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December 2000 Newsletter **U.S. IMMIGRATION NEWS** December 1, 2000 Published by: ImmigrationLinks.com, Inc. “Your Immigration Link to the World” Copyright © 2000, ImmigrationLinks.com, Inc. Email: info@immigrationlinks.com Internet: www.immigrationlinks.com How to Subscribe: Write maillist@immigrationlinks.com with "subscribe" in the subject of your e-mail. How to Unsubscribe: Write remove@immigrationlinks.com with "REMOVE" in the subject of your e-mail. You have received this Newsletter because you requested to be added to our mailing list. If at any time you wish your name removed, simply follow the instructions above and your e-mail address will be removed. *******************************************************
Disclaimer: This newsletter is provided for general information only. It is NOT legal advice, and should not be relied upon as such. For legal services such as representation, please contact an attorney who specializes in the area of Immigration Law, such as one of our attorney “Service Providers” whose businesses are promoted on our site. ******************************************************* Welcome to ImmigrationLinks.com, Inc., “Your Immigration Link to the World”. With the phenomenal growth of the Internet, nearly everything you need or want to know about US Immigration law is available at the touch of a button. We want to be at the forefront of this new technology and be able to provide instantaneous news and information on the immigration topics that affect those persons wishing to visit, live, or work in the United States. One way is through our monthly newsletters. The purpose of these newsletters is to provide useful and timely information about immigration-related topics that affect persons who come in contact with US Immigration laws. In conjunction with our News, Immigration Hints & Tips, and Legal Research pages, we want to provide you with extensive, up-to-date, and FREE information on US immigration laws and procedures. Soon, just about anything you need to prepare and process your immigration case will be available online. This includes access to immigration forms and information, as well as direct contact with attorneys and other service providers. For example, our Bulletin Board provides you with free answers to your immigration questions from some of the finest immigration attorneys in the country. Our goal is to be "The Portal Site" for everything having to do with US immigration law. We want to provide you with every service possible to increase your knowledge of the law and to make your online experience more useful and rewarding. We are constantly growing and expanding in order to meet your immigration needs. How to Use Our Site?
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What’s
Going On in Congress?
To find out all the latest news from the House and the Senate, including prospects for passage of important immigration legislation, and a synopsis of legislation that has passed in the last month, click here: AILA Advocacy Update: What is Going on in Congress? ********************************************************* Special Edition NewsletterImmigrationLinks.com will be publishing a “Special Edition” newsletter that will be sent to all of our subscribers as soon as final decisions are reached on the very important immigration bills presently pending before Congress. If you have received this newsletter by e-mail then you are on our list and will be sent this special edition copy. If you are reading this newsletter from our web site you can sign up for our mailing list to receive FREE monthly newsletters as well as urgent updates as they occur. To sign up for our free newsletter, go to www.immigrationlinks.com and enter your e-mail address in the sign-up box near the top of the page. ********************************************************* Department
of Justice IMMIGRATION AND NATURALIZATION SERVICE November 22, 2000 INS Issues
Foreign Travel Advisory for Aliens 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. – INS – *********************************************************
INS
Answers Questions on Recent Changes to H-1B Program IMMIGRATION
& NATURALIZATION SERVICE QUESTIONS
AND ANSWERS Changes to the H-1B Program 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 H1B 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 takes effect on December 17, 60 days after enactment. 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". Although the fee increase does not take effect for 60 days, 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 H1B "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 petitions/adjustment 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. – INS – ********************************************************* Important Reminder: NEW I-485 FORM REQUIRED AFTER 12/1/00 This is a Final Reminder that any application for adjustment of status filed after December 1, 2000 will be rejected if the new version of Form I-485 is not used. The new version of the form can be found on the INS website at: http://www.ins.usdoj.gov/graphics/formsfee/forms/files/i-485.pdf. *********************************************** Ciudad Juarez to Accept IV Cases with I-824s Filed After 9/20/00 The US consul general in Ciudad Juarez has announced that the post is removing its previous limitation on accepting third country national immigrant visa cases with I-824s filed before September 20, 2000, and will now accept cases with I-824s filed after that date. The consul general wanted to make it clear, however, that this does not mean that the post will accept all cases. It is just willing to review the case for acceptance. In addition, Ciudad Juarez does not
want new I-140 cases to designate Juarez instead of the home post.
It is not, in effect, creating a new stateside criteria program. **************************************************** INS
Proposes Rule to Convert Cases from Deportation to Removal The Immigration Service has proposed a rule that would permit termination of deportation proceedings, and institution of removal proceedings, for persons without final administrative orders who are ineligible for relief under deportation proceedings but eligible for relief under removal. To view the entire proposed rule, click here: INS Proposes Rule to Convert Cases from
Deportation to Removal. **************************************************** Immigration
Legislation Recently Signed Into Law (As of November 7, 2000) The following is a brief synopsis of recent immigration laws that have passed Congress and been signed by President Clinton. The synopsis is provided by the American Immigration Lawyers Association. Remember, it is a brief explanation only. You should always refer to the actual law for a complete reference source.
H.R. 2961, the International Patients Act of 2000 (Public Law No. 106-406) was signed on 11/01/00. This law creates a three-year pilot program which extends voluntary departure for up to three years for people who enter the US under the visa waiver program and are receiving medical treatment. This law is limited to 300 people per year. H.R. 3244, the Victims of Trafficking and Violence Protection Act of 2000 (Public Law No. 106-386) was signed on 10/28/00. This law creates nonimmigrant visas for women and child victims of human trafficking with an annual limit of 5,000 visas. There are also provisions to improve the Violence Against Women Act for battered immigrant women and children. H.R. 3767, the Visa Waiver Permanent Program (Public Law No.106-396) was signed on 10/30/00. This law makes the Visa Waiver Pilot Program permanent. It also: eases the requirements for filing an amended H1-B petition due to corporate restructuring, extends the immigrant investor (EB-5) pilot program until September 30, 2003, and creates a special immigration status for employees of INTELSAT, a satellite communications company that is in the process of privatizing, to maintain valid non-immigration status after the company change. H.R. 4068, the Religious Workers Act of 2000 (Public Law No. 106-409) was signed on 10/31/00. This law extends the special immigrant religious worker visa program until September 30, 2003. H.R. 4681 (Public Law No. 106-378) legislation that provides relief for Syrian Jews, was signed on 10/27/00. This law allows up to 2000 Syrian Jews who came to the United States in the early '80s and '90s and were granted asylum to adjust their status to permanent residence within one year of the date of enactment. It also allows adjustment for the spouses and children of these applicants. H.R. 5234 (Public Law No.106-415) legislation to aid widows of the Hmong Veterans Naturalization Act, was signed on 11/01/00. This law amends the Hmong Veterans Naturalization Act to make widows of veterans eligible for citizenship. The law exempts applicants from the English language requirement. S. 2812, (has not yet been assigned a Public Law No.) disability oath waiver legislation was signed by the President on 11/06/00. This bill provides a waiver of the oath of allegiance, which is normally required for naturalization, for those applicants whose disability prevents them for understanding the oath. S. 3239, The International Broadcasters Act, was passed in Congress on 10/31/00 and has yet to be sent to the President: This bill amends the Immigration and Nationality Act to provide special immigrant status for certain United States international broadcasting employees. ***************************************************** INS
Issues Prosecutorial Discretion Guidelines
U.S. Department of
Justice IMMIGRATION AND NATURALIZATION SERVICE November 28, 2000 Prosecutorial
Discretion Guidelines The use of prosecutorial discretion by the Immigration and Naturalization Service (INS) in deciding which cases to pursue has received increased attention since passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. Part of this legislation limited the authority of immigration judges to provide relief from removal in many cases, and persons facing removal have sought to avoid removal by other means, including prosecutorial discretion from INS. Prosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against someone. INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve or file a Notice to Appear (NTA) when starting removal proceedings, but also to a broad range of other discretionary enforcement decisions. These include focusing investigative resources on particular offenses or conduct; deciding whom to stop, question and arrest; deciding whether to detain certain aliens in custody; settling or dismissing a removal proceeding; granting deferred action or staying a final removal order; agreeing to voluntary departure, permitting withdrawal of an application for admission, or taking other action in lieu of removing an alien; pursuing an appeal; or executing a removal order. While INS can refrain from exercising its law enforcement authority against a particular person on a case-by-case basis, it cannot regularize someone's immigration status or grant a benefit that an alien is not legally entitled to receive. For example, INS has no discretion to admit into the United States an alien who is inadmissible and cannot adjust the status of a person who isn't qualified for adjustment. INS has prosecutorial discretion not to place a removable alien in removal proceedings, but it does not have prosecutorial discretion to approve a naturalization application by an alien who is ineligible for that benefit under the Immigration and Nationality Act. Exercising prosecutorial discretion does not lessen INS’ commitment to enforce the immigration laws to the best of the agency's ability. It is not an invitation to violate or ignore the law. Rather, it is a means to use the agency's resources in a way that best accomplishes INS' mission of administering and enforcing the immigration laws of the United States. Factors Used in Determining Use of Prosecutorial Discretion The factors that can be taken into account in deciding whether to exercise prosecutorial discretion favorably include the following: • Immigration status • Length of residence in the United States • Criminal history • Humanitarian concerns • Immigration history • Likelihood of ultimately removing the alien • Likelihood of achieving enforcement goal by other means • Whether the alien is eligible or is likely to become eligible for other relief • Effect of action on future admissibility • Current or past cooperation with law enforcement authorities • Honorable U.S. military service • Community attention • Resources available to INS Impact of Prosecutorial Discretion Prosecutorial discretion is not a full or adequate substitute for the forms of relief previously available from an immigration judge prior to the changes in the law in 1996. In many cases, the exercise of prosecutorial discretion by INS leaves a person in limbo, at risk of future immigration enforcement action and unable to travel outside the United States without the fear of being denied readmission. Although it is INS policy that a favorable exercise of discretion by an INS office should be respected by other INS offices unless the facts and circumstances have changed, the exercise of prosecutorial discretion does not grant a lawful status under the immigration laws, and there is no legally enforceable right to the exercise of prosecutorial discretion. Ultimately, INS believes that a complete solution requires legislation to restore, to certain aliens affected by the 1996 changes, the possibility of a grant of relief by immigration judges during the removal process. Editor’s Note: To view the complete 13-page INS memo, in PDF
format, click here: INS
Memo On Prosecutorial Discretion ***************************************************** New,
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Thank you for taking the time to read through this month's mailing. We hope you have picked up at least a few important pointers. Please feel free to send us your immigration-related article that you want us to include in our next monthly mailing. Click here for instructions. Your article will be sent out at the beginning of next month to all of our subscribers, and it can be viewed online by millions of prospective immigration applicants around the world. We would also like to hear from anyone who has had either a positive or negative experience with the US Immigration Service, Immigration Court, or a US Consulate, as we would like to share these thoughts with our readers. Appropriate articles will be published in our monthly newsletters. We do need your name and e-mail address in order to obtain additional information if necessary, however this information will not be disclosed without your specific consent. As mentioned above, there are many proposals currently before Congress that will restore rights and benefits that were taken away under the 1996 law. It is important that everyone contact their Senators and Representatives to let them know that we want fairness and justice when dealing with those seeking to join their family members, or prospective employers, in the United States. With your help, the rights of immigrants and their family members will be greatly enhanced. The entire staff of ImmigrationLinks.com would like to take this opportunity to wish all of you the best in dealing with your immigration case. ******************************************************** How to Subscribe: Write maillist@immigrationlinks.com with "subscribe" in the subject of your e-mail. How
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