IMMIGRATION UPDATE - ARCHIVES

October 5, 2001 - Latest INS Porcessing Times

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October 3, 2001 - PATRIOT Act of 2001

Anti-terrorism bill before Congress. Click for full text

Bush Signs into Law "S" Visa Permanent Extension

President Bush signed into law (PL 107-45) a permanent extension of the S visa as part of the Administration’s anti-terrorism efforts. Congress passed S. 1424 directly after the September 11 terrorist attacks.

October 1, 2001 - Latest INS Porcessing Times

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Premium Processing, INS Audit and More

1. Premium Processing and INS Audit. INS has advised us that there will be no freeze on premium processing cases during the announced SWIP audit scheduled for the end of September and beginning of October. Premium processing cases will continue to be processed in the same manner.

2. I-539 Form. In response to our inquiry as to which version of the I-539 from should be used, INS has said that all versions can continue to be used for now, but it is recommended that the September 4, 2001 version on the INS website be used.

3. V Beneficiaries. INS confirmed that V beneficiaries who are derivatives of the I-130 principal can be included on the I-130 principal's I-539 form.

4. V Applicant Seeking Employment Authorization. For V applicants seeking employment authorization, the appropriate eligibility code to use on the I-765 form is: a 15.

September 27, 2001 - Visa Assistance To Family Members Of Terrorist Attack Victims

The DOS have instructed Posts to expedite visa processing for family members of victims in  September 11 attacks. Applications from those bereaved should be treated with appropriate humanitarian consideration and concern. 

September 26, 2001 - Expiring IVs and K Visas

State Dept. instructs posts to issue replacement immigrant and K visas for those who were unable to travel to the U.S. before their visas expired due to post-Sept. 11 flight limitations. Replacement IV visas must be issued before 9/30/01.

September 25, 2001 - NIV Processing In Paris

Effective October 1, 2001, the Embassy in Paris France is switching to a 100% Mail-In system for all nonimmigrant visas. No walk-ins will be allowed. Aliens are to submit their applications by regular mail (to the avenue Gabriel address) or by Chronopost or international courier  service (to the 2 rue St. Florentin address). Applicants should routinely enclose traceable prepaid mailers for the return of their passports. The Embassy hopes to effect 48-hour turnaround from receipt of an application: within that period they will either issue the visa or mail a request that the applicant appear for interview at a specific date and time. Emergency procedures will also be implemented, but those have not yet been defined.

September 25, 2001 - Advisory on Nonimmigrants Flying Domestically

We have received several reports of nonimmigrants boarding domestic flights being questioned and asked for documentation. In at least two incidents, the INS officer doing the questioning told the individual that he is required to carry his passport, I-94 and I-797 with him at all times. We are unaware of any such provision of law, and AILA is raising this issue with INS. In the meantime, however, as a practical matter. We will keep you posted.

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September 25, 2001 - INS Statement About Illegal/Undocumented in NY Terrorist Attack

Statement by INS Commissioner James Ziglar

WASHINGTON, D.C. – Today, Immigration and Naturalization Service Commissioner James Ziglar released the following statement encouraging undocumented aliens who may have lost friends or family in the New York City terrorist attack to contact local authorities without fear of INS attempting to acquire or use that information for immigration purposes:

“All of us in the INS family have been deeply shocked and saddened by the terrible loss of life and destruction in New York. We are committed to supporting the rescue and recovery efforts taking place at the World Trade Center. We have heard disturbing reports that some people whose loved ones are missing have not come forward because of immigration issues. We cannot let that happen. It is crucial that local authorities get the help they need in identifying victims and the missing. I want to personally urge the immigrant community to come forward, and assure everyone that INS will not seek immigration status information provided to local authorities in the rescue and recovery efforts.”

September 24, 2001 - Connecticut SESA Information on RIR Conversion

Connecticut Department of Labor has placed instructions for RIR Conversion for Connecticut cases on its website, at http://www.ctdol.state.ct.us/progsupt/bussrvce/alien-conversion.html

September 24, 2001 - Ciudad Juarez to Suspend Employment-Based TCN IV Processing

Due to the V caseload and immigrant visa workload anticipated for October, Juarez will no longer accept third country national immigrant visa cases based on long pending 485 adjustment applications as of October 1, 2001. Juarez indicates that the decision is based solely on the workload factors noted, and has nothing to do with the 9/11 incidents.

September 21, 2001 - Know Your Rights

September 21, 2001 - Misrepresentations On Form I-9

Misrepresentations made to an employer in completing a Form I-9 are not statements made to a United States government official authorized to grant visas or other benefits under the Act and therefore cannot form the basis for the exclusion of an alien under section 212(a)(19) of the Act. The same holds true for presentation of counterfeit documents.

These actions, however, do render an alien subject to criminal prosecution. Also, the Immigration Act of 1990, Pub. L. No.101-649, 104 Stat. 4978, provides for assessment of civil administrative penalties against persons or entities who fraudulently complete forms I -9 or who present or accept fraudulent documents in conjunction with Forms I-9. Beginning June 1,1991, an alien subject to a final order assessing such a penalty is ineligible for adjustment of status and subject to exclusion.

September 20, 2001 - DOS Says No Changes in Visa Procedures

The Visa Office of the U.S. Department of State advises AILA's State Department liaison committee that it has not changed visa procedures, and that virtually all posts are open for full consular services. It was indicated that some posts have reported a decrease in interest in going to the US.  Posts in Mexico, for example, reported a substantial drop in the requests for visa appointments.

September 18, 2001 - Information on Visas to Mexico

In cooperation with the US., the Mexican Government will not issue visas to enter Mexico for certain nationalities without a prior check conducted by the Gobernacion (Mexican INS) office in Mexico City. This policy can slow processing by 30 days or more. The policy even applies to US legal permanent residents, who are nationals of the countries listed. Some of the countries impacted by the change are: India, Taiwan, Pakistan, Afghanistan, Sri Lanka, Azerbaijan, Turkey, Uzbekistan, Turkmenistan, Vietnam, Bosnia, etc. Before making a nonimmigrant third country national appointment for a US post in Mexico or before going to a third country national immigrant visa appointment, please check with the Mexican consulate regarding the policy. The policy is temporary, but we do not know the longevity. We have notified and asked for assistance about this situation from the Visa Office of the Department of State.

September 18, 2001 - Anti-Terrorism Bill

Here is the immigration portion of the Administration's newly proposed "anti terrorism" bill....there is a lot of pressure for Congress to act on this very quickly. Please urge your own Senators and Representatives to avoid over-reaction, erosion of civil liberties, etc. I will send out a further note about strategy later today, after we have reached our Congressional allies. I just wanted you to get this news immediately. The proposed legislation, among other things, would:

• Allow the removal without any hearing or evidence of any "alien" the AG certifies he "has reason to believe" may further acts of terrorism as defined in 237a4,
• defines terrorism very broadly
• compels mandatory detention for anyone AG certifies
• forbids habeas or judicial review (including under 2241 ) until after a final order
• makes it all retroactive

September 17, 2001 - Consular Operations

One of the most difficult pieces of information to obtain on a mass basis over the past week has been with respect to the operations of U.S. embassies and consulates around the world, particularly regarding closings, limitations and rescheduling of appointments that were slated for the days that the office was closed. The State Department Visa Office has been unable to provide this information centrally, and most posts have not been updating their websites with current information. However, some of our members have received information from consular contacts, such as the emails below from Paris and Chennai.

Information from Robert F. Hannan, NIV Chief in Paris

"Thank you to all who have sent messages of support. It was very much appreciated. The Consular Section at the Embassy has been focused solely on emergency citizen services for those stranded in Paris. Since Tuesday we have been providing 24-hour coverage. As some of your clients may have mentioned to you, visa services have been closed since Wednesday. We do not know when we will be resuming service. If Air France is authorized to fly this weekend, that will dramatically reduce the situation we are facing here in terms of stranded Americans. Once that has happened, we can look to providing regular services again. We ask your patience and understanding. I will try to send out updates as necessary and also ask AILA to post new information. Thank you."

Information from Chennai IV Unit

"If your client is not able to make it on the appointment date she/he may come for an interview on any workday except Mondays at 8:00 a.m. in the month of September 2001. If it is not possible to keep the appointment in September please write to us. We are required to get fresh visa numbers for your client from the Department. On receipt of visa numbers he/she will be rescheduled."

September 17, 2001 - INS to Conduct File Audit

INS has advised AILA that it will be conducting another file audit, similar to the ones conducted last year. The following email was received by AILA from INS:

"The FY 2001 Deferred Revenue Audit will make it necessary to freeze file movement for a short time. There will be a National (inter-office) file freeze beginning on September 21 and an intra-office file freeze beginning on September 28. The inventory period is October 1-5, 2001. Files will be frozen at each location until the auditors inform the Service-wide Inventory Coordinator that the freeze can be lifted and he gives his approval to do so. Of course, there are provisions to exempt certain files from the freeze for emergency reasons if documented and approved by the local Inventory Control Officer."

September 13, 2001 - News from the VSC Regarding Mail Delivery

The INS Vermont Service Center has advised us of the following:

All mail for the following NYC zip codes is being accepted and held in Essex (the postal distribution point outside Burlington that serves the Vermont Service Center) until further notice:

100XX through 104XX

110XX through 119XX

The World Trade Center had it own zip code (10048) and all mail sent to said zip code will be held by the Post Office until other arrangements are made by the businesses/attorneys previously located there.

Due to the grounding of air transportation, there will be a nationwide delay in all mail delivered by the Post Office to include priority and express mailings. They will be attempt to transport mail by land and rail, but we can expect delays until they are allowed to transport by air.

The Post Office will keep the VSC informed as things develop, but could offer no timeframes for the lift of the "mail hold". It is all contingent on authorities (outside of the Post Office) giving them the okay to deliver to these areas.

September 7, 2001 - INS Issues V Visa Regulations  

INS issues its long-awaited regulations implementing the new V nonimmigrant classification. The interim rule is effective immediately, and comments are due by November 6, 2001. (66 FR 46697, 9/7/01).

September 7, 2001 - Compromise Reached on 245(i)

Agreement was reached Thursday night, September 6, on an extension of Section 245(i), with the Senate passing this agreement late Thursday evening and the House expected to pass this revised version shortly.

While we all think that Section 245(i) should have been permanently restored, rather than just extended, we were concerned that the extension measures that the Senate Judiciary Committee and the House passed were deeply flawed due to a new requirement that the familial or employment relationship that is the basis for the petition or application needed to have existed on or before April 30 (House version) or date of enactment (Senate version). Furthermore, this requirement was to have been applied retroactively to filings made after January 14, 1998. We believed that no new requirement was warranted.

There is some good news to report on ameliorating the new requirement. It was changed in the compromise to delete any reference to "employment relationship," and the new requirement is not retroactively applied. Also, the House agreed to an August 15, 2001 date (instead of the April 30 date). The Senate bill now states that those who file after April 30, 2001 must demonstrate that the "familial relationship existed before August 15, 2001, or the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001." (August 15 was the compromise date agreed upon.)

Unfortunately, the compromise bill made no changes on the family-based requirement definition, the relationship mandated in the underlying requirement needs to have existed by August 15, 2001, and the 245(i) extension for labor certification application-based cases is effectively already past.

While the language is a bit unclear on the length of the overall extension, Senate staffers report that the extension will sunset four months after the regulations are issued. Reading the text of the bill, however, suggests that the extension will end April 30, 2002. We will clarify the length of the extension as soon as possible.

September 6, 2001 - SPOUSAL WORK AUTHORIZATION PASSES THE HOUSE

September 4, 2001 - The V Regulations are Coming

INS has advised us that its V visa regulations have been cleared by OMB, and are expected to be published in the Federal Register within the next week. They will be posted to the News Library section of InfoNet when they are published.

August 31, 2001 - Electronic Filing Comes to the Immigration Field?

We have been advised by the Labor Department that a notice implementing electronic filing for labor condition applications, for H-1b, has been sent to OMB. Once the notice is approved by OMB, it would be returned to DOL for the Secretary's signature, then published in the Federal Register. It is expected to take effect immediately upon publication in the Register.

August 29, 2001 - Regulations on LIFE Late Legalization/Family Unity 

August 21, 2001 - V Visa Problems

As we continue to await the publication of INS regulations on V visa status processing, a problem has arisen with respect to consular processing for V visas. The consuls will not issue V visas to beneficiaries whose I-130 petitions have not yet been approved by INS, giving as the reason the fact that they have no way of confirming the underlying information. AILA's State Department Liaison Committee has been dealing extensively with the DOS to try to resolve this issue. Information will be posted when a resolution is reached.

August 17, 2001 - INS Memo on Travel While COS is Pending

INS states its position that an individual who travels outside the U.S. after a change of status request has been filed but before the request is adjudicated is considered to have abandoned the request and informs the field that such requests should be denied

August 14, 2001 - Section 245(i)
New Restrictions Punish Employers Who Have Abided by the Law and Unnecessarily Punish Innocent Families

The House-passed limited extension of Section 245(i) (H.R. 1885) and the version that passed the Senate Judiciary Committee (S. 778) both include a new provision that would require beneficiaries to demonstrate that the required "familial or employment relationship" existed on or before April 30, 2001 (in the House bill) or date of enactment (in the Senate bill). Importantly, this new requirement is retroactive to January 14, 1998. This statement lays out AILA's opposition to the new requirement. 

What is the New Requirement in H.R. 1885 and S. 778 and Why Should it be Deleted: Both H.R. 1885 and S. 778 extend Section 245(i). (H.R. 1885 for a mere four months, and S. 778 until April 30, 2002.) While AILA supports at least a one-year extension to allow sufficient time for people to file their applications and adjustments, the new requirement in both bills poses significant problems. On the family-based side, this requirement will preclude eligible, innocent families from using Section 245(i) simply because many still will not know they need to file and what they will need to file before a certain date, and others, while in bona fide relationships, have yet to get married. There is no need to set an artificial deadline to establish bona fide family relationships. Existing immigration laws already require applicants for immigrant visas to document their "marriage" in good faith with proof that they did not marry solely to obtain an immigration benefit. Furthermore, the law already limits eligibility for Section 245(i) to those people who had resided in the U.S. prior to December 21, 2000, thus avoiding any possibility that people will enter the US in order to take advantage of the new extension.  

On the employer side, the new provision would require employers to violate existing law: In order to obtain the benefits of Section 245(i), employers would have to unlawfully employ a foreign worker in violation of immigration law. The new requirement mandates that the relationship (that is the basis for the application) existed between the employer and the worker prior to either April 30, 2001 (in the House bill) or the date of enactment (in the Senate bill). Importantly, this new requirement is written so that it would apply retroactively to any application submitted after January 14, 1998. Yet it is illegal for an employer to establish this relationship by hiring an undocumented worker. 

August 14, 2001 - 2001 INS Implements Revised Naturalization Application Form N-400

WASHINGTON - On August 1, the Immigration and Naturalization Service (INS) implemented a revised Application for Naturalization, Form N-400 -- the form used by eligible immigrants to obtain United States citizenship. The INS revised Form N-400 to make the form easier for applicants to complete, address recent statutory provisions and process applications faster by capturing more required information initially on the N-400 rather than on separate forms later in the naturalization process. Although the INS has begun using the new edition of Form N-400 -- which specifies "Rev. 05/31/01" in the lower right-hand corner -- the agency will continue to accept the previous edition of the form through December 31, 2001. Beginning on January 1, 2002, all prior editions of Form N-400 will become obsolete, and the INS will stop accepting them. Applicants can obtain the revised Form N-400 by calling the toll-free INS Telephone Information Service Line at 1-800-375-5283 or by downloading it from the INS Web site at www.ins.gov. 

August 14, 2001 - INS Implements the "K" Nonimmigrant Visa Provision of the LIFE Act 

 Washington -  To reduce the separations immediate family members of U.S. citizens may experience while waiting abroad for an immigrant visa, the Immigration and Naturalization Service (INS) is implementing a new K nonimmigrant visa provision, which was published as an interim rule in today's Federal Register. The rule expands the K visa status, currently available to fiancé(e)s of U.S. citizens, to include the spouse of a U.S. citizen, who is waiting abroad for an immigrant visa, and the spouse's children. This will allow them to enter the United States as nonimmigrants, re-unite with their family here, and then apply for immigrant status while in the country. It is one of several immigration benefit provisions created by the Legal Immigration Family Equity Act (LIFE Act) enacted last December. Under this new nonimmigrant visa classification, spouses of U.S. citizens may be granted K-3 nonimmigrant status, and the spouse's unmarried children (under 21 years of age) may be granted K-4 nonimmigrant status. Click here for details.

August 10, 2001 - INS Proposed Application/Petition Fee Increase

August 10, 2001 - Hold on Western Region Adjustments

A June 2001 HQ memo advises district offices in the Western region to hold adjustment applications (I-485) after interview because the CSC was backed up in completing processing of fingerprint checks.

August 6, 2001 - DOL Allows Conversion to "RIR"

The Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) is amending its regulations relating to the permanent employment of aliens in the United States. This final rule permits employers to request, in certain circumstances, that any labor certification application for permanent employment in the United States that is filed on or before August 3, 2001, be processed as a reduction in recruitment request. ETA anticipates that the amendment will reduce the backlog of labor certification applications for permanent employment in State Employment Security Agencies (SESA's). ETA believes this measure to reduce backlogs will result in a variety of desirable benefits, such as a reduction in 
processing time for both new applications and those applications currently in the queue, and will facilitate the development and implementation of a new, more efficient, system for processing labor certification applications for permanent employment in the United States.

EFFECTIVE DATE: The amendments contained in this final rule will take effect on September 4, 2001.

August 3, 2001 - H-1B Cap

The Immigration and Naturalization Service (INS) reports that, as of July 25, 2001, approximately 138,000 H-1B workers had been approved against the 195,000 limit for FY 2001, which ends on September 30, 2001. In addition to the petitions already approved, INS has an estimated 39,000 pending petitions that may be counted against the H-1B cap. Not all pending petitions will ultimately count against the cap. Some petitions are denied, and some petitions are exempt from the cap; such as petitions approved for certain types of employers: for example, colleges, universities and non-profit research organizations. 

August 2, 2001 - Diversity Immigrant Visa Program (DV-2003)

The mail-in period for the next Diversity Visa lottery (DV-2003) will be held between noon on October 1, 2001 and noon on October 31, 2001. Those who choose to enter the DV-2003 lottery should obtain a copy of the instructions in the "Visa Bulletin," which may be found at the Bureau of Consular Affairs web site: http://travel.state.gov. 

August 2, 2001 - Clarification on Requirements for Premium Processing

H-1B cases, filed before 7/30/01, can be included in premium processing by sending the following items to the appropriate Service Center: 1.) $1000 premium processing fee; 2.) Form I-907; 3.) copy of filing receipt or copy of air bill receipt.

August 1, 2001 - New N-400 Naturalization Form

QUOTE
INS Revised Form N-400

INS starts accepting the revised, improved edition of the Application for Naturalization August 1. This form may be filled out on your PC.
UNQUOTE

In addition, it will be the FIRST -- TA-DAH -- of fillable forms on the INS Website. Several more will go online in the coming days -- and by the end of the summer, fillable versions of almost all INS forms should be online. Customers are admonished to use Adobe Acrobat Reader 5.0 to access and use the fillable version of the forms. 

Note put on the Forms Entry Page of the new N-400 states:

To further improve customer service, INS public use forms are being revised and provided in a format that can be filled out on your computer. In order to use the fillable features, please note the following:

You will not be able to file an application or petition via the Internet.

Rather, these fillable forms will enable you to fill out the form, save it, and print it out - all on your local computer. You must print out the form and mail it to the appropriate INS office in order to file for a benefit.

In order to make use of all of the features of our fillable forms, you should use version 5 of the free Adobe Acrobat Reader. You may download a copy of Acrobat Reader from Adobe by clicking on the following link.

Click Here For INS Web Page.

July 26, 2001 - Tentative Agreement Reached in Senate Committee on 245(i)

The Senate Judiciary Committee today passed by voice vote S. 778, the extension of Section 245(i), with an amendment introduced by Senators Kyl and Hatch. The bill now would extend the deadline for filing petitions and applications until April 30, 2002. In addition, applicants also must be able to demonstrate that the familial or employment relationship that is the basis for the application or petition existed on or before the date of enactment of S. 778, now cited as the Section 245(i) Extension Act of 2001.

During the mark-up, Senator Kyl criticized the Senate Appropriation Committee for including a permanent restoration of Section 245(i) in their bill. He criticized the Hagel/Kennedy bill, as introduced, as well as the permanent extension for not including any dates to limit eligibility, and thereby encouraging sham marriages. He has indicated as long as the permanent extension remains on the CSJ bill he will fight any extension of Section 245(i) including S. 778 which contains the compromise he helped craft.

Senator Kennedy defended his original bill, but agreed to the compromise.

We are hopeful that before the bill goes to the floor the retroactive application of the new requirement to labor certification applications will be eliminated.

We will keep you posted on next steps and the timing of these steps. The full Senate will need to vote on the bill and the House and Senate will need to work out the differences between their two bills.

July 18, 2001 - H-1Bs, TNs and Rs To Be Added to Premium Processing

According to Fujie Ohata, INS Director of Service Center Operations, INS is still on track to add H-1Bs, TNs and Rs to the premium processing program on July 31, 2001, as indicated in the June 1, 2001 interim regulation implementing the program. H-1Bs may later have to be suspended from the program if INS comes close to reaching the 195,000 per fiscal year cap on H-1B allocations before the end of the fiscal year, but it is not known at this time if that is likely to occur this year.

July 17, 2001 - Many Family-Based Numbers Become Unavailable

The August Visa Bulletin indicates that most family-based numbers for Mexico, and all family-based numbers in the first and third preferences are now "unavailable," and that many other family-based numbers have retrogressed. We have been advised by the State Dept. (DOS) that this results from an unusually large number of adjustment of status applications in these categories being processed by INS, with the result, in the case of the "unavailable" categories, that the numbers for the entire fiscal year have been used. Making a category "unavailable" ensures that additional numbers won't be used this year and cause the quota to be exceeded. Retrogressing the dates for a category causes the usage of the numbers to slow down, again to avoid exceeding the quota. DOS indicates that it expects the "unavailable" categories to remain so in September. It is also possible that additional family-based categories will retrogress or become "unavailable" in September.

DOS does indicate, however, that it expects to return the family-based categories to approximately their July 2001 levels in October, when the new fiscal year begins.

July 13, 2001 - All Employment-Based Categories Remain Current

As of July 1, and at least through the end of August, all of the EB (employment based) green card categories, including those for unskilled workers, are current. However, backlogs will develop in the EB numbers within a few months, but for now, it is time for hard-pressed professionals from India and China to file for adjustment! 

July 12, 2001 - H-1B Cap Update

According to the INS, 117,000 H-1B numbers subject to the cap had been used as of May 23, 2001.  In addition, 40,000 more H-1B petitions subject to the cap were in the pipeline.  According to our calculations, this means that with the fiscal year (which ends on September 30, 2001), 65% over, about75% of the H-1B numbers have been used.

Expect the 195,000 cap to be reached by August or early September.  If you really need that H-1B by August, it's time to start preparing to submit the petition under the Premium Processing Program (which will begin including H-1B petitions on July 30). 

If your application for labor certification is taking so long because it is being processed as a non-RIR (Reduction-in-Recruitment) case, good news is at hand!  The long-awaited regulations allowing non-RIR labor certifications to be processed as expedited RIR labor certifications without losing one's priority date will be issued before the end of this month.

We'll keep you posted! 

June 12, 2001 - All Employment-Based Categories Are Current

Starting July 1, all of the EB (employment based) green card categories, including those for unskilled workers, will become current. However, backlogs will develop in the EB numbers within a few months, but for now, it is time for hard-pressed professionals from India and China to file for adjustment! 

The Family categories were hit hard. The worldwide FB (family based) green card numbers for three of the five categories moved backward instead of forward. And the numbers regressed not by weeks or months, but by years! The FB-3 category (married sons and daughters of U.S. citizens) move backward by over 21 years. The disaster in the family categories is a problem which can only to resolved by Congress.

June 7, 2001 - All Employment-Based Categories May Become Current

The Department of State has indicated that it is "likely" that all employment-based (EB) including second and third preferences for India and China will become current in July. 

June 7, 2001 - Employment-Based "Other Worker" Category May Become Current

Charles Oppenheim of the State Department has advised AILA that it is "highly probable" that the "other worker" subcategory of the employment-based third preference will become current in July. That category has been advancing rapidly in recent months, which Mr. Oppenheim indicated has been due to a lack of usage of "other worker" numbers by INS. He cautions, however, that bringing the category current is likely to unleash a substantial amount of pent-up demand, which in turn is likely to result in a severe retrogression of the cut-off date for this sub-category early next year.

Mr. Oppenheim also indicated that it is "likely" that the employment-based third preference for India and China will become current in July. Unfortunately, because of continued heavy demand, he can provide no similar good news for the family-based preferences.

June 7, 2001 - INS Releases H-1B Count

INS has advised AILA that, as of May 23, 2001, it had approved 117,000 H-1Bs toward the cap, and had another 40,000 cap-subject H-1Bs pending. The overall H-1B quota for this fiscal year, which ends September 30, 2001, is 195,000.

June 6, 2001 - VSC Mailroom Backlog

On a June 6, 2001 conference call with AILA's INS Vermont Service Center (VSC) liaison committee, VSC representatives discussed the impact that their "frontlog" of cases awaiting input in the mailroom is having, and will continue to have, on their operations. Applicants may have noticed in many instances that they have not received receipts for cases filed after early April. VSC confirms that it has close to 200,000 pieces of correspondence (new filings, responses to RFEs, letters sending in LCAs, etc.) sitting in the mailroom waiting to be sorted, put through data entry and routed to examiners.

This "frontlog" has reached crisis proportions due to a variety of factors, including 245(i) and the upcoming June 15 change in INS' mailroom contractor.

To prepare for the new contractor and deal with the frontlog, VSC is dedicating approximately 70 regular INS employees, plus almost all available overtime of its staff, to opening and sorting the mail so that it is ready for data entry (data entry is the step where the record in the CLAIMS computer system is created and the case is assigned an EAC number). One result is that, for now and the near future, only TPS applications and I-129s are being adjudicated with overtime funding, and many of the staff who had been working on the I-140 backlog are now having to work exclusively on I-129s or on the frontlog.

June 1, 2001 - Premium Processing Form Available

The new Form I-907, to request 15-day premium processing on certain I-129 petitions, is now available on the INS website, at:

How Do I Use the Premium Processing Service?
Form I-907, Request for Premium Processing Service
Form I-129, Petition for Nonimmigrant Worker

May 24, 2001 - Premium Processing Program to Start June 1

INS has confirmed that it will begin its premium processing program on June 1, 2001. According to INS sources, the program will initially include all nonimmigrant visa types EXCEPT H-1B, TN and R. For a $1,000 fee, INS will guarantee completion of the case within 15 calendar days, unless an RFE is sent. The INS also intends to provide better means of communication with respect to cases in the premium processing system. Also according to INS sources, there will be a mechanism to convert cases filed before June 1 to premium processing. It is expected that, at most of the Service Centers, premium processing cases will be sent to a separate address.

INS also indicates that it intends to add H-1Bs to the premium processing program in July or August, but is not including them in the initial program because it expects that the volume of expedite requests for H-1Bs would be high, and it wants the opportunity to operate the program for a while before absorbing that volume.

The notice regarding the program is expected to be published in the Federal Register early next week. There will be a 60-day comment period, but the program will begin before the comment period is completed.

May 23, 2001 - House Passes Limited Extension of Section 245(i) with Additional Restriction Calls Needed to Senate and House(i)

The House on May 21 passed a limited extension of Section 245(i) by a vote of 336-43. H.R. 1885 would extend the Section 245(i) deadline for only four months, while also requiring beneficiaries to demonstrate that the required familial or employment relationship existed on or before April 30, 2001. (To become law, the Senate also must pass legislation that the President needs to sign.) Republican Congressional leaders refused to amend the measure to increase the extension period and eliminate the new requirement. The final measure that Congress passes needs to move closer to the bill introduced in the Senate, S. 778, by Senators Chuck Hagel (R-NE) and Edward Kennedy (D-MA) which extends the Section 245(i) deadline for one-year without the restriction in the House proposal. Please call your Senators and urge them to support S. 778. You can reach your Senators through the Congressional Switchboard at 202-224-3121. It also is important to call the White House to urge President Bush to support a longer extension with no additional requirement. Please contact the White House through the White House Comment Line (202-456-1111 or 202-456-1414). 

May 22, 2001 - H1-B Premium Processing To Begin At The Vermont Service Center

Premium Processing is due to start June 1, 2001. Upon receipt of an additional $1,000, H1-B petitions will be processed in 15 days.  That is, 15 days from the receipt of the petition by INS.  Add to that the normal processing time for the LCA. The processing goal for non-premium petitions is 60 days.

One of the many concerns is that premium processing will be taking resources away from normal processing. “In actuality the Service center has been given an additional 40 positions to work theses cases.”

May 22, 2001 - Amended H1-B Petitions

Federal regulations state that a petitioner must file an amended petition to reflect any material changes in the terms and conditions of employment or training or the employee’s eligibility as specified in the original approved petition. This has consistently been interpreted to mean that where a second entity assumes essentially all of the assets and liabilities of the first entity, amended petitions are NOT required. The change of corporate identity need only be submitted at the time of filing an extension petition.

“An amended H1-B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including, but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds the interests and obligation of the original petitioning employer and where the terms and conditions of employment remain the same, but for the identity of the employer.”

It should be noted that until such time as an extension is filed for the beneficiary, the alien will not have documentation issued by the INS reflecting the current employment data. An alien contemplating travel abroad should consider having an amended petition filed in order to obtain an approval notice reflecting his true employment information.

INS reports that as of 3/7/01, approximately 72,000 H-1B workers had been approved against the 195,000 limit for FY 2001, which ends on 9/30/01.

May 9, 2001 - More LCA Faxback News

DOL continues to struggle with its LCA faxback system. The Labor Department advises AILA that considerable re-programming of the system is underway to fix a number of problems, including extreme slowness, a command that has been resulting in erroneous denials for "no signature or illegible signature", and the automatic insertion of the date on which the LCA is processed as the "start" date for the certified LCA.

In the meantime, applications continue to be seriously backlogged. As of May 9, the DOL website at http://workforcesecurity.doleta.gov indicates that the filing cut-off date is April 2, 2001. However, members are reporting that they are receiving certified LCAs filed as recently as two weeks ago. DOL advises AILA that the reason for this discrepancy is that the April 2 date represents the earliest filing date of the "problem" cases for which the filing party must be contacted. For the most part, the "problem" cases are fax errors---pages that were cut off or merged in transmission. DOL advises that a "surprising" percentage of LCAs suffer from these problems, which are often undetectable from the sender's end.

As previously indicated, if you filed an LCA before the cutoff date posted on the DOL website and still haven't received it, or if you received an inappropriate denial, you can either send an email to LCAFax@doleta.gov or telephone 1-877-872-5627. Remember, however, that if you are inquiring about an LCA that you haven't received yet but it was filed after the cutoff date, the inquiry will not be answered.

May 7, 2001 - INS Limits Removal Against 245(i) Applicants

INS HQ advises the field not to initiate proceedings against section 245(i) applicants based solely on an application or petition filed on or after April 27, 2001. This prohibition ends if and when the petition or application is denied.

Click here for the Memo (152 kb PDF file).

May 7, 2001 - CSC Compares Requirements for E11 and O1

The California Service Center compares the requirements for classification of E11 immigrants with O1 non-immigrants. The comparison looks at regulatory definitions, statutory requirements, and required evidence. (See PDF)

Click here for the report (341 kb PDF file).

May 7, 2001 - CSC Analysis of EB-1 Extraordinary Ability Elements

California Service Center describes what it believes are the elements that make up EB-11 stature and discusses the issues that adjudicators should consider when assessing the quality of evidence.

Click here for the analysis (484 kb PDF. file)

May 1, 2001 - The Bush Administration Today Announced its Support for an Extension of Section 245(i)

The Bush Administration today announced its support for an extension of Section 245(i). The White House spokesman, Ari Fleischer, indicated that President Bush today will be sending a letter to Congress expressing his support for extending the deadline and desire to work with lawmakers to determine the length of the extension (which needs to be enacted through a change in the law). Several bills have been introduced in Congress to extend Section 245(i). Three include a one year extension and one includes a six months extension. 

AILA supports an extension of Section 245(i) as a first, immediate response and has urged the President and Congress to support a permanent extension of Section 245(i). Please call your Senators and Representatives (the Congressional Switchboard telephone number is 202-224-3121 to urge support for both the extension and permanent restoration). 

Click here for the President's letter (80 kb PDF file).

April 24, 2001 - No 245(i) Extension Before April 30

Probably the most frequently-asked question this week is whether there will be an extension of the April 30 deadline for 245(i) applications and petitions. The answer is an unequivocal NO. Even if Congress passes an extension of 245(i)--and that's a very big IF--it will not be before, or even shortly after, April 30. So go ahead and finish those filings.

Given the short four-month window that we had for 245(i), and the fact that many eligible people will be unable to take advantage of Section 245(i) due to an insufficient number of available lawyers and authorized legal clinics, we strongly urge you to contact your Senators and Representatives and urge them to support a permanent extension of Section 245(i). 

The Portland Oregonian won the 2001 Public Service Pulitzer Prize for its six-part investigative series on the INS. The series focused on due process abuses, including the retroactivity and mandatory detention provisions of IIRAIRA, and detention of asylum seekers. It also looked at other problems, such as the loss of files, poor training, low pay, and little discipline of agency workers, as well as INS reorganization proposals. Below is a link to the entire series:

http://www.oregonlive.com/ins/

March 30, 2001 - INS Opinion Letter On Corporate Restructuring

 An INS opinion letter advises that an amended H-1B petition is not required where substantial portion of a division is being acquired, and notes that INS regards 'assumption of liabilities' as referring to immigration-related liabilities.

For Details See: INS Opinion

March 27, 2001 - Visa Numbers on Mumbai Website

The website for the consular section in Mumbai sometimes has the priority dates for India posted a day or two before the Visa Bulletin is released.  If you are from India, it may be useful to check this site around the 11^th of each month to get some advance word on the next month’s priority dates for Indian nationals.  The site is:

http://usembassy.state.gov/mumbai/wwwhcgiv.html

March 27, 2001

LCA Cutoff Dates Are Back

The Department of Labor has resumed the practice of providing AILA with a "cutoff date." Any labor condition application filed before that date should have been processed by now. As of March 27, 2001, that date is March 1, 2001.

March 22, 2001 - DOS Predicts Forward Movement on China and India EB Numbers

According to Charles Oppenheim of the State Department, we can expect to see employment-based second preference numbers for India and China to become current in the near future, possibly as early as May or June. EB-3 numbers for China and India are expected to advance at a somewhat slower rate, averaging probably five months or more advancement per month for China and about four months advancement per month for India. Mr. Oppenheim indicates that there is good reason to believe that EB-3 numbers for all nationalities will become current in the first quarter of the next fiscal year (which begins in October). It should be noted, however, that unexpected spikes in demand could change this outlook.

March 21, 2001 - INS Addresses H-1B Filings Without Certified LCA

Bill Yates, INS Deputy Executive Associate Commissioner for the Immigration Services Division, advised AILA's INS Benefits Liaison Committee in a March 21, 2001 meeting that INS will, at least for the time being, continue its long-standing practice of accepting H-1B petitions filed with only a copy of the labor condition application and proof of its filing with the Department of Labor. Also as is the current practice, INS will send a request for evidence to obtain the certified LCA before it completes processing of the petition. Mr. Yates agreed that, because such petitions would continue to be considered properly filed, beneficiaries of change of employer petitions may take advantage of the AC21 section 105 portability provision upon the filing of a petition in this situation. He acknowledged a discussion in the Department of Labor regulation that suggests that a certified LCA would be necessary for portability, but noted that the issue is under INS', not DOL's, jurisdiction. Mr. Yates did indicate that the policy of accepting H-1B petitions without certified LCAs is under review at INS and could be changed in the future, but that such change would not take place without a notice in the Federal Register, and would be prospective only if it occurs.

March 21, 2001 - INS Will NOT "Let Things Slide"

INS has repudiated a widely-distributed story in Wired News that quoted INS sources as saying that the Service is "going to let things slide" for laid off H-1B workers and that reported that INS will allow them to change jobs "without leaving the country, even if they have been unemployed for a while." INS has indicated to AILA that it still takes its long-held view that H-1B nonimmigrants who remain present in the U.S. without changing status, when they are no longer employed under the H-1B, are considered to be in violation of their status. INS indicates that it will continue its past policy of reviewing such situations on a case-by-case basis to determine whether to exercise discretion under 8 CFR section 214.1(c)(4) to grant an extension of status (the procedural stance for a change of employer). The length of the individual's presence in the U.S. under the H-1B admission is one factor in such exercise of discretion.

March 13, 2001 - Filing H-1Bs Without Certified LCAs

In light of the failure of the DOL LCA faxback system, there have been numerous questions about whether we can still file H-1B petitions without certified LCAs. For the past couple of years, INS has accepted such filings with a copy of the uncertified LCA and proof of the filing of the LCA (such as a copy of the "send" report from the fax machine). The INS then sends a Request for Evidence when it reaches the petition in its normal adjudication process. The last pronouncement from INS on this issue was on February 1, 2001, when the exchange quoted below occurred in AILA's liaison with INS' Immigration Services Division. We are told that INS is re-thinking this policy in light of its overall consideration of how it will treat AC21 portability issues, but that in the meantime it continues to accept such petitions as properly filed. A notice will be posted on InfoNet if this INS policy changes.

"Question: We would like to confirm that you are continuing to accept H-1Bs with proof of LCA filing (rather than the certified LCA). Is that correct?

Answer: Yes, at least for the time being."

March 13, 2001 - More on LCAs

Ever since the "help desk" telephone number for LCAs was posted on InfoNet, that number has been ringing past capacity, so that most members get a voice mail box that is full. AILA is working with DOL to find alternatives for obtaining assistance with the multitudes of missing LCAs, and will post a notice as soon as some solution is found. In the meantime, it would probably be best to re-file anything faxed in during the period February 5 to February 9: those applications went to the San Francisco office, which is having considerable problems in processing the forms in that office. The Philadelphia office, where the forms have been going since February 9, indicates that it has processed "non-problem" LCAs faxed in through February 22. Unfortunately, between the page link problems previously discussed in Newsflash, the propensity of the system to read specks on the page as markings and therefore reject the filing, and the other general problems with the system, the "problem" LCAs number in the thousands.

March 7, 2001 - Kevin Rooney Appointed Acting INS Commissioner

Attorney General John Ashcroft announced March 6 that Kevin D. Rooney will serve as Acting Commissioner of INS, effective April 2. Rooney, who has been the director of the EOIR since January 1999, will serve until a permanent INS Commissioner is appointed, according to an INS press release. Rooney replaces Acting Commissioner, Mary Ann Wyrsch, who was recently appointed U.N. Deputy High Commissioner for Refugees.

March 2, 2001 - El Salvador Designated for TPS

The Bush Administration today announced that Salvadorans residing in the U.S. since February 13, 2001 have been granted Temporary Protected Status (TPS) for a period of 18 months. Eligible Salvadorans will not be removed and can apply for work authorization during the designated period. TPS will apply only to those Salvadorans who have continuously resided in the U.S. since February 13. The TPS application period begins upon publication in the Federal Register, which is expected early next week, and continues 18 months from that date. The Administration estimates that TPS covers as many as 150,000 potential applicants. AILA will work with the INS to try to ensure a smooth implementation of this TPS.