traditional labor certification process.
• The starting date of the new program has been kept pushed off from initial plan of 10/01/00 to 04/01/01. Now, there is some rumor that this may be further pushed off to 10/01/01. In preparation for launching of the new program, DOL has already initiated two changes: (1) Backlog Reduction Program: The new program cannot be commenced until the backlogs are removed and DOL has been pushing ahead reduction of backlogs at the federal level. (2) Reconfiguration of DOL Regions from 10 to 6: The new six Regions will be:
  New Region 1: Old Region I & II
  New Region 2: Old Region III
  New Region 3: Consolidation of old Regions Vi & VIII
  New Region 4: Consolidation of old Regions V & VII
  New Region 5: Old Region IV
  New Region 6: Consolidation of old Regions IX & X Back to Top

Updated 05/03/00: Reminder of Non-Cap H-1B Petition Form Preparation

• INS HQ confirmed on 04/27/00 that if the H-1B petitioner checks 2(a) ("New Employment") in item 2 and 4(a) (Consular Notification) in item 4, of Part 2 on the form I-129, such petition is considered a cap case and will face rejection. The situation involves H-1B professional who is changing employer while s/he travels in his/her home country. In some situation, such rejection can result in fatal consequences.
• INS HQ advises that the H-1B petitioner keeps the following instruction:
  • Mark 2(c) ("change in previously approved employment" and not "new employment") in item 2 and check 4(a) (Consular Notification) in item 4, of Part 2.
• This is important because the AILA has reported to the INS HQ on teleconference that there were incidents where the filings were returned treating as cap-cases for improper completion of I-129 form. Ouch! Back to Top

Updated 04/22/00: Foreign H-1B Professionals by Occupation (FYI) Click Here

Updated 04/18/00: DOL Additional Funds and Priority of Backlog Reduction Programs

• DOL has been given additional funds for the rest of this fiscal year (09/30/00) for Backlog Reduction Programs. The funds will be allocated in the following order:
  • First to the larger states which include: CA, NY, NJ, TX, FL, IL, MD, and MA.
  • The rest of the states will receive such addtional funds only after DOL gets a handle on the larger states in reducing backlogs.
• Other additional details, DOL has not released any details of the backlog reduction programs. Please stay tuned. Back to Top

Updated 04/09/00: Technology and Its Affect on Changes in America (Week-end Reading)

• The following material is posted to help the visitors to understand how hi-tech is changing the demographic and political power configuration in this country and how new immigrants are affected by the historical process. This posting is a summary of an article in the Minneapolis Star Tribune on the study of the Milken Institute.
• Technology, Migration and Two Americas: Tech America vs Traditional America: In the past centry, millions left the farm for the city as the industrial age progresses. After World War, masses abandoned cities for the suburbs, producing background materials for the Oscar winning movie, "American Beauty" and suburban America. Now another great migration is underway: millions are heading for the country's hi-tech hotbeds. These booming cities are attracting immigrants and migrants who want to go where new technologies are generating jobs. These cities, such as San Jose, Austin, Seattle, Los Angeles and others are clustered in a handful of states: CA, TX, NY, MA, WA, and GA. In those states, the populations are becoming more ethnically diverse and entrepreneurial. In the rest of the country, the population is getting older. With more than 70 million baby boomers inching toward retirement, most states will see a surge in senior citizens starting in 2011, when the youngest boomers hit 65. As more boomers die, the population of many states will decline. One country, Tech America, will have 10 to 15 states, each characterized by its youth, multicultural diversity and entrepreneurial zeal. The other country, Traditional America, will be older, whiter and less prosperious.
• Tech America (Melting Pot) vs. Traditional America (Heartland USA) and Changing Political and Economic Scenes: Politically, the impact of that divergence will create political environment that creates wealth by Tech America that will fund Social Security and Medicare for the older Americans. But younger workers in Tech America might resent seeing so much of their income going to the gray heads living elsewhere. Even today, the Social Security tax is the single largest tax for most workers. In the future, young tech workers might want to see more of their tax dollars going toward education and road building. They might want more-open immigration laws and bigger free-trade zones than Traditional America would. In the 21st centry, the divisions will be between the "melting pot' and the 'heartland" states. States with rapidly aging populations include IA, KS, ME, PA, RI, SD, West VA. Those states have few tech hot spots within their borders. The relative gap between tech-haves and tech-have-nots is widening.
• Tech America and Gaining Political Influence and Immigration: Whether Tech America will coalesce to create a powerful voting bloc remains to be seen. But in March, a bipartisan group of members of Congress representing hi-tech districts in California, Texas, Virginia, Georgia and Washington state joined forces to push for sharp increase in H-1B visas for highly skilled foreign workers. Among the supporters were bedrock conservatives as well as liberals, united in the belief that their tech-heavy states will benefit from more immigration. Texas Rep. Lloyd Doggett, a Democrat from Austin, said tech companies need to attract 'the best and brightest, not only from all over the country, but from all over the world." The possibility that Traditional Americans eventually might feel run over by hard-charging Tech Americans could shape the political battles of the 21st centry.
• Widening Gap BetweenTech-Have and Tech-Have-Nots Countries: The same is happening on international level. Countries with high levels of education, sophisticated telecommunications systems and abundant computers tend to be far richer than those without such advantages. North America is one of the wealthiest places on Earth, and it's also the most wired. In 1999, about 57% of Americans and Canadians had access to the Internet. In Africa, the world's poorest continent, only about 1% of the population had Internet access! The future is grim.
• This reporter is sitting in one of the loser states in this regard. The State of Minnesota has been losing its leading role in hi-tech development and hi-tech industry, making it barely 22nd in ranks in the United States. This reporter just hopes that the state will not remain a member of Tech-Have-Not Traditional American states. Leading Tech Centers in ranking are: San Jose, LA, NYC, Boston, Chicago, Dallas, DC Metro, Atlanta, Seattle, Philly, Orange County, Houston, Phoenix, Oakland, Middlesex-Somerset-Hunterdon/NJ, San Francisoco, San Diego, Albuquerque, Newark, Denver. The real losers from the bottom are Milwaukee, Fort Lauderdale, Kalamazoo, West Palm Beach, Salt Lake City, Hartford, Cleveland, etc. Back to Top

Updated 04/07/00: Aging-Out I-140 Expedites

• The practice of I-140 expedite for aging-out cases has varied among the Service Centers. This web site reported quite sometime back that NSC and TSC were expediting such I-140 petitions. VSC also expedites I-140, but only for the aliens who are located in the U.S. who will file EB-485. Consequently, such expedite is not available in VSC for the aliens who are either outside the U.S. or who are in the U.S. but opt to go through IV consular processing. CSC is known to expedite such cases very sporatically. Back to Top

Updated 03/27/00: At Last! EB-2 Advanced Degree Equivalency INS HQ Memorandum Released!!

• INS HQ at last released the long-awaited memorandum settling all the puzzles relating to the "equivalent" to Master's degree issues for the EB-2 qualification in connection with ETA 750 Part A. Good news. It has accepted all the liberal views, overriding the narrow and conservative views of some of the Service Centers.
• This memorandum is relevant to those who do not have a master's degree but attempt to make EB-2 case. The following rules clarify how BS or BA people can make EB-2 case when employer requires 5 or more years of work experience. The following summary requires the reader's understanding of the issues surrounding Master's equivalent issues.
• Summary:
  • (1) INS cannot reject EB-2 petition where "progressive" language is not written in ETA 750, Item 14 of ETA 750 Part A.
  • (2) Each of the following option is acceptable for EB-2, each standing alone:
    • (a-1) Item 14: Education - M.S., M.A., or Equivalent; Experience - 0
    • (a) Item 14: Education - B.S. (or foreign equiv); Experience - 5 years job offered or related occupation
    • (b) Item 14: Education - M.S.or equiv**; Experience - 3 years job offered or related occupation, and in Item 15: **Will consider candidates with BS and 5 yrs experience.
    • (c) Item 14: Education - M.S. or equiv**; Experience - 3 years job offered or related occupation, and in Item 15: Bachelor's degree in XXX or academic equivalent, and 5 years of progressive experience will substitute for Master's degree in XXX and 3 years of such experience.
  • Revolutionary rule: "Unless the ETA 750 clearly and explicitly requires that the level of experience that a Master's applicant must have must be post-magisterial experience," in both (b) and (c) above, the applicant does not have to prove BS+5 yrs+3 yrs exp. The 3 years of experience requirement can include the 3 years which are used to make up "5 years." In other words, simply BS+5 yrs of exp requirement in (b) and (c) above makes it equivalent to MS+ 3 yrs exp requirement, unless additional experience is clearly and explicitly required by the employer in ETA 750 Item 14!!! Kudos!!!
  • By the same token, unless clearly and explicitly required, alien who has just earned MS with no post-MS experience can meet (b) or (c) if the alien gained such experience before MS.
  • Salute to the INS HQ!
• The foregoing is a summary. Please do not rely on the summary. Actual memorandum will be posted later.
• It is unclear at this time whether the INS will accept a motion to reopen the decision that denied on this issue. It appears, though, that the applicant who required BS+5yrs in ETA 750 may now consider filing another I-140 petition for EB-2 if he/she only filed EB-3 petition.
• Employers who were reluctant to file EB-2 on the belief that the job would not require a master's degree may reconsider their policy inasmuch as they agree that the job requires BS + at least 5 years of experience. Such new policy will be very helpful to the Indian and Chinese professional employees who will face a serious priority date retrogression from April 2000. Back to Top
•  

Updated 03/21/00: INS Policy/Procedures For the Remainder of FY 2000

• Cases In Pipelines As Of 03/21/00:
  • Cases that meet the cut-off will be approved effective the dates before 10/01/00.
  • Cases that fail to meet the cut-off will be approved with the starting date of 10/01/00.
    • Employers can withdraw these cases but $610 payment will not be refunded. Withdrawal should be faxed to (202)514-2093.
• New Cased Filed After 03/21/00:
  • If the starting date is requested on I-129H earlier than 10/01/00, such petitions will be rejected and returned with the filing fees.
  • During the post-cap cut-off period, employers can keep filing H-1B petitions with the start date of 10/01/00 or thereafter. The INS will adjudicate such cases on first-in-first-out basis. However, considering the fact that there are a large of number of cases which failed to make it within FY 2000 quota, the cases filed post-03/21/00 will experience a tremendous delay.
• Legal Status of the Alien Beneficiary Who Failed to Make It:
  • All Nonimmigrants Other Than F or J or Their Dependents: The "legal" status will not be "automatically" extended beyond their current I-94 pending FY 2001 (10/01/00) case approval, unless one can maintain either current nonimmigrant status by extension or change to other nonimmigrant status valid through 10/01/00.
  • F or J Nonimmigrants and their Dependents:
    • If the H-1B petition is filed "timely" before 10/01/00, no matter when it will be filed, the D/S status will be automatically extended through 10/01/00 and further to the time until the INS adjudicates the pending H-1B. This includes cases "pending" as of 03/21/00 as well as "new" cases to be filed after 03/21/00. Two conditions are attached to this privilege: (1) Must not violate such F or J status all the way. (2) H-1B petition must be receipted at the Service Centers before their current legal status expires. Presumably, this period should include the 60-day grace period for F-1 OPT and 30-day for J-1. The family members are all covered.
    • During the waiting period, F or J is not authorized to work.
    • Special provision: The F-1 or J-1 beneficiary may receive a signing bonus even before the validity date of the H-1B petition (before 10/01/00). A signing bonus does not represent a salary or a reimbusement for services rendered and, as a result, may be accepted by the alien. Back to Top

Updated 03/17/00: Important Note of the Reporter to the INS HQ Memorandum

• When a H/L professional or his/her H-4 family members opt to travel in H/L visa status rather than AP/EAD, they "should have" a valid H/L visa in their passports plus I-485 Receipt Notice and employer letter (probably last paycheck copy as well). The INS I-797 Approval Notice of H/L status is not a visa. People without a valid H/L visa or with expired H/L visa should not leave the U.S. without AP/EAD. This warning was posted quite some time ago in our Breaking News page which has since been archived. Back to Top

Updated 03/12/00: DOL Regions Cases Status Check Numbers. Click Here

Updated 03/07/00: INS Change of Policy: Legal Status Pending COS/EOS

• On March 3, 2000, INS HQ issued extremely important memorandums that change the INS policy on the three issues: (1) Effect of stay beyond 120 days pending EOS/COS on automatic invalidation of visa in the passport, and eligibility to apply for a visa application in the American Consulate in Third Countries like Canada and Mexico. (2) Effect of departure from the U.S. pending EOS/COS on eligibility for visa application afterwards. (3) Effect of stay beyond 120 days pending EOS/COS on "unlawful presence" and 3-year bar or 10-year bar upon departure from the U.S.
• Effect on Visa Validity: Visa will remain valid until the INS decides EOS/COS application. Until now, such stay beyond 120 days automatically invalidated NIV visa in the passport and the alien was unable to return to the U.S. unless a new visa is applied and granted. Important change.
• Effect on TCN Visa Application in Canada and Mexico: Once EOS/COS is approved, it will apply retroactively to the date of expiration of I-94 and will not pose a bar from TCN application. If he/she departs pending EOS/COS and apply for visa in Canada and Mexico, they should not deny TCN visa application for his/her stay beyond 120 days after expiration of I-94 in the U.S.
• Effect on 3-year Bar or 10-Year Bar: The unlawful presence will toll until the INS decides the pending EOC/COS even beyond 120 days. Until now, the toll started being lifted and running from 121 days after expiration of I-94 pending EOS/COS. Important Change.
• Effect of Departure from U.S. Pending EOS/COS: Consulate should not deny a visa application for his stay beyond 120 days pending EOS/COS. The whole period is considered "authorized stay." This question was vague and people struggled to find answers.
• Preconditions for these new rules: Only those who can prove the following three conditions can get the benefits: (1) EOS/COS should be receipted "timely" before expiration of permitted stay. (2) EOS/COS application should not be frivolous. (3) He/she must not have worked without authorization before EOS/COS was filed or while it was pending. All three conditions must be met!!!
• Effective Date: Immediate
• Each individual situation is different and people should consult with their legal counsel and not attempt to apply this information in his/her case on his/her own. Back to Top

Updated 03/04/2000: INS Policy on Dependents of Grandfathered 245(i) Principal Alien

• Without doubt, there are a number of EB-immigration seekers at various stages who will have to utilize 245(i) relief to obtain 485 application, otherwise they will not be able to get adjustment of status to a lawful permanent resident status. Most of these people either have spouses and children or intend to have spouses and children in the future. The INS HQ legal counsel has released very important interpretation of 245(i) bearing on such dependents as follows:
  • (1) If the principal is grandfathered, dependents are also grandfathered and retain that grandfathered status even if they later lose the status of spouse or child by divorce, aging out, etc.
  • (2) If the principal is grandfathered, dependents are also grandfathered and retain that grandfathered status even if they do not adjust at the same time as the principal.
  • (3) A dependent who became a spouse or child after the January 15, 1998 (245(i) benefit cut-off date), so-called after-acquired dependents, is also grandfathered if the dependent is accompanying or following to join the grandfathered principal and files I-485. For the meaning and rules on "accompanying or following-to-join beneficiary," please visit and read our Old Breaking News page.
• For individual situation, people should consult with their legal counsel. This is not a legal advice and this firm will not be responsible for reliance on this posting. Back to Top
• Back to Top