A QUARTERLY UPDATE ON IMMIGRATION LAW FROM Meyner and Landis LLP
First Quarter 2001

BUSINESS UPDATE

EEXTENSION OF SECTION 245(i)--NOT A GENERAL AMNESTY GUIDELINES ON H-1B VISA PORTABILITY EXPEDITED PROCESSING OF USCIS PETITIONS FOR A PRICE 

I. THE EXTENSION OF SECTION 245(i): FREQUENTLY ASKED QUESTIONS

1. What is the new Section 245(i) provision of the Legal Immigration and Family Equity Act of 2000 (LIFE Act)?

The new Section 245(i) allows certain eligible people (see answer to question #3) to become permanent residents without leaving the U.S. Eligible people have until April 30, 2001 to file an immigrant visa petition (an I-130, I-140, or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL) in order to take advantage of this new provision. IMPORTANT NOTE: The LIFE Act adds a new “physical presence” requirement: People who file a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, the date this measure became law, in order to be eligible to use Section 245(i).

Filing an immigrant visa petition is the first step in a two-step process. The second step is acquiring permanent residency (the "green card") by filing an adjustment of status application (Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as long as the petition or labor certification is filed before that date, if he/she is qualified, their eligibility will not expire.

2. Why is this new Section 245(i) needed?

Because Congress phased out the original Section 245(i) on January 14, 1998. (The original Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of January 14, 1998 were “grandfathered” to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of status. The extension of Section 245(i) until April 30, 2001 provides a four-month window of opportunity for people to protect their ability to adjust their status in this country.

3. Who is eligible to qualify for the new Section 245(i) provisions?

A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from the new Section 245(i). Most people who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as a crewman, or were admitted in transit without a visa, are considered out of status and would be unable to complete the process to become a permanent resident in the U.S. without Section 245(i).

4. What are the three and ten year bars, and why should they be of concern?

Without Section 245(i), out of status people needed to return to their home countries and there complete the process for an immigrant visa at the U.S. consulate. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents.

5. What does the new physical presence requirement mean and how do you prove compliance with it?

Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, must prove that they were physically present in the United States on the date that LIFE Act is signed into law, December 21, 2000. People can prove compliance by submitting evidence of physical presence in the U.S. This evidence could any receipts for December 21 that include the beneficiary’s name.

6. How does a person take advantage of the new Section 245(i)?

To take advantage of the new Section 245(i), a relative must submit a visa petition to the USCIS on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent resident who is sponsoring the Section 245(i) eligible person must file (and sign) the petition. In addition, an employer can submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. Both petitions and applications must be submitted on or before April 30, 2001. The USCIS or DOL does not have to approve the petition or application by that date. It just needs to be filed by April 30, 2001.

Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters.

7. Do people have to adjust status using the same category in which they petitioned?

No. It is important that people eligible to use Section 245(i) file their petitions and applications before April 30, 2001 using the eligibility they have at the time they file the petition. This initial filing preserves the ability to adjust! People can switch to another category when they become eligible for that category if that switch allows them, for example, to more quickly adjust their status.

8. What is the fee and when must it be paid?

The Section 245(i) fee is $1,000, and is in addition to any other filing fees the USCIS and DOL charge. In most cases, this fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when people adjust their status and become permanent residents. Thus, the $1,000 fee usually needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

9. Does the new Section 245(i) grant work authorization, protection from deportation, or travel permission?

No! Section 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It offers no other protections or rights.

10. What can people do to make sure they take advantage of this new opportunity?

It is virtually important that people seeking Section 245(i) benefits seek advice from the people who can really help them: immigration lawyers and clinics with the expertise and knowledge to get the job done correctly. People who use notations endanger themselves and their families and may end up, due to incorrect advice, being unable to use Section 245(i), out of luck and still out of status! 

II. Interim Guidance for Processing H-1B Applicants for Admission as Affected by the American Competitiveness in the Twenty-first Century Act of 2000, (“AC21”)

On October 17, 2000, President Clinton signed into law the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”). The new law not only increases the H-1B Petitioner Fee and the numerical limitation on H-1B visas, but also modifies the manner in which they will be processed. All provisions in AC21, with the exception of a fee increase, were effective upon enactment. The following directive was issued by USCIS to provide interim guidance to Ports-of-Entry (POEs) when processing H-1B applicants for admission. While these guidelines were developed to clarify in the new law that affect the Inspections Program, it is anticipated that further guidance will be disseminated once the USCIS regulations have been drafted.

Visa portability

Visa portability provisions in AC21 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 a “nonfrivolous” H-1B petition for the alien. A “nonfrivolous” petition is one that is not without basis in law or fact. Forthcoming regulations will further clarify this standard. Since portability provisions apply to H-1B petitions filed “before, on, or after” the date of enactment, all aliens who meet the requirements may benefit the provisions effective immediately.

The portability provisions described in AC21 relieve the alien from the need to await approval notification from the USCIS before commencing new H-1B employment. In order to be eligible for the visa portability provisions: (1) the alien must have been lawfully admitted into the United States; (2) an employer must have filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized; and (3) the alien must not have accepted unauthorized employment subsequent to his/her admission and before the filing of the new petition.

An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a POE, pursuant to portability in AC21, as long as certain conditions listed below are met. If these conditions are met, the H-1B applicant is admissible to the validity date of the previous H-1B petition, plus ten days. H-4 applicants for admission, who are dependents of H-1B aliens employed pursuant to visa portability provisions, must meet these same requirements:

1. The applicant is otherwise admissible
   
   
2. The applicant, unless exempt under 8 CFR 212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner).
   
   
3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or the otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition’s validity dates.
   
   
4. The applicant presents evidence that new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B’s previous period of admission. It must be emphasized that the burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible for a visa portability provisions described in AC21.
   

No evidence of an I-129, Petition for Nonimmigrant Worker, filed by the current employer

If the H-1B applicant has changed employers, but is not in possession of Form I-797 and query of CLAIMS shows no evidence that a new petition has been filed, the applicant is not admissible in H-1B status and should be processed accordingly. Generally, an alien who lacks evidence of a pending petition should not be processed as an expedited removal, unless there is evidence of fraud or misrepresentation.

The original petition has expired

If the original petition has expired, the applicant is not admissible in H-1B status, unless the applicant presents evidence that a new petition has been approved. Generally, an alien whose petition has expired should not be processed as an expedited removal, unless there is evidence of fraud or misrepresentation.

Extensions of stay

The AC21 provides for the extension of H-1B status in cases where an alien’s immigrant visa petition or adjustment of status application is pending due to the per country limitation on visas or to a lengthy adjudication process.¹ Therefore, it is possible that an H-1B alien may exhaust the 6-year limit of stay defined in Section 214(g)(4) of the Immigration and Nationality Act, yet remain in status due to the extension of stay provisions described in AC21. As long as an alien in these circumstances remains in status with extension(s), the alien would not accrue unlawful presence.

NOTE: In accordance with previously issued policy relating to dual intent, if the H-1B applicant has an immigrant visa petition pending, and has otherwise remained in status, he or she may be readmitted into the United States in H-1B status, provided he or she is reentering within the authorized period of stay. An H-1B alien who has an adjustment of status application pending is not required to present an I-512, Advance Parole Authorization, after travel outside of the United States.

 

III. USCIS PREMIUM PROCESSING PROGRAM -- SUMMARY OF CURRENT PLANS

Following is a summary of the information provided by the USCIS at a “focus group” meeting to discuss implementation of a premium processing fee for expedited processing of petitions. Much of what was discussed is a medium and long-term “wish list” with no certainty when or if any particular feature will be included. It represents merely preliminary planning on the part of USCIS.

When It Might Start

INS currently plans to introduce its premium processing program sometime during the third quarter of fiscal year 2001 (namely, April 1, 2001 to June 30, 2001).

Price Tag

$1,000 per petition (above and beyond any other fees)

Anticipated Service to be Provided

• “Guaranteed” response within 15 calendar days
• Fee will be refunded if response not received from USCIS in 15 days (however, there will be no refund if fraud is found)
• Clock begins running when the filing is received at the Service Center, NOT when it is fee’d in
• Clock stops when Request for Evidence (“RFE”) is sent to petitioner. Once response to RFE is submitted to USCIS, a new time frame will begin running (that time frame is not yet decided, but will likely be approximately 10 days)
• Program to include some form of enhanced customer service/communications means, such as email, faxpress and/or separate mailing address

Phase-In of Program

• Will start off with only some categories of I-129s. H-1Bs are not leading contenders to be a start-off category because:
  • high volume may overwhelm the system as it is trying to get up and running
  • still awaiting USCIS General Counsel opinion on how to deal with the legal issues surrounding the H-1B count and the related requirement that H-1bs be processed in the order in which they are received
• INS will continue existing expedite systems and criteria, but once a visa category is added to the premium processing program, expedites outside of the program for those categories will be eliminated
• Nonprofits will continue to be eligible for expedites outside the premium processing program, even if the visa category has been added to the program
• INS plans to add some I-140s (most likely for L-1As and labor certification based) to the program in the future
• There may be some provision for “super expedites”—i.e., faster than 15 days—when existing criteria for an expedite are proven and the $1,000 fee is paid.

Program Details

• Program will be conducted at the four (4) USCIS Service Centers
• A new form will be created to gather needed contact information
• INS declares that “the processing of other forms will not be allowed to suffer as a result of Premium Processing,” but cautions that the new processing obligations imposed by the RFE legislation are likely to result in increased processing backlogs
• A separate check will be required for the expedite fee

Running the Premium Processing Program

• Existing, experienced Service Center personnel will be given the opportunity to move into this program. Any remaining openings will be filled by new personnel
• The Service Centers have a new contractor, which has pledged to turn around fee intake within 24 hours
• 109 new adjudicator positions, plus some clerical staff, are being added to accommodate the program
• INS has estimated that the program will receive 80,000 requests per year (but this estimate was made before the passage of the AC21 provision allowing H-1B portability)
• INS still is not sure how it will handle premium processing during future SWIP audits (the next one of which is scheduled for July)
• There are hopes that this program can be used as a “laboratory” for new systems and technologies
• Scope/timing of enhanced infrastructure (electronic filing, web based case management, etc.) uncertain
• Expansion to non-business applications/petitions (at a lower premium processing fee) a long term goal subject to Congressional approval

Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2001, American Immigration Lawyers Association

The material contained in this newsletter is for informational purposes and should not be considered legal advice.
For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 -- asiliato@meyner.com
Website: www.meyner.com

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¹ The AC21 defines lengthy as more than 365 days since the filing of a labor certification or petition on the alien’s behalf.