Dedicated Professionals in Immigration Law

Current Page[01/01/2007 - Present]/Archive XIV[06/15/2006 - 12/31/2006]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]

Updated 02/29/2000: Effective 03/30/00, I-129W Mandatory for H-1B Petition

• According to the INS annoucement today, H-1B filing without accompanying "new" I-129W form will be rejected effective 03/30/2000. The new form incorporates the former forms G-1020 and I-129W with some changes/additions. The mandate includes "all" H-1B petitions!! Not, repeat, not just $500 waiver petitioners.
• The INS suggests that employers file this new I-129W form even before 03/30/2000. However, it will remain voluntary until 03/30/2000.
• The new I-129W has been released and currently available. People may contact the INS offices and their attorneys to obtain a copy. Back to Top

Updated 02/29/2000: $500 H-1B Fee Waiver Situations as Defined by the INS

• For the H-1B filing employers, this was a subject which had confused them from time to time. Without doubt, some employers paid $500 unnecessarily. The INS has clarified through its new regulation dated 02/29/00 the cases which do not require $500 payment:
  • Amended H-1B petition that does not ask an extension of current period of stay. This amended petition does not include change of employers situation. Whenever a new employer files H-1B petition for change of employer, the new employer must pay $500. The $500 fee waiver amendment is limited to the petition by the same employer only.
  • Second or Subsequent Extension Petitions: No matter when the first petition was filed and granted, the same employer does not have to pay $500 for the second or subsequent extension for a given employee. Please remember that the count of first, second, or third extension stays with the employer only and not with the employee. In other words, if H-1B professional changes job, the petition to be filed by the new employer will automatically be considered the first filing and not even an extension for the purpose of $500 fee.
  • Petitions filed to correct the INS error: This does not include a petition filed to correct the petitioner's own mistakes. It appears, though, that by the force of the foregoing rule, unless the petitioner also asks extension of stay in such amendment for own mistakes, the petitioner will pay only $110 rather than $610.
• The clarification of the second rule is important as there was confusion as to whether employer should enclose $500 payment for second extension petition when the petitioner obtained first extension before the enactment of this $500 payment rule on 10/21/1998. Some employers have been paying $500 even in such situation for safeside unless the first extension was obtained after 10/21/98.

Updated 02/13/00: American Competitiveness In the Twenty-First Century Act of 2000

• By now, everyone knows that this Senate bill will bring a substantial change in H-1B system, EB immigrant per country limit, H-1B 6-year limit etc., should it materialize. This web site realizes that everyone should roll up his/her sleeves and work hard to lobby for the bill. However, this web site has remained silent in order not to raise the unnecessary hopes in the immigrant community until we get some educated information on the motivation of the bill. People may recall that during the last Congress, various politically motivated EB-related legislative bills were introduced and disappeared "quitely."
• This reporter finds one prominent immigration attorney's observation during the AILA Midyear Conference in Hawaii very interesting. Lately, the Congress has introduced various EB non-immigrant visa bills, which, in the guise of permitting advanced degree or over 60K salary professional aliens, can undercut the flows of nonimmigrant professionals with 4-year degree and experiences. This attempt is already reflected in the new H-1B legislation of October 1998. The immigrant community should fight against any forces that attempt to restrict nonimmigrant working visas only to advanced degree or high-salary professionals and block out college graduate professionals.
• This web site will report the legislative moves as things progress. Please stay tuned. Back to Top

Updated 02/13/00: Expensive EB Immigration Road Ahead

• As reportred yesterday, the DOL FY2001 budget proposes new labor certification fee of $1,500 in expedite cases. Now, INS is proposing $1,000 for the so-called "Presimum Service" fee for business cases, which will guarantee adjudication of business cases within 15 days. Considering the fact that the so-called business cases have been going nowhere, this idea will practically raise the INS filing fees for business cases to a rate of current filing fees + $1,000.
• This idea raises two questions. (1) Most large businesses and professional employees will not mind inasmuch as their cases will truly be adjudicated within 15 days. However, what would happen if the cases are not adjudicated within 15 days for various reasons such as technical system break-down, need for additional information or investigation or host of other reasons the agency will argue as justifiable for the delays? (2) Besides, there is a serious question of "fairness" to small employers and their businesses. Even now, small businesses are handicapped in RIR permanent labor certification processing because of their financial inability to invest in the required expensive recruitment campaigns. The premium fee and DOL expedite fee will add additional burden on these small businesses. Back to Top

Updated 02/12/00: Permanent Labor Certification Reengineering as Reflected in FY2001 DOL Budget Proposal

• The proposed DOL FY 2001 budget as announced on 02/07/2000 reflects $4.6 million income from fees charged to employers for permanent labor certification applications. It proposes to charge $1,500 fee per each application.
• Converting the figures of the total number of cases, the total applications they estimate are approximately 3,000. However, we do not think that DOL estimates that the total number of ETA 750 in FY 2001 will amount to 3,000 only. It appears that DOL probably intends to charge $1,500 fees to employers that request a sort of expedite processing.
• Under the PERM Program which is planned to go into effect in FY 2001 (October 1, 2000), approximately 80% are proposed to be adjudicated in 30 days or so from the date of filing and 20% of cases which fail to meet certain standards, longer processing times similar to current situation. Under the PERM, the involvement of state agencies (SESA) is planned to phase out. The DOL thus pushes a policy to clean up backlog cases before October 1, 2000 in order to launch the PERM Program. However, it is uncertain how the fee income fit into the new PERM Program. Please stay tuned.
• There are two additional points which need attention: (1) Despite of rumors that DOL was still considering to move alien labor certification program from Employment & Training Administration (ETA) to Employment Standards Administration (ESA) in parallel with its launch of the PERM Program and change of focus towards "enforcement," the budget proposal does not reflect such change. It anticipates to keep the function with ETA. ETA is services arm of DOL and ESA is an enforcement arm of DOL analogous to the audit unit of IRS. (2) The proposed budget for Wage and Hour Division of ESA which will be in charge of enforcement duties under the PERM Program does not relect any massive increase. Hm....... Interesting! Back to Top

Updated 01/27/00: Can the Unused OPT be Recaptured?

• VSC opines "no" unless the alien surrendered the OPT card to the INS.
• Dear OPT workers, please do not stop employment with the false hope that you will be able to recapture the unused period of OPT in the future! Life is not always "rosy."Back to Top

Updated 01/27/00: Expiration of I-94 Pending Adjudication of I-129(H-1B)

• For the NSC practice, this website has already reported.
• According to the recent VSC report, the VSC practice is similar to the NSC practice. This topic involves two different fact situation: (1) Situation for the new H-1B filer to change status from other nonimmigrant status to H-1B or H-1B to change employer. (2) Situation for H-1B requesting "extension" of existing H-1B employer.
• (1) Approval will be effective on the date of approval and they will not retroactively backdated to the expiration of the I-94, raising some issues as to what consequence the alien will have for the period of gap. However, a few years back, there was an INS HQ opinion that inasmuch as the petition is approved, it will not pose serious threat to maintanance of nonimmigrant status. Hopefully, that opinion still prevails.
• (2) Approval will be backdated to the expiration date of existing H-1B status. For these people, the regulation has additional protection allowing employment for 240 days even after expiration of the current H-1B status and pending adjudication of H-1B extension petition.
• Best policy is that unless there is an unavoidable circumstance, people should commence such proceedings sufficiently in advance. Back to Top

01/27/00: Suspension of Sole Jursdiction

• H-1B equalization policy of INS HQ has brought about a strange twist to the VSC practice. As this website reported earlier, the pace of processing of EB cases was fastest in VSC across the board as opposed to other Service Centers. This has resulted in two penalizations for VSC. Under the so-called "pause" policy, VSC had to stop processing H-1B adjudications from time to time, and VSC filers have been suffering from such policy. Secondly, as previously reported earlier, the Sole Jursidiction recently resulted in surge of filings of other jurisdiction cases at the VSC. Reportedly, INS HQ ordered suspension of such sole jurisdiction practice at VSC.
• Probably end of "jurisdiction shopping" for the filers! Back to Top

Updated 01/27/00: I-140 Expedite for Age-Out Cases

• This website earlier reported that the NSC had a policy of certain age-out case expedite. VSC also now confirms that even though it is case-by-case basis, VSC also expedites I-140 cases for certain age-out cases.
• Caveat: VSC has a unique expedite request procedure. Unlike other Service Centers such as NSC, an written expedite request does not work in the VSC. It reports that one of the two things should happen for such I-140 expedite: (1) The contactor in the VSC brings such request to the attention of the VSC officials at the time it is received. (2) Otherwise, all expedite requests must be made telephonically! It indeed sounds "different." Hmmm......Back to Top

Updated 01/26/00: Further Clarification of Yesterday's Posting on H-1B Rules

• This is posted to clarify "geographical location" in the yesterday's posting as some people did not understand this concept. When the employer files H-1B petition, they acquire prevailing wage determination for the intended area of employment. It usually means "commuting distance" or Metropolitan Statistical Area. Transfer of job sites or clients "within" this geographical area does not require the actions which we posted yesterday "inasmuch as" the change does not involve "material change" of duties or occupations. However, even if the transfer involves two locations within the same State, such action is required "if" the new location is located outside of such geographical area. Back to Top

Updated 01/25/00: Potential Alarm Signal to H-1B Employers, Particularly Consulting Firms

• The news report that the INS raided a job site of Indian software consultants in Texas last week should be taken very seriously by the H-1B employers and H-1B professionals. Story goes that the INS had been investigating the practice of certain software consulting firms bringing in Indian software consultants without a job or a project and place such employee at a job site which is not authorized under the laws, and raided and arrested such H-1B workers.
• It is very unfortunate in that the H-1B workers are in most cases victims rather than intentional violators of the laws. The foreign consultants are assigned with the specific job sites and projects at specific locations by the employers and most of these foreign consultants rely on employers taking a proper legal steps before they are assigned to work with specific clients or specific geographical locations.
• This incident should be taken by the H-1B U.S. employers as a momentum to review their record and practice not only to protect themselves but also to protect the innocent foreign workers from unfortunate experience.
• The H-1B employers should take a required legal step before they transfer the H-1B employees from one geographical work site to another work site. Additionally, whenever there is a material change to the job, they also have to file amended petitions. Unless a prior step was taken, for instance, LCA notice poisting or even amended petition filing, employers are not allowed to send their H-1B employees to a different geographical job site, even for a temporary period of time. One time, there was so-called 90-day rule which allowed temporary assignment of foreign workers in a different locations under certain conditions, but there is no such rule any more. So-called NAM litigation eradicated this rule. Consequently, even for a short-term assignment, employers should not neglect to take either a preventive measure or curative measure. Preventive measure includes multiple location itinery filing or multiple location notice posting before filing a specific H-1B petition. Curative steps include filing an amended petition before the employer sends the alien workers to a different location. The current practice of INS allows employers to transfer or temporarily relocate their H-1B employees to different locations inasmuch as such amended petition is "filed."
• This is a very challenging task for small firms. Large firms normally have a nation-wide operation and take sufficient preventive measures through their branch operations. For small firms, preventive measures are almost next to impossible.
• No matter whether the H-1B workers are innocent victims or not, the consequences on the aliens can be very harsh in both short-term and long-term respects. The short-terms consequence is falling into the group of "out of status," and the long-term consequence is a bar to I-485 adjustment of status unless one is covered by 245(i) or 245(k) relief, not to mention a potential danger of being trapped into a 3-year or 10-year bar!
• Employers, please do not rely on this information as a legal advice. However, you should work with your legal counsels to review the legal issues involving your practice. The potential economic damage to your business can be disasterous if you are found in violation of such laws. Additionally, your innocent H-1B employees can face serious consequences. The subject of this posting is too serious for any one to commit foolishness to rely on this short message. Please seek your corporate legal counsel's advice. Back to Top

Updated 01/21/00: Question of Two Simultaneous NIV COS or EOS Pending

• Sometimes, people run into a situation which forces him/her to temporarily file COS to a visitor (B-1/B-2) or a student (F-1/F-2) or other NIV status as a stop-gap measure to maintain a legal nonimmigrant status because the law is that the alien's nonimmigrant status remains lawful (upto 120 days) pending adjudication of "timely filed" COS or EOS application. The most common cases arise when a F-1 files I-539 for COS to B-visa status or EOS to F-1 as a stop-gap measure to maintain a lawful nonimmigrant status until one can file H-1B petition, I-129H.
• Assume that such I-539 was filed, and pending I-539, the alien files I-129H through an employer after H-1B quota becomes available or after finding an employer. In this case, two nonimmigrant proceedings are simultaneously pending for the Service Center, and there arise two legal issues, among others: (1) Whether the second proceeding (I-129H) which was filed "not timely" and after I-94 expired can be approved, because under the INS regulation, COS or EOS can be granted only when it is filed when the alien's nonimmigrant status is still valid. (2) What happens if I-129H is approved and afterwards, I-539 is approved changing the status to a visitor (B-1/B-2). The second situation can happen as I-539 processing time is longer than I-129 processing time.
• CSC policy is positive for the question (1). However, in order to assure the approval of second proceeding, the alien may attach I-539 Receipt Notice to I-129H Petition to remind the agency that the first proceeding was "timely" filed and "pending." In such situation, CSC will approve the second proceeding, I-129H.
• Then, the question moves to the second (2) one: What happens to the first proceeding, I-539? Sometimes, the Service Centers on their own move that they would terminate I-539 processing, but "WATCH OUT!!!" If they just approve I-539, some Service Centers take a position that the alien's status becomes a visitor. It is analogous to so-called "last action" rule that the last decision prevails. Therefore, prudent people will not neglect to file "withdrawal" of the first proceeding, I-539, as soon as one gets the approval of the second proceeding, I-129H.
• This information is posted because in the near future, some people will have to take such stop-gap actions because of the H-1B cap. However, before taking an action, people should consult with his/her lawyer and not rely on this information as this is not a legal advice and this firm will not be responsible for such reliance.
• Please have a nice weekend. The Reporter is located in Minnesota. It is freezing, br.........Back to Top

Updated 01/19/00: I-140 Processing Practice of the Service Centers

• As people know, I-140 is filed for EB-1, EB-2, EB-3. EB-1 has three sub-classifications of EB-11, EB-12, EB-13. EB-2 has two sub-classifications of EB-21, EB-22. EB-3 has two sub-classifications of EB-31, EB-32. All of the EB-1 do not require labor certification. In EB-2, Schedule A cases and NIW do not require labor certification but remaining EB-2 cases require labor certification. In EB-3, all of them require labor certification.
• Service Centers treat non-LC cases differently from LC cases. LC cases are considered "less" fraud-prone cases and Non-LC cases are "more" fraud-prone cases. Additionally, Non-LC cases require a high-level of expertise, knowledge and experience as opposed to LC cases which need minimum of training to handle.
• Accordingly, EB-1 and EB-2 cases are handled by highly trained and experienced officers within the Service Centers and follow a separate track in processing. While EB-3 cases are handled by less experienced officers plus other highly experienced officers who may be available from time to time.
• TSC reports separately the two types of cases separately and other Service Centers do not. However, they follow a similar procedure internally. For instance, in NSC, EB-2 is over one year behind and EB-3 is supposed to take much shorter time. For unknown reasons, processing of all the I-140 cases at NSC is pretty much stand-still at this time. So temporarily, it does not matter whether EB-2 or EB-3 in terms of delays for NSC cases at this time.
• In CSC, I-140 waiters currently experience delays for a different reason. Apparently, a lot of I-140 cases were handled by new officers with limited training and issued a lot of RFEs. CSC belatedly learned the problem of such RFEs and is undergoing a thorough review of all the RFE cases, delaying the process substancially.
• For all these reasons and recent reprioritization, the heyday for I-140 (60-day guideline) is gone, and people should be prepared to deal with the changes.Back to Top

Updated 01/18/00: CSC Policy on EB-485 Waiters Changing Employer

• Two issues deserve special attention:
• Issue One: Impact on Pending EB-485: Basically EAD will allow the applicant to go into open job market, but once the 485 waiter leaves the I-140 employer "with or without" intention to return to the employer, CSC would question (1) the intent of the employer to employ the alien and (2) the intent of the alien to be employed by the employer, as stated in ETA 750 and I-140, implying that CSC would seriously challege the validity of the approved I-140.
• Issue Two: New I-140 with Another Employer and Impact on Pending EB-485: As long as the new I-140 is submitted and "approved" "prior to" the initiation of the revocation of the previously approved I-140, the pending EB-485 will stay alive. The relevant situation is like this: Should the 485 filer leave the job but the employer does not withdraw and revoke the approved I-140 petition "before" a new I-140 by another employer is approved, he/she will be O.K. and will not need to file a new I-485. However, should the first employer withdraw and revoke the approved I-140 to initiate a process of substitution of employee to grant GC for another employee and at the time a new I-140 is yet to be approved, the pending EB-485 will not be able to survive. Considering upcoming priority dates retrogression, the consequence can be devastating!!
• This web site reminded the readers over and over that for the EB-485 to survive, the applicant must have a "valid" underlying I-140 approval. Approved I-140 is analogous to a pillar that supports a structure called I-485. Should a pillar be removed before another replacing pillar is installed, the structure will collapse.Back to Top

Updated 01/17/00: Corporate Name Change and Amended I-140: NSC Practice

• In reading various immigration web site boards, people should be very careful that some information is limited to certain Service Center's practice. As people know, Service Centers differ in their practice.
• In NSC, according to the record of NSC meeting in February 1999, when the I-140 employer's corporate name changes after filing I-140, it does not require filing of amended I-140 petition inasmuch as such conditions are met: (1) The job requirements must stay the same. (2) EIN number remains the same. (3) Same company.Back to Top

Updated 01/16/00: Caution to EB-485 Filers Travelling

• People must have noticed that INS web site has posted a special warning to 485 filer's travelling who may be subject to 3-year or 10-year bar.
• INS and AILA are particularly concerned with this issue as the INS has been issuing inadvertently Advance Parole to those who may be subject to 3-year or 10-year bar. Advance Parole will not guarantee reentry to these people who are subject to such bar. Please double check your nonimmigrant history in this country and make it sure that you are not subject to such bar because of unlawful presence in this country. "Unlawful presence" is a legal term and its definition is very technical and people could not have noticed that his/her status was unlawful under the definition. It may be prudent for people to have their legal counsel review their record.
• Such precaution is particularly important for Indians who will face a retrogression in priority dates in March and will have to travel for a number of years while waiting for the visa numbers.Back to Top

Updated 01/10/00: Good News for EAD Filers with NSC

• People sometimes file EAD extension close to expiration of the current EAD. As previously reported, NSC takes time to adjudicate EAD extension, advising people to file at least 90 days ahead of time. However, for some reasons, there were people who filed EAD extension application close to the expiration of current EAD and pending adjudication of the application, their EAD had expired. Sometimes, NSC adjudicators issued the renewed EAD with the starting date as of the date of approval rather than the expiration date of the old EAD. Since there was a gap between the two EAD cards, the people were nervous.
• This problem will not take place from now on. The recent teleconference record between the AILA and NSC indicates that the NSC will backdate extension of EAD "if" the request was filed before the expiration of the prior EAD. What a relief!Back to Top
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Updated 12/30/99: H-1B Processing News

• The INS HQ reaffirmed its policy to control the pace of H-1B processing for each Service Center in order to bring about the balance among Service Centers. This policy will have two impacts.
• First, it is expected that the total number of new H-1B approval in each month will be reduced and the cap may reach later in time than forecasted. Why? To achieve balance, if one Service Center, for instance, CSC, is behind, the other Service Centers will have to either suspend or slow down the processing. People must have noticed that the processing times for their H-1B cases are gradually falling behind lately.
• The fall-outs: People in the jurisdiction of the Service Centers that used to process the new H-1B cases much faster than other Service Center will witness longer processing times for the new H-1B cases. Meanwhile, people in CSC jurisdiction will see a faster pace in the H-1B processing times. People will have to readjust their internal processing schedules within the company.
• Indians from the Southern India: Everyone knows by now that Texas Service Center, in about 90% of new H-1B cases involving Southern Indians, sends investigations to Chennai. Consequently, their cases take longer time than other Indians and other nationals. Their H-1B plans should incorporate such additional delays.Back to Top

Updated 12/28/99: H/L Professionals and EAD/AP Issue

• One question that has puzzled most H-1B professionals during FY 1999 was "Can H-1B alien resume work without EAD after returning on AP inasmuch as h/she is in a 'valid' H-1B status?" According to the AILA sources, the INS HQ legal counsel has lately opined that the anwer is "Yes." If it is true, it can be taken as a good Christmas gift to some people who have been agonizing on this issue. But, please do not jumpt too fast!! There is no official memo or policy release from the INS legal counsel. This opinion somewhat conflicts with the earlier memorandum which was released earlier this year by the INS HQ. People are warned NOT to rely on the information until it is released by the INS itself and in a formal manner.Back to Top

Updated 12/28/99: Imbalance of Service Centers Processing Times and Its Fall-Outs

• It has been common knowledge among the immigrant community and the U.S. employers that there was a wide gap in processing times among the Centers: The VSC taking shortest time and the CSC taking longest time.
• It is interesting to learn that the so-called "sole jurisdiction" policy of the INS is affecting the situation. The sole jurisdiction allows U.S. employers to file at one Service Center for their cases no matter where their actual job sites are located inasmuch as that specific Service Center having jurisdiction over the main business or branch site of the employer accepts to take such jurisdiction.
• Reportedly, employers, particularly those whose head offices are located in the VSC jurisdiction, are taking advantage of this policy and the VSC has been receiving a large number of cases resulting in the processing delays in the VSC. Should this continue, the CSC virus will be shared by the VSC as well. Interesting, hmmmmmm. Back to Top

Updated 12/22/99: Parameters of 245(k)

• There has been some confusion as to the scope of 245(k). People's general understanding of 245(k) was that inasmuch as violation of nonimmigrant status including unauthorized employment and overstay is less than 180 days, he/she can apply for 485 based on a valid I-140 approval. The question is what is covered under this statute: Violation during what period?
• Here is the interperpretation of the scope of the statute by the INS HQ legal counsel. "For purpose of section 245(k), an alien may adjust under section 245(a) as long as the alien, as of the date of fing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days in the aggregate subsequent to the alien's last admission under which she is presently in the United States."
• As is usual, for lay people, legal jargon is very difficult to understand. What it means is as follows:
  • The 180 days should happen only between the two time points: From the date of his/her "last admission" to the United States to the "date of filing of I-485". Consequently, any violations after filing I-485 are not covered and condoned under the statute.
  • The 180 days of violations are "aggregated." Therefore, even if one violation is less than 180 days, should the aggregation of all the violations amounts to 180 days or more, 245(k) is of no help.
  • The I-485 application must be "receipted" before the 180 days arrive!
• This information should be very helpful to those who have overstayed after the 6-year limit of H-1B for less than 180 days. It is extremely important for these people that their I-485 applications be "receipted" by the Service Centers before the 180 days are reached. In some situations, people may have to submit the applications even without sufficient supporting documentation not to pass the deadline. Such people should also take care of medical examination ahead of time while they wait for I-140 approval for a speedy filing of 485 as soon as the I-140 approval notice is received. Medical report is good for one year. Back to Top

Updated 12/20/99: INS Guidance for Completing I-129 for H-1B

• As reported, INS HQ revised their guidance on 12/09/99 superseding their prior memo of 10/25/99 which was posted on this site on 10/30/99. The important change is for the H-1B people who change employer and file I-129. The previous memo asked to check box c in Part 2. Now they ask to check box a in Part 2. For your information, Part 2 boxes include:
  • a. New Employment
  • b. Continuation of previously approved employment without change
  • c. Change in previously approved employment
  • d. New concurrent employment.
• According to this guideline, box c in Part 2 is checked only when the H-1B alien stays with the same employer but is applying for amendment and extension of status.
• All aliens who apply for H-1B for the first time either by way of change of nonimmigrant status or consular processing overseas must check box a in Part 2 just as changing employers. But in Part 4, they need to check either box a (consular processing) or box b (change of nonimmigrant status), while H-1B changing employer should check c (Extend or amend) in Part 4. It is extremely important to follow this guidelines as otherwise INS can take away H-1B cap numbers erroneously, reducing available cap numbers!!! The boxes in Part 4 are:
  • a. Notify the office (consular)
  • b. Change and extend stay (COS)
  • c. Extend (EOS) or amend the stay.
• What happens if H-1B wants to either change employer or extend/amend stay with same H-1B employer, but he/she also wants the Service Centers to notify a consulate so that he/she can apply for a H-1B visa with the H-1B approval notice? The answer is check box a (for change of employer) or box c (with the same employer) in Part 2 and box a in Part 4. Remember, though, that most of the American consulates grant a H-1B visa without such notification and with the H-1B Approval Notice only, but there are a few consulates that do not issue a H-1B visa unless they first receive such notification from the Service Centers. The most notorious consulate was Manila in the Philippines. For the people in the latter category, this rule is very important because under the INS guidance, unless the alien requested consular processing in Part 4, the INS will not send such notification unless he/she files a separate I-824 later. People know how long it takes to get I-824 approval!!Back to Top

Updated 12/19/99: Weird Rule on I-824

• INS Deputy Associate Commissioner released a memo which was reported on this web site a few months back regarding circumstances requiring filing of I-824. The memo included a rule that when I-140 filers requested IV consular processing on I-140 and later change of mind and requests 485 adjudication, they need to file I-824. This reporter thought it was oversight in that since no INS action to transfer a file was involved, I-824 should not be required.
• However, this rule is confirmed and reiterated by the Associate Commissioner of Service Center Operations in the memo of legal force on 12/09/1999. This is important as the people who initiated IV consular processing will have to change their minds once they learn through the Visa Bulletin that priority dates will be about to retrogress. By quickly filing 485, they will be able to stay and work through EAD and AP pending 485 adjudication. Otherwise, the people who chose IV consular processing will be in trouble. But the memo says they need to file I-824. If the memo means that I-485 will not be accepted unless I-824 is granted, there will be a number of people who will face serious consequences. It is hoped that INS memo means that I-824 is required as a part of I-485 filing if the applicant changes his/her mind. This needs to be clarified by the INS HQ!! INS practice had been accepting and processing 485 without I-824. Until it is clarified, the people, especially Indians and Chinese, who opt for consular processing, should watch out.Back to Top

Updated 12/16/99: Good News for FMGs EB-2 NIW Waiters

• AILA reports that the Service Centers have decided to hold adjudication of all the FMG EB-2 NIW I-140 Petitions (underserved area waivers) in the pipeline, considering the recent special legislation for FMG NIW because some of them would be eligible for NIW under the new legislation and rather than denying, wait for the policy decision on pending cases. Most of these cases otherwise would have been denied under the NYSDOT standards. This "freeze" is a good news rather than a bad news for foreign physicians who have already filed such I-140 petitions. Congratulations! For the summary of new legislation, please visit our Doctor site.Back to Top

Updated 12/14/99: Travelling of 485 Waiters W/O Valid NIV Status and Warning

• The issue of AP has been discussed repeatedly over and over again on this web site and other sites, but apparently there are some people who just ignore it and do not pay attention to this important matter.
• The issue is particularly critical for those who are not in a valid H or L visa status and stay and work in the U.S. pending 485 adjudication. These people do not have any nonimmigrant statuses or visas and once they leave the U.S. for a trip outside the U.S., including Canada, Mexico, or other adjacent islands for pleasure, "without AP," they will not be able to return to the U.S. The 485 waiters, please remember that you are not a lawful permanent resident yet. Neither you do have any nonimmigrant status once your nonimmigrant status is expired. You are temporarily permitted to stay and work in the U.S. while you wait for the INS decision on 485.
• It is very unfortunate that there are apparently some 485 waiters who are stuck outside the U.S. as they departed from the U.S. without AP. Once you cross the border of the U.S., you are in a foreign country, no matter whether it is Cancun, Mexico, or Canadian Niagara Falls!!Back to Top

Updated 12/03/99: INS Jurisdictions of 485 Processing

• Apparently, there are some people who do not understand the jurisdictions of adjudication of different types of 485 GC applications. FB 485 cases are adjudicated only at the District Offices in the local areas. EB 485 cases are adjudicated only at the Service Centers. The freeze-lift works at both levels, meaning that freeze is lifted in all types and all categories of 485 cases indefinitely, allowing district offices to adjudicate FB485 cases that have been frozen since 08/31/98 and Service Centers to adjudicate EB485 cases that have been frozen since 08/31/98. Except in "extremely" unusual circumstances, EB485 cannot be filed and adjudicated at the District Offices, and at the same token, FB485 cases cannot be filed and adjudicated at the Service Centers. Lack of the knowledge of the INS jurisdictions apparently has caused some visitors to misread our previous web site posting.Back to Top

Updated 12/01/99: MS or BS+5yr Issue

• By now, everyone knows that a draft memorandum on consistent policy is on the desk of the INS HQ legal counsel. However, there is no indication when the firm policy will be fixed and released by the HQ.
• Until that time, I-140 (EB-2) waiters get some clues from different Service Centers. Each Service Center has been taking a different view. VSC is taking a most liberal view and NSC is taking a most conservative view on this issue. CSC is also known to have switched its views from a somewhat liberal view to a conservative view ever since AAU decision involving CSC case came down which took a very hardline position.
• What about TSC? Here is the answer.
  • "Master's or equivalent" language is required. Apparently equivalent is interpreted BS+5yrs Progressive.
  • Inasmuch as the above language is in ETA 750, TSC will accept the following situation as EB2: "MS+3yrs or BS+5 Progressive". This may not be taken favorably in some Service Centers.Back to Top

Updated 12/01/99: Mistery of Agency Checks: G-325A for 485 Documentation(FYI)

• People will remember that as a part of 485 filing, they completed, signed, and submitted INS Form G-325A which is a four-page carbon copy document. Under the immigration law, certain aliens are removable and ineligible for permanent residence in the U.S., which include, among others, crimes, security risks, frauds, etc. These forms are used to check with the relevant agencies their records. Along with the photos and fingerprints, these documents provide key tools for the INS to sort out ineligible aliens. The colored copies are forwarded to the following agencies for the record checks:
  • White sheet (1st page): Stays with the INS
  • Green sheet (2nd page): Goes to FBI
  • Pink sheet (3rd page): Goes to CIA
  • Blue sheet (4th page): Goes to the American Consulate of the alien's permanent residence.
• It is hoped that the foregoing information helps 485 filers understand better so called "clearance" procedures.Back to Top

Updated 11/29/99: Question of Obligation of 485-Approved-Alien to Work for the Employer

• As more people will get 485 approvals, people question what their obligations are under the law.
• Without doubt, Green Card does not mean one will become a permanent slave to the employer. Then what is their obligation?
• There is no hard and fast rule on the question. It is basically the issue of "intent" of the employer and alien employee. For instance, if the employer sponsored green card with no intention to keep him/her indefinitely, employer was commiting "fraud." The same is true if the alien employee applies for green card with no intention to work for the employer indefinitely. It all boils down to question of "real intent" which is a "state of mind" that can be established by either a direct evidence or circumstantial evidence.
• If one starts going into the open market to look for a permanent job with another employer and intends to move to the second employer as soon as the green card is granted through the current employer, it should be a classific example of fraud. Should the INS obtain such evidence, the INS may start cancellation proceeding. Additionally, if one quits the job as soon as one gets the green card approval, it will be construed as reflection of the state of mind of the alien that he/she did not have any intention to work for the employer. There are two relevant analogies on the required period of employment. DOL defines permanent employment as the one that lasts for a year or longer. On the other hand, in the nonimmigrant context, both the INS and the DOS adopt so-called the rule of presumption of misrepresentation in case an alien enters the U.S. on a certain type of visa and within 60 days attempts to change the status to other nonimmigrant visa or immigrant status. However, when it comes to presumption of certain state of mind, no court will accept one year period of time as the basis of determining one's state of mind. It is a close call, but unless there is a clear and direct evidence that the alien had such state of mind, it should be much less period than one year and definitely more than two or three months.
• If an alien loses the job as soon as he/she gets the green card because of the factors which are beyond their control, the alien will be in good shape. For instance, if the alien is terminated by the employer within one week for whatever reasons, he/she will be in good shape. If the company shuts down in a few days, the alien will be in good shape, even though there is a question of employer having committed a misrepresentation as to the issue of continuing existence of permanent job at the time of INS approving the green card.
• Please do not assume that even if one commits such a wrongdoing, one will permanently escape the net. In various occasions in the future, including naturalization application or immigrant petition for family members, it may haunt and throw another opportunity for the INS to review his/her immigration history. Wise persons will not form a "preconceived intent" to use the employer for the sole purpose of obtaining green card and immediately abandone that employer as soon as his/her scheme is achieved. Please remember that inasmuch as such state of mind was not formed at the time of obtaining the green card, but certain circumstanstances have developed afterwards, one is in good shape. Time of intent and time of act will be critically important when such legal tangle develops.Back to Top

Updated 11/25/99: DOL Region V (Chicago) Waiters

• As people know, DOL approval mailing is backlogged for several months. Information indicates that no improvement is imminent or anticipated in the near future. Only one mail clerk handles all the mailing.
• For those whose H-1B is approaching six-year maximum and LC has been approved but it has yet to be obtained in the mail, as an emergency measure, the following may be considered:
  • (1) Reportedly, there are a substantial number of approved cases which have been returned to the office because of the change of address of the representative or employer. Such people should immediately contact with the Region V office for correction of address and redelivery.
  • (2) Region V will hand out the approved LC if the legal counsel of record appears at that office in person. Region V will not, repeat not, hand it out to other people such as employer or alien or an agent of the legal counsel. The legal counsel of record must appear in person. This may be very expensive for the people but it at least gives a solution for the people who really face emergency relating to the H-1B maximum time! Back to Top

Updated 11/22/99: NSC I-140 Expedite For Age-Out

• NSC will not expedite I-140 on H-1B 6-year issue, but may expedite if any of dependant children reaches 21 years of age at least within six months on humanitarian concern and family unification interest. Expedite for age-out cases was one time limited to 485 proceedings, but at the recent AILA-NSC Conference/Tour, NSC disclosed that it would extend expedite of this type of cases to I-140.
• EB-2 or EB-3 filers with such grown-up children may discuss this window of opportunity with their legal counsels.Back to Top

Updated 11/18/99: NIW FMG Legislation, Nurse H-1C Visa Legislation and International Accounting Firm Immigration Legislation

• As people already know, these legislative bills became laws on November 12, 1999. The President signed the bills. As soon as the text of the legislation becomes available, the laws will be reported on this web site in a summary form.
• Congratulations to the foreign physicians and nurses.Back to Top

Updated 11/16/99: H-1B Change of Employer and Documentation Requirement

• CSC has been enforcing an extensive documentation requirement for proof of maintenance of H-1B status at the time a new H-1B petition is filed by a new employer. NSC is currently requiring such proof as well where change of employer is involved, even though it is less extensive. NSC requires more than one paycheck copy. NSC recommends to send in a few paycheck copy and other proof like W-2 and/or the current employer letter.Back to Top

Updated 11/15/99: Immigrant Visa Petition (I-130) Filed At Consulate by USC for Spouse/Children

• Only for emergent or humanitarian reasons, a consular officer may accept and adjudicate a I-130 petition submitted by an applicant who does not reside in a country within the officer's jurisdiction inasmuch as the applicant personally appears before the consular officer to take the oath at the time of submitting the petition. For this purpose, DOS considers it as a humanitarian case if a U.S. citizen personally appears before the consulate to file a petition to accord immediate relative status to a apouse or children, and the consulate will accept such petitions. This procedure works perfectly when an INS officer is not present at the consular post.
• Considering the delays in family-related petitions by Service Centers, this will be an option people may want to consider inasmuch as all the conditions are satisfied.Back to Top

Updated 11/15/99: IV Consular Processing Rules to Remember for FTJ Applicant

• Soon, many people will adjust their status to a permanent resident. This is the information for those who have a spouse or children left behind at the home country "at the time his/her status is adjusted."
• In such cases, the spouse or children are allowed to immediately apply for IVs under the rule of Following-To-Join the adjusted spouse or parent.
• The INS policy requires that the principal alien files and obtains I-824 approval and notification. However, DOS can process such FTJ cases "without" an I-824 approval. Accordingly, for such types of cases, I-824 policy of the INS is somewhat inconsistent.
• Again, attorney-certified documents are not, repeat not, acceptable. The Consulate requires the actual green card or the original I-797 Approval Notice or the I-824 approval notice.
• Caveat: This rule applies only to FTJ cases and "not" principal aliens converting from 485 to IV consular processing.Back to Top

Updated 11/15/99: IV Consular Processing and National Visa Center Rule

• DOS confirms that attorney-certified copy of an approved I-140 petition is not, repeat not, acceptable, unless NVC receives from the INS approved petition or official notification of approval. Consequently, I-824 approval and official INS notification is required.
• However, at present, NVC receives an electronic transfer of the approved petition directly from INS within days of the petition's approval, while the physical petition arrives some time later. NVC sets up the case upon receipt of the electronic file and consequently case processing begins only a short time after INS approves the petition. Caveat: It appears, though, that this electronic transfer works only if petitioner requested consular processing in I-140 petition. Otherwise, since I-824 approval is required, such system does not help much.Back to Top

Updated 11/12/99: Cross-Chargeability of Priority Dates between Spouses

• TSC officially confirms this web site's previous report that Indian or Chinese EB primary beneficiary of I-140 petition can use his/her spouse's country of birth (non-Indian or Non-China Born) once the priority dates retrogress, and both of them will be able to get 485 continuously processed "not" on Indian or Chinese priority dates in the Visa Bulletin "but" on spouse's priority dates of his/her place of birth. Once again, it is reminded that I-140 and EB-485 waiters should check out his/her spouse's place of bith (not citizenship).Back to Top

Updated 11/12/99: Second I-140 Approval Pending EB485 at Different Jurisdiction and Procedures

• Both TSC and NSC confirm that (1) EB485 filers can submit the approved 2nd I-140 without withdrawing the pending EB-485 and filing a new EB-485 application, and (2) the case does not have to be transferred to the Service Center that has jurisdiction over the new job site. Both TSC and NSC will continue and complete processing of the pending EB-485 despite of the change of location of the job. For detailed procedure to achieve this, people should consult with their own attorneys.Back to Top

Updated 11/10/99: 485 Filing of H-4 After-Acquired Spouses of 485 Waiters

• NSC will accept such 485 applications only if three conditions are satisfied: (1) The 485 waiter's 485 application is valid and pending; (2) the claimed relationship exists; and more importantly (3) the visa number is available. Consequently, if such after-acquired H-4 spouses/children enter the U.S. and priority dates move backward before I-485 applications are filed by such family members, they will not be able to file I-485 until the priority dates become current for the principal alien.
• Folks, now is the time to seriously consider a marriage before too late. Once priority dates retrogress, it will be too late. This is particularly true with those who approach the six-year limit. Since they cannot maintain H/L status after six years(even though they themselves can remain and work pending 485 and on EAD and AP), their spouses/children will lose H-4 statuses and must leave the U.S., resulting in a terrible forced separation.Back to Top

Updated 11/10/99: H-4 Visa to Spouses/Children of H/L 485 Waiters

• DOS confirms that inasmuch as the 485 waiters use H/L visa in lieu of AP when travelling, the American consulates have been issuing and will continuously issue H-4 visas to current spouses/children as well as after-acquired spouses/children. This reconfirms this web site's previous report of a few months back, suggesting that single 485 waiters should try to maintain H/L statuses and travel on H/L visas rather than Advance Parole!Back to Top

Updated 11/06/99: Immigration Doors (EB-1) for International Accounting/Mgmt Firm Executives/Managers

• Currently, the foreign executives and managers of multinational corporation which has in the U.S. either a "branch" or "subsidiary" or "affiliate" or vice versa can immigrate to the U.S. without labor certification inasmuch as the firm decides to transfer him/her from the foreign operation to the U.S. operation which has been doing business in the U.S. at least for one year. Such executives or managers must have worked at its overseas firm at least one of three years immediately prior to submission of immigrant petitions. This short-cut immigration has been available "only" when the corporation in a foreign country and its operation in the U.S. have either a branch or subsidiary or affiliates. Subsidiary is a firm, controlling shares (50% or more of the shares for small companies and less shares for public companies) of which are owned by a foreign firm. Affiliate is so-called sister companies in layman's term. The two companies do not own controlling shares each other, but through a third party (either common parent company or individual owners or controlling shareholders) that owns controlling shares for each company, the two companies become sister companies. Accordingly, the current law requires a legal tie between the U.S. and foreign companies through "ownership."
• The legislation which the Congress has just passed this week, waiting for the President's signature, does not require such legal relationship between the two companies if (1) the company in the U.S. is in the business of providing accounting or management consulting services, (2) the entity in the foreign country "markets" the U.S. firm's accounting or management consulting services, (3) under an internationally recognized name under an agreement with a worldwide coordinating organization that is collectively owned and controlled by the member accounting and management consulting firms or by the elected members of the firms (partners, shareholders, members, employees). Consequently, most of the large international accounting firms will soon be able to bring in executives or managers of such associated foreign firms or entities. Good news for the international accounting firms.
• Such relationship is also recognized for L-1 nonimmigrant visa. Consequently, such associated foreign accounting firm employees will be able to join the U.S. firm without the legal relationship of ownership.Back to Top

Updated 11/03/99: Recurring Questions on EAD/AP and H-1B for EB-485 Waiters

• This office gets a number of calls and e-mails concerning the question of consequences of suspension of H-1B status relating to the use of AP and EAD for a second employer without a separate H-1B.
• As reported a few days ago, INS HQ is apparently reviewing the whole issues relating to these questions and we hope that some actions be taken by the INS HQ either legislatively or policy-making.
• However, as it stands now, technically travelling on AP will suspend the H-1B status. The same will be true for going into the open job market and working with a second employer using EAD without a separate H-1B.
• Some H-1B professionals are attempting to suspend H-1B on purpose to save H-1B time so that if something happens, they be able to pick up the remaining period of the 6-year H-1B limit through another H-1B approval with the new employer. Technically, it is feasible. However, there is a caveat!! Technically, the new employer will not be able to file amendment/extension of H-1B status (which is commonly called "transfer" of H-1B) since the alien is no longer in H-1B status at that point. Technically, it should be a "new" petition. Consequently, when H-1B annual cap reaches, unless the INS keeps a policy of recognizing the rule of "Sequential Employment," he/she will not be able to obtain H-1B petition approval.
• People should discuss with their legal counsels on the implications and consequences and should not rely on this report as this firm will not be responsible for such reliance. This is not a legal advice.Back to Top

Updated 10/11/99: Two Unresolved Issues Involving Switch Back & Forth Between IV Consular Proceeding and EB-485 Proceeding

• There are two unresolved issues involving change of proceeding from consular proceeding to INS 485 proceeding or from INS 485 proceeding to consular proceeding.
• Issue (1): Requirement of Filing of I-824 to Change from Consular Proceeding to INS 485 Proceeding. I-140 beneficiary can change mind from consular proceeding to EB-485 proceeding or from EB-485 proceeding to consular proceeding at any time. Problem is processing time of I-824. The processing time of I-824 is a way backlogged. It is understandable to require I-824 action of INS to switch from EB-485 proceeding to consular proceeding. However, it does not make sense that the current INS policy requires filing of I-824 when one changes mind and wants to change from consular proceeding to EB-485 proceeding. Apparently, this is an oversight, but until the INS revisits and releases a new memorandum, it is the rule. Sources indicate that the INS HQ may revisit this issue. Once this requirement is removed, those who started consular proceeding and have maintained a valid H/L status may take advantage of an opportunity to commence a consular processing and should priority dates be about to retrogress, quickly file EB-485 with Service Centers within the month when priority date is still available for him/her. Remember, though, current policy requires I-824 approval!
• Issue (2): Legal Status of EB-485 Filers Who Withdraw EB-485 to Start Consular Processing. Current INS HQ policy states that if one travels on AP or one uses EAD for another employer pending EB-485 adjudication, he/she is no longer considered a H/L nonimmigrant. If such person inadvertently files I-824 and for that purpose withdraws EB-485, what would be the legal ground for such alien to remain in the U.S. and engage in employment? When one loses a nonimmigrant status and is allowed to remain in the U.S. lawfully only pending EB-485 adjudication, keeping alive of EB-485 appears to be the backbone of the legal status of such alien. This issue has never been resolved by the INS.
• Because of the uncertainty of the rules on these two issues, it will be prudent for people not to create such situation until the INS clarifies the issues.Back to Top

Updated 10/06/99: Procedure and Jurisdiction Involving Two Sequential I-140 Approvals and Adjudication of EB-485 (NSC Practice)

• EB-3 applicants who received EB-2 I-140 approval subsequent to filing of EB-485 based on EB-3 I-140 approval do not have to withdraw the pending EB-485 and file a new EB-485 to switch from EB-3 case to EB-2 case. NSC advises that to assure EB-2 documents get matched with the pending EB-485 applications, applicants, in submitting EB-2 I-140 Approval Notice, should submit a letter requesting that the attachments be enclosed in the pending EB-485 application file, and attach to such letter a copy of the Receipt Notice.
• If the EB-2 was filed by another employer that is located outside the jurisdiction of NSC, the applicant does not have to change jurisdiction to another Service Center even if he/she moves to the location of the EB-2 employer. NSC will continuously adjudicate such EB-485. Of course, applicants can ask NSC to transfer the EB-485 to the new Service Center.Back to Top

Updated 10/06/99: USIA Merge With DOS Since 10/01/99 and Contact Information

• Mailing Address: U.S. Department of State, Waiver Review Division, Bureau of Consular Affairs, Visa Office, SA-1, Room L603, 2401 E Street, NW, Washington, D.C. 20522-0106.
• For "general" waiver information, use fax (202) 647-3000 or website travel.state.gov.
• For "pending" waiver cases or advisory opinion, contact (T)202-663-1225 or (F)202-663-3899. The automated status report on waiver requests or advisory opinions will not be available until early November for the problems involved in the transition.Back to TopSCSC

Updated 09/24/99: Where the INS 485 Fees Revenue Go?

• Informal sources indicates that only 40% of the revenue are expended for I-485 adjudications and 60% are allocated for other functions, including refugee adjustment of status. When it comes to this issue, people can easily notice where the problem lies----politicians, including Congresspeople and the Chief Executive. Please do not misdirect your complaint to the poor INS officers!

Updated 09/23/99: 485 Delays and Travel/Work Issues

• INS HQ is considering a number of options to relieve the EB-485 waiters from the current rules involving AP, EAD, H-1B, L-1.
• One option is to amend regulation retroactively revoking parole status for those who have tavelled on AP and retroactively admitting his/her as H or L nonimmigrant. This is a very welcome move! Until the regulation is amended, though, the current predicament will continue as to whether one should travel on AP+EAD or H/L.
• Other option is to use I-797 Receipt Notice of EB-485 as Travel and EAD Document rather than requiring applications for AP and EAD. However, sources indicate that this option is not well received by the officers in Washington, D.C.
• One another option is to make EAD as AP+EAD.
• People should know that no matter what, the INS will in the near future work out some solutions for EB-485 waiters relieving from inconvenience and discomfort with the current system. Please stay tuned.Back to Top

Updated 09/23/99: Thank God, Family-Based 485 Will not Be Regionalized!

• There has been a review of plan to regionalize FB-485 applications, which will clog the Service Center production lines.
• Informed sources indicate that the INS has dropped this concept and FB-485 will continuously be processed at the District level.Back to Top

Updated 09/17/99: Wonder Why Use of EAD/AP Makes EB-485 Waiters No Longer H/L Status?

• EB 485 waiters can maintain H/L status and at the same time work and travel as H/L nonimmigrants even after filing EB-485. They do not have to travel on AP or work on EAD inasmuch as he/she has a valid H/L visa and maintains that status without violation. The question involves a situation when he or she decides to use EAD/AP for whatever reasons, even though it might not be necessary.
• Then why EB-485 waiters who used EAD for other employers or AP are considered not H/L any longer? The reasons are very simple:
  • Use of AP: He or she is entering the U.S. not as a H/L nonimmigrant but as a parolee. Under the law, parolee cannot work in the U.S. unless employment authorization is granted by the INS. That is why people travelling on AP must always obtain EAD before he or she returns to the U.S. to resume previous employment. While H or L status inherently gives authorization to work without special employment authorization by the INS, parole has no such inherent work permit.
  • Use of EAD for Non H-1B Employer for H-1B or Any Employer for H-4: H-1B is an employer-specific visa status and outside that specific employment, he or she does not have any employment authorization inherent to the visa status. No matter one has EAD or not, by starting employment with non H-1B employer, employer violates the H-1B status under the regulation and he or she is no longer considered a lawful H-1B nonimmigrant. The same is true for H-4. The H-4 is a nonimmigrant status without inherent employment authorization in the visa itself. By starting employment, no matter with EAD or not, he or she is violating the H-4 status. However, it does not mean that such alien is an illegal alien, because the law considers the alien's stay in the U.S. "pending" EB-485 lawful and grants EAD to support himself and his family. In other words, such EB-485 filers are legal aliens but "not" H/L nonimmigrants. That is why such aliens cannot return to H/L status once EB-485 is denied. EAD in itself would not take one out of H/L visa status. But by using it for other employers without a separate H/L petition approval with those employers, one is taken out of the H/L status. Even if he or she works for the same employer, by using EAD, one also would lose H status. The only situation that fits into the latter description is either the H-1B alien decides not to apply for extension of H-1B and rather decides to work on EAD, or his or her six-year limit has reached and EAD is the only means to continue employment pending EB-485 adjudication.
• This reporter hopes that the foregoing information assists people with understanding the legal concepts.
• Have a nice week-end. Back to Top

Updated: 09/15/99: Requirement for Withdrawal of EB485 for Conversion from EB485 to Consular Processing

• Such conversion requires filing of Form I-824 and withdrawal of the pending EB-485 applications. The EB-485 filers who have failed to maintain nonimmigrant visa status for whatever reasons, including the trip on Advance Parole and going into the open market should assess such implication and consequences before they take such action. This rule is confirmed by the CSC in its AILA Liason Meeting Minutes of 09/01/99.Back to Top

Updated 09/08/99: Recurring Question of EB485 vs. IV Consular Processing

• Because of the current delays of EB-485 processing and emotional distress and frustration, people are searching for answers to the subject question. However, this is a subject one should not make any decision unless he/she assesses first the following factors with the assistance of his/her legal counsel:
  • (1) Place of Birth and Nationality: What will happen if priority dates retrogress in his/her situation? Some people may not be affected and some people may.
  • (2) Remaining Period of H-1B or L-1: The shorter it is, the riskier the consular processing will be.
  • (3) Prediction of INS EB-485 Processing Times in the Upcoming Fiscal Year: It will be a big mistake to assume that any given situation will continue without any changes. It can be a favorable change or unfavorable change.
  • (4) Risk of Losing Petitioning Employer Pending the Immigration Proceedings.
  • (5) If he/she has already filed EB-485 and considers switching from INS proceeding to consular proceeding, the question must be first answered as to whether he/she has used EAD card for second employer without a separate H-1B approval or travelled on Advance Parole. Additionally, he/she should know current or predicted processing times of I-824 which is required.
  • (6) Whether or not he/she has any nonimmigrant history in this country that can face 3-year bar or 10-year bar. This judgment can be made only by a professional legal counsel.
  • (7) Consular processing time in his/her home country or last residence country: Current trend can affect this situation.
  • (8) Other factors.
• Balancing risk involved in consular processing and risk involved in INS proceeding is a key to the answer. None of any single factor described above should control one's decision. Answer must be derived from combination of the factors. Lawyers call this "totality of circumstances." In times of emotional distress, it is very important that one makes a decision not by emotion but by reason.Back to Top

Updated 09/01/99: Confusion of New Rule on H-1B/L-1 Travellers Pending 485

• This reporter is astonished by the number of e-mail inquiries by the people who are confused with the new regulation. The following should be reiterated and people should inquire with their own legal counsels rather than this reporter.
• Scope of the rule: This rule applies only to Employment-Based-485 filers and not, repeat, not family-based or other I-485 filers. I-485 filers other than EB485 and their families must still obtain AP to travel. Otherwise, the pending I-485 will be considered abandoned. H-1B and L-1 aliens can certainly travel without AP and maintain their H-1B and L-1 status, but such travelling will affect the pending family-based or non-employment-based I-485 applications.
• H-1B/L-1 Travellers With AP: They can legally travel without affecting the pending EB-485, but they are entering the U.S. as a parolee and even if they have a valid H-1B/L-1 visa in the passport, their status after entry to the U.S. remains a parolee and not, repeat not, H-1B/L-1 nonimmigration despite of the new regulation. The INS HQ made this rule clear in releasing the new regulation. This reporter is appalled by the number of people who are still confused over the two different effects of travelling with AP: (1) Continuing legal status and impact on pending EB-485 and (2) impact on H-1B/L-1 status. These two issues should be analyzed separately. Such confusion can bring about serious consequences in some situations.
• This site will not touch these issues again. People should not rely on this information in each individual case. They should follow the advice of their legal counsels who should provide answers to each specific situation and also take responsibility for such advice. This Firm will not take any responsibility for consequences of people's actions in reliance on this information without legal counsel. This reporter will refuse to answer any question on individual cases when they have a competent legal counsel.Back to Top

Updated 08/28/99: Use of Advance Parole and H-1B Termination/Lawful Status Issues

• Among the EB-485 waiters, there are two different groups: (1) Those travelled with or without AP before 07/01/99 and (2) those who travelled after 07/01/99 with or without AP. The effect of such trips can be different between these two groups.
• Group (1): If travelled without AP, probably pending EB-485 is considered abandoned and may be denied once the Service Center pulls out such travel record. However, inasmuch as he/she had and now has a valid H-1B, his/her status is lawful and a valid H-1B nonimmigrant. In the worst event that EB485 is denied on this issue, all he/she will have to do is to refile EB-485. Of course, he/she can also pursue a consular IV processing.
• Group (1): If travelled with AP, he/she has entered the U.S. not as a H-1B nonimmigrant but as a "parolee." If he/she worked without EAD, his/her status is probably unlawful for engaging in unauthorized employment. If worked with EAD, he/she is perfectly lawful. In latter case, his/her H-1B visa is arguably still valid, and probably he or she may be able to revive H-1B status by leaving the U.S. and returning to the U.S. on H-1B (do not work for send employer without another H-1B) and not, repeat not, as parolee, since under the new regulation, people can travel on H-1B after 07/01/99. This issue will be soon answered by the INS HQ in the near future. This option may be discussed with their legal counsel for those who want to marry abroad and bring his/her spouse as a H-4 nonimmigrant.
• Group (2): If travelled without AP, pending EB-485 is not affected and can continue H-1B nonimmigrant status inasmuch as he/she travelled with 485 Receipt Notice.
• Group (2): If travelled with AP, the foregoing discussion for Group (1) should apply.
• Pending INS HQ answer to the questions which are raised here, people should not attempt to apply the information to each individual case. This Firm will not be responsible for the consequences if he/she acts on this information and without first seeking legal counsel.Back to Top

Updated 08/26/99: Unmarried EB-485 Waiters in H-1B

• Apparently a large number of unmarried Indian EB-485 waiters have a question on availability of H-4 to his/her spouse after filing EB-485.
• Inasmuch as H-1B maintains his/her H-1B nonimmigrant status, he/she will be able to bring his/her spouse to the U.S. on H-4 even after filing EB-485.
• However, by now, most people know that AP travelling will terminate H-1B status. Using EAD for other employers will also terminate H-1B status.
• Once it is terminated, his/her spouse cannot apply for an H-4 status. DOS official confirmed this interpretation at the AILA Seattle Conference.
• Dear single males and females out there, please do not use AP or work for second employer at least until you find your other half, marry, and bring him/her on H-4!!! One other caveat: Until your spouse files I-485, you should not cause your H-1B terminated. Why? Upon termination of your H-1B, your spouse will also lose H-4 status. Please wait until your spouse's I-485 is "received" by the Service Centers. Once it is received, your spouse will be able to maintain a lawful status on his/her own (pending I-485 adjudication) even after your H-1B is terminated by the force of travelling on AP or working for second employer. Please plan, plan, plan, and plan!Back to Top

Updated 08/25/99: CSC Change of Practice on I-824

• CSC no longer requires filing of I-824 for consular processing of IV if it was clearly noted on I-140 "consular processing." CSC previously required I-824 even in such situation. It appears that CSC is now complying with the new INS HQ policy which was released no too long ago. This should be a good news for those who decided to take consular processing option from the beginning.Back to Top

Updated 08/24/99: Loss of Relationship That Forms the Basis of Underlying Immigrant Petition and I-485 Eligibility

• In the context of employment based immigration, the basis of underlying immigrant petition for I-485 application is existence of the petitioned employment at the time of adjudication of I-485 application. Once such employment does not exist with the petitioning employer, I-485 loses eligibility and will be denied unless it was a self-petition which does not need an employer.
• 245(i) is relevant only when there continues to exist the underlying relationship and approved petition. No matter what the basis of an underlying petition is, once that underlying relationship disappears, unless there exists another substitute approved petition that can form a new basis for I-485 eligibility, such alien is not eligible for adjustment of status to a lawful permanent resident. 245(i) is relevant to so-called out of status aliens who started labor certification or immigrant petition process before 01/15/98 and who has a valid underlying approved petition. Therefore, under the 245(i) guidelines, out of status aliens can still get I-485 approval even after one underlying petition is revoked or denied only if there exists another petition which has been approved, which will form a new underlying petition making such I-485 eligible. People should remember that when there is no underlying immigrant petition (no matter whether it is family based or employment based or lottery winning), no one will be able to get a GC. 245(i) is not relevant at all when there does not exist any valid relationship and approved immigrant petition!
• This information is posted because there are still some people who misunderstand that he/she can get GC even after losing underlying employment and even if there does not exist another approved petition because of 245(i). This is false.Back to Top

Updated 08/21/99: Confusion on 485 and H/L Visa Status

• As previously reported, for those who are interested in consular processing of IV rather than 485 or planning to marry with a bride or bridegroom after submitting EB-485, it is extremely important that one maintains H or L visa status. In this regard, this reporter reminds people of the two rules: (1) Working for 2nd employer without a separate H or L petition approval or travelling on Advance Parole terminates H/L status. (2) H/L people have two options for continuously staying, working, and travelling pending application for permanent residence: Either obtain and use EAD/AP or avoid it and maintain H/L status. Beginning from 07/01/99, people are given these options. Before 07/01/99, if H/L people travel without EAD/AP, the pending I-485 applications were considered abandoned.
• People are reportedly confused when they decide to take the option (2), to wit, maintaining H/L status. The new regulation did not change anything for the people taking this option other than that their overseas trip without AP will not terminate the pending EB-485 proceeding. Caveat: This applies only to EB-485 proceeding. Consequently, those who are in H/L status and filed I-485 on either family-based petition or other grounds and not, repeat not employment-based petition, must travel on AP. Otherwise, I-485 proceeding will be terminated.
• When EB GC pursuers opt option(2), they should keep in mind the followings:
  • They should maintain all the conditions of H/L status.
  • They should keep extending their H/L status.
  • They should not work for other employers without a separate petition approval.
  • They should not travel without a "valid" visa.
  • They should keep extending H/L visas for travelling.
  • For extending visas, they should keep extending passport.
  • They should not travel without EB-485 notice, if they filed one.
  • The same rules apply to family members in H-4 and L-2.
• Should the people violate the foregoing rules and do not have EAD/AP, they will face serious consequences: Either they fall out of status or pending EB-485 is considered abandoned. Some people may still be saved by 245(i) but some may not. Just keep in mind that people "should maintain" H/L status.
• One more caveat: Such H/L must travel with the "original" of EB-485 Receipt Notice if they filed EB-485. Otherwise, they will face a serious problem at the airport.Back to Top

Updated 08/20/99: Gap Between H-1B Wage and Labor Cert Wage

• A large number of labor certification-based CG waiters are working for the employers in H-1B statuses. In not a small number of cases, the current salary in H-1B is lower than the salary in the labor certification application.
• Conceptually, the employer is not obligated to pay the wage set forth in the permanent labor certification application until the alien provides the permanent services for the employer, which would be after the I-485 was approved.
• The reality is that according to the NSC, if the H-1B wage is significantly below the labor certification wage, the NSC will review the entire matter. We do not know where they draw the line for "significantly."
• Other issues people often encounter is: H-1B wage gets significantly higher than labor certification wage. This often happens because of the delays in the labor certification, I-140, and I-485. H-1B aliens get pay raise along the way. In this case, Service Centers will look at the issue in a different angle: "Whether the same job (LC) still exists." They may want to know whether the labor certification job is a different occupation from the actual job in view of the salary paid. In sending out RFE, NSC often demands the current salary as well as duties.
• The issues are raised here just to remind the people of the underlying issues when such RFE is received.Back to Top

Updated 08/20/99: Move of Residence and CG Delivery Issue

• We do not know whether it applies to all the Service Centers, but NSC would hold the issued plastic card upto 180 days if it is returned to that office because it was undeliverable. When the applicant fails to contact within the period, the card will be destroyed. However, people do not have to panic even if that happens. They can still send the correct address and ask the Service Center to reissue the card. However, people should not count on the reissuance of card. It is better that people do not move before CG is granted or if moved, do not fail to report new address.Back to Top

Updated 08/19/99: NSC View of Curricular Practical Training for Proof of I-140 Experience

• AILA-NSC 05/99 Teleconference notes reflect that NSC will not consider it a proof of professional experience if the alien gained experience through a curricular practical training prior to obtaining the degree and the curricular practical training was requisite to the degree. It appears that what it means is that the alien has an advanced degree but no work experience other than those which the alien gained before graduation to satisfy a credit requirement (curricular practical training). The issue remains what happens if the employer required an advanced degree plus work experience in the labor certification application, and the alien beneficiary does not have any experience other than curricular practical training gained prior to graduation. The notes are somewhat vague, but for safeside, it may be prudent in such cases not to require experience in the labor certification application to avoid a potential challenge by the NSC.Back to Top

Updated 08/18/99: FBI Fingerprint Clearance Information Access

• This information is posted with a warning that people should not abuse this service, which will clog the access system. Only in the event that the information is absolutely necessary, people may call (304) 625-5590 (FBI) for the status check. It is hoped that such information may be made available for on-line access some day in the future.Back to Top

Updated 08/17/99: Forthcoming Changes of Service Centers Affecting Processing Times

• Development of electronic automation and centralization of information and data has been undertaken in the Service Centers behind the scenes. When these processes are completed, people may see different processing times. We will review a few of these forthcoming changes very briefly:
  • On-Line Access: As we reported, the Service Centers have already developed web sites, which are still in a primitive stage. However, it is intended to provide at least two important on-line accessibility to the people out there: (1) Check of status of pending applications/petitions. (2) Address change report on-line. Such change will not only provide convenience to the people, but also free some of the INS officers so that more people can be used for adjudication. We do not know exact time, but it will come.
  • 888(or 800) National Customer Center for Live Contact and Inquiries: If people do not get answer to their questions, people will be able to make a live contact not, repeat not with each Service Center but with the National Customer Center. The INS has been working on developing such database and internal on-line access to the data and information by the NCC. Apparently there has been some delay in implementing this plan, but it is something people will definitely see in the not distant future.
  • National Scheduler of Fingerprint: Fingerprinting will be centralized and automated in the near future, again helping some of the workloads of the Service Center officers.
  • FBI "Digital" Fingerprinting System: Very soon fingerprint will be "digitally" taken and processed, reducing the fingerprint processing times. Combination of the National Scheduler and Digital Processing System will bring about a big change.
  • Recently, people have received en mass finger print notices. According to the report, it was the result of a mandate to the Service Centers to clear up the FT backlogs before the National Scheduler takes over and not, repeat not, a signal that their cases will soon be adjudicated. Please do not build a false hope!
  • In the long haul, Service Centers may also institute electronic or even on-line filing system. However, no such changes will take place for quite a while. People should not count on such changes to forecast the processing times for the near future.
  • This reporter takes an optimist view rather than a pessimist view for the future of processing times, particularly EB-485s. This reporter sees the problems of DOL and INS processing times as the pains which systems experience when they go through a transition or transformation to adjust themselves to the full-blown cyber-net millenium. Let's not discard the dreams for better future.Back to Top

Updated 08/11/99: I-140 Waiters and Medical Examination

• Both in August and September, priority dates are current. However, no one can predict exactly when it is going to change. There are so many variables that can affect the future Visa Bulletin, including 485 processings. The best policy in immigration business is "to seize the moment" when opportunities are there.
• Since EB-485 must be "received" by the Service Centers before the end of the month when visa numbers are current, there remains a question as to whether I-140 filers should wait until the approval notice is received before they start collecting documentation. Sometimes, the decision may come close to the end of the month when the numbers are current.
• Medical examination is the required document which usually takes time depending upon the location. People are reminded of the current INS policy of "validity of medical report." It is valid for "one year." However, once it is received by the Service Centers while it is valid, it remains valid during the whole period while EB-485 is pending. Considering the horrible delays in EB-485 processing times, this policy can change, but as it stands now, there has been no change in this policy. In this regard, taking a medical exam a way ahead of time may be a worth while risk-taking. Potential benefit will heavily outweight over potential loss of medical examination money.
• Unfortunately, similar policy does not exist in finger- print. However, who cares? It is something that can happen after the filing of 485. For I-140 waiters, the real threat is reaching H-1B 6-year limit before one can get EB-485 into the Service Center pipelines.
• It is something to think about. During the past 17 years of immigration law practice, this reporter has witnessed every shocking change one can conceive. "Seize the moment" is the lesson this report has learned and do not hesitate to preach this to immigrant-aspirers.Back to Top

Updated 08/10/99: CSC Tightening Up of Maintenance -of -H-1B -Status- Evidence-Requirement

• Effective immediately, for H-1B filers with change of employer, CSC requires, as a part of H-1B petition filing, the evidence of maintaining H-1B status, including W-2, paycheck stubs, wage/earning statements, 1099, and State employment income tax quarterly reports, for the full period of the alien's employment with the current employer up to the past 4 quarters. Such evidence must be submitted in duplicate.
• At this time, we do not have any information as to whether the new practice was originated in the INS HQ and may even be required by other Service Centers. Thus far, the new practice is limited to CSC.Back to Top

Updated 08/09/99: Validity of Certified Labor Certification and Approved I-140 Petition

• Certified labor certification and approved I-140 are valid indefinitely.
• However, when priority dates become current, people should be aware of the following important rules.
• When the alien chose the option of "Adjustment of Status in the U.S." on the form I-140, the Service Centers will keep the files until they receive EB-485 applications. In this situation, there are no time limit within which the alien should file EB-485 after the priority dates become current. However, unless EB-485 is filed within the month when it is "current," he or she will face a great risk in the event of retrogression of priority dates.
• The people who chose "Consular IV Processing" on I-140 are subject to a completely different rule. These people must apply for the IV within "one year" from the date of notification of priority dates availability from either National Visa Center or American Consulate. Otherwise, the registration for IV will be terminated by the DOS. If the alien can prove that the failure was due to circumstances beyond his/her control, and apples for reinstatement of registration within "two years" of such notification, DOS can reinstate it. Otherwise, the priority date is lost and the alien will no longer be able to apply for the IV based on the approved petition. This information is particularly important for the immigrant waiters outside the U.S. whose priority dates become available beginning from August, 1999. Notifying change of address is very important in this regard.
• When the alien is in the U.S and changes his/her mind to apply for 485 rather than consular processing, it is always good idea to notify the consulate of such change of mind. Additionally, people should keep in mind recently announced policy of I-824 filing requirement in such situation. In this regard, should people see on I-140 Approval Notice of Service Centers that the approved petition has been forwarded to the National Visa Center, they should not neglect importance of the rule described here.
• For the details of these rules, people should consult with their legal counsels.Back to Top

Updated 07/31/99: Information for Pregnant IV Applicants

• As I-485 track is expected to take a horrible delay (as affected by the August priority dates) and subject to increasing risk involving loss of the petitioned job, more and more people are thinking about IV consular processing at the home country (in some situations, even taking a greater risk). Without doubt, by the time they go to the consulate for IV interview, a number of women applicants will be pregnant. This reporter wishes that the following information gives some help to such women on the issue of the immigrant status of a baby born after the immigrant visa is issued to the mother.
• Upon presentation of the baby's birth certificate, INS District Director will issue an immigrant visa waiver and prepare Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, which is the INS internal record to grant a lawful permanent resident status.
• The same will happen if a green-card woman travels outside the U.S. and during the temporary trip, a baby is delivered outside the U.S.
• In order to get this benefit, the following conditions must be satisfied:

1. 1: The trip to the U.S. must be made while the baby's parent's immigrant visa is valid;
2. 2: The baby must accompany such parent.

For a child who was born while the green-card mother was travelling outside the U.S., the following additional conditions must be satisfied:

1. 3: The accompanying parent must be a returning permanent resident;
2. 4: The parent and his/her baby must return to the U.S. within 2 years of birth;
3. 5: The accompanying parent's return trip to the U.S. must be "the first" return trip to the U.S. after the birth of the baby. (This is very important to remember. Such parents should not make trips alone without the baby!); and
4. 6. The accompanying parent must be admissible to the U.S., which means that the parent is not removable (excludable/deportable) under the immigration laws.

• Failure to follow these rules will result in a nightmare in that the parent will be forced to file the 2nd Preference Family Petition and pending priority dates, the parents and child may have to be physically separated!
• The second situation can be utilized by parents who do not wish that their child be born in the U.S. and automatically become a U.S.citizen, for certain emotional reasons. However, please bear in mind that if you are ambitious and you want to bring up your child to become a President of the United States, you will have to give birth to such child in the United States. That is the Constitutional mandate! Who knows, this country is rapidly undergoing a change and before we reach 21st Century, over 50% of the total population are forecasted to be so-called "Non-Whites." Who elects a President?
• Please also remember that consular processing does not fit well for certain people, particularly those who have already used Advance Parole or EAD for another employer and who cannot maintain a nonimmigrant status while they wait for completion of consular processing. People keep forgetting the following two issues: (1) Once AP is "used" or EAD is "used" for another employer, such alien loses a nonimmigrant status and the alien can remain in the U.S. lawfully only "pending" I-485 determination and "no other grounds" and continue employment on "EAD" and "no other grounds." Thus once the Service Center terminates I-485 proceeding to allow the alien's consular processing, there is no provision in the immigration statutes and regulations that permit INS to issue such AP and EAD! (2) This problem will be particularly deadly for those who fit the foregoing descriptions or whose H-1B or L visa status will face the limit in the near future, and the priority dates move backward, absolutely requiring for continuing stay in the U.S. either I-485 "pending" or valid H, L, or other NIV until the moment when the Service Center "actually" approves I-485.
• Every situation is different and the foregoing information cannot be relied on without the legal advice of a competent legal counsel. This firm will not be responsible for any consequences flowing from an act in reliance on this site. The foregoing infromation should never be taken as a legal advice for his/her situation. Important to remember.Back to Top

Updated 07-23/99: Important INS Policy Change on I-824

• Until July 21, 1999, the filing of a Form I-824 was required when the I-140 petition indicated that the alien would process IV application at the consulate. Effective July 22, 1999, INS HQ changes the policy as follows.
• Cases "Not" Requiring Filing of I-824: If the I-140 petion indicates that the alien would apply for consular processing, the approved petition will be forwarded to the National Visa Center automatically without the need for I-824 or regardless of whether the priority date is current.
• Cases Requiring Filing of I-824: (1) Consular processing was initially requested on I-140 but the beneficiary changed his/her mind and intends to seek I-485 proceeding. It is however unclear whether such alien can submit I-485 concurrently with I-824. (2) I-485 processing was initially requested on I-140 but the beneficiary changed his/her mind and intends to seek consular processing. (3) Alien is seeking I-485 processsing and the following-to-join immediate family members are located outside the U.S. who will have to go through the consular processing. In such cases, the alien must file I-824 concurrently with I-485.
• However, in this reporter's opinion, this new policy imposes more burden than benefits. The benefit is indeed practically negligible, just saving I-824 filing fees for those who decided from the beginning to go through a consular processing. Until this policy change, those who indicated on I-140 that he/she would go through consular processing could file I-485 afterwards without filing I-824. Apparently, this policy change memo mandates I-824 filing in such situation, adding a burden on the alien. Additionally, this changed policy "indirectly" forces the alien to choose one way or another at the beginning, which will not be a easy decision for the aliens, particularly Chinese and Indians because of the unpredictable priority dates progression and the current laws that do not guarantee the continuing stay and work in the U.S. after expiration of the H-1B 6-year limit. This policy of forcing the aliens to make a decision early on may save the INS from I-824 burdens, but will impose hardships on the aliens.

Updated 07/20/99: NIV Overstay and Unavailability of TCN NIV Processing

• TCN nonimmigrant visa application is not available to those who either overstayed I-94 or violated NIV status in the U.S. This includes Canada and Mexico. Such people must go to their home country or country of residence to apply for his/her NIV visa.
• For H or L professionals, "overstay" means it passed I-94 expiration date. H and L aliens who filed COS or EOS are not considered overstayed if the petition is approved. However, if such petition is denied after expiration of I-94, it is considered "overstay." However, if COS or EOS is precluded because of the annual ceiling of H-1B visas, such stay is not considered "overstay." People who departs from the U.S. pending EOS or COS petition or application will not be considered "overstay" even if they departs after expiration of I-94 under certain cirumstances. Such people should consult with their legal counsel.
• For J or F visa aliens with D/S status, such bar to TCN processing does not apply even if such alien overstays unless the INS or Immigration Judge made a formal finding that the alien violated status. Absent such evidence, the consulate in Canada and Mexico cannot refuse to process a visa application on such ground.
• All the NIVs including F, J, H, and L, are barred from TCN processing if INS or immigration judge formally found that the aliens violated status regardless of expiration of I-94.
• The foregoing "overstay" or "violation of status" also automatically cancels the visa in the passport.
• This rule has nothing to do with the issue of unlawful presence. Such alien can apply for the NIV visa in his/her home country or country of residence without any prejudice unless they are subject to three-year or ten-year bar. The consulate in the home country cannot deny a NIV visa for the reason of overstay in the U.S.
• The rule of TCN NIV application bar applies only to aliens who have entered the U.S. with a nonimmigrant visa. Thus, the rule does not apply to people entering the U.S. on a visa waiver program or parole. In other words, such people can go through TCN consular proceeding either in Mexico or Canada even after overstaying in the U.S.
• People should not be confused this rule with the Unlawful Presence issues. This report is relevant only to those people who are considering TCN visa application in a third country, particularly Mexico and Canada. There can also be some circumstances such as humanitarian considerations which the consulate takes it as "extraordinary cirucmstances" and decides to process NIV application.
• People should not rely on this information. They should follow the instruction of their legal counsels and consulates.Back to Top

Updated 07/17/99: New Canadian Investor Immigration Program

Updated 07/14/99: EB-485 Filer under 245(i) or 245(k)

• The 245(i) filers must simultaneously submit I-485A form with additional payment of $1,000 for each adult person, but for the 245(k) filers, there is no special form. The legal counsel will just explain in the cover letter the period of oversay or unauthorized employment for less than 180 days and remind the Service Center adjudicators of 245(k) provision. People should never attempt to handle such 485 cases without a legal counsel.Back to Top

Updated 07/08/99: Starting Point of Permanent Resident Status

• People question at what point of time one becomes a permanent resident. It is the date of approval by the INS and not date of stampting in the passport or issuance of the plastic card. Such status is attached at the point of approval and notice. However, approval notice is not an "evidence" of the permanent resident status. It is either the stamping in the passport or plastic card. The starting date can have implications with respect to a number of legal proceedings, including naturalization eligibility. Confused?Back to Top

Updated 07/06/99: Discrepancy between H-1B Approval Notice and I-94: What To Do?

• People tend to panick from time to time when they learned that their I-797 H-1B Approval Notice is still valid but their I-94 has expired. This happens when the Immigration Inspector at the port of entry gives less duration than I-797 Approval Notice.
• Why does it happen? In most cases, the Inspector matches with H-1B visa expiration date rather than I-797 expiration date. The Inspector could have matched with the visa expiration date either because the passport expires that day or because of the inadvertence.
• If it happened because the passport will expire sooner than I-797 validity date and the Inspector matched with the visa expiration date, there is no remedy available unless passport is extended and do one of the following remedies as quickly as possible. If the passport, visa and I-94 have "already" expired, practically there is no relief. However, if such discrepancy occurred because of the inadvertence of the Inspector and passport is still valid, he/she can seek a remedy in one of the two ways which will be described shortly.
• He or she may file I-102 with the Service Center for replacement I-94. It usually takes months. Better option is to bring passport, I-94, I-797, and employer letter to the Immigration Inspector and get a new I-94. The sooner, the better. This is available because there is INS HQ Instructions to the inspectors to issue I-94 valid until I-797 expiration rather than visa expiration date, unless passport expires earlier than I-797 validity date. If the I-94 which has already been expired and which was erroneously issued for a shorter duration by the Inspector, he/she may be uncomfortable to appear alone at the airport for a replacement I-94. In such situation, he/she should have a legal counsel to take care of the job.
• For such replacement, he/she pays neither I-102 filing fees nor $500.00 surcharge for H-1B extension.
• Things to Remember: (1) Please do not panick. Unless passport has expired, there is a way to correct I-94 problem. (2) Always check the passport validity date!!!! If it expired, never try it either through Service Centers or Immigration Inspectors. Immediately contact with an experienced immigration attorney. (3) Always consult with a legal counsel. (4) To help the Inspectors not to make a mistake, always staple the left bottom part of I-797 Approval Notice to the opposite page of the visa section so that the Inspector can look at the I-797 as well as visa section. I-94 is a serious paper. Do not act on this report. This is not a legal advice. We will not be responsible for any consequences flowing from acting in reliance on this message. Please consult with a legal counsel.Back to Top

Updated 07/06/99: Nonimmigrants Receiving 485 Approval during Absence from the U.S.

• 485 approval notice is not a proof of permanent resident and such alien is unable to return to the U.S. as an immigrant. However, inasmuch as such alien carries with him/her 485 approval notice, the INS Inspector at the airport will allow such alien to come in on a "deferred inspection" basis. Such alien should then appear at the INS District Office with the original of 485 Approval Notice to get a formal admission to the United States and to get a permanent resident stamping in the passport. With this stamp, the alien will be able to travel as a permanent resident before receiving so-called plastic "green card." Such stamp is a temporary evidence of permanent resident.Back to Top

Updated 07/06/99: H and L Travel/Employment Pending 485

• INS HQ released a policy memorandum dated 07/02/99 confirming the following policy which this website has already posted and repeatedly reminded the people of importance of understanding of these very complicated and technical rules.
• H/L alien has two options for travelling and working without affecting pending 485: (1) Obtain and use Advance Parole and EAD. (2) Maintain H/L status and travel with I-485 Approval Notice and other evidence of maintaining H/L status. If 485 is denied, INS will start removal(exclusion) proceeding, if one chose option (1). If he/she maintained H/L status without using Advance Parole and EAD and 485 is denied, he/she will return to H/L status to complete the H/L period. There should be no mistake on the point that using EAD for employers other than H/L sponsor will automatically terminate H/L status. As repeated over and over on this website, such alien can remain and work in the U.S. only pending 485!
• For those who take option (2) above, he/she should strictly comply with the H or L regulation including extension or change of employer with proper filing of I-129H petition and approval.
• Once H-1B maximum six-year is reached, the alien has only option: The first option (1) above.
• Caveat for Non H/L Visa Holders: All the nonimmigrants other than H/L status must obtain Advance Parole and EAD pending 485. The new regulation that allows travelling and employment pending 485 applies only to H or L aliens who keep maintaining such H or L visa conditions and statuses. Very important.Back to Top

Updated 07/01/99: OPT H-1B Applicant: REMINDER

• The following information is reposted to remind OPT people who have recently obtained H-1B or are waiting for such approval to start employment on or after 10/01/99.

Effect of F-1 Practical Trainee Not Taking H-1B Employment (2/99)

• According to the American Immigration Lawyers Association sources, the INS HQ policy is that F-1 student in practical training who obtains change of status to H-1B to work with a specific employer and does not commence work with that specific H-1B employer is considered "out of status." Additionally, if the student obtains a second H-1B with a second employer and takes employment with the second H-1B employment rather than the first H-1B employment, INS HQ apparently considers such employment "unauthorized employment." This will later have very serious consequences on application for adjustment of status to a lawful permanent resident or extension/change of nonimmigrant visa status as well as any consular proceedings outside the U.S. This policy has yet to be formalized in a form of Memorandum. In that regard, this policy is still informal and "opinion." Yet, it is prudent for F-1 students attempting to change of status to H-1B to comply with this opinion. The risk can be unbearably high! Back to Top

Updated 06-30-99: Follow-up of 245(k) and 245(i) and Continuing Unlawful Presence

• People asked the information in the context of 245(i). This site previously reported the INS Memo in May and it will be reproduced here:

Updated 05-03-99: Amenability for 245(i) and 245(k) Eligible Aliens to Removal(Deportation) Proceeding

• According to the INS HQ Memo of April 14, 1999 addressed to Regional Directors, 245(i) and 245(k) eligible aliens are not exempted from the rule of "unlawful presence" and "status of undocumented alien being subject to removal(deportation)." It is extremely important to remember the following two rules:
• (1) Continuing Unlawful Presence: If such alien leaves the U.S. voluntarily six months or one year after the unlawful presence, no matter whether the alien filed 245(i) eligible labor certification or 245(k) eligible petition or not, the alien will be subject to the 3-year or 10-year bar from coming back to the United States. Such alien should consult with a legal counsel before he or she makes a plan for an international trip.
• (2) Subject to Removal Proceeding. Should such alien be encountered by the INS and arrested in the U.S. before filing 485 applications, no matter whether the alien filed an 245(k) eligible petition or 245(i) eligible labor certification or petition, the alien may be subject to removal(deportation) proceeding. However, once a properly completed EB-485 or I-485 is filed and "accepted," such alien will not be subject to removal proceeding pending the 485 proceedings and unless the 485 application is denied. Such alien will be given an employment authorization card upon his/her application. ***"Accepted" is very important. Deficient filings are "rejected" and not accepted, for instance, inadequate filing fee payment.
• The aliens who filed either EB-485 or I-485 based on 245(i) or 245(k) eligibility should not attempt to travel outside the U.S., even with an advance parole, without first consulting with his/her legal counsel. Back to Top

Updated 06-28-99: Status on Reshuffling of Labor Certification Procedures

• People may recall the following report on this web site.
• According to the reliable sources of DOL HQ, the status is as follows:

The plan to transfer the labor certification function from ETA to ESA is going nowhere and it is not likely that there will be such changes.

However, the plan of automation of the application filing is still alive. Details will have to be worked out, but the previous report of this web site gives skeleton of the plan. People should reread that report.

Updated 03-10-99: Reshuffle of Alien Labor Certification Application Process in Progress Behind the Switch from ETA to ESA

• American Immigration Lawyers Association has learned that USDOL has been developing a new alien labor certification process, called PERM (Program Electronic Review Management System). The idea is still at development stage, but a few points are looming in the mist:
• Automatic routine certification by computer (which sounds similar to current electronic filing of LCA for H-1B). About 80% of cases would be certified this way.
• Other 20% cases would be audited, particularly "red flag" cases. One of the red flag cases appears to be cases involving "encumbering" of the job by alien already in it.
• DOL would collect fees of $500 for the so-called "one-week" processing.
• As expected, DOL would also intensify post-admission enforcement.
• The State Employment Security Agencies (SESA) would be mostly left out.
• Caveat: Readers should not be misled by the idea that labor certification can be completed in a week since there are some horrible ideas underlying the proposed system.Back to Top

Updated 06-26-99: 245(K) and Caution for Users of Advance Parole

• NSC opined that for 245(k) permanent residence applicant, "unlawful presence" will remain ticking pending I-485 application. Should such alien make an overseas trip and return to the U.S. using Advance Parole, such alien, according to the NSC, will be subject to the 3-year or 10-year bar depending upon the period of unlawful presence, and NSC will deny such I-485 later. Very serious consequences! This site has repeatedly cautioned readers of implication and consequences of travelling on Advance Parole and people should "always" seek advice from his/her legal counsel before making each trip on Advance Parole.
• People should review our previous report on 245(K):

Updated 04-18-99: What is 245(k)?

• This provision applies only to people who apply for" permanent resident status based on Employment", including EB-1, EB-2, EB-3, and Religious Worker Special Immigrant Petition, but no others.
• This provision does not apply to people who entered the U.S. without inspection.
• This provision does not apply to people who are removable under the immigration law for reasons other than those listed below; for instance, fraud, crime, etc. etc.
• The applicant must be present in the U.S. at the time of 485 submission.
• The following violations of the nonimmigrant status must not exceed 180 days for an "aggregate" period from the date of his/her lawful admission to the United States:

(1) Failed to maintain, continuously, a lawful status; for instance, overstay, or

(2) Engaged in unauthorized employment, or

(3) Otherwise violated the terms and conditions of the alien's admission.

• Such person can apply for I-485 (if not arrested during the 180 period) without even paying $1000 penalty under 245(i). Accordingly, those people who failed to meet 245(i) benefit should review very closely his/her situation to see whether he/she will be qualified under this provision. Please remember that this provision does not save the employers who provided unauthorized employment from the employer sanction provisions.
• Let's assume that "A" violated one of the foregoing provisions recently, for the sake of discussion, last month and quota is available now to file I-485. Let's also assume that "A" also started labor certification before January 14, 1998. "A" is qualified for both 245(i) and 245(k) and can apply for green card despite of the previous violation of the law. However, "A" would definitely choose 245(k) option to avoid $1000 penalty.
• Please remember that to receive such benefit, a complete I-485 application packet must be "receipted" by the Service Center before it reaches 180 days of violations! People in this situation will definitely file I-485 through a competent legal counsel not to take any chance of mistake. The applicant must also be careful not to get arrested by the INS during the 180-day period. 245(k) provision is permanent and there is no sunset for this provision. Back to Top

Updated 06-26-99: Canadian Immigration as Stop-Gap for Computer Professionals

• Computer professionals who have completed I-140 but facing H-1B 6-year limit and quota-wait problem have been considering a temporary employment opportunity in Canada as a stop-gap measure to fill the vacuum. This Web site will introduce the Canadian Employment-Based Immigration laws in the Canadian Immigration page. Please click Canadian Immigration.

Updated 06-25-99: Jursidiction of IV Consular Processing

• Question of where one can process IV application has become one of the FAQ these days.
• Rule: Home Country Processing - (1)As a general rule, it must be filed at the consulate in a country of his/her "nationality" or "residence." (2)Those who are physically present in the U.S. are considered the resident of his/her "last residence prior to his/her entry into the U.S". (3)Those who are temporarily physically present in a country without having established residence therein may still be able to apply for IV in that country inasmuch as he/she will be able to remain in the area for the entire period required to process the application. (Example of (1) alien is those who are in their home country or permanent residents of a third country. Example of (2) alien is those who are currently in the U.S. in a nonimmigrant status and who is a national or permanent resident of that country. Example of (3) alien is someone who is in a third country as a nonimmigrant in the country.)
• Third Country Processing - Even though each consulate has a discretion to process TCN IV applications, unlike NIV applications, the American consulates overwhelmly refuse to take such applications. However, in unusual circumstances which truly involve extreme hardship, extenuating circumstances or humanitarian circumstances such as stateless or those who are unable or unwilling to return to his/her country of nationality (Iran, Iraq, Lebanon, Libya, Afghanistan, etc), certain American consulates in a third country will accept their IV applications. Additionally, the American consulates in contiguous countries (Canada and Mexico) may also process IV cases if it truly involves exigent circumstances or humanitarian consideration, which were used to be called "Stateside Criteria Processing."
• The foregoing information is provided as a broad summary of the rule and people should never initiate a consular proceeding without first consulting with the American consulate in a country of his/her special interest through his/her legal counsel.Back to Top

Updated 06-24-99: Reality Check for NIV EOS/COS Waiters

• Nonimmigrants, including H-1B and L-1, apply for either Extension of Status (EOS) or Change of Status(COS) through the Service Centers. However, sometimes, adjudication of such applications is hopelessly dragged out either because of the agency's processing delays or other issues inherent in the specific application. People should realize that under the INS regulation, the applicants can maintain lawful presence in the U.S. pending the application "only" for 120 days from expiration of his/her current status and not beyond.
• Once the INS approves the application even after 120 days, the policy does not consider such extra time as unlawful presence. However, once the application is denied, the unlawful presence clock starts ticking not from the time of denial but from the time it passed 120 days. Six or more months stay in the U.S. beyond that point of time will present a serious problem when such application is denied after a protracted proceeding. If such person voluntary leaves the U.S. under the false assumption that one will be able to apply for a visa at the American consulate, he/she may not be able to return to the U.S. because of the 3-year bar. Consulates are reportedly facing such situation in increasing numbers. Check it out, especially for the people in CSC and TSC jurisdictions.Back to Top

Updated 06-22-99: IV Consular Processing and Risks

• As increased number of people start paying attention to consular processing rather than 485 proceeding, a large number of people ask advantages and disadvantages as well as the level of risk involved.
• At the outset, it must be stressed that unlike immigration service proceedings in the U.S., consular proceeding is taken place outside the U.S. and outside the jurisdiction of the courts of the U.S., and the risk is high in the event that the IV application is denied.
• Consular processing should never be considered unless a competent legal counsel first makes a thorough review of the alien's NIV history in the U.S., because unbeknownst to the alien, he/she could have violated immigration laws and his/her stay in the U.S. could have been defined as unlawful presence. Any alien who was present in the U.S. unlawfully for 6 month since 04/01/98 is subject to a 3-year bar to the U.S. and the period of bar increases to 10 years if the unlawful presence lasted for one year or over since 04/01/98. The 3-year bar and 10-year will not apply unless the alien "voluntarily departs" from the U.S. Therefore, the same alien will be able to get a green card through 485 proceeding even if his/her presence was unlawful inasmuch as the alien filed labor certification application or immigrant petition before 01/15/98 under 245(i), but once he/she leaves the U.S., he/she will not be able to return to the U.S. for 3 years or 10 years unless certain circumstances exist that constitute a ground for waiver. 245(i) is not available in the consular proceeding.
• Additionally, the alien may fall under one of the immigration statutes that make such alien removable from the U.S. because of any crimes involved or other misconducts in the past. Some of these removal grounds may be waived depending upon the alien's ties to his/her U.S. citizen or permanent resident immediate family members, but applying for a waiver will delay the process tremendously and pending such decision, the alien will not be able to return to the U.S.
• The risk tends to be high because unlike the 485 proceeding, the law does not give "Advance Parole" in consular proceeding which would have allowed the alien to return to the U.S. even if IV application was denied.
• This site has already warned that H or L aliens who obtained EAD and "worked" for a second employer or who "travelled" on Advance Parole pending 485 adjudication should not consider consular processing, because (1) under the current INS HQ policy, use of EAD for such purpose or Advance Parole terminates the alien's H or L visa status and such alien is allowed to work only on EAD and remain in the U.S. "pending" 485 determination. (2) Therefore, once 485 proceeding is terminated by the INS to forward the files to the U.S. Department of State including consulates, in my opinion, the alien will lose his/her ground of legal status or employment authorization at that point since the legal status and employment authorization are conditioned on pending 485 proceedings.
• This risk is very high because under the current procedure, the alien must first file I-824 requesting Service Centers to forward I-140 approval to the National Visa Center, which will then send out Packet III to the alien. The alien then completes and submits Packet III to the American consulate in his/her home country. Once all the required evidence and documentation are collected, the consulate then schedules an interview at which time the alien should submit Packet IV. For the Department of State and American consulates to perform the job, the INS has to forward the case files to the consulate, terminating 485 proceeding.
• Delays in 485 proceedings present a hardship, but it will be foolish if one decides to jump into consular processing without a thorough consultation and assistance of a legal counsel.
• As pointed out previously, IV consular processing will work well when the government agrees to two conditions. First, Service Centers must be willing to process I-824 applications promptly. Second, the INS must arrange "Advance Parole," for the alien's safe return to the U.S. no matter what happended at the consulate. Currently, none of these is available. Current consular processing is more favorable for family-based applicants than employment-based applicants.Back to Top

Updated 06-19-99: 245(i) Bombshell News for EB 485 Applicants: 06/10/99 INS HQ Supplemental Memo for EB-Related Policies

• This is a supplement to the existing guidelines. All the provisions of previous guidelines apply to both employment-based as well as family-based cases. Therefore readers should read this report together with the previous Guidelines which is reported right next to this report today.
• INS HQ released new 245(i) Guidelines for EB cases as a supplement to its previous Guidelines of April, 1999. This memo contains "remarkable" benefits to EB 485 applicants and their spouses and children. This policy will apply to all the pending EB-485 or future EB 485 cases.
• Denial, Revocation, Withdrawal of I-140 and Affect on "Grandfathering": Even if I-140 is denied or revoked or withdrawn, inasmuch as the I-140 petition was "approvable when filed," EB 485 applicant and family members can claim 245(i) benefits. Examples of "Approvable when filed" are as follows:

Denied Petitions: When I-140 petition has been denied due to circumstances "arising after" the petition or application was filed, for instance, the employer's going out of business or death of a petitioning spouse, he/she can claim 245(i) benefit. The change in circumstances must involve "factors beyond the alien's control" not related to the merits of the petition at the time of filing. Therefore, when denial involes meritless or fraudulent petitions or application, he/she cannot claim 245(i) benefits.

Withdrawn Petitions: When I-140 is withdrawn by the employer, for instance, the business experiences a reversal and employer no longer needs the services of the alien, he/she can claim 245(i) benefits. However, when the alien withdraws a petition knowing that the I-140 will be denied, the foregoing rules of meritless or fraudulent filing will be reviewed and if the anwer is positive, he/she will not be allowed to claim 245(i) benefits.

• 245 (i) Benefits to "After-Acquired" Spouse and Children:

245(i) benefits may be claimed by spouses and children under 21 regardless of whether they apply with the EB-485 applicant or subsequently alone.

Spouses or children, inasmuch as there was such relationship at the time of the principal's filing either labor certification or I-140 petition on or before 01/15/98, can claim 245(i) benefits even if they subsequently lost such status of spouse or child by divorce, death, or becoming 21 years of age.

Additionally, spouse or children who have been acquired after the I-140 or 485 was filed but before adjustment of status (485 approval)of the princiapal alien, such "after-acquired" children and spouses are allowed to claim 245(i) benefits. However, spouse or children acquired after principal's 485 is approved are not eligible for 245(i) benefits unless they themselves have an independet bases for grandfathering.

Children who reach 21 pending the principal's proceedings will also be able to claim 245(i) benefits.

Caveat, Caveat: The INS HQ Guidelines of 245(i) are solely related to the issues of whether certain illegal aliens can apply for adjustment of status without leaving the U.S. and by paying $1,000 penalty for the adults. The Guidelines have nothing to do with the issue of whether EB-485 applicant can get green card without underlying valid petition. For instance, for Employment Based immigrant, if I-140 petition by Employer A is denied or withdrawn and no other I-140 petition is submitted and pending or approved on behalf of Employer B, such alien will not be able to obtain a green card. However, since once 245(i) is attached, the alien can use such benefits "indefinitely," such alien may be able to use it for a number of other family-based or employment-based or even lottery-based I-485 in the future. Remember that such attached 245(i) benefits can be transferred to other subsequently filed immigrant petitions or applications!! One more Caveat: Attachment of 245(i) does not excuse the alien from removal from the U.S. if he/she is arrested. Very important to remember.Back to Top

Updated 06-19-99: INS HQ Policy Guidelines for 245(i) I-485(Illegal Alien Adjustment)-Reconfirmed by INS HQ Memo of 06/10/99

The INS HQ issued the following important policy guidelines on April 14, 1999 for handling 245(i) I-485:

• The alien beneficiary of a visa petition or labor certification filed on or before January 14, 1998 to benefit from 245(i)** can use such initial petition or labor certication as the "vehicle" for I-485 adjustment and the alien can obtain adjustment of status through a prior or subsequent filing of another petition, including a petition or labor certification application submitted and approved after January 14, 1998 or even a diversity visa application.
• The pre-January 15 petition or application for labor certification must, however, have been pending on or filed after October 1, 1994. Therefore any petition or application which was filed before October 1, 1994 can not be used as a vehicle for this purpose.
• Applicants may change employers or petitioners, may remarry, or may become the beneficiaries of new petitions for any number of reasons. As long as the alien seeking to adjust status based on 245(i) is recognized as the "beneficiary" of a qualifying pre-january 15th petition of labor certification application, the alien may adjust status under 245(i) using a visa number obtained through a post-january 14 filing.
• In cases where petitions have been denied, revoked or withdrawn, inasmuch as it was "approvable when filed," the alien can still adjust under 245(i) using subsequent petitions or labor certification applications even if the initial filing was later denied, revoked or withdrawn.
• Once a visa petition or labor certification has been used as the basis for admission as an immigrant or for adjustment of status, the underlying visa petition or labor certification cannot be used again.
• Priority date will be determined "not" by the initial filing date, "but" by the subsequent filing date on which the alien seeks adjustment of status. Remember that initial filing will act only as a "vehicle" for adjustment based on a different filing.
• Caveat: The foregoing rules are valid "only if" the alien establishes that the initial filing was "approvable when filed." Initial filing can be "not" approval when filed for a number of reasons, among others, such as the followings:

(1) Filed "without filing fees"

(2) "fraudulent" or "without any basis in law or fact"

(3) In labor certification cases, the application fails to meet all relevant labor deparment regulary requirements for filing such application.

(4) Other filing deficiencies.

• Remember that subsequent denial or revocation or withdrawal of initial filing does not automatically make the alien ineligible for adjustment under 245(i) unless it is established that it was "not approvable when filed." Such cases must pass the threshhold of "approvable when filed."
• In the event that the pre-January 15, 1998 petition has already been approved, it meets the "approvable when filed" standard, and thus provides a basis for using such petition as a vehicle for adjusting status based on a petition or application filed and approved afterwards, unless the initial petition approval was later revoked.
• Further details, particularly guidelines for Employment-Based I-485 cases, will be released in the future.

Note for **: 245(i) allows aliens adjustment of status based on the approved immigrant petition, who filed an immigrant visa petition or application for a labor certification on or before 01-14-98, is "physically present" in the United States, and could not adjust status, despite of the approved petition, because s/he (1)entered the U.S. without inspection, or (2)violated nonimmigrant status, or (3)employed without authorization, or (4)other grounds which are specified in the immigration statute. If the alien is qualified, the alien has to pay $1,000.00 for adjustment. The 245(i) statute sunset on January 15, 1998. This policy guidelines saves a number of people who would otherwise face deprivation of their lives in this country.

• For the Employment-Based adjustment, this 245(i), along with 245(k), can be used as a valuable means to adjust status to a lawful permanent resident without the fear of being denied for his/her previous unauthorized employment or failure to maintain nonimmigrant status. EB permanent residence applicants who started labor certification process or immigrant petition proceeding on or before January 14, 1998 and have record of failing to maintain nonimmirant status or engaged in unauthorized employment should consult with a legal counsel before submitting EB485. There may be a number of EB proceeding candidates who previously violated nonimmigrant status with or without his/her knowledge. This guidelines will give them a peace of mind, even though they may have to pay additional $1,000 to get a green card.Back to Top

Updated 06-15-99: Rule Extending Period of D/S for F and J and Family Members

• INS indeed released today a new regulation confirming this site's previous report which was posted from Seattle conference. The regulation differs in two areas. (1) Extension is indeed D/S status and more than grace period. (2) Extension is until 10-01-99 or until the INS approves pending H-1B whichever comes later. During the period, the alien must maintain a legal status and not violate status other than expiration of current D/S. This rule applies only to those whose H-1B petition was received by Service Center by today or earlier.Back to Top

Updated 06-11-99 from Seattle: Warning re D/S Grace Period Extension Rule

• The new rule is available "only if" F-1 or J-1 has D/S. Therefore, it he/she has applied for B or other types of NIV as a stop-gap measure, he/she will lose D/S status as soon as change of NIV is approved by INS. To find out whether he/she should withdraw such application for change of status (I-539), he/she should "immediately" consult with his/her legal counsel. Very important!!

Updated 06-10-99 from Seattle: H-1 Bombshell News(revised)

• F-1 and J-1 in D/S whose H-1B petition is received by Service center on or before 06-15-99 and whose F-1 or J-1, including grace period, will expire before 10-1-99 will be given extension of D/S through 10-1-99 and their H-1B will be approved effective 10-1-99 on the condition that the alien does not engage in employment after the existing EAD(Practical Training based) expires and F-1 or J-1 did not change status and remained D/S.
• To take advantage of this new regulation, H-1B petition with no defect must be physically received by the Service Center by next Tuesday, 06-15-99. Filing H-1B without the certified LCA before the cut-off date will not save him/her.
• This new policy does not extend the D/S to J-1 who are subject to two-year home residency requirement.
• This new policy will be effective from 06-15-99. Tomorrow, INS will release this new policy in the form of regulation. Congratulations!Back to Top

Updated 06-05-99: 485 Delays, IV Consular Processing, and H-1B Issue

• All the predictions indicate that I-485 processing times will get worse. The new rule removing requirement of Advance Parole for H-1B and L-1 aliens pending EB-485 was in fact motivated by such predictions. Since change of employment for whatever reasons pending the protracted 485 processing will have a deadly consequence, more people are actively exploring the possibility of seeking the consular processing of green-card (immigrant visa application) rather than 485 application with the INS. However, people should consider the following points.
• Generally, the system does not allow simultaneous processing of both 485 with INS and IV application with American Consulate unless the system adopts a new rule. One will have to choose.
• Assuming one chooses the consular processing route, a few things must be kept in mind: (1) First, unless he/she is willing to go back home and apply for IV, one should keep his/her NIV status in the U.S. (2) Second, for H-1B and other 485 applicants, Advance Parole remains good only during pending 485 adjudication. Should he/she decide to go for consular processing and withdraw 485, he/she will loose legal status and as well as EAD/Advance Parole. (3) Consequently, it appears that it is a "prerequisite" that he/she maintains H-1B status for him/her to go through consular processing and keeping working for the H-1B employer in the U.S. (4) Since travelling on Advance Parole will deprive him/her of H or L visa status, one should consult with a legal counsel as to whether he/she should travel on an Advance Parole. (5) Using EAD for another jobs will also deprise him/her of H or L-visa status. (6) Using Advance Parole and EAD for second employer will be perfectly OK inasmuch as one goes through 485 processing, but not OK if one decides to go through a consular IV processing. Very important to remember. (7) Finally, it may still be advisable even after 07/01/99 to apply for Advance Parole and EAD just for safeside, but it is another question whether one should actually use it. (8) After 07-01-99, H and L aliens will have a very difficult choice of travelling using Advance Parole/EAD and travelling without Advance/EAD. This will indeed be one of the "most difficult decision" as a wrong decision will have a "deadly" consequence. For some people, because of his/her circumstances, EAD/Advance Parole should be a "must," for instance those who have already used EAD for another employers or who have already used Advance Parole to return to the U.S. For these people, a consular processing is practically shut out. Please never, repeat never even dare to make this decision on your own. Believe me. The consequence will be deadly!
• One should not consider a consular processing if he/she may be subject to 3-year or 10-year bar because of unlawful presence in the U.S. over 180 days or one year from 04/01/97. Consular processing should never be considered unless a legal counsel completes complete review of his/her history in the U.S. and the situation in home country.
• Each person's situation is very, very different. Please do not apply this information to your individual case on your own without an advice of a legal counsel. You may face a very serious consequences and we will not be responsible for such consequences.Back to Top

Updated 06-04-99: Importance of I-485 Receipt Notice

• In some jurisdictions where EAD and Advance Parole are issued at the local District Offices upon filing of I-485, the I-485 Receipt Notice (I-797) constitutes a key document without which the District Offices usually refuse to issue such documents.
• Additionally, under the new Interim Rule on H-1B and L-1 travelling without Advance Parole and maintaining H-1B and L-1 status without jeopardizing pending I-485 (which goes into effect on July 1, 1999. **Please read our prior report for restrictions.), possession of the I-485 Receipt Notice is absolutely required.
• The Service Centers usually issue duplicate copy for other actions, such as approval notice of certain application/petition, in most cases, but not, repeat not I-485 Receipt Notices. It is thus critically important that people keep the original of Receipt Notice of I-485 safe. It may be prudent not to transport such documents via U.S. Mail as it can be misdelivered. When I-485 decision will take a long time, the importance of this document cannot be overemphasized.Back to Top

Updated 06-02-99: H-1B Professionals and Implication of F,E,J,M Visa Holders "Dual Intent"

• As posted yesterday, the INS is "considering" to adopt dual intent concept for F,E,J,M nonimmigrants. Unless such policy imposes other limitations, it will have a very positive impact on H-1B professionals who face the 6-year limit as they will be able to apply for change of NIV status from H-1B to one of these nonimmigrant statuses, pending immigrant quota. "Intended immigrant" concept will no longer present a bar to such application for change of status. Until such policy is adopted, "intended immigrant" issue will remain and people will have to live with this concept for F,J,E,M visas statuses.Back to Top

Updated 06-02-99: INS HQ Extends "indefinitely" the Following Age-Out Processing Policy

• There is currently INS HQ directive to District Offices and Service Centers to expedite and adjudicate I-485 applications for a whole family when one of the accompanying children will reach 21 years of age. The purpose of this directive is to prevent separation of family members. Children can immigrate simultaneously with the parents for the "preference" petition immigration, including EB immigration, only if the children are younger than 21 years of age. It has been the "informal" INS and Consulate's practice to expedite adjudication of either an immigrant visa or I-485 application by a child who is younger than 21 years of age but will reach 21 years within six months so that such child will not get separated from the parents.
• However, there is a special directive of INS HQ at this time which is effective through July 19, 1999 ,that directs that not only such age-out child but also whole family members be granted CG expeditiously regardless of G-325A CIA clearance. FBI has also been expediting the fingerprint clearance procedures in such situation. These cases are adjudicated before the child reaches 21 years of age.
• It is thus imperative that the immigration applicants who have such an age-out child should contact with their legal counsels or INS immediately to take advantage of the current "official" policy. Considering the horrible delays in I-485 processings, this is indeed a privilege for older immigrants to take advantage of their age-out children and get CG quicker.
• By the way, the benefit of children's simultaneous immigration with the parents are not available when the parents apply for green card through a U.S. citizen spouse. This is a weird aspect of the current immigration law.Back to Top

Updated 06-02-99: "Dual Intent" for E, F, J. and M Visa Holders? (Please refer to our 5/14/99 report in this page on "intended immigrant" hurdle.)

• The following amended regulation for H and L visa holders also relates that the Service is also considering expanding the "dual intent" concept to cover long term nonimmigrants, in E, F. J, and M visa classifications. Caveat: No such amendment yet for E,F,J, M visa holders. Please stay tuned!!

Updated 06-02-99: Very Good News for I-485 Pending H-1B and L-1 Visa Holders

• Caveat: This new regulation does not apply to people who filed I-485 application on family based or other non H-1B or non L-1 related Employment-Based I-485. Very important.
• This site previously reported that the INS HQ had been internally circulating an amendment to the INS regulation to remove requirement for advance parole for H-1B, L-1 aliens and their immediate family members.
• On June 1, 1999, INS released Interim Rule to make this official beginning from 7-1-99. Under the revised regulation, H-1B, L-1 and their family will neither lose H or L visa statuses nor jeopardize pending EB-485 by travelling overseas without an Advance Parole, pending I-485 application.
• Since overseas travelling would not affect H or L visa statuses nor pending I-485, such alien would no longer need EAD before leaving the U.S., even though such alien would be able to apply for EAD. They will be able to resume H-1B employment upon returning to the U.S. unless the following events happened.
• The exemption from Advance Parole applies only to H-1B, L-1 and their family members and only if they maintain H or L visa status. Since H-1B alien and L alien will lose H visa or L visa status by working for non-H-1B or non-L-1 employers on EAD, and H-4 and L-2 family members will also lose H or L visa status by the principal alien's losing H or L visa statuses or H-4 or L-2 taking an employment on EAD pending I-485, it appears that these aliens would need to either obtain or maintain Advance Parole and EAD to travel abroad. This is very important. Those who have already lost H-visa or L-visa statuses by prior overseas trips or working for another employers on EAD pending I-485 should, repeat, should keep holding on to their Advance Parole and EAD. They should not leave the U.S. without Advance Parole and EAD.
• It may also be prudent to obtain Advance Parole and EAD even if H or L status has not been lost until the position of DOS on its impact on consular processing is made clear, but try not to use these documents, should people decide to keep H or L visa statuses.

Updated 05-28-99: Passport Renewal and Transfer of Visa from Old Passport to New Passport

• Until yesterday, the consular officer could transfer a nonimmigrant visa "without fee" to a new passport if the visa remained valid and the consular officer determined that the applicant remained eligible. However, from today, the consular officer will consider such application as a reapplication and applicant must pay application fee (this can be expensive for certain nationals who have to pay reciprocity fee on top of visa application fee; for instance, $100+$45 for Indians), according to the newly published DOS regulation and it is no longer considered a "transfer of visas." Important note: Applicants who do not wish to apply for such new visas(reapplication), may travel with their old but still valid visas in their old passports along with a valid new passport.

Updated 05-21-99: Warning! Warning! Warning! H-1B Travellers on Advance Parole Pending EB485

• In response to the query of attorney Sheela Murthy, DOS Advisory Opinion Division issued an opinion which has a very serious repercussion for H-1B travellers' families.
• The opinion states that if the H-1B alien leave the United States on Advance Parole and intends to return to the United States on Advance Parole, he or she is no longer considered an H-1B alien and his/her spouse or children cannot be issued H-4 visas to accompany him/her. The theory is that H-4 can be issued or remain good only when H-1B maintains H-1B status, and since the H-1B is entering the U.S. on an Advance Parole, the alien is no longer H-1B alien and the family cannot have H-4.
• Until the issue is straightened out, it would be prudent that H-1B professionals bring their spouse and children before they file EB485 or at least before they obtain and travel on Advance Parole not to jeopardize family members uniting with the H-1B principal alien. It is also prudent that should one have a plan to marry in home country, particularly Indians, that should be taken care of before one files EB-485 to avoid a forced separation.

Updated 05-21-99: H.R. 1841 245(i) Restoration Bill

• News also indicates that a bill has been introduced in Congress to restore 245(i) relief. For the details of 245(i), readers should review our previous report in this web page. People should strongly support this bill.

Updated 05-15-99: National Interest Waiver After NYSDOT

• The following report dated 04-12-99 is reposted as so many people needed information on the cut-off date of application of this policy.
• The date of NYSDOT is August 7, 1998. Therefore, I-140(NIW) which was approved before 08-07-98 cannot be reopened on NYSDOT issues. Should people encounter any ill-informed INS adjudicators either at District Office or Service Center in the course of getting EB485 being adjudicated based on NIW I-140 approval, they should remind the officers of INS HQ 70/8.5 Memorandum of Michael Cronin, Acting Associate Commissioner, dated 04-07-99.

(Updated 04-12-99: National Interest Waver After NYSDOT - What-To-Do With Cases Approved Before this Decision?

• INS HQ instructed all the Service Centers on April 7, 1999 that all the National Interest Waivers which had been approved "prior to" the NYSDOT decision be honored in adjudicating I-485 application or immigrant visa processings at the American consulates on the condition that the aliens continue to seek employment or are employed in the professional activity which provided the basis of the approval. Therefore, the people who obtained I-140(NIW) approvals before the NYDOT had been handed down do not have to worry about their I-140 approvals being reopened or cancelled for failure to meet the rigorous three-prong tests of NYDOT decision. This policy announcement should give a huge emotional relief to a number of professionals of high caliber!)

Updated 05-14-99: "Intended" Immigrant and Change or Extension of Nonimmigrant Status

• Under the immigration laws, an intended immigrant cannot be admitted to the U.S. as a nonimmigrant "unless" the statute provides exceptions (such as H-1B and L-1 visas). The same rule applies in applying for extension or change of status to certain nonimmigrant status.
• Careful review of Application for Nonimmigrant Visa (OF-156) and INS Form I-539 (Extension or Change of Nonimmigrant Status) will reveal that the forms ask whether a labor certification or immigrant petition has been filed for the applicant. Unless the applicant is an H-1B or L-1 alien, once the applicant answers "yes," the applicant may be taken by a consular officer or INS as an "intended" immigrant, whose application will most likely be denied.
• H-1B professionals, after completing 6-year limit, wish to remain in the U.S. in other nonimmigrant statuses. However, change to L-1 is specifically barred by the regulation. At the same time, change to most of other nonimmigant visa statuses other than O visa or other statutorily exempted visa statuses will mostly likely be denied if either a labor certification or I-140 is pending for them. The reason is that such alien can be taken as an intended immigrant and the U.S. government cannot give a nonimmigrant status. They are required to maintain permanent residence in their home countries. H-1B or L-1, inasmuch as they remain in that nonimmigrant status, does not have to maintain permanent residence in their home countries and even if they are considered "intended immigrant," the INS cannot refuse to issue extension of status or the consular officer cannot refuse to issue H-1B visas or renewal. This is often termed "dual intent" permissible to H-1B or L-1 aliens.
• This information is posted as a number of H-1B people ask why they cannot change their statuses (after H-1B six years) to either a visitor (B) or a student (F-1) and remain in the U.S. while awaiting the immigrant quota date. The readers are warned that there can be certain exceptional circumstances and the INS may approve such application in certain circumstances, and should consult with a legal counsel and not act on this information. This information should not apply to one's own "individual" situation.

Updated 05-08-99: Per Country Limit of Immigrant Quota and Exceptions

• Good morning. Today, this page will discuss the quota issue that affects so many Chinese and Indian EB applicants.
• As people probably all know, the country limit is determined "not" by place of citizenship, "but" by place of birth. A number of Indians and Chinese were born in other countries. This is a good time to check with places of birth for both of the married couple and find out whether they can bypass Indian or China quota backlogs.
• Spouses can borrow from each other the per country limit. Therefore, if they were born in different countries, they can choose the country which is favorable in per country limit in the visa bulletin. For instance, if the immigrant applicant is a PRC citizen but was born in Hong Kong, the "accompanying" spouse who is also PRC citizen and was born in PRC can borrow her spouse's Hong Kong per country limit and can apply for I-485 without the PRC quota problem.
• The situation can be other way around. Principal applicant was born in PRC, but accompanying spouse is a citizen of PRC but was born in Hong Kong, in which case the principal applicant may want to borrow his/her spouse's per country limit to bypass the serious quota backlog for China in Visa Bulletin. This is called cross-chargeability. This rule does not apply unless the spouses apply for I-485 or Immigrant Visa "simultaneously". Please consult with your legal counsels for the details and do not rely on this message. Good day.

Updated 05-07-99: I-485 for "Spouses and Children" of Principal Alien

• Good morning again. Many of immigration applicants are married with children. The answer for this question is simple if they acquired their spouse and children before they started the GC process. A simple rule of so-called "Accompanying" or "Following to Join" derivative benefits applies, and their spouse and children can apply for CG either in the U.S. or outside of the U.S. and either with them simultaneously or subsequent to their obtaining CG without filing a separate 2nd preference family petition which is terribly backlogged. For other details on the "Accompanying" or "Following to Join" issues, please consult with your legal counsel.
• Spouse and children who are acquired after the commencement of CG process can still apply for CG (I-485) as long as the legal relationship is established before the principal alien is granted adjustment of status. No 2nd preference family petition is required in such situation. If the spouse is acquired abroad, additional condition is attached. People should consult with your legal counsel.
• I-485 eligibility for the "illegal" accompanying spouse and children of the principal aliens applying for EB-485 under 245(i) and 245(k) will be explored later. Generally, under the "restricted" conditions, they will also be able to apply for adjustment of status in the United States with payment of $1,000 penalty in 245(i) situation (children under 14 are waived) or without payment of any penalty. Until people understand the requirement and conditions, people should not assume that their spouses and children are eligible for the benefits.
• As always, do not attempt to apply this news to your individual situation without legal counsel. The information may not apply to you and this office will not be responsible.

Updated 05-07-99: Status of Chennai Investigation Referral

• AILA has learned that the practice on this issue is different among the Service Centers.
• Primarily TSC and NSC have been referring for investigation.
• NSC limits referrals only to new cases, while TSC send out referrals even for extension cases.

Updated 05-06-99: Investigation of Indian, Chinese, and Russian Documents

• TSC sources confirms that TSC turns over a large number of documents generated in these countries for frauds and inconsistencies investigation. It is not clear, though, whether this is limited to TSC or other Service Centers as well.

Updated 05-06-99: H-1B Amendment Filing and $500 Waiver

• Please be aware that each Service Center adopts a different procedure to assure "no rejection for failure to include $500 check".
• As previously posted, NSC requires to enclose I-129W with a note "Amendment."
• TSC requires no such I-129W filing, but requires to write in bold red ink AMENDMENT, $500.00 FEE NOT REQUIRED on the I-129 Petition. Otherwise, the mailroom will be returning the H-1B petition for lack of the $500 training fees.

Updated 05-05-99: Status of H-1B Working on EAD Pending EB-485

• Most people who file EB-485 also apply for EAD(Employment Authorization Document) without understanding the legal implication. The issue which is posted here is not provided either in regulation or statutes. In such cases, people should follow the INS policy instructions which are released in the form of Memorandum or otherwise.
• Under the statute, H-1B is not allowed to work for any other employers unless the other employers also filed and obtained another H-1B for the alien. Granted that this is the basic premises to start, it is the INS policy that obtaining EAD in itself will not affect the alien's H-1B status. However, if the alien starts working for another employer without obtaining another H-1B and using EAD, the alien loses H-1B status from that point. However, the alien will remain in a lawful status pending adjudication of EB-485. However, should EB-485 be denied, the alien can not resume H-1B status and rather will fall into out-of-status immediately. The INS has been reviewing this issue, but so far no policy change has taken place.
• It is thus imperative that such aliens must also obtain Advance Parole before making a trip to foreign countries. First, without it, the pending EB-485 will be considered "abandoned" and the alien may face serious consequences. Second, since the alien lost H-1B status, the only way the alien can safely return to the U.S. is Advance Parole. Remember, though, Advance Parole will guarantee safe return but not employment authorization. Without EAD, the alien will not be able to go back to work. In this regard, people should apply for both EAD and Advance Parole not to jeopardize safe return to the U.S. and resuming employment.
• As this page posted a long time ago, the INS HQ has been considering revisiting these issues but nothing has taken place so far.
• As always, people should consult with their legal counsels rather than relying on this information.

Updated 05-04-99: DOL and INS Move for Efficiency

• The following action or planned actions may have some impact on EB immigration processing turn-around times in the long run, but we do not know how much at this time.
• The INS starts electronic filing of N-400 Naturalization Petition which has a machine readable features similar to electronic LCA filing. For such filing, the software has to be downloaded from the INS site. Assuming this will reduce the man/hours involving naturalization processing, it is certainly a good news. We will post INS download site soon.
• The DOL intends to implement in or around July this year a new regular labor certification procedure that can shorten time "only if" the application has unduly restrictive requirements. Currently, when SESA finds such unduly restrictive requirements in the applications, the application is forwarded to DOL office, that has to adjudicate this issue before the employer can even start advertising. This procedure is proposed to be removed in the labor certification procedure. DOL is practically resuming the old procedure of many, many years ago which left this function to SESAs. It will certainly save time for DOL and SESAs, but we do not know how much. I doubt whether it will save a lot of time. Additionally, whether or not this will actually be implemented, we will have to wait and see.

Updated 05-04-99: Education/Experience Requirement for EB-2

• Other than "Exceptional ability" catogory, EB-2 requires an advanced degree or Bachelor's degree plus five years of progressive experience. However, as to the definition of "experience," it appears that there are a lot of confusions among EB-2 seekers.
• In general, any experience or skills which have been gained with the current employer who files a labor certification on his/her behalf cannot be considered in proving the alien's experience. There are some exceptional circumstances, for instance, the occupation for alien certification application is "dissimilar" to either current or previous job of the alien with the same employer or the employer establishes "infeasibility" to train U.S workers. The exceptional circumstances are rarely established and the readers should assume that their cases may have to deal with the general rule.
• The definition of "employer" is also troublesome. Certain former employers are considered part of the present employer who files the labor certification application. For instance, if one gained experience with a parent company or subsidiary of current employer, such experience cannot be considered unless the foregoing exceptional circumstances are established. The same may apply in the context of certain merger or acquisition situations.
• This information is posted in order to provide some information on the EB-2 legal issues. People who have some concerns on these issues should consult with their legal counsels rather than relying on this information or attempting to handle situation without legal counsel.
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Updated 05-03-99: TSC I-485 News

• AILA reports that TSC has just agreed to give special handling to all the I-485 which were filed before June, 1998 where FD258 (fingerprint) is about to expire. Readers should consult with their legal counsels.

Updated 05-01-99: American Consulates Approintment (Canada+Mexico) via DOS Website

• Website address: www.nvars.com. Appointments are scheduled online cheaf and easy. H-1B page.

Updated 04-30-99: EB-485 and Fraud Issues

• In EB-485 context, an alien is granted a lawful permanent resident status based on a U.S. employer's needs for the alien's services on a full-time and permanent level. Therefore, should the alien fail to either continue or take the petitioned job on approval of EB485, it will constitute a fraud unless it is justified by certain compelling circumstances. The same is true if the employer dismisses or lays off the alien or the business is shut down.
• The potential fraud increases because of the current procedure of EB485 adjudication. First, it takes longer and longer time and pending 485, a lot of things can happen. Second, EB 485 is approved in most cases without interviews and the INS has no way to detect such fraud. In this regard, the volitile fraud issue remains under the rug and dorman until it is detected later, usually in the naturalization process.
• Even if the alien employee's employment is not terminated or the job remains at the time of 485 approval, an issue which is similar to fraud can arise in the form of "pre-conceived intent" to work for another employer and not to work for the petitioning employer "indefinitely." Such pre-conceived intent can be established by the INS through certain circumstantial evidence. For instance, should the alien apply for a job with another employer while waiting for the approval of I-485, the alien's intent is clear: Never intended to work for the employer who sponsored the so-called green card. The other circumstance may arise when the alien departs from the job immediately upon receiving the green card. The INS may enjoy "presumption" of preconceived intent not to work for the employer.
• People should remember two things. For EB 485 applicants, the petitioned job must exist at the time I-485 is granted. Second, the alien must have had an intention to work for that job and as a "permanent employment." Otherewise, there will be an issue of "preconceived intent" or fraud and potential problem of green card canellation proceedings in the future, should the INS collect such evidence.
• This information is posted as EB 485 proceedings are growingly dragged out and people may face such situation and without their knowledge, violate seriously the immigration law.

Updated 04-29-99: NSC Processing-Times Ending 03-26-98.

Updated 04-29-99: CSC Phone Numbers Change Effective 04-27-99: INS Processing-Times.

Updated 04-27-99: No Benching Rule and Employers' Predicament in Software Industry

• As the people in IT industry know, the software industry is currently experiencing "soft" market as affected by Y2K compliance issues and potential Y2K liabilities and litigations. This in turn affects the jobs of computer professionals, raising concern of violation of the "no benching" rule under the new H-1B legislation.
• Under the new H-1B legislation, employers are required to pay full wage even during the nonproductive period unless the nonproductive situation was brought about by some reasons unattributable to the employer.
• The issues are raised at two different levels: (1) New employment vs (2) Nonproductive status in the middle of employment.
• (1) New employment situation: If the alien is hired and brought in from other countries, the employer is obligated to pay a full salary at least within 30 days of the H-1B alien's arrival in the United States. However, if the alien is hired within the United States, the employer is obligated to pay a full salary at least within 60 days after the H-1B worker becomes eligible to work for the employer. In this context, employer's problem will arise if employer fails to locate a project for such H-1B worker within the time period.
• (2) Nonproductive status after starting employment: Any nonproductive time for reasons attributable to the employer, typically bench time, will subject such employers to requirement for payment of a full wage even during the nonproductive time.
• Employers are at this time struggling to deal with these rules. However, not going into the details, from the perspective of employers, there are very limited options available. First, employer may file "amended" H-1B petition changing a full-time employment to a part-time employment. Such amendment is not subject to the H-1B cap and unless extension is requested, no payment of $500 surcharge is required. When a full time job becomes available, the employers may be able to file another amended petition to switch it back to a full time position. Second, the employers may terminate the employment and return the workers back to their home countries. The employers may again file a new H-1B petition within 30 days, in which case, assuming the INS would follow the same rule that they adopted last year, the employer may not be subject to the H-1B cap under the rule of sequential employment. The H-1B worker, after obtaining a new visa, may either stay in the home country on a standby status or enter the U.S. In the latter situation, the employer will have to pay a full salary within 30 days. Third, if the alien seeks nonproductive time for his/her own personal reasons either within the U.S. or outside the U.S. without violating H-1B status, the employers are not required to pay a full salary on two conditions: (a) During such period, the employer should give the same fringe benefits that are offered to the U.S. worker employees within the company, if such fringe benefits are given during such leave of absence. (b) If U.S. workers are paid during such period of leave of absence, the H-1B workers must also be paid the same amount that U.S. workers receive.
• Caveat: The issues involving temporary nonproductive situation are very complex and the related legal issues are at the stage of evolving. People should not take this information to answer one's own individual problem without seeking legal counsel.

Updated 04-27-99: Substitution of Employee

• Substitution of employee involves an employer who filed and obtained certification of ETA 750 on behalf of an alien employee, but the alien employee is no longer with the employer for whatever reasons.
• The employer can use this certified ETA 750 on behalf of another employee inasmuch as the alien is qualified for the job. Beauty of the substitution is that the employer does not have to go through another labor certification process on behalf of the new employee. The employer will be able to file I-140 immigrant petition on behalf of the new employee using the certified ETA 750.
• Substitution requires that the new employee must meet all the qualification requirements which are specified in ETA 750 Part A, "not" at the time of substitution, "but" at the time of initial submission of ETA 750 by the employer, which determined the priority date. For instance, if a regular labor certification ETA 750 was filed by an employer for EB-3 in April 1996 and the employer is now attempting to substitute for a new employee, the new employee will not be able to make it unless he or she had all the qualifications on or before April 1996.
• Since nationality of the old employee and the new employee is irrelevant for substitution, the employer will be able to file I-140 on behalf of an Indian employee using the certified ETA 750.
• If the employer has yet to file I-140 on behalf of the old employer, the employer will just add Part B of ETA 750 for the new employee and submit I-140 on behalf of the new employee, along with the new employee's qualification documentation and certified ETA 750.
• If the employer has already filed I-140 on behalf of the old employer, the employer needs to withdraw the petition on behalf of the old employer before the employer can file a new I-140 on behalf of the new employee.
• As always, this information is posted in general terms, and people should not handle their problems without a legal counsel. Each case is different and the general rule may not apply.

Updated 04-26-99: Priority Date Transfer Issues in Immigration Proceedings

• As everyone knows by now, alien's priority date in immigration proceedings can be transferred among different EB classifications when the following conditions are satisfied.

(1) I-140 petition must have been approved. Labor Certification Application is not enough.

(2) I-140 petition must not have been revoked.

CAVEAT: People should not confuse the current issues with the substitution of aliens by the employer. In the substitution context, the new employee will pick up the new employer's approved labor certification priority date. Besides, I-140 approval is not a condition for this unusual benefit for the new employee. Such job can give some H-1B Indians/Chinese who approach 6-year limit a real solution. This page will elaborate the substitution of employee issues later. As opposed to substitution of employees, the foregoing retention of priority date issues arise when there is a substitution of "employer" rather than "employee" or same employer filing a different preference labor certification application.

• People whose employer filed I-140 before "10-1-91" under the old 3rd and 6th preference petitions must make it sure that I-485 or immigrant visa is filed "within two years" of the date of visa availability, according to CSC. Otherwise, such approved petition will have no effect. Important thing to remember.

Updated 04-24-99: Misconceptions about EB-2 Proceedings

• (1) A number of people, particularly Chinese and Indians, have a misunderstanding that he or she should be entitled to EB-2 level of alien labor certification because he or she possesses a Master's degree. However, for both INS and DOL, EB-2 requires as a threshhold that the job "by nature" requires such an advanced education at entry level. Consequently, employer will not be able to file EB-2 level of labor certification unless the job truly requires such level of education. Typically, SVP 8 is required in most cases even though there are exceptional circumstances. However, SVP8 designation is not enough. Analysis of the job duties and responsibilities must reflect that either the job involves something which is normally learned at a graduate school (most typically "research") or very high level of "responsibility" or work requiring understanding of interdisciplinary specialty knowledge or license requires that level, such as clinical psychologists, librarians, or the industry normally requires such education, etc. Otherwise, employer's requirement for EB-2 level when in fact it is not truly required may be construed as a misrepresentation.
• (2) Second common misunderstanding is that one is eligible for EB-2 because one has a bachelor's degree and more than 5 years of work experience. Typically, this also requires that SVP is 8. Otherwise, the employer will face a challenge of "business necessity" justification and DOL may even refuse to process as RIR or LRP. When employer requires number of years of work experience that exceeds SVP7, it is taken a unduly restrictive requirement and employer must justify by business necessity. On top of SVP issue, EB-2 requires that the labor certification application must have specifically required an advance degree and "as an alternative", required a bachelor's degree plus 5 years of progressive work experience. As discussed in NSC tour report, the Service Centers take a very firm position on this issue. This is also the policy of INS HQ.
• The foregoing information is posted to describe "general" requirements, and depending on the circumstances, cases may be handled differently. Readers should seek legal counsel for his/her specific situation.

Updated 04-23-99: Misconception about Limited Review Processing of Alien Labor Certification for Permanent Residence.

• Some people misunderstand that the Limited Review Processing is a type of procedure, like RIR, that the employer can choose and the DOL must process as such. The truth is that Limited Review Processing is just one type of regular labor certification application proceeding. It is SESA that determines after completion of regular labor certification recruitment process. Until that time, nobody, even SESA, can not determine as to whether it should be processed as a Limited Review Processing. As such, such application is not even considered as a priority case at the SESA level. It is Regional Certifying Officer's office that takes it as a priority case and certifies just as quickly as RIR since they have decided to "limit their review" of the application. RIR and Limited Review Processing are totally different in terms of the procedure, processing times, and regulatory grounds. When the case reaches the Region, the processing times are almost identical between RIR and LRP, but the processing times at SESA level are miles apart between RIR and LRP. For this difference, readers may visit our DOL-Processing-Times page and compare these two types of proceedings between SESA Processing Times and DOL Processing Times. Understanding the difference is critically important in choosing a proceeding. For instance. in a state where SESA turn-around time for regular labor certification is very short and the employer is a small company that does not have previous advertisements/website recruitment, LRP strategy may work as good as RIR, especially when priority date is very important. On the other hands, the turn-around times for SESA in some states are hopeless long, in which case employer should consider various factors such as importance of priority date, availability of previous recruiment evidence, and other factors and decide whether it should go for RIR or LRP. Employer does not have a right to choose LRP but at least draft labor certification application such that after completion the recruitment process under the supervision of the SESA, SESA is likely to recommend LRP in forwarding the case to the Region. This decision should be different in each case. This information is posted since so many people are confused about the different types of alien labor certification application.

Updated 04-23-99: Misconception about Termination of H-1B or L-1 Employment and Legal Status

• INS HQ recently released its view that once H-1B or L-1 alien is terminated from the employment before the granted H-1B or L-1 period, the alien's legal status is also terminated at the moment, and "continuous payment of normal compensation for severance pay "after the termination does not extend the alien's legal status.
• There are also misconceptions going around that the H-1B or L-1 aliens have either 10 days or 30 days "grace period" after the termination of employment. Under the regulation, H-1B aliens have 10 days to depart from the U.S. after expiration of the given H-1B period. This 10-day can be taken as a grace period in that if a new petition is received within the grace period, INS will adjudicate such petition. However, if the employment is terminated before the expiration of the given period, there is no such 10-day grace period. Additionally, when an alien loses job, the alien's legal H-1B status stops at the moment, but the INS can exercise its discretion to grant a new H-1B petition with a new employer if it is filed within 30 days from the termination of employment. Caveat: It is a matter of INS discretion rather than a rule. Legally, there is no such 30-day grace period under the statute or regulation. INS "may or may not" exercise such discretion depending upon circumstances surrounding the termination of employment. This should never be taken as a grace period.

Updated 04-21-99: DOL H-1B Interim Final Regulation

• DOL is reportedly to publish the Interim Final Regulation by the end of May, which nobody is looking forward to and excited about because of all the nightmarish attenstation provisions and other nasty conditions.

Updated 04-20-99: Selective Service Registration Duty and Bar to Naturalization,Q&A/FYI

Updated 04-19-99: Sunset and Planning for Religious Worker Special Immigrant Petitions

• This is a reminder that Special Immigration Laws for Religious Workers other than Ministers will sunset on 09-30-2000. Unless I-485 is "approved" before the law sunsets, pending I-485 applications will face denials.
• This reminder is posted as both Special Immigrant Petition, I-360, as well as I-485 take so much time and unless such proceedings are commenced way ahead of time, potentially eligible candidates may lose opportunity to immigrant to the U.S. under this law. As everyone knows, I-485 takes more than 12 months in all the Service Centers, and I-360 also takes more than four to five months. The I-360 petitions additionally experience "kickbacks" for additional evidence, which delays the petition approval process in a number of cases.
• Considering the timeframe, religious organizations should start working on such process now.
• Law may be extended for another three years depending upon the lobbying activities of religious organizations. Additionally, INS normally arrange an "expedite" process when it approaches "sunset" date. However, these are all unknown factors, and people should not create "unnecessary chances."

Updated 04-19-99: Immigration Statistics FYI

Estimated Immigrants to Canada, Australia, USA(one year)

Updated 04-18-99: What is 245(k)?

• This provision applies only to people who apply for" permanent resident status based on Employment", including EB-1, EB-2, EB-3, and Religious Worker Special Immigrant Petition, but no others.
• This provision does not apply to people who entered the U.S. without inspection.
• This provision does not apply to people who are removable under the immigration law for reasons other than those listed below; for instance, fraud, crime, etc. etc.
• The applicant must be present in the U.S. at the time of 485 submission.
• The following violations of the nonimmigrant status must not exceed 180 days for an "aggregate" period from the date of his/her lawful admission to the United States:

(1) Failed to maintain, continuously, a lawful status; for instance, overstay, or

(2) Engaged in unauthorized employment, or

(3) Otherwise violated the terms and conditions of the alien's admission.

• Such person can apply for I-485 (if not arrested during the 180 period) without even paying $1000 penalty under 245(i). Accordingly, those people who failed to meet 245(i) benefit should review very closely his/her situation to see whether he/she will be qualified under this provision. Please remember that this provision does not save the employers who provided unauthorized employment from the employer sanction provisions.
• Let's assume that "A" violated one of the foregoing provisions recently, for the sake of discussion, last month and quota is available now to file I-485. Let's also assume that "A" also started labor certification before January 14, 1998. "A" is qualified for both 245(i) and 245(k) and can apply for green card despite of the previous violation of the law. However, "A" would definitely choose 245(k) option to avoid $1000 penalty.
• Please remember that to receive such benefit, a complete I-485 application packet must be "receipted" by the Service Center before it reaches 180 days of violations! People in this situation will definitely file I-485 through a competent legal counsel not to take any chance of mistake. The applicant must also be careful not to get arrested by the INS during the 180-day period. 245(k) provision is permanent and there is no sunset for this provision.

Updated 04-14-99: Most Up-To-Date USDOL Processing Times:

• Please click DOL-Processing-Times.

Updated 04-14-99: Most Up-To-Date SESA (State Labor Departments) Processing Times:

• Please click DOL-Processing-Times.

Updated 04-09-99: INS District Offices I-485,I-131,I-765 Processing-Times updated as of 02/20/99.

Updated 04-03-99: Immigration Statistics FYIEstimated Immigrants to Canada, Australia, USA(one year)

Updated 04-02-99: Disappointment with the INS FY 1999 Enhancement Budget

• The INS has announced to appoint 1,600 new positions. The analysis of this plan reflects that approximately 1,200 positions are "enforcement officers" including border patrols, inspectors, deportation/detention officers. 300 positions are naturalization adjudicators and information officers. The rest are administrative/management personnels. Adjudication(immigrant and nonimmigrant proceedings) personnels other than naturalization proceedings appear to be completely left out! Emphasis on "enforcement" and "naturalization" , ignoring the other key function of the agency, "services," clearly mirrors an attempt to accomodate the politial environment in the upcoming election year, IMHO. For I-140 and I-129, the INS has announced a standardized processing times from 60 days to 30 days, but other critical legal proceedings like I-485 which are not considered a "priority" proceeding may suffer further in the future. I hope my reading of the budget turns out be wrong.

Updated 03-30-99: NSC I-485 Processing Status

• I-485 cases which were filed on or before June 30, 1998 are currently eligible for adjudication. The oldest I-485 at NSC at this time is known to be September of 1997. Cases that were filed after September 1997 have been worked but the processing time is stated in terms of the oldest pending case, according to the NSC.

Updated 03-30-99: NSC Policy Change on Computer Cases involving Chennai District

• AILA reports that NSC has changed its previous policy and decided that all H-1B Computer Cases within the Chennai Consulate District which were filed before 12-15-98 and had been sent to Chennai for verification will now be adjudicated on the merits, or an RFE will be issued. Additionally, all newly filed cases will be reviewed by an officer and if the case fits the referral to Chennai, the documentation will be sent to Chennai and it will then wait for 60 days. If no responses are received from Chennai, NSC will then adjudicate the case on its merits. Good news for the computer H-1B cases which were filed before 12-15-98.

Updated 03-26-99: INS 485 Hold Situation

• As reported previously, all the I-485 which have been received after June 1998 are in holding state. INS is adjudicating I-485s which were received in June 1998 or earlier. Reportedly, there are 862,616 cases pending at Service Centers and District Offices throughout the country.

Updated 03-26-99: INS HQ Prioritization Instructions

• INS HQ, on March 18, 1999, sent out an instruction memorandum to all Service Center Directors to establish the following adjudication priorities and processing times:

Updated 03-25-99: Investigation of Indian Computer Professional Cases Under Way

• Report indicates that these investigations are under way through the Chennai consulate. The following guidelines should provide some help in understanding the focus of documentary fraud investigations.

Updated 03-25-99: Chennai (and implicitly INS ) Guidelines for Acceptable Southern Indian Degree Certificates and Experience Letters for Computer-Related Specialty Field H-1B Petitions:

• Specialty work experience documentation is not necessarily required when the following three conditions are met: (1) 4-year non provisional degree from schools other than Osmania, Andhra, or Nagarjuna (2) Major field is Math, Statistics, Physics, Computer Science or Engineering. This implies that the graduates of Osmania, Andhra, or Nagarjuna must also provide specialty work experience documentation and degree certificates may be insufficient in the event that specialty background becomes an issue.
• Degree copies for Andhra, Gulbarga and Jawaharlal Nehru Technological Universities must contain the reverse side of the degree.
• For degrees from Bangalore, marks cards must be available.
• Degrees requiring a processing fee for verification, including Osmania, Mysore, and Pune, must include a usable beneficiary Indian address in the I-129.
• The certification number of the certificate must be clearly legible.
• Provisional degree certificates over a year old are generally not acceptable.
• Non academic computer training certificates are not considered evidence of specialty education/experience.
• Specialty work experience letters must contain readable company names, addresses and telephone numbers.
• I-129 suporting documentation of education and experience without degree certification numbers, reverse sides of degree certificates, beneficiary Indian address, or address and telephone numbers of specialty work references will face RFE (Request for Evidence, also known as "kickback") from the INS.
• Generally, the following situations are vulnerable to a time-consuming investigation and delay of H-1B processings: (1) Degree certificates from Southern Indian Universities, particularly Osmania, Nagarjuna, Andhra Universities; (2) Work experience letters generated by southern Indian computer companies, particularly Hyderabad and Secunderabad areas; (3) Petitioner is a small and start-up computer company; (4) The beneficiary has a degree unrelated to the work. Generally, investigation applies to the first time Indian beneficiaries applying for H-1B. (Source: Chennai checklist)

Updated 03-22-99: Sole Jurisdiction for I-129, I-140, I-539 Filings

• INS HQ released a memorandum dated 3-16-99
• What is "Sole jurisdiction?" It is a concept in which one Service Center may receive and adjudicate applications/petitions from a business employer and its branches not located within the noraml geographic Service Center boundaries in order to provide for more expeditious adjudication and better customer services.
• What "factors" are considered? (1) Applies only to the principals of business cases and their dependents (I-129, I-140, I-539) (2) A corporate HQ, division HQ, administrative center, or major operating entity of these businesses must be located in the jurisdiction of the Service Center to which applying for sole jurisdiction (3)It is the responsibility of the business entity to file the application/petition with the Service Center having sole jurisdiction. INS will not screen applications/petitions and forward to another Service Center (4)Each Service Center retains the authority to add requirements to any request for sole jurisdiction (5)Either party may terminate the sole jurisdiction relationship at any time w/o cause.
• Service Center Directors are granted authority to approve any written requests for sole jurisdiction that is based upon the above criteria.
• For national firms or any firms locating employees nation-wide, this can be a terrific news.

Updated 03-22-99: For H or L Visa Application for Third Country Nationals Thru Canada/Mexico

• Please click H-1B for Department of State telephone numbers for appointment.

Updated 03-22-99: For H or L Visa Revalidation Through Department of State

• Please click H-1B or visit our Q&A/FYI page and then H-1B page.
• This information is provided in response to the overwhelming number of inquiries by readers.

Updated 03-18-99: 1999 Proverty Guidelines Affidavit of Support, Q&A/FYI

Updated 03-18-99: Vermont Service Center Processing-Times as of 02-28-99

Updated 03-17-99: West Coast, Region VI through Region X Electronic LCA Filing

• Again, unlike their previous instruction requesting to file at Washington, D.C. station using fax number of (202)......, they now require to file electronically with San Francisco station using Fax Number, (415)975-4964. Please keep eye on further development. Please get the updated and correct information from http://edc.dws.state.ut.us

Updated 03-12-99: Region VI DOL-Processing-Times

• Regular labor certification=November, 1998
• Limited Review Processing=Current (no backlog)
• RIR=October, 1998. (Source: Region VI CO report at the Texas Bar Meeting)

Updated 03-12-99: Texas Workforce Commission (TWC) backlogs

• CO of Region VI reports that the current backlog of permanent alien labor certification cases is about 9,000 cases, which includes 3,500 cases of 245(i). Region VI Backlog Reduction plan is to reduce the backlog first at the Region and move to reduce the backlogs at the SESA level.

Updated 03-10-99: Reshuffle of Alien Labor Certification Application Process in Progress Behind the Switch from ETA to ESA

• American Immigration Lawyers Association has learned that USDOL has been developing a new alien labor certification process, called PERM (Program Electronic Review Management System). The idea is still at development stage, but a few points are looming in the mist:
• Automatic routine certification by computer (which sounds similar to current electronic filing of LCA for H-1B). About 80% of cases would be certified this way.
• Other 20% cases would be audited, particularly "red flag" cases. One of the red flag cases appears to be cases involving "encumbering" of the job by alien already in it.
• DOL would collect fees of $500 for the so-called "one-week" processing.
• As expected, DOL would also intensify post-admission enforcement.
• The State Employment Security Agencies (SESA) would be mostly left out.
• Caveat: Readers should not be misled by the idea that labor certification can be completed in a week since there are some horrible ideas underlying the proposed system.

Updated 03-05-99: Electronic Filing of LCA for H-1B

• East Coast Regions (I through IV): LCAs electronically filed with Region III using the above-designated fax number. New form must be used.
• Regions V through X: New form must be used. Electronic filing fax number is: (415)975-4964.
• New Electronic Filing Form: Download the form using the following website: http://edc.dws.state.ut.us

Updated 02/26/99: Nebraska Service Center Status Report

• Yesterday, NSC gave us an opportunity to enjoy a tour of its facility and to hear its status report.
• In the very near future, public will enjoy an easy access to the status report of their applications/petitions thanks to the two plans. Under the plans, the Service Centers' telephone answers to all the public status inquiries will be centralized in one national center which will be accssed by a 800 number. At the same time, the status information will also be posted in the INS Web Sites and public will be able to get access to the information via Internet.
• The plans will relieve Service Centers of tremendous work loads. For the last one year, NSC alone answered 99,000 written inquiries, 712,000 electronic telephone inquiries, 112,000 telephone inquiries with live assistance. Once the new system is in place, about 85% of the incoming calls will be handled by either a national telephone center or Web sites. Currently, NSC is staffed by about 275 employees and 445 contract employees. NSC received 2.4 million mails. It completed 737,000 cases and issued 873,000 receipts. We were very impressed by the hard-working staff of NSC.
• H-1B Petitions: At this time, 3,200 petitions are being adjudicated and another 1,000 petitions are in the mail room for processing. A few interesting points: Most H-1B cases are processed in around 14 days. Petitions involving Indians from Chennai (Madras) and Southern India will experience a substantial delay because of the documentary fraud investigation. The field office in Madras is expected to report within two weeks but in most cases it takes more than two weeks. This presents a serious problem to the aliens from Southern India considering the fact that H-1B quota may run out as early as May, 1999. Once quota runs out, INS will take same actions that we experienced last year. Two things will cause delays: (1) Submission of additional documents before receiving a letter from the Service Center. (2) Filing insufficient documentation and receiving so-called RFE or Kick-back from the Service Center. Once evidence is submitted in response to the NSC request, it will go through another cycle of turn-around time.
• 485 Applications: Three factors cause continuing or further delays: (1) NSC handles 91,000 asylee 485s and 33,000 refugee 485 cases. Employment-based 485s are no doubt affected by the work loads. (2) Previous suspension of 485 cases. NSC has resumed the processing, but they move in snail pace. NSC is currently processing EB 485s which were received in May, 1998. Expedite is, however, available if one of the family members reaches 21 years of age within 6 months and the applications for the family are filed not less than 2 months before the child reaches 21 years of age. In other words, I-485 for such family will be adjudicated in approximately two months. Considering the present turn-around time of one year for regular I-485 caes, it sounds like a miracle. (3) Scheduling finger-printing as a separate procedure is another source of delay. Certainly not a promising news.
• I-140 Petitions: National Interest Waivers are massively denied. Once the cases are sent to AAU, it takes three months to get decisions and bulk of them are denied. Unless the NY Transportation decision is overturned by a federal court, the future of NIW is very grim. EB-2 Advanced Degree cases: NSC will deny EB-2 petitions if labor certifications just required Bachelor's Degree with 5 years of experience without at the same time requiring an advanced degree. In other words, Bachelor's degree with 5 years of experience should be an alternative requirement to a Master's degree requirement to get a EB2 treatment. H-1B aliens approaching 6-year limit: NSC has no fixed policy as to whether they will expedite I-140 petitions in such situations, especially when the alien started immigration process recently (i.e. NIW). It appears, though, that when alien has suffered a long delay because of the changing circustances and other compelling circumstances are established, there appears to be some windows of opportunity to push through the expedite route. If an H-1B alien worked overseas for six months, NSC will take this period out of 6-year limit. Strategically, employers and H-1B aliens may take advantage of this rule. There are some indications that Senate Bill 1723 which proposed to grant extensions to H-1B aliens until the adjustment of status application had been processed may be reintroduced in the Senate. Everybody should lobby hard in support of such legislation. NSC opines that an alien who violated immigration laws including overstay may still be granted I-485 under 245k, but "unlawful presence" will keep running. Therefore, if 485 application is for one reason or another denied and alien departs from the U.S., the alien will be subject to either a 3-year bar or 10-year bar.
• I-131 Advance Parole: NSC issues only 'multiple-trip' advance parole and if only one photo is submitted, it will be returned. NSC requires two photos.
• I-551 Green Card Production: It is current. Once it receives I-89 card, it produces a card in two weeks.
• Standardized Processing Times Among the Four Service Centers: For 129, 140, 130, 730, 131, and 90 cases will be standardized, resulting in some winners and losers. No doubt, the people in California Service Center areas will become big winners.

Updated 02/26/99: H-1B LCA Processing Centralization

• Beginning from March 2, 1999, the centralized processing of LCA will go into effect for the following Regions and States according to the AILA (electronical filing procedures):

• LCA can now be filed with the DOL Region III office via fax using special new form of ETA 9035 and the decisions will be forwarded to the applicants via fax in two days. Details will be posted soon. This procedure is available only for the jobs which are located in the foregoing states. A similar centralization process will go into effect in other regions later.

Updated 02/11/99: FY 2000 Transfer of Alien Labor Certification business from ETA to ESA

• Employment Standards Administration, Wage and Hour Division, is an "enforcement" arm of the U.S. Department of Labor. The U.S. Department of Labor, Employment and Training Administration (ETA), that has been adjudicating alien labor certification cases, including H-1B labor condition application, has released the new FY budget. Alien Labor Certification (ALC) activities will be transferred to the
  Employment Standards Administration, Wage Hour Division in FY 2000, according to the budget.
• This change may signal that DOL may switch its policy of alien labor certification from the conventional U.S. worker market testing process to enforcement process.
• Considering that the new H-1B provisions of requirement and enforcement of recruitment attestation and no-lay-off attestation will be enforced soon, employers may have to take these changes very seriously and start focusing on developing internal compliance system.

Updated 02/01/99: Effect of F-1 Practical Trainee Not Taking H-1B Employment

• According to the American Immigration Lawyers Association sources, the INS HQ policy is that F-1 student in practical training who obtains change of status to H-1B to work with a specific employer and does not commence work with that specific H-1B employer is considered "out of status." Additionally, if the student obtains a second H-1B with a second employer and takes employment with the second H-1B employment rather than the first H-1B employment, INS HQ apparently considers such employment "unauthorized employment." This will later have very serious consequences on application for adjustment of status to a lawful permanent resident or extension/change of nonimmigrant visa status as well as any consular proceedings outside the U.S. This policy has yet to be formalized in a form of Memorandum. In that regard, this policy is still informal and "opinion." Yet, it is prudent for F-1 students attempting to change of status to H-1B to comply with this opinion. The risk can be unbearably high!

Updated 01/29/99: List of E-2 Nonimmigrant Investor Visa Eligible Countries as of today: Q&A/FYI

Updated 01-29-99: Advance Parole and Employment Authorization Card processing practice in Minnesota District Office of INS that covers Minnesota, North Dakota, and South Dakota

• Minnesota District Office is only one of a very few district offices that still issue EAD and Advance Parole, particularly for EB 485 applicants. Once Nebraska Service Center issues Notice of Receipt of I-485, I-797C, the EB 485 applicants can bring this notice to the Minnesota District Office and get EAD card issued same day and Advance Parole in less than a week.
• In today's District Office-Immigration Lawyers Liaison Meeting, the District Office advised that the applicant is well advised to bring not only 485 Receipt Notice but also I-140 petition approval notice for Advance Parole application.
• Beware: This practice applies only to the INS District Office in Minnesota.

Updated 03-24-99: Automatic Extension of Passport Validity: This list which we posted last year has been updated on 01-16-99, adding Russia. Q&A/FYI

Updated 01-20-99: I-485 Adjudication Suspension Status

• INS HQ released a memo to all the Directors of Service Centers on 01-19-1999 with the following instructions:
• (1) Directors should adjudicate the I-485 applications of all family members with the application of the child who is about to age out (21 years of age). Accordingly, I-485 applicants with a child who approaches 21 years of age will receive the benefit of lifting of I-485 adjudication suspension at least for the next six months. The adjudication will be resumed for these cases inasmuch as the finger print has been cleared by the FBI.
• (2) For the non aging-out cases, Directors can commence final adjudication of I-485 cases which were filed between April 1, 1998 and April 30, 1998. The I-485 cases which were filed on or after May 1, 1998 will stay on hold pending further instructions.

Updated 01-06-99: On-Going Changes in H-1B Procedures: H-1B

Updated 12-30-98: Most Upto-date List of Visa Waiver Pilot Program (VWPP) Countries:Q&A/FYI

Updated 12-30-98: Recognition of Dual Citizenships:Q&A/FTI

• List of countries
•  

Updated 11-20-98: Disturbing News of the INS's I-485 Processing Suspension!

• According to the American Immigration Lawyers Association, the INS CLAIMS contractor, EDS, failed to deliver fingerprint data tapes to the FBI and CIA in a format that could be read by these agencies, and the INS had to suspend the processing of all I-485 green card applications which had been filed with the INS Service Centers or District Offices on or after April 1, 1998. The INS is currently working to resolve the problem, but no one knows how long the suspension of I-485 processing will last.

Updated 11-15-98: H-1B Indian Document Fraud Investigation H-1B

Updated 11-2-98: H-1B: $500 New Charge Exempt Entities:

The $500 new charge for H-1B filing under the new law is exempt for the following organizations:

• Colleges, universities or a related or affiliated nonprofit entity
• Nonprofit research organization
• Governmental research organization.

Updated 10-24-98: Good News for certain NATO Employees

• NATO Civilian Employees: The bill that included the new H-1B provisions include a special provision that gives a special immigrant status to NATO civilian employees with long-term service in the United States and nonimmigrant status to the parents of children who qualify as special immigrant under this law. Again, details will be summarized and posted as soon as the text becomes available.

--------------------------------------------------------SUMMARY OF NEW H-1B LAW-------------------------------------------------

• For summary of the new H-1B law, H-1B

NEW H-1B LAW: President Clinton signed into law!!! (10-21-98)

Updated 10-19-98 (H-1B): Potentially Good News for the Following Employers under the pending H-1B bill:(1) Colleges/Universities (2) Nonprofit Entities related or affiliated to Colleges/Universities (3) Nonprofit or Governmental Research Organizations.

• Prevailing wage for both Labor Condition Applications for H-1B Nonimmigrants as well as Permanent Labor Certifications can take into account employees at such institutions and organizations only and not, repeat, not private industry, allowing such employers to pay wages that are realistic for such nonprofit entities.
• Prevailing wage for professional athletes in professional sports leagues will be that set forth in the league regulations.

Updated 10-17-98 (H-1B): The so-called H-1B legislation which will pass Congress next Monday(10-19-98) or Tuesday includes a number of changes from the previous bill. Details will be posted as soon as Congress pass the bill, but the following changes may interest the readers.

• Effective date of the increased H-1B quota: October 1, 1998
• Effective date of $500 charge: December 1, 1998
• *****The new fee must be paid at the time of filing of H-1B petition
• *****The new fee must be paid for initial H-1B filing, including H-1B alien working with another employer
• *****The new fee must be paid for the first extension of H-1B. No fees are collected for second extension
• *****CAVEAT: Employers may not require an alien to reimburse or otherwise compensate the employer for the cost of this fee. Employer will be subject to a fine of $1000 for violation of this rule.
• Requirement for payment of full wages for bench time:
• *****Full wage which is specified on H-1B petition must be paid even if the alien is in nonproductive status
• *****Mandatory wage payment starting date: (1) 30 days after entry into the U.S. (2) 60 days from starting date of H-1B on H-1B approval notice, if the alien is in the United States
• *****Exceptions: (1)Non-productive time due to non-work related reasons such as voluntary absence or circumstances rendering the alien unable to work; (2)Educational institutions may apply established salary practices including payment for less than 12 months as long as the H-1B alien agrees to such a payment schedule.
• Availability of electronic posting of Labor Condition Application:Effective enactment of the legislation, employer may post the Labor Condition Application notice through electronic notification notice to employees in the occupational classification in which H-1B aliens are sought. This electronic posting will not apply to employers represented by a union.
• Effective dates of attestations: Effective upon issuance of final regulations. CAVEAT: There are some changes in attestations and penalty provisions. Details will be posted later.