January
2001 Newsletter
**U.S.
IMMIGRATION NEWS**
January 1, 2001
Published by:
ImmigrationLinks.com, Inc.
“Your Immigration Link to the World”
Copyright © 2001, ImmigrationLinks.com, Inc.
Email: info@immigrationlinks.com
Internet: www.immigrationlinks.com
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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.
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Welcome
to ImmigrationLinks.com, Inc., “Your
Immigration Link to the World”; and welcome to a New Year and a New
Century. Much has happened this
past year and, with a new President and a new Congress, we can expect more
changes in the year to come. ImmigrationLinks.com
has also grown tremendously since its beginning just eight months ago.
In this short time we have become one of the top immigration news and
information providers on the Internet, servicing hundreds of thousands of
viewers each month.
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?
- Immigration News Page: To get the latest immigration news, updated on a daily basis, go to this page. We have thousands of news articles covering every type of immigration petition or application. You can download free immigration and state department forms, get the latest fee schedules, list of immigration doctors, addresses and telephone numbers of immigration offices, the latest priority dates, current processing times, and much, much more. Check out the “NEWS FLASH” area for late-breaking immigration developments.
- Immigration Hints & Tips Page: Get useful immigration hints and tips that will make the filing of your immigration case easier and faster. Have access to forms and sample briefs and legal memorandum especially prepared by immigration attorneys that you can use with your applications. Attorneys listed in The Best Lawyers in America have prepared many of these documents.
- Immigration Research Page: Go here to get connected to thousands of public and private agencies and businesses related to US immigration law. You will have free access to copies of all of the immigration laws, all court decisions, agency memos and field instructions, forms, addresses and telephone numbers, and a lot more. We are constantly adding new links. No other immigration site has as many links as we have. (Feel free to look at all of our links and send us suggestions for any others that you believe are important).
- Immigration Services: These are the businesses that provide valuable products and services to assist the immigrant community. Let us promote your company’s business on our site for as little as $25.00 per year. You can also have our free banner placed on your business’s web site as a service for your customers.
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- Bulletin Board and Chat Room: Post your immigration questions on our Bulletin Board and get answers from others who have faced the same types of problems, including free advice from some of the finest immigration attorneys in the country. Chat live online with others, including immigration law experts. Tune in for other special features and programs.
- Other Services: Sign up for our free monthly newsletter, including urgent updates as necessary. Look for free downloads of immigration materials including official immigration, state department, and labor department application forms; specially prepared forms to use with your applications; news articles; and insider tips written for ImmigrationLinks.com by some of the finest immigration attorneys in the country.
- Banner Exchange Program: If you have a web site and would like to exchange banner links with us, please send e-mail to info@immigrationlinks.com. We will contact you to discuss your site’s inclusion in our program.
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Top Immigration Attorneys Answer Your Immigration Questions for FREE
ImmigrationLinks.com is pleased to announce that some of the top immigration attorneys in the country will be answering your “general” immigration questions for free on our “Bulletin Board” page. This month the law staff of ImmigrationLinks.com will be answering your questions.
We plan on having guest attorneys available to answer your questions at least once a month. This service, as are all other services on our site, is completely free. We hope you will take this opportunity to ask the questions that are important to you.
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New
LIFE and LIFE Act Amendments
For all the latest information on the new immigration laws, click on the appropriate link(s) below. Remember, now that the law has passed, we still need to know how the Immigration Service and the State Department will interpret the specific provisions of the law. As memorandums are issued, and new regulations proposed, we will immediately post all of this information to our site. If you check back on a daily basis, you will always have the most current information available on the new law.
- Full Text of Immigration Bill (12/21/00)
- President Signs LIFE Act and LIFE Act Amendments (12/21/00)
- Extension of Section 245(i)--Frequently Asked Questions (12/21/00)
- Diez
Preguntas Y Respuestas Sobre la Nueva 245(i) (12/21/00)
- Information on § 245(i) Provisions In New Immigration Bill (12/18/00)
- AILA Press Release on the Immigration Deal (12/15/00)
- Immigration Deal Reached -- Summary of the Key Provisions (12/15/00)
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Department of Labor Publishes H-1B Regulations
December 20, 2000
The US Department of Labor has finally issued H-1B regulations implementing the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The rules have been published in interim final form and are available by clicking the link below.
Click here for the entire rule. Please note: the rule is approximately 250 pages long, so it will take a few moments to download.
For a summary of the new H-1B rules, click below:
Summary of New Department of Labor H-1B Regulations
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Advance Paroles
With the “grand fathering” provisions of the new law, questions will invariably arise as to whether an applicant for adjustment of status can obtain an advance parole to re-enter the US. We therefore are republishing the recent INS memo on this subject.
Department
of Justice
IMMIGRATION AND NATURALIZATION SERVICE
ADVISORY
November 22, 2000
INS Issues
Foreign Travel Advisory for Aliens
With Pending Immigration Applications
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 –
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Department of Labor
Requires New LCA Form Starting January 19, 2001
December 21, 2000
The Department of Labor has announced that, starting January 19, 2001, the current LCA forms may no longer be used, and the new 3-page LCA form will take effect. Between January 19, 2001 and January 25, 2001 the faxback system will be down and only mail-ins will be accepted.
The complete announcement appears below:
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IMPORTANT NOTICE - CHANGES TO H-1B FILING
Beginning January 19, 2001, ETA Regional Offices will no longer accept the currently used Labor Condition Application Forms (LCAs). A new H-1B regulation was published on December 20, 2000. This regulation changed both the Labor Condition Application Form and where it is to be filed.
Effective January 19, 2001, neither the one-page Form ETA 9035 initially published in the Federal Register of December 1994, nor the two-page form (ETA 9035) used by the LCA Faxback system will be accepted by ETA for processing.
On February 5, 2001, ETA will begin accepting for automated processing the new three-page ETA 9035 either by facsimile or by mail sent to the PO Box shown below. This will allow ETA time to process LCAs received prior to January 19, and to retool the system to process the new form. LCAs that must be processed during the period January 19 - February 5 must be submitted on the new three-page form, and mailed to the appropriate ETA Regional Office, or may be mailed to the Philadelphia PO Box shown below, where they will be manually reviewed. For expeditious processing, ETA strongly encourages employers and their representatives to wait until after February 5, 2001 before submitting, and then to file LCAs by fax.
For further information regarding the new application process and to see the new Form ETA 9035 and ETA 9035CP, please view the web site: OWS.DOLETA.GOV. For information regarding changes in H-1B compliance, please visit: www.dol.gov/dol/esa/public/regs/compliance/whd/whdfs42.htm
WHAT DO YOU NEED TO FILE
Electronic Process
- A computer capable of running Adobe Acrobat Reader, connected to a printer;
- If you choose to Fax the form, a fax machine in operation 24 hours per day, 7 days per week;
- The new three-page Form ETA 9035 and ETA 9035CP, which contains the instructions, downloaded from the ETA web site: http://www.ows.doleta.gov. (these are fillable Acrobat files) OR
Manual Process
- The new three-page Form ETA 9035 and ETA 9035CP (printed copy) from your ETA Regional Office
HOW TO COMPLETE AND SUBMIT
- Employer reads the Form ETA 9035CP and completes the Form ETA 9035 (LCA);
- Employer signs the Form ETA 9035 (LCA);
To send by Facsimile
- The Form ETA 9035 (LCA ) may be faxed to (800) 397-0478 OR
To send by Mail
- The Form ETA 9035 (LCA) may be mailed to ETA-H1B, P.O. Box 13640, Philadelphia, PA, 19101.
- If the LCA is rejected, the returned LCA will include the reasons for the rejection.
- Once LCA is approved, the employer attaches the certified LCA to form I-129 (Petition for H-1B nonimmigrants) and files with the INS.
Note: Beginning Feb 5, 2001, employer representatives will receive the approved LCA only by fax.
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More
Information on the New LCA Form
LCA Faxback News: New LCA Form
Required;
and Backlog Report
December 27, 2000
Effective January 19, 2001, only the new 3-page version of the H-1B Labor Condition Application ("LCA") will be accepted. To obtain a copy of the form click on the link below:
http://ows.doleta.gov/foreign/pdf/h1bform.pdf
The cover pages required for the public access file and postings are located at:
http://ows.doleta.gov/foreign/pdf/h1bcl.pdf
From January 19, 2001 through February 5, 2001, the LCA faxback system will be taken out of commission to be retooled to accept the new forms. Therefore, during that period, LCAs (using the new form) should be mailed either to the appropriate ETA Regional Office, or (regardless of the location of the job) to ETA-H1B, P.O. Box 13640, Philadelphia, PA, 19101.
On February 5, 2001, ETA will accept for automated processing the new three-page ETA 9035, either by facsimile or by mail, sent to the Philadelphia PO Box indicated above.
The Department of Labor has advised that, "for expeditious processing, ETA strongly encourages employers and their representatives to wait until after February 5, 2001 before submitting the application, and then to file LCAs by fax." Click here for the full text of DOL's notice on this subject.
With respect to the backlogs in the current system, the DOL advises that, as of December 27, 2000, the LCA faxback system is processing cases received December 8 or later. This represents an advance of only one day in the last week. If you still have not received back an LCA filed before December 8, you should refax it at this time (unless you faxed a duplicate on December 8 or after). If you faxed in your LCA on December 8 or after, DOL asks that you NOT fax in a duplicate, since duplicates only add to the already significant backlog of cases that the Department is trying to clear. DOL currently has a backlog of 11,665 faxback LCAs.
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New Asylum Rules
The Immigration Service has published
new asylum rules as a result of the changes brought about by the Immigration Act
of 1996. To read the rule, and the
INS FAQ sheet, click on the links below.
· INS Answers Questions on New Asylum Rule
·
INS
Issues Final Rule on IIRIRA Changes to Asylum Procedures
The Service has also issued a
proposed rule clarifying certain asylum definitions, including gender-based
persecution. To view the proposed
rule, and the INS FAQ sheet, click the links below.
· INS Proposes Regulation to Clarify Certain Asylum Definitions
·
INS
Answers Questions on Gender-Based Persecution Proposed Rule
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INS
Issues Prosecutorial Discretion Guidelines
We reprint these guidelines for those who may have missed them in our last mailing. Other than information on the new law, this is clearly the number one item downloaded by our readers this past month.
U.S. Department of
Justice
IMMIGRATION AND NATURALIZATION SERVICE
FACT SHEET
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
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Have a Happy,
Healthy, and Prosperous New Year
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.
Even though Congress has remedied some of the harsh consequences of the 1996 Act, it has not gone far enough, and there is still much more that has to be accomplished. We will provide our readers with updates on what is still needed to bring fairness and equity to US immigration 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.
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