The final budget for the INS, which President Clinton signed December 21, authorizes the INS to collect a "premium processing" fee of $1000 on certain employment-based petitions (both nonimmigrant and immigrant). The provision does not include information about which types of case would be included in this premium processing, nor a specified time-frame.

However, in its original budget request, the INS had proposed that employers seeking a 15-day processing time on certain I-129 and I-140 petitions could pay the $1000 fee to receive an approval, rejection, or request for more information. We worry that the INS may increase the number of requests for more information as a way to say that it is complying with whatever deadline it creates.

The INS has not issued any additional information about when it will begin implementing this fee or how it will do so. We will keep you posted when we learn more.

A new law increasing the number of H-1B nonimmigrant visas for certain temporary professional workers was enacted this fall. An article summarizing the new law is on our web site at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant17cont.htm. Below is information from the INS interpreting the new H-1B law:

On October 17 and 30, 2000, President Clinton signed into law several bills which significantly change the H-1B program as well as the employment-based immigration program. Prominent among these bills is the American Competitiveness in the Twenty-First Century Act (AC21).

Q1: How does AC21 affect the H-1B cap?

A1: Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.

Q2: Are there new exemptions to the H-1B cap?

A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

• Institutions of higher education;
• Related or affiliated nonprofit entity, or
• Nonprofit or government research organization.

AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption. In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. INS estimates that approximately 30,000 petitions were filed during that time frame.

Q3: How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY 2001 cap?

A3: The Service already electronically captures the date a petition was received by INS. Therefore, our ability to electronically separate cases file before 09/01/00 is already in place.

Q4: What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?

A4: The Service has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years. We will continue with that process insuring that we conduct the sweep on using H-1B data for the past six years.

Q5: The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay. How is INS going to implement this? How does this differ from INS' current counting methodology?

A5: INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay. System changes will be made in order to allow the Adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay. This indicator will enable the Service to properly count an individual toward the cap in these circumstances. Upon approval of the petition, the program will compute the number of H-1B visas issued according to the factors as defined by statute.

Q6: The legislation states that the limit for FY 99 is increased by "a number equal to the number of aliens issued such a visa or provided such as status" from the time the limit was reached and September 30, 1999. Is INS interpreting this clause to deal solely with the discovered overage or does INS intend to recapture any visas it issued before September 30, 1999 but had given FY 2000 start dates?

A6: The Service interprets this language as forgiveness for the number of H-1B petitions approved in excess of the FY99 cap due to counting errors. It is not our intent to recapture numbers for cases approved in FY00 toward the FY00 cap.

Q7: When does the law take effect?

A7: Almost all of the provisions of AC21 and the related legislation are effective immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which took effect on December 17.

Q8: Are there new exemptions from the ACWIA (now $1,000) fee?

A8: Yes. Employers now exempt from paying the fee include:

• Institutions of higher education and related or affiliated non-profit organizations;
• Non-profit or governmental research organizations;
• Any employer who is filing for a second extension of stay for an H-1B nonimmigrant;
• Primary or secondary education institutions; or
• Nonprofit entity engaged in "established curriculum-related clinical training of students".

The new exemptions from the fee are effective immediately. Thus the new exempt organizations are exempt as of October 18, 2000. INS is working to change its forms and systems to accommodate this change but this will take time. In the meantime, petitioners claiming to be exempt should submit a copy of the relevant provision of AC21 with their petition along with evidence that they qualify as an exempt organization. Petitioners should also note on Form I-129W the basis for the exemption, notwithstanding the fact that the form will not initially contain the necessary boxes to check for these new exemptions.

Q9: Are there any new filing exemptions?

A9: Yes. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Q10: Who is eligible to use the H-1B "portability" provisions?

A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.

Q11: Are there any other limitations on the portability provisions?

A11: An alien must have been lawfully admitted into the United States. The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the alien must not have been employed without authorization.

Q12: How will employers who hire H-1B aliens using the portability provisions comply with their I-9 requirements?

A12: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien's I-94 to the I-9 kept on file.

Q13: When will the implementing regulation be published?

A13: INS is currently drafting the regulation. Because of the new $1,000 fee increase, it is possible that in addition to the normal DOJ and OMB review, this regulation will have to undergo the additional review required by the Small Business Regulatory Enforcement Fairness Act of 1996. If this is the case it is unlikely that the regulation will be published before March 2001. INS is exploring ways to expedite publication of the regulation.

Q14: What benefits are available under AC21 to aliens with immigrant visa petitions or adjustment of status applications?

A14: First, § 104 of AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used. The Department of State is charged with issuance of these visas and maintenance of priority dates and availability. This issue will not be addressed in INS regulations. Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made. Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.

Q15: Will H-4 dependents of H-1B nonimmigrants be able to receive these extensions?

A15: The AC21 does not address this issue but speaks only of aliens issued a visa or otherwise provided nonimmigrant status under the H-1B provisions of the Act. INS is studying this issue, which will be addressed in the implementing regulations currently under development.

Q16: How will employers demonstrate I-9 compliance for H-1B aliens granted extensions beyond the six-year period in INA 214(g)(4)?

A16: Current regulations at 8 C.F.R. 274a.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this involves attaching a copy of the receipt notice for the extension along with a copy of the alien's I-94 to the I-9 kept on file.

Q17: The law requires that any visas revoked due to fraud are recaptured and restored to the total available for the current fiscal year. How does INS intend to do this?

A17: INS already has the ability to electronically identify those cases that are revoked due to fraud as opposed to those that are revoked for other reasons. Therefore, this should not be an issue.

Q18: The law mandates INS processing times of 180 days. Given the current budget situation does INS feel that it can realistically meet this goal?

A18: The new law does not mandate any processing times. It does, however, indicate that it is the sense of Congress that adjustment applications should be completed in no more than 180 days and nonimmigrant petitions should be processed in no more than 30 days. This sense of Congress is followed by recognition that INS is in need of appropriations for infrastructure and other improvements. INS will in the process of collecting data in an attempt to comply with the reporting requirements necessary to be eligible for consideration of appropriations that may be granted to aide in the reduction of processing times. There is no guarantee that Congress will appropriate funds for the improvements necessary to reduce backlogs and improve processing time within the Service even if INS complies with all of the reporting requirements set forth in the statute.

Q19: Given the large increase in the volume of applications, does INS feel that it can maintain its current processing goals of 60 days for H-1B petitions and 90 days for I-140 petitions given that Congress has only earmarked 4 percent of the new H-1B fee for INS processing?

A19: The Service will do its best to maintain current processing times. Much of our ability to maintain the processing times will be a result of the budget that is passed and our ability to direct overtime funds to the offices that will be impacted by the increased filings. Although we have been authorized to hire individuals into term positions to deal with the increased filings, the hiring and training process are lengthy and the true benefits of the hiring will not be realized for several months.

The INS Vermont Service Center has passed out the following memo concerning additional data it seeks in H-1B cases to comply with the new H-1B law:

In an effort to provide you with better and quicker customer service, it is suggested that petitioners submit the following additional data elements when filing an I-129 petition for a H-1B worker. These elements are necessary to complete the processing of H-1B petitions and to fulfill the requirements of the recent H-1B legislation. It is not yet mandatory that you submit the additional data, but it is expected that it will be in the future. Your petition will not be rejected if you do not submit the additional information at this time. Your assistance in providing the additional data will be extremely helpful in allowing the Service to process your H-1B petition more efficiently.

Elements relating to the exemption of the fee:

Elements relating to the exemption of the cap:

The Labor Department is proposing major changes to the labor certification process, which is one way people who work for employers can obtain green cards. An overview of the current labor certification process can be found on our web site at: http://www.millermayer.com/resources/immigrant/immigrant2cont.htm. Below is information from the Labor Department summarizing its new proposal and requesting input from the public:

The Labor Department’s Employment and Training Administration (ETA) is in the process of reengineering the permanent alien labor certification process. ETA's goals are to make fundamental changes and refinements that will: Streamline the process; save resources; improve the effectiveness of the program; and better serve the Department of Labor's customers. The current system has been criticized for being costly, burdensome, and inefficient. The redesigned process envisioned by the Department will require employers to submit their applications directly to ETA processing centers, eliminating the prior review of the application by State Employment Security Agencies (SESA). The new process will take full advantage of state-of-the-art technology to minimize manual intervention, and to increase the speed of case processing at a reduced cost to employers and the government alike. As part of our efforts to take advantage of technological innovations that will increase efficiencies in the program, we are proposing that, like the current H-1B LCA fax system, the form upon which the request for a permanent labor certification will be made will be standardized and machine readable to eliminate the need for data entry by the ETA processing centers when an application is first received.

A key aspect to the new process is that before the request can be made to the Department of Labor, the employer must obtain a prevailing wage determination from the appropriate SESA. It is intended that SESAs will be fully funded to provide prevailing wage determinations. Under the new process, the SESA approved prevailing wage determination becomes an integral, required part of the request for permanent labor certification. Without the SESA approved form, the application will be considered incomplete. As indicated earlier, to increase efficiencies in the program, the application must be made capable of being machine readable by the ETA processing centers. This means the form must be standardized nationally.

As currently envisioned, an employer would obtain a copy of the prevailing wage determination form either by downloading it from the ETA web site or by getting it hard copy from the SESA or from ETA. The employer would then complete the form and send it to the appropriate SESA. If the employer wishes to rely on data available to the SESA for the prevailing wage, the employer need only send the completed form to the SESA. If the job is under a Collective Bargaining Agreement (CBA), the wage listed for the occupation/site in the CBA is the prevailing wage. If there is no CBA covering the job, and the employer wishes to use a survey to which the employer has access to for the prevailing wage, the employer must send to the SESA enough information regarding the survey for the SESA to make a judgement on the adequacy of the survey.

Upon the receipt of the prevailing wage determination request form, the SESA will review the form and any necessary backup, and make a prevailing wage determination as currently specified in 20 C.F.R. section 656.40. The SESA will assign a case tracking number to the request, indicate their endorsement of the prevailing wage determination, and return the endorsed prevailing wage determination form (without any attachments) to the employer. (The case tracking number will be used by the system to aid in ensuring that the prevailing wage determination form included in the permanent application is the one for the requested job opportunity.)

The draft prevailing wage determination form which follows is being provided for the informal review and comment of both the public who must fill in the form and the SESA staff who must make prevailing wage determinations based on the information provided by the form. Please review the form and provide any comments.

Note that before the Department can officially begin collecting information on the Form 9098, under the Paperwork Reduction Act it must first be approved by the Office of Management and Budget. This informal request for comments on the draft form should not be interpreted as fulfilling any of the Department's obligations relating to collections of information under that Act.

<http://workforcesecurity.doleta.gov/foreign/pdf/eta9098.pdf> DRAFT prevailing wage form

<http://workforcesecurity.doleta.gov/foreign/txtdocs/9098inst.rtf> DRAFT prevailing wage form instructions

Comments on the form, the instructions, or should be sent to prevwageform@doleta.gov or faxed to prevwageform at (202) 693-2769.

The INS Vermont Service Center (VSC) has announced that there has been a slowdown in the processing of new H-1B petitions at that regional service center. The slowdown apparently is the result of a flurry of activity that took place at the end of Fiscal Year 2000, the result of which was the generation of large numbers of requests for evidence (RFEs).   Typically, an RFE is issued if an examiner has a question about a case, or additional information needs to be submitted.    The responses to RFEs must be adjudicated ahead of new work, and tend to engender more scrutiny and take more time than cases that the INS deems easily approvable.  INS is now receiving a large number of responses to RFEs sent out in September. According to INS, reviewing and adjudicating these cases has been a major factor causing the slowdown.

Depending on the availability of overtime funding and the impact of the new legislation, the situation may not get much better for the next few months, according to the Service Center. The INS now indicates that there may be a further lengthening of processing times, and it is conceivable that it may take up to 90 days or more to obtain the approval of a new H-1B petition in the near future.  Moreover, the extent of the slowdown was unexpected, and may not be accurately reflected on filing receipts or INS status information lines.

It is probable that the same factors that have led to the slowdown at Vermont may be in play at the other Centers.

The following is a press advisory from the INS about the impact of unlawful presence on pending immigration applications. For an overview concerning unlawful presence, see the article on our web site at: http://www.millermayer.com/resources/general26cont.htm.

The Immigration and Naturalization Service (INS) urges all aliens with pending applications for adjustment of status or change of nonimmigrant status to consult with an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making any foreign travel plans.

Aliens who have applied to adjust status to that of permanent resident or change nonimmigrant status must obtain Advance Parole from the INS before traveling abroad (see questions and answers below). However, due to recent changes to U.S. immigration law, travel outside of the United States may have severe consequences for certain aliens who are in the process of adjusting their status or changing their nonimmigrant status. Such aliens may be found inadmissible, their applications may be denied, or both. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission, even if they have obtained Advance Parole. Those aliens unlawfully present in the United States for 180 days but less than one year are inadmissible for three years; those who are unlawfully present for more than one year are inadmissible for 10 years.

For more information, call the INS nationwide toll-free information service at 1-800-375-5283. Further information on Advance Parole can also be found on INS' web site at www.ins.usdoj.gov.

Advance Parole: Questions and Answers

Q1. What is Advance Parole?

A1. Advance Parole is permission for certain aliens, who do not have a valid immigrant visa, to re-enter the United States after traveling abroad. Such aliens must be approved for Advance Parole before leaving the United States. If they have not obtained Advance Parole prior to traveling abroad, they will not be permitted to re-enter the United States upon their return.

Q2. Who needs Advance Parole?

A2. Aliens in the United States who have:

• An application for adjustment of status pending,
• Been admitted as a refugee or have been granted asylum,
• Been granted benefits under the Family Unity Program,
• Been granted Temporary Protected Status,
• An asylum application pending, and/or
• An emergent personal or bona fide reason to travel temporarily abroad.

Note: Aliens holding valid H-1 (temporary worker in a specialty occupation) or L-1 (intra-company transferee) visas and their dependants who have filed for adjustment of status do not have to file for Advance Parole as long as they maintain their nonimmigrant status.

Q3. Who is not eligible for Advance Parole?

A3. Aliens in the United States are not eligible for Advance Parole if they are:

• In the United States without a valid immigration status,
• An exchange alien subject to the foreign residence requirement,
• The beneficiary of a private bill, or
• Under removal proceedings.

Q4. How does one obtain Advance Parole?

A4. In general, an alien must file INS Form I-131, Application for a Travel Document, complete with supporting documentation, photos and the $95 fee. Since filing procedures vary among INS District Offices, applicants for Advance Parole should contact their local INS office for specific directions. Information on how to locate and contact your local District Office as well as copies of Form I-131 can be found on the INS Web site www.ins.usdoj.gov. Forms also can be requested using INS' toll-free forms request line 1-800-870-3676.

Q5. Does Advance Parole guarantee admission into the United States?

A5. No, Advance Parole does not guarantee admission into the United States. Aliens who have obtained Advance Parole are still subject to the INS inspection process at the port of entry.

Q6. Can travel abroad still have severe consequences for certain aliens, even if they have obtained Advance Parole?

A6. Yes, due to changes to U.S. immigration law, travel outside of the United States may have severe consequences for certain aliens who are in the process of adjusting their status or changing their nonimmigrant status. Such aliens may be found inadmissible to the United States upon return and/or their applications for adjustment or change of status may be denied. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after accruing certain periods of unlawful presence in the United States can be barred from admission, even if they have obtained Advance Parole. Those aliens who are unlawfully present in the United States for 180 days but less than one year become inadmissible for three years; those who are unlawfully present for more than one year become inadmissible for 10 years. Aliens who have concerns about their admissibility should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making foreign travel plans.

We have summarized the new H-1B law at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant17cont.htm. We also revised our H-1B fact sheet to incorporate the new law. The revised fact sheet is at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant2cont.htm

We have summarized another major new immigration law at: http://www.millermayer.com/resources/general52cont.htm. This law benefits many people in different ways.

We have revised our long article about unlawful presence to incorporate new developments in this area. The article is at: http://www.millermayer.com/resources/general26cont.htm

We have posted a new O-1 fact sheet at: http://www.millermayer.com/resources/nonimmigrant/nonimmigrant18cont.htm. This is the nonimmigrant visa category for people who have "extraordinary ability."

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That’s it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information.

For answers to any of your immigration questions, contact Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller.