March 29, 2000 Immigration News Update Click for a Printable Version of this Article Business Immigration News Update  from True, Walsh & Miller March 29, 2000 In this issue: 1. INS Releases Info on H-1B Usage INS Speaks on H-1B Layoffs INS Addresses H-1B Filings Without Certified LCA Changes at INS: Wyrsch to UNHCR; EOIR Director Named Acting INS Commissioner INS Implements Section 245(i) Provision of the LIFE Act Bush Unveils Spending Plan; Lists Outline of INS Reorganization INS Grants TPS to Salvadorans New Child Citizenship Act Takes Effect INS Tightens Up "Nine-Month Rule" for F-1 Students Applying for Optional Practical Training State Department Predicts Forward Movement on China and India EB Numbers The Firm Speaks 1. INS Releases Info on H-1B Usage 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: o Be the beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative"), or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker"), or Form I-360 ["Petition for an Amerasian Widow(er), or Special Immigrant], or Form I-526 ("Petition for an Alien Entrepreneur") filed with the INS on or before April 30, 2001, (either received by INS or, if mailed, postmarked on or before April 30, 2001) or o Be the beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001, and If the qualifying visa petition or labor certification application was filed after January 14, 1998, have been physically present in the United States on December 21, 2000. All petitions and applications must be properly filed and approvable when filed. Beneficiaries of immigrant visa petitions and labor certification applications that were filed by the cut-off date will be able to submit the application for adjustment of status (Form I-485) under Section 245(i) any time after an immigrant petition is approved and a visa number (priority date) is immediately available in accordance with the State Department's monthly Visa Bulletin. As LIFE Act regulations are finalized, INS will continue to update the public through the agency's web site <http://www.ins.usdoj.gov/>, toll-free customer telephone service 1-800-375-5283, and public outreach to the media and community-based organizations. Forms can be easily downloaded from the INS web site or requested by calling 1-800-375-5283. "Immigration law is very complex. Those who have concerns about their eligibility for LIFE Act benefits should be cautious to avoid unscrupulous immigration practitioners. They should contact a licensed attorney or a legal service provider recognized by the Board of Immigration Appeals," urged Acting Commissioner Wyrsch. 6. Bush Unveils Spending Plan; Lists Outline of INS Reorganization The fiscal year 2002 spending plan recently released by President Bush includes $100 million in each of the next five fiscal years for INS backlog reduction, and describes in very general terms the President's vision of INS reorganization. The Bush administration will issue a detailed budget in April showing exactly how much money will be allocated to the agency for adjudications, enforcement, and backlog reduction, as well as from where that money will come (i.e., user fees, allocated funds or a premium processing fee). The spending outline specifically proposes: A $100-million "first installment" in a five-year, $500-million backlog reduction initiative that will include new personnel, employee performance incentives and customer service standards. Those funds are designed "to obtain a universal six-month processing standard for all immigration applications and petitions." $75 million for 570 new Border Patrol agents. $20 million for intrusion detection technology. $7 million to establish Northern and Southwest border intelligence units, charged with interdiction, monitoring potential terrorist and smuggling activities, and $89 million for 1,607 new detention beds. On the issue of INS reorganization, the President proposes "restructuring and splitting the INS into two agencies with separate chains of command and accountability, reporting to a single policy leader in the Department of Justice. One agency will be focused exclusively on service and the other will be focused exclusively on law enforcement." It is unknown whether the $100 million proposed in the spending plan comes on top of allocated funds, stands alone, or is sufficient to reduce the backlogs. Likewise it is unknown whether the Administration's budget will include funding from premium processing fees. 7. INS Grants TPS to Salvadorans Following a meeting between President Bush and Francisco Flores Perez, President of El Salvador, the INS has granted an 18-month Temporary Protected Status (TPS) to Salvadorans residing in the U.S. before February 13, 2001. The TPS announcement means that eligible Salvadorans will not be removed and can apply for work authorization during the designated 18-month period. Applicants must submit to the INS both an Application for Temporary Protected Status (I-821) and an Application for Employment Authorization (I-765), along with supporting evidence of both Salvadoran nationality and continuous residence in the U.S. as of February 13. The INS estimates that as many as 150,000 Salvadorans are eligible for TPS. 8. New Child Citizenship Act Takes Effect The Child Citizenship Act (CCA) became effective on February 27. The CCA represents a significant and important change in the nationality laws of the United States. In general, children born outside the U.S., including adopted children, who are less than 18 years of age and have at least one parent who is a U.S. citizen whether by birth or naturalization will benefit from this new law. Under the law, qualifying children who are legal permanent residents in the United States with a U.S. citizen parent automatically acquire U.S. citizenship; children who live abroad acquire citizenship by application. INS has taken the position that this law is not retroactive and that it only applies to children under the age of 18 on or after February 27, 2001. To be eligible for automatic citizenship, a child must meet the following requirements: Have at least one U.S. citizen parent (by birth or naturalization); Be under the age of 18 years of age; Currently reside permanently in the United States in the legal and physical custody of the U.S. citizen parent; Be a lawful permanent resident; If adopted, meet the requirements applicable to adopted children under immigration law. Parents of foreign-born children who do not meet the qualifications for automatic citizenship may apply for naturalization on behalf of their child if at least one parent is a citizen (whether by birth or naturalization); the citizen parent has been present in the United States for a period totaling five years (two of which were after attaining the age of 14); the child is under the age of 18; the child is residing outside of the United States in the legal and physical custody of the citizen parent, and the child is temporarily in the United States pursuant to a lawful admission and is maintaining such lawful status. 9. INS Tightens Up "Nine-Month Rule" for F-1 Students Applying for Optional Practical Training As one of the eligibility requirements for optional practical training, international students must be in valid F-1 status and lawfully enrolled on a full-time basis in an INS-approved school for at least nine consecutive months. Most F-1 students need quite a bit more than nine months to complete their academic programs, so this rule is generally not an issue for many. However, this requirement can become important for a F-1 student who is able to complete their program of study through just two semesters of full-time enrollment, or who can use only optional practical training to apply for an internship that will begin in the summer following their first academic year of studies. Until recently, F-1 students affected by the nine-month rule could file their applications for optional practical training before they had completed their nine months, as long as the starting date on their application would be after the nine-month date. Since these applications normally take between two and three months for processing, it allowed students to file early, and have their work authorization request approved in time to start employment at the earliest possible date. No more. The INS will now deny any application for optional practical training when the student applies before having satisfied the nine-month enrollment requirement. The INS now interprets its regulations so that an F-1 student may not submit an optional practical training request before they have been enrolled for nine months. Essentially, the current policy is that the student must be fully eligible for the benefit at the time that the application is submitted. 10. State Department Predicts Forward Movement on China and India EB Numbers According to Charles Oppenheim of the State Department, see employment-based second preference immigrant visa numbers for India and China are likely 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 may change this outlook. 11. The Firm Speaks Steve Yale-Loehr will talk on work-related visas at Binghamton University in Binghamton, New York this Friday, March 30 from 3:30-5 pm. Steve Yale-Loehr and Ellen Badger will speak on undocumented students attending college on April 23 in Seattle, Washington at the annual conference of the American Association of Collegiate Registrars and Admissions Officers. Steve Yale-Loehr is chairing a seminar on basic immigration law on May 1 in New York City. The conference is being sponsored by PLI. Steve Yale-Loehr will talk on blanket L nonimmigrant visas on June 22 at the annual conference of the American Immigration Lawyers Association in Boston, Massachusetts. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. __________________ 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 Sarah Edelman (sre@millermayer.com),  Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller.  Copyright (c) 2001. True, Walsh & Miller, LLP. All rights reserved. The contents of these web pages are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney. Copyright © 2002 True, Walsh & Miller, LLP. Attorneys at Law The Commons, 202 East State Street, Ithaca, New York 14850 phone: 607-273-4200, fax: 607-272-6694, E-mail: twm@twmlaw.com