1. 1. INS Releases Info on H-1B Usage
2. INS Speaks on H-1B Layoffs
3. INS Addresses H-1B Filings Without Certified LCA
4. Changes at INS: Wyrsch to UNHCR; EOIR Director Named Acting INS Commissioner
5. INS Implements Section 245(i) Provision of the LIFE Act
6. Bush Unveils Spending Plan; Lists Outline of INS Reorganization
7. INS Grants TPS to Salvadorans
8. New Child Citizenship Act Takes Effect
9. INS Tightens Up "Nine-Month Rule" for F-1 Students Applying for Optional Practical Training
10. State Department Predicts Forward Movement on China and India EB Numbers
11. The Firm Speaks

The Immigration and Naturalization Service (INS) has announced that as of March 7, 2001, about 72,000 H1-Bs had been approved toward the 195,000 cap for fiscal year (FY) 2001, which ends September 30. Another 66,000 cases are in the pipeline right now. The INS predicts that about 80% of these applications will count toward the cap. That means a little over 120,000 visa applications are already likely to be counted toward the quota.

15,000 applications were submitted in February and with seven months left to go in the fiscal year, the total numbers of new H-1B petitions subject to the cap might be just less than the 195,000 total authorized by Congress. Thus, even with the economic slowdown, H-1B usage continues to grow.

2. INS Speaks on H-1B Layoffs

A number of H-1B workers have recently been laid off from their jobs as certain companies reduce their work force. Rumors have been flying that the INS has liberalized its policy on laid-off H-1B workers. The rumors are NOT true. During an interview on CNET News.com, Efren Hernandez, the business and trade director of the INS, spoke about the status of H-1B workers who are laid off. According to Mr. Hernandez, an H-1B worker who is laid off is out of valid status at the moment of the layoff. There have been a number of rumors about a 10-day grace period. Mr. Hernandez made clear that this grace period does not apply in a lay-off situation. It only covers people who have reached their time limit in H-1B status and must return to their home country. Laid-off H-1B workers are deportable, but are not considered an INS priority.

Mr. Hernandez also stated that the portability rules regarding H-1B visas and changing employers do not apply to laid-off workers. Unlike workers who are moving directly from one employer to another, who can begin working for the new employer as soon as the visa application is filed, workers who are laid off must wait for the approval of the new visa before they can begin work. Because they have been out of status, in most cases they must obtain this visa at a consulate abroad. The worker can apply for a change of status within the US, but must demonstrate that there are exceptional circumstances warranting such treatment. The INS has no policy on what constitutes exceptional circumstances, and addresses such situations on a case-by-case basis. Mr. Hernandez indicated, however, that the agency was sympathetic to the plight of laid-off workers. Some INS watchers have noted an increased flexibility in the agency's use of its discretion on this issue.

3. INS Addresses H-1B Filings Without Certified LCA

Bill Yates, INS Deputy Executive Associate Commissioner, recently stated that the 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, the 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 new H-1B portability provision upon the filing of a petition in this situation. He acknowledged that a Department of Labor regulation suggests that a certified LCA would be necessary for portability. But Mr. Yates 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 the 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.
4. Changes at INS: Wyrsch to UNHCR; EOIR Director Named Acting INS Commissioner

Mary Ann Wyrsch, who had been Acting INS Commissioner since the resignation of Doris Meissner in November, was appointed on February 28 as United Nations Deputy High Commissioner for Refugees. Ms. Wyrsch starts her new position in early April. As a result of Ms. Wyrsch's imminent departure, Attorney General John Ashcroft recently announced that Kevin Rooney has been named Acting INS Commissioner "until a permanent INS Commissioner is appointed."

Mr. Rooney currently is the Director of the Justice Department's Executive Office for Immigration Review (EOIR). A career Department of Justice employee, he previously served as Deputy Director of EOIR, Assistant Attorney General for Administration, and Assistant Director of the Bureau of Prisons. Mr. Rooney will begin serving as Acting INS Commissioner on April 2.

5. INS Implements Section 245(i) Provision of the LIFE Act

The INS published the following press release on March 23, 2001:

WASHINGTON - An interim rule for adjustment-of-status application procedures under Section 245(i) of the Immigration and Nationality Act (INA) will be published in the Federal Register on Monday, March 26. Adjustment of status under Section 245(i) is one of several immigration benefit provisions created by the Legal Immigration Family Equity Act and LIFE Act Amendments (LIFE Act) enacted on December 21, 2000.

"The LIFE Act provides relief for a number of individuals seeking to become lawful permanent residents, but it is not amnesty for all persons unlawfully in the United States," said Acting Commissioner Mary Ann Wyrsch. "A major provision of the law is now in place, and we are moving as quickly as possible to develop regulations for all other LIFE benefits."

Section 245(i) allows certain persons-who have an immigrant visa immediately available but entered without inspection or otherwise violated their status and thus are ineligible to apply for adjustment of status in the United States-to apply if they pay a $1,000 penalty. The LIFE Act temporarily extends the ability to preserve eligibility for this provision of law until April 30, 2001. Use of Section 245(i) adjustment of status previously was limited to eligible individuals who were the beneficiary of a visa petition or labor certification application filed on or before January 14, 1998.

This is an important benefit for eligible individuals. Without Section 245(i), many individuals who entered illegally or violated their status are restricted from filing for adjustment in the United States and must obtain their immigrant visas overseas. However, their departure to obtain their immigrant visa abroad could trigger the three-year and 10-year bars to admission to the United States related to unlawful presence. Generally, the three-year bar applies to those who were unlawfully present in the United States for more than 180 days, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more.

NOTE: There are some groups that may not be affected by any deadlines related to Section 245(i). The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, does not need to apply for adjustment of status under Section 245(i). Also, certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under Section 245(i).

The LIFE Act provides a very short window of opportunity, which ends April 30, 2001, for individuals to preserve their eligibility to file for adjustment of status under Section 245(i). It is not necessary to apply for Section 245(i) adjustment of status on or before April 30, 2001, but to preserve eligibility for Section 245(i) adjustment an individual must: