March 21, 2001

Date: March 26, 2001

To: INS Headquarters - ISD

800 K Street N.W.

Washington, DC 20536

Attn: William Yates, Deputy Executive Associate Commissioner for Field Operations,

Immigration Services Division - PRESENT

Fujie Ohata, Director Service Center Operations - PRESENT

Joe Cudahy, PRESENT

Tracy Renaud, Adjudications Officer - PRESENT

Re: Follow-up to AILA/INS Headquarters Adjudications Liaison Meeting

Wednesday, March 21, 2001

From: American Immigration Lawyers Association

AILA/INS Headquarters Liaison Committee - Benefits/Policy

George S. Newman, Missouri, Chair - PRESENT

Martha J. Schoonover, Virginia, Vice-Chair - PRESENT

Frances C. Berger, New York - PRESENT

James D. Acoba, California - PRESENT

H. Sam Myers III, Minnesota - PRESENT

Ted Ruthizer, New York - PRESENT

Ex Officio Committee Members:

Daryl R. Buffenstein, AILA General Counsel - PRESENT

Also attending from AILA:

Crystal Williams, AILA Director of Liaison and Information

Margaret Catillaz, AILA President

Because an earlier meeting had been postponed, this meeting addressed two agendas submitted by AILA. INS had provided written answers to the first agenda, and many of those answers were further discussed at the meeting. Those written answers, and a summary of the related discussions, are provided below. A summary of the discussion related to the second agenda then follows.

1. Turnaround of RFEs at Service Centers. In addition to the problems that we have been discussing with respect to the quality of Requests for Evidence being issued by some of the Service Centers, AILA is deeply concerned about the backlogs that exist in issuing the RFEs and in acting on the responses once they are received by the INS. We understand that, at some of the Service Centers, the RFEs are typed by a very short-handed clerical department, rather than prepared by the adjudicator him or herself. Obviously, the adjudicator is preparing something to indicate what should be on the RFE. This raises the question of whether these delays of one or two months can be eliminated by keeping the preparation of the RFE in the hands of the adjudicator. To illustrate, enclosed is a list of examples of H-1B petitions for which one month or more elapsed from the time the attorney first heard that an RFE was going to be issued until the RFE actually was issued. In each of these cases, the delay in issuing the RFE resulted in the petition not being decided before the H-1B cap was reached, even though the petition was filed well before the cut-off date.

A related problem is the time that it takes for the documentation sent in response to the RFE to reach the adjudicator, and for a decision to be made on the case. To illustrate, enclosed is a list of examples of H-1B petitions for which two months or more elapsed between the time the response was received at INS and the time a decision was issued. In each of these cases, the RFE and the delay in processing the response resulted in the petition not being decided before the H-1B cap was reached, even though the petition was filed well before the cut-off date.

Can you offer any solutions to these processing problems?

INS’ Written Response: It is much more cost efficient for the Service to have clerical functions performed by someone other than officers. This also allowed the officers additional time to be rendering decisions. The solution lies in the management of the clerical hours available to perform these functions. The Centers have made some process improvements that have increased their ability to deal with this caseload and AILA should be seeing some improvement in this area.

It is unclear that delaying in processing cases where a response to an RFE has been received is due to a lag in getting the case to an officer. We will research the issues using the case numbers that you have provided to us.

Further Discussion at Meeting: The INS recognized that there had been substantial backlogs in issuing RFEs, but did not believe it is a current problem. Mr. Novak from Vermont reported to ISD that there is a 5-7 day backlog in issuance of RFEs, but AILA reported delays of three to five weeks. Tracy Renaud of INS agreed to work with AILA to monitor the situation. AILA recommended using the faxpress system currently being employed at the NSC. Fujie Ohata indicated the faxpress system will be used by VSC for premium processing.

2. Standard processing time reporting. What progress is being made on standardizing the processing time reporting among the four service centers? When does INS anticipate the launch of a system for checking status by internet?

INS’ Written Response: A group comprised of representatives of each of the Centers is being headed by SCOPs to standardize production reporting requirements. We’ve asked this same group to look at a standard processing report as well.

INS is also negotiating with DOJ/OMB on a methodology for reporting pending work and projected processing times. We do not anticipate any major changes until early fourth quarter of FY 2001.

Further Discussion at Meeting: INS is working on standardizing reporting requirements. They have been using a rolling three-month average of completions, but they believe that is a faulty methodology. They need a more accurate reporting system and hope to make more information available on the internet. They hope to eventually be able to use the INS website to give updated information on processing.

3. Denials of Petitions for Which AC21 Section 105 Portability Was Used

AC21 section 105 provides for portability so long as there is lawful admission, a nonfrivolous petition, an unexpired period of stay authorized by the Attorney General, and no unauthorized employment. Executive Associate Commissioner - Field Operations Memorandum HQ 70/12-P (March 3, 2000) states that an alien does not accrue "unlawful presence" during the entire time an extension of status or change of status is pending. Obviously, by Section 105's express terms, the beneficiary is also authorized to be employed by the petitioner during the entire pendency of the petition regardless of the possible expiration of the beneficiary's I-94. Thus, in the event the petition is denied, so long as the alien has not engaged in unauthorized employment for a different employer, the alien is considered to be lawfully present, otherwise in compliance with the conditions set forth in Section 105, and is eligible for the portability benefits of Section 105 upon the filing of a new, nonfrivolous petition.

Please confirm this will be the guidance to the field.

INS Response: See item 5.

4. Eligibility Requirements for AC21 Section 105 Portability.

Section 105 provides for portability upon filing of a new petition so long as these three conditions are met:

a. lawful admission into the United States;

b. an employer filing a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

c. subsequent to such lawful admission, no unlawful employment prior to the filing of the petition.

Congressional use of the exact phrase as in INA Section 212(a)(9)(B)(ii) referring to a "period of stay authorized by the Attorney General" requires a consistent Service interpretation. Accordingly, Service interpretations of "unlawful presence" enunciated in the General Counsel Memorandum of September 19, 1997, recently reaffirmed in HQ 70/12-P and HQADN 70.21.1.24-P (Exec. Assoc. Comm'r Field Operations, March 3, 2000), must also apply to Section 105. The "period of stay authorized by the Attorney General" may be reflected in an unexpired I-94, or through evidence that an extension or change of status application was filed prior to expiration of the I-94. The beneficiary does not need to be employed at the time of filing of a new, nonfrivolous H-1B petition, so long as he or she has not engaged in unlawful employment since the most recent entry to the U.S. Inclusion in the AC21 statutory language of these specific elements of maintenance of status, as well as the use of the "period of stay authorized by the Attorney General" language, provides a clear indication of Congressional intent that other elements of maintenance of status, such as continued employment with the original H-1B employer, are not relevant to the authorization of employment provided by Section 105.

Please confirm the implementing instructions will make clear that individuals who meet the three statutory criteria are eligible to accept new employment upon filing of the new employer’s petition, even if they are not employed at the time of filing.

5. Current Status of Persons Authorized to Accept New Employment under AC21 Section 105.

Section 105(a) adds a new subsection (m) to INA section 214 to allow a nonimmigrant who meets the three criteria discussed in item 13 above to accept new employment upon the filing of a new petition, provided the nonimmigrant “was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b)” (emphasis added). By the terms of this section, it is not necessary that the nonimmigrant currently be holding H-1B status, only that s/he had been issued an H-1B visa or otherwise provided H-1B status previously. Thus, persons who once held H-1B status, but subsequently changed to, for example, B-2 or F-1 status when they ceased their earlier H-1B employment, can begin their new H-1B employment under section 105 once the petition is filed.

Please confirm this will be the guidance to the field.

INS’ Written Response: The benefits of Section 105 portability are still under discussion within the Agency. Therefore, we are not comfortable addressing these issues at this time.

Further Discussion at Meeting: Both sides agree that it is clear that Congress was trying to meet the needs of U.S. employers with AC21. The portability provisions were somewhat shocking to INS when first proposed and included new concepts. INS acknowledges that the process must result in speed in moving from one employer to another. Issues causing the greatest internal agency debate and which are holding up the issuance of the INS regulations focus on what Congress intended with regard to maintenance of status and what is meant by “status authorized by the Attorney General.” Mr. Yates indicated that some at INS are troubled by interpretations that would allow a person who once had H-1B status for a brief period, but who had been out of status for three years, to be eligible to move to a new employer using the portability provision of AC21. While the language of the statute is very broad, some at INS think that Congress intended to say that the person must be in lawful status when the new H-1B petition was filed in order to port. Mr. Yates noted that current INS regulations give the agency the discretion to consider an alien to be in lawful status even though they have been laid off prior to the filing of the H-1B petition. Mr. Yates said that the ability to port to a new employer could depend on status but that the agency will try to reach a reasonable interpretation. An individual who is terminated but for whom a subsequent petition is filed in a short time frame will probably be allowed to port, according to Mr. Yates.

6. Continued Acceptance of H-1B Petitions with Proof of Filing of the Labor Condition Application

a. The Problem. Some at INS have indicated a desire to reverse the long-standing policy of accepting H-1B petitions with proof of filing of the labor condition application, then using an RFE to obtain the certified LCA. This is particularly troubling in view of the Department of Labor’s inability to certify an LCA within the statutory 7-day period, and the needs of businesses and employees to use the portability provisions of section 105.

b. Solution. Continue to accept petitions with proof of filing of the LCA.

c. Rationale. The INA, in fact, does not require that an LCA be approved before the INS can provide H-1B status-only that the employer “has filed” the application (INA Section 212(n)(1)). Thus, petitions filed with evidence that the LCA has been filed are plainly bona fide (and, in fact, could be approved in that condition). Also, the protections of the LCA attach at the time of filing. For example, INA section 212(n)(1)(A) notes that the application must state that the employer “is offering and will offer” the required wage, and that “the employer, at the time of filing the application,” has provided the required notice to its employees (emphasis added). Thus, employees under a filed LCA are accorded the same protections as those who have certified LCAs.

d. INS Precedent for the Solution. INS has, since the inception of the LCA, regarded extension of stay petitions as timely filed if they include evidence that the LCA was filed even if not certified by the time of filing. This position should not change because the context in which the issue arises is slightly different.

INS’ Written Response: No changes to our policy to accept I-129 H-1B petitions without approved LCAs have taken place at this time. However, as you know our regulations require that the LCA accompany the I-129, and the original cause to relax the regulation requiring an LCA was the shut-down of the Federal government in 1996. At that time, the Department of Labor was closed but INS offices that process these cases were not.

There are several factors that INS needs to take into consideration when reviewing this issue. DOL regulations state several times throughout 20 DVR 655.700 that the process is to obtain labor certification prior to filing with INS. The controlling statute requires evidence that the LCA has been filed, as does the INS regulation, however DOL does not issue receipts for filing. Therefore, there is no document that can be provided to INS to insure that DOL has received a filing from an employer other than the approved certification itself. Petitions filed without the requisite LCA cause the Service time and money as we are processing many RFEs for the sole purpose of obtaining the approved LCA. Lastly, the concern with DOL’s processing times need to be addressed with DOL and should not be the sole driving force to modify and existing INS regulation.

Further Discussion at Meeting: INS acknowledged that is has allowed H-1B petition filings without approved LCAs for good cause. Mr. Yates agreed that DOL is not close to meeting the seven-day statutory requirement for LCA processing. He believes that the DOL regulation requiring that an approved LCA be filed with an H-1B petition may have intruded into INS business. He said there are strong feelings at the INS that an approved LCA should be submitted with the H-1B petition but that INS also believes that the DOL needs to process LCAs faster. For now, an approved LCA is not required for filing an H-1B petition and for using the portability provision. Any change to this INS policy will be by regulation. AILA asked for further clarification on this issue requesting assurances that an individual who ported to another employer on the basis of an H-1B petition that did not include an approved LCA would not be considered to have engaged in unauthorized employment, nor would the employer be regarded as having knowingly employed an unauthorized worker. Mr. Yates said that INS would not want to defend an action accusing such an employer of unauthorized employment. INS is looking for good faith efforts to follow the statute absent direct INS guidance, and INS does not want to hurt innocent beneficiaries.

7. Immediate Effect of AC21 Section 106

a. The Problem. AILA has heard some indications from individuals at INS that the Service may not view section 106 of AC21 as having immediate effect, and that instead those whose immigrant petitions or labor certification applications were filed more than 365 days ago would not be eligible for exemption from the six-year limit on H-1B stay, and those whose adjustment applications have been pending for more that 180 days would not be eligible to change employers.

b. Solution. The “has been filed” language of section 106 means that those whose petitions or applications have surpassed the statutory waiting times are now eligible to take advantage of the section’s ameliorative provisions.

c. Rationale. It was the clearly discernable intention of Congress in passing AC21 to ameliorate situations caused by the long delays in INS processing. The purpose of the legislation is to “make people whole”, i.e., to put them in the position that they would have been in had their applications and/or petitions been processed in a timely fashion by INS. These provisions went into effect immediately upon enactment, reflecting the sentiments of Congress that something has to be done now to afford relief to those who have been waiting for an unconscionable amount of time to have their applications acted upon by INS. Further, the references to the filings that trigger the section 106 benefits are all written in the past tense. Therefore, the fact that Section 106 goes into effect upon enactment means that an individual may now change employers or extend H-1B past the sixth year as long as the relevant petition or application “has been filed” and the applicable 180-day or 365-day trigger has been reached. Any other reading would further delay a whole class of people who have already been prejudiced by the delays, a result clearly not intended by Congress.

INS’ Written Response: INS has not reached a conclusion that differs from your interpretation. The regulations, when published, will clearly state when the “clock” begins for these benefits.

8. Scope of section 106(c) with regard to changes in locations or qualifying relationships for multinational manager/executive petitions.

a. The Problem. Individuals at INS have indicated some concern over the fact that section 106(c) contains no limitations as to geographic location of the job for labor certification-based positions or as to qualifying relationships of companies for multinational manager-based petitions, and have indicated a desire to add such limitations.

b. The Solution. Administer the law as enacted.

c. Rationale. Section 106, by its own terms, is not limited to any particular geographic area or group of companies. The section was plainly written to put the individual in the position that he or she would have been in if INS had timely adjudicated the application. If INS had timely adjudicated the application, the individual would have his or her permanent residence and would be free to work with any employer in any location. If Congress had wanted to limit Section 106 with regard to geography or corporate grouping, it would have included such limiting language. In fact, the language Congress used is intended to be sure that employees have broad discretion in changing jobs because the wording says “change jobs or employers,” making it clear that individuals are free to leave the current employer and go to work for another employer. It is clear that the only limitation that Congress wanted to impose was that the new employment be in the “same or similar occupational classification.”

INS’ Written Response: Again, this issue will be fully discussed in regulation. Although individuals within INS may have expressed concerns, there has been no official position taken that section 106 portability applies any differently than you suggest.

Further discussion at meeting: INS will address this issue in its regulations and Mr. Yates does not expect the regulations to disagree with AILA’s position.

9. Eligibility of Dependents for Exemptions from H-1B Six-Year Limitation on Stay

a. The Problem. Some at INS have expressed the opinion that the exemptions under AC21 sections 104 and 106 from the six-year limitation on stay may not include dependents. Sections 104(c) and 106(a) and (b) of AC21 provide for extension of stay of an alien issued a visa or otherwise provided nonimmigrant status under 101(a)(15)(H)(i)(b) of the INA beyond the six year limit imposed by INA section 214(g)(4). The problem raised by these individuals is whether these sections also authorize extensions of stay for dependents in H-4 nonimmigrant status.

b. Solution. The six-year limitation on H-4 stays should be removed altogether, since it is not statutorily authorized. However, if it is not removed, then at a minimum the AC21 exemptions from the 6-year limit must also apply to H-4s.

c. Rationale. The six-year limitation that has been imposed upon H-4 dependents is strictly a creature of INS invention. There is no statutory basis for this limitation. Congress specifically applied the six-year limit in INA section 214(g)(4) to nonimmigrants described in INA section 101(a)(15)(H)(i)(b). That latter section describes only H-1Bs. In drafting regulations, INS apparently inferred, without the express direction of Congress, that such a limitation includes “the alien spouse and minor children.” Thus, if INS is to continue to insist that H-4s are subject to the limitation imposed by Congress only on H-1Bs, it must also conclude that any exemptions from that limitation also apply to H-4s.

INS’ Written Response: This issue will be addressed in forthcoming regulations. INS seeks to administer the INS in ways that keep families together or reunites families. We do not believe that our approach will be any different in this situation.

10. I-9 Compliance under AC21’s H-1B Portability Provision

a. The Problem: Under AC21, beneficiaries of change of employer H-1B petitions can take up the new employment once the petition has been filed. However, there is nothing on the current Form I-9 to account for this situation.

b. The Solution: As to Section 1 of Form I-9, which is completed by the employee, the worker would check the same box on the form that is currently completed by H-1B workers. This box indicates that that he or she is "An alien authorized to work until ___________". The worker would insert in this space "awaiting adjudication of pending I-129 petition for H-1B classification" or "awaiting adjudication of pending H-1B petition". As to acceptable I-9 documentation with regard to this provision, such documentation would confirm that the petition has been filed with INS. Such evidence would include, but not be limited to, a copy of the INS filing receipt or a post office receipt or other courier receipt confirming the filing with INS. No further documentation will be required for the "interim" I-9. Upon approval of the H-1B petition, a new I-9 can be completed in accordance with current I-9 guidelines.

c. INS Precedent for the Solution: At present, there is no provision on the I-9 form to account for the 240-day grace period under 8 C.F.R. section 274A.12(b)(20) for beneficiaries of extension of status petitions by the same employer. Yet, for years, employers have been “making do” in this situation by following the above approach, which is equally applicable here.

INS’ Written Response: I-9 requirements for those who choose to avail themselves to portability will be covered in the regulation. We appreciate the suggestion concerning how an employer may complete the I-9.

11. Employer Name Changes in the Context of Pending I-140 Petitions and Adjustment Applications

a. The Problem: On occasion, an employer will make a simple name change without any other structural change. For example, a corporation discovers that its present name exposes it to liability for trade or service mark infringement and it changes its name. In most states, this will entail a simple filing with the state corporation regulatory agency. No ownership or structural changes occur, and the employer tax ID number remains unchanged. The terms and conditions of employment for all of its employees remain the same. In other words, there is no issue of successorship-in-interest because no real change has taken place. However, at the Vermont Service Center, such an employer is required to re-file an I-140 petition for each of its employees (in some cases, more than 200) with pending adjustment applications that were filed prior to the name change. In doing so, the VSC appears to be relying on a policy memorandum applicable to the H1B successor-in-interest context. (Memo by Acting Exec. Assoc. Comm. Puleo dated December 10, 1993, reprinted at 70 Interpreter Releases 1692-1693 [December 20, 1993])

b. Solution: The Service can be notified of a simple name change by supplying evidence of the name change for the adjustment record. This could consist of a letter from the employer forwarding a copy of the state regulatory agency name change documents. AILA recommends that the Service clarify its policy to emphasize that simple name changes can be accomplished by letter notification, and implement simple and streamlined procedures to carry it out.

c. INS Precedents for the Solution. Until recently, this has been the approach historically taken by the Service Centers. Also, in the context of family-based immigration, a simple name change by a petitioner does not require a new petition. For example, a USC daughter might file a petition for her parents and after they have filed for adjustment, get married and change her name. The adjustment may still proceed, albeit with evidence of the name change simply placed in the record. This is so because the immigration is based upon the relationship between the petitioner and the applicants and the relationship has remained exactly the same. In employment-based immigration, it should be no different where the relationship between the employer and the employees remains exactly the same.

d. Rationale. From the petitioner perspective, requiring new petitions for each and every employee places a very onerous burden on the employer in the form of legal fees and filing fees. From the Service perspective, inviting 200 new petitions to be filed where 200 were previously approved adds to the workload of the adjudicators not only at the adjudicative level, but also at the clerical and administrative level. Petitions need to be fee-ed in and receipted as well as tracked to adjudication. They will then need to be matched to the adjustment files.

Finally, from a public policy perspective, recent enactments demonstrate a strong Congressional intent to simplify immigration matter processing even where actual corporate restructuring is involved. E.g. the “portability” provisions found at Section 105 of the American Competitiveness in the 21st Century Act, Public Law 106-313 (Oct. 17, 2000) and Section 401 of the Visa Waiver Permanent Program Act, Public Law 106-396 (Oct. 30, 2000; 114 Stat. 1637)

INS’ Written Response: The memo that VSC relies on in their determination of when an amended I-140 petition is required is a December 10, 1993 memo to the field entitled “Amendment of Labor Certifications in I-140 Petitions”. This memo specifically states: “In the event that the petitioning employer changes its name, it should submit a new I-140 petition with documentation reflecting the change of name. The new I-140 petition should also include a copy of the notice of approval of the initial I-140 petition and a copy of the labor certification and supporting documents.” Based on the entirety of this memo, it appears that VSC’s practice is in conformance with Service policy. However, we expect this situation to be resolved within the context of Section 105 of AC21. We are also reviewing the language in the VWPP to ascertain whether additional employment based classifications may be covered rather than solely H-1B as stated in the statute.

Further Discussion at Meeting: Mr. Yates would like to see a regulation not requiring a new I-140. INS will address this issue in the regulations implementing AC21 and the Visa Waiver Program Act Provisions. On the issue of the corporate restructuring provision of the Visa Waiver Program Legislation, the INS is looking at having the regulation cover not only H-1Bs but all employment-based nonimmigrant categories except those classifications that depend on the structure of the entities, such as L-1s. Some are recommending a form of blanket proof of change and INS is considering that possibility.

a. The Problem: Countless adjustment of status applications have been pending at INS for as many as two or three years. At the time they were filed, the applicants had no way of knowing that a lengthy wait was in the offing, and therefore requested adjustment of status rather than consular processing. By the time it became clear that the anticipated 6 to 12 month wait would instead be measured in years, the natural results of the passing of time had occurred. The maximum time had run out on nonimmigrant statuses, or nonimmigrant statuses had been allowed to lapse, since the individual now had work authorization and advance parole in connection with the adjustment application. Still others had initially requested consular processing, only to have that request ignored and the NVC not notified. At some Service Centers, reversing this action has been nearly impossible, since an I-824 has been required for NVC notification and I-824s have backlogs of over one year.

On August 8, 2000, the Service published an amendment of the Adjudicator's Field Manual, Chapter 23.2, concluding that concurrent processing of I-485s and consular processing is not an "...efficient and effective use of the Service's resources..." and adopting procedures intended to terminate or prohibit the concurrent filing of I-485s by applicants who are also consular processing. This action exacerbates the problems created by INS’ processing delays, and acts as a rejection

of a process recently offered by the Department of State to help INS address these backlogs.

b. Solution: Re-revise the Adjudicator's Field Manual to allow the I-824 to act as a “hold” on processing of I-485s while consular processing proceeds. In this manner, INS would receive the benefit of the filing fees from the applications and applicants could maintain the benefits of having an adjustment of status pending. At the same time, because the application would not be “worked,” the concerns expressed in the August 8, 2000 memo would be addressed. Potentially duplicative work would not take place, and only the Department of State would order a visa number.

c. Rationale: Title II of AC21 focuses on curing the adverse effects of INS delays in processing. Congress clearly expressed its will in Section 202 that immigration benefit applications should be completed not less than 180 days after initial date of filing. Currently, the Service's performance, among the Service Centers, in the case of I-485s alone, is between three and six times that goal depending on the service center reporting.

In Section 204 of the Act, Congress directs the Attorney General to take such actions as may be necessary to reduce backlog in the processing of immigration benefits, make such other improvements in the processing of immigration benefits to ensure that a backlog does not recur and make infrastructure improvements to effectively provide immigration services. The Department of State has already offered help to the Attorney General in taking such actions: it has agreed to allow its consulates to directly accept cases for which an adjustment of status is pending and an I-824 has been filed. However, because of the August 8, 2000 memorandum, few are taking advantage of this backlog reduction initiative for fear of losing the benefits connected with the adjustment application, on which the INS’ processing delays have forced them to rely.

d. INS Precedents for the Solution: This would be far from the first time that INS has placed a “hold” on pending applications. At this time, many adjustment of status applications with expired fingerprints already are on hold while the Service Centers pursue other applications for which fingerprints have been taken and not yet expired. Applications and petitions under the EB-5 program have endured many waves of “holding.” National interest waiver petitions for foreign medical graduates were held pending issuance of regulations. Placing a hold on adjustments to allow pursuit of consular processing would be just another form of hold, and one that would allow a true backlog reduction plan offered by a sister agency to go forward at a time when the INS is under a Congressional mandate to eliminate its backlog.

INS’ Written Response: We have already experienced several incidences where allowing dual track pursuit of I-485 applications and consular processing have resulted in an individual gaining LPR status through both means. Although the Service has placed a “hold” on certain categories in the past, it have been either due to the need to await publication of regulation/guidance or because we are unable to complete processing on the case because a necessary element is missing (e.g., fingerprints). We are not inclined to alter our approach at this time and instead will continue our efforts to reduce processing times for all adjustment of status casework.

Further Discussion at Meeting: INS is not likely to change its policy, but after considerable discussion, Mr. Yates agreed to revisit the issue. Mr. Yates called these issues “work arounds” because INS is not delivering timely service. The procedures he objects to are ones that hurt the integrity of the process.

13. Asylum Adjustment Count and Notification Methodology

a. The Problem: Each year, an allocation of 10,000 visas allows asylees with pending applications to adjust status to lawful permanent residence. The regulations provide that, where the number of applicants exceeds the asylee adjustment allocation, the applicants will be adjusted on a priority basis determined by the date the adjustment application was properly filed. Members report that in recent years, applicants with earlier dates of filing were not adjusted while other applicants with later filing dates were adjusted. The announcement from INS advising applicants of the cut-off date for coverage under the annual allocation, in recent years, has been made after the numbers allocated have been distributed. Yet many applicants who filed prior to the announced cut-off date were left behind to await the following year’s allocation. More ominously, at least one district has advised a member that when an applicant’s fingerprint clearance expires due to the long waiting time for an allocation, the applicant is taken off a waiting list that is maintained at the NSC. Finally, applicants have no way of determining if they even are on a waiting list.

b. Solutions: AILA recommends that the Service take the following pro-active and remedial steps to eradicate the problems:

Make the announcement of the allocations early in the fiscal year. This announcement should clearly delineate the cut-off date and provide the total number of pending asylum adjustment applications. This announcement should be widely disseminated and should also be posted on the INS website.

Each applicant should be issued a notice at the time of the filing of the adjustment application. This notice should provide advice on how to obtain the annual INS announcement, how to track the progress on an application, and how to ensure that fingerprint clearances are kept current.

Institute a remedial program for those applicants who were otherwise qualified to adjust but were left behind to ensure that they will be adjusted at the earliest possible time. Perhaps an ombudsman can be designated for this program.

Reserve a portion of the annual allocation to be used in the remedial program.

Finally, please provide AILA with a description of the current methodology used to determine which applicants are subject to the 10,000 annual limitations, which are not, and what processes and procedures are used to assign visa allocations to pending applications.

INS’ Written Response: INS Headquarters is reviewing the existing process for allocation of asylee visa numbers and is also preparing to modify the current process. We would be happy to take your suggestions into consideration in creating a new process. An explanation of the current process is attached.

Further Discussion at Meeting: A better system needs to be in place to ensure that all 10,000 numbers are used each year. The INS is working to improve it, but believes that some of the problems will be alleviated this year when they complete all the applications that were filed in District offices rather than the Service Centers. The INS would not be opposed to raising the 10,000 annual cap. Refugee adjustments are a large part of the backlog, according to Mr. Cudahy.

14. Fiancé Petitions.

a. What is the status of the proposal to have EADs for fiancés filed simultaneously with the fiancé petition?

b. INS’ Director of Business Liaison indicated, in an on-line chat sponsored by another organization, that fiancés may begin working upon entry to the U.S., before receipt of their EADs, because the K-1 status is inherently work authorized. Will HQ issue a directive to this effect, so that employers can be assured of the legality of such hires?

INS’ Written Response: (a) Because of the need to implement new legislation, we have not had the opportunity to review a regulatory/process change to have the I-765 filed in conjunction with the I-129F. We hope to have time to review this proposal in the future.

(b) Individuals admitted as fiancés in K-1 classification are employment authorized in accordance with 8 CFR 274a.12(a)(6). However, 8 CFR 274a.12(a) and 8 CFR 274a.13(a) clearly state that individuals in this class must file and obtain an EAD to evidence their employment authorization. The statement from OBL as quoted above is inaccurate and we will not issue field directive to support that statement.

15. Update of H-1B issues.

a. What are INS’ plans for identifying filings that must be counted toward fiscal 2000, instead of 2001, under the American Competitiveness in the 21^{st Century Act (“AC21”)?}

b. How will INS implement the AC21 mandates regarding not counting persons who have had H-1Bs within the past six years and avoiding the counting of duplicate petitions for the same individual?

c. When do you anticipate publication of a notice for comment on the H-1B counting methodology?

INS’ Written Response: a. INS is keying in on the “received date” (which is the Mailroom date) in CLAIMS rather than the “valid from” date as it has in past years. This will insure that in accordance with AC21 any I-129 H-1B petition filed prior to 9/1/00 is counted towards the FY00 cap regardless of when the case is approved.

b. INS is now sweeping the CLAIMS LAN databases from the four Centers to collect data for purposes of calculating the cap. We run an electronic search of those cases to locate any cases where the beneficiary has the same last name, first name and date of birth. In addition, a question was added to the I-129W and to CLAIMS to help us identify anyone who has been in H-1B status within the last six years and who has not departed for one year or more (making them eligible for a new 6-year period).

c. The determination of who is and who is not subject to H-1B cap limitations will be included in the regulation when it is published. However, since the statutory language is relatively direct in this area the Service is proceeding with the calculation of an H-1B count for this FY.

The following items from the later agenda were discussed, but no written answers provided:

16. EAD and Advance Parole Pending Adjustment Applications

a. Background: Despite Congress' admonishment at Title II, Section 202(b) of AC21 that the Service complete all immigrant benefit applications within 180 days, the Service cannot complete I-485 processing within a year, substantially exceeding a year in all jurisdictions, and sometimes exceeding two years. Experience shows that advance parole and employment authorization applications associated with I-485s are rarely denied, an outcome consistent with Service adjudication policy. The Service's current policy of authorizing only one year of employment authorization and advance parole means that families must apply for extensions of these entitlements.

b. The Problem: Service adjudications of EAD and advance parole applications rarely occur within four months and processing times are on the rise. Particularly after the first year has expired, these delays threaten necessary business travel and cause applicants whose underlying nonimmigrant employment authorization is not in effect to lose their employment authorization due to the delay.

c. Solution: The Service ought to either grant an initial period of two years of employment authorization and advance parole or permit the first year extension of both to be filed immediately and should be adjudicated well within the expiration period.

Alternatively, in the case of advance parole, where a document is needed for presentation at the border, the second year extension application should be permitted to be filed simultaneously with the original request, and be adjudicated well before the first period's expiration, to expire one year following the date of the first period extension.

d. Rationale: Applicants ought not to be rendered ineligible to work and travel internationally because of Service I-485 adjudication delays. These gaps in authorization often cause applicants to make applications at district offices, further burdening Service district office resources. Title II Section 204(a) of AC 21 requires the Service to develop ways to reduce backlogs, ensure that backlogs do not recur and make infrastructure improvements to effectively provide immigration services. The above recommendations, which AILA has made previously, are immediate steps that the Service could implement, with no cost, while reducing Service workloads resulting from multiple applications.

Discussion: INS acknowledges that it is taking more than one year to process adjustment of status cases. INS is seriously considering lengthening the period of validity of the EAD, probably to two years. They are also looking at producing EADs at the Service Centers. The LIFE legislation is forcing the INS to look at new equipment and procedures. They are considering having the Adjudication Support Centers fingerprint and photograph people, then transmit the information to Service Centers to issue EADs and advance paroles. One card could be issued for both purposes. The INS realizes that people need the documents quickly and they know that some of the Service Center delays have been caused by the scanning equipment.

AILA also suggested allowing the I-485 receipt to serve as a work authorization and advance parole document for 60 days. Mr Yates said that IRCA won’t let INS issue another work authorization document and the Inspector General would challenge it on the lack of integrity. Mr. Yates acknowledged that AC21 would not have occurred had INS processed adjustment applications fast enough.

17. Reentry to the U.S. in H-1B status following corporate restructuring.

a. The Problem: Section 401 of the Visa Waiver Permanent Program Act, which was signed into law October 30, 2000 states:

“[a]n amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests 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.”

The INS has not issued regulations or any other guidance on the implementation of this provision. A problem arises when H-1B employees of the restructured corporation attempt to enter the U.S. using the visa and petition approval (Form I-797) for the predecessor employer and encounter INS inspectors unaware of the statutory change who refuse to admit them.

b. Solution: Until it issues regulations, the INS should issue interim guidance to regional directors and other INS officials to admit H-1B employees of a restructured company holding an H-1B visa from a predecessor employer on the basis of a letter or other documentation from the successor employer describing the transaction and stating that it is a successor-in-interest to the preceding employer.

c. INS Precedent: On January 29, 2001, INS issued a Memorandum entitled “ Interim Guidance for Processing H-1B Applicants for Admission as Affected by the American Competitiveness in the Twenty First Century Act of 2000, Public Law 106-313”. The memorandum was intended to provide guidance to Ports-of-Entry when processing H-1B applicants for admission. In this memorandum, INS provided a list of requirements that had to be met for admission of an H-1B employee who had started working for a new employer based on receipt by the INS of the H-1B petition. This was interim guidance pending issuance of INS regulations.

d. Rationale: The law now states that an amended H-1B petition is not

required under the circumstances of a corporate restructuring. Not to admit an H-1B employee of a restructured corporation on the basis of the visa issued in the name of the predecessor corporation would defeat the purpose of the statute. Requiring an approval notice from the INS would mean that amended H-1B petitions would need to be filed for every employee who needed to travel overseas. Proof of the restructuring could be provided in the form of an employer letter attesting to the certification of the prior employer’s H-1B petitions.

Discussion: INS is planning to issue guidance soon on this issue. The inspectors at the ports of entry have requested instructions. Inspections will need to issue the guidance, and is working on it now. INS will probably require production of a letter from the restructured employer outlining the corporate change. INS had originally planned to issue AC21 and Visa Waiver legislation guidance in one regulation but now sees the need to do some on a piece by piece basis. There is clear intent at the agency to get instructions out soon. Mr. Yates pointed out that guidance may be substantive if everyone agrees on it. If the INS appears to be changing a former procedure it will issue a regulation. If there will be continuing debate it will issue proposed regulations. Regulations are going to take longer than originally anticipated because there are new people at the Department of Justice and the OMB.

18. Travel outside the U.S. while Extension of Change of Status Application is Pending.

a. The Problem. In view of the globalization of business, the related business need for many H-1B, L-1 and other nonimmigrants to travel abroad regularly, as well as the serious consequences of findings of unlawful presence, it is critical that INS clarify its current policies to facilitate international travel by nonimmigrants who must depart the U.S. while petitions for extensions of stay are pending and to minimize the unnecessary filing of petitions for extensions of stay only.

Examples of how the extension problem arises are as follows:

An H-1B worker has a current H-1B petition with Employer A that will expire in 30 days. A new petition for an H-1B extension (with same employer or with a change of H-1B employer, Employer B) has been filed and is pending. The H-1B worker is working for Employer A.

a) While the new petition requesting a three year extension of validity and extension of stay is pending, the H-1B worker travels abroad and reenters the U.S. prior to the expiration of her valid H-1B visa and the valid H-1B petition of Employer A. The H-1B worker is readmitted to the U.S. in H-1B status, while the new petition is still pending, to the validity date of Employer A's petition (30 days from today). We understand from past memoranda that further action (the filing of an additional petition) is not required to extend the H-1B worker's lawful stay beyond the 30 days.

b) A new H-1B petition is filed by Employer B, including a request for extension of stay for a three year period. The new petition is approved while the H-1B worker is abroad. She was unaware of the approval and reenters the U.S. pursuant to the previously approved petition of Employer A, by whom she is still employed. She is readmitted until the validity date of that petition (30 days from today). No further action should be required to extend the H-1B stay.

An example of how the change of status situation arises:

c) An F-1 student admitted to the U.S. for D/S has optional practical training and is working with Employer A, who files an H-1B petition on her behalf.

While the H-1B petition is pending, the F-1 travels abroad and returns to the U.S. prior to the expiration of her valid F-1 visa and optional practical training. The F-1 is readmitted to the U.S. in F-1 status for D/S, while the H-1B petition is still pending. Under current interpretations, no further action (the filing of an additional petition) is required to change F-1 status to H-1B.

b. The Solution. A field guidance clearly affirming these policies should be issued, so as to lay to rest any possible issues of the ongoing validity of these interpretations. It is clear from past memoranda that no further action is required in Examples "a" and “c” above. The stay granted on the Notice of Approval of the pending petition, once adjudicated, controls the H-1B stay, regardless of the validity date on the I-94 issued after the travel abroad while the petition was pending.

We submit that no further action is required to extend the lawful H-1B stay beyond 30 days in Example "b" above. The extension of the H-1B stay on the approval of pending petition will control the H-1B stay, regardless of the travel abroad while the petition was pending and the return after the petition was approved.

When a petition (by the same employer or a new employer) with a request for extension or change of status is pending and the nonimmigrant travels abroad and is lawfully readmitted to the U.S. in the same status held at the time of filing the new petition, the approval of the "pending" petition and the extension of stay or change of status reflected on the Notice of Approval of the petition will control the nonimmigrant's lawful stay. No additional filing is required to extend the stay that was reflected on the I-94 issued at the time of last entry.

c. Rationale. Where a petition that includes a request for extension of stay is filed with INS and the nonimmigrant departs the U.S. while the request is pending, the request is not abandoned if the nonimmigrant lawfully reenters the U.S. in the same status held prior to departure. The ability to travel by a nonimmigrant in lawful status with a valid visa for travel should not be restricted by a pending request for extension or change of status, nor should an employer be required to file an additional petition for the sole purpose of extending a stay, which is extended by a petition filed timely prior to travel abroad.

d. INS Precedent for the Solution. INS responses to various letters from attorneys requesting guidance support this solution. Copies are attached. In addition, as evidenced by AC 21 and implementing INS guidance, we see efforts by Congress and the INS to facilitate the movement of H-1B workers from employer to employer without waiting for approval of a new petition and efforts to facilitate the foreign travel by H-1B workers in accordance with AC 21. H-1B workers with valid visas, who have changed employers based on AC 21's portability provisions and present evidence that the new employer has filed an H-1B petition, are permitted to reenter the U.S. for the validity of a previously approved petition plus ten (10) days. Based on the INS guidance permitting such an entry, the issuance of a new I-94 in the H-1B classification and employment in the United States with an employer for whom no petition has been approved as yet, it would appear that no greater burdens should be placed on H-1B employers who have timely filed new petitions which would provide extensions or changes of status.

Discussion: INS considers a person who leaves the U.S. with a pending application to change status to have abandoned it, and INS maintains that a change in that policy would require a change in regulations. The situation for an extension is easier, and if the examiner is satisfied that the individual maintained valid status there is no reason the trip should interrupt the extension process. However, the individual needs to reenter while the current petition and visa are still valid. INS indicated that if it is acceptable to travel under the portability provision, then it should be while an extension is pending too. INS further indicated that ISD needs to sit down and work with the people in Programs and Inspections on this, but that he thinks AILA’s arguments are good on this issue.

19. Concurrent Filing of I-485 Applications and I-140 petitions.

AILA wonders when the long-awaited regulation reauthorizing simultaneous filing of I-140s and I-485s is going to be published.

Discussion: The regulation was promised for December 2000. INS indicates that regulation writers say it has been completed . The LIFE Act imposed burdens on the regulation writers and they have not been able to get the concurrent filing regulation out. They need to get other LIFE regulations out first. It will be published as an interim final rule.

20. Rejection of I-129 Petitions Based on I-129 W Error or Incompleteness

The Problem: Members report that I-129 petitions for H1B specialty occupation nonimmigrant workers are being rejected solely on the grounds that the accompanying I-129W was completed erroneously or is incomplete, even where no exemption from the $1,000 fee is sought. Frequently, the reasons for the rejection are such minor issues as a missing NAICS Code or such erroneous grounds as that information in Part B is lacking (even though the $1,000 employer fee is paid). To compound the problem, it sometimes takes a few weeks for the Service Center to send out a rejection. As a result, there is often significant delay between the time the petition is initially filed and a receipt notice is issued upon re-submission. For many employers, this delay causes substantial financial loss by precluding travel abroad by the beneficiary pending availability of the receipt notice, thus depriving the employer of the portability benefits found in AC21. Additionally, in those situations where the $1,000 fee is submitted at the time of filing, a rejection of the I-129 seems to violate the Service regulations found at 8 C.F.R. 103.2(a)(7)(i) which reads in relevant detail, “An application or petition received in a Service office shall be stamped to show the time and date of actual receipt; and, . . . , shall be regarded as properly filed when so stamped, if it is properly signed and executed and the required filing fee is attached. . . .”

The Solution: AILA recommends that the Service follow its regulations at 8 C.F.R. 103.2(a)(7)(i) that govern when petitions or applications may be rejected-- i.e., that an H-1B petition can only be rejected where the I-129 is not properly signed and executed or where the required filing fees are not attached, or both.

· Following the regulations will result in the rejection of only those petitions that fail to meet the regulatory minimum. As a practical matter, these would only be petitions that have the following characteristics -

1. The I-129 is not properly signed and executed; and/or

2. The regular filing fee of $110 and/or the $1,000 fee are not attached and Part B of the I-129W is improperly completed or is not signed and executed.

· Following the regulations will result in the issuance of a receipt notice to all other petitions followed by the issuance of a Request for Additional Evidence to cure any error or incompleteness in the I-129W. This ensures that employers who file specialty occupation petitions and attach both the regular $110 filing fee and the $1000 additional employer fee receive the benefits that Congress intended in enacting the portability provisions of AC21.

· Following the regulations will ensure that the intent of Part A of the I-129W, i.e., the compilation of statistical data, is met without substantial hardship to the employer.

· Following the regulations will ensure that the intent of Part B of the I-12W is met. It is only where 1) no $1000 additional employer fee was submitted and 2) there is an error or incompleteness in Part B of the form that goes to either what the proper fee should be or whether there is a proper exemption, that a rejection will occur.

Discussion: The I-129W is required by Congress in order to get an accurate count. Nevertheless, INS indicated that the Service Centers have been instructed not to reject the petition if there is a defect on the I-129W so long as the forms were signed and the $1110 fee was attached. ISD will issue a memorandum to the Service Centers not to reject the petition if the forms are properly signed and the fee paid.

 

The number of asylees who may adjust their status to Legal Permanent Resident in an fiscal year is limited to 10,000. Since FY 1998, the number of asylees applying for adjustment to LPR has exceeded the cap, so the INS has had to institute a means for managing the number of adjustments.

Currently, the Nebraska Service Center tracks the A-Numbers of all approval-ready applications for asylum adjustment filed in 1998 or earlier, based on the adjudicating district offices’ requests for cap count allocations. At the beginning of each fiscal year, NSC publishes the A-Numbers of the oldest 9,750 applications that have not yet received an allocation; these applications may be completed during the fiscal year. The remaining 250 allocations are reserved for special circumstances or court-directed adjustments. A separate list is forwarded to each district office with the A-Numbers of the applications being processed by that office. In this way, the congressionally imposed cap is not exceeded.

Experience has demonstrated that not all applications with allocations for a fiscal year are actually adjusted. By the time their application for asylum adjustment can be approved, circumstances such as the following may apply:

•  The applicants may have already adjusted under another section of the INA;
•  they may be deceased;
•  they may be children who have “aged out” since their application was filed;
•  they may have moved to another district;
•  they may have moved without leaving a forwarding address;
•  or they may no longer be eligible to adjust for some other reason.

In order to ensure that all 10,000 adjustments available for each fiscal year are used, feedback mechanisms are being evaluated for implementation in FY 2002 to ensure that allocations that are not used are made available to other applicants on the waiting queue. Under the current limitation, all applications from 1998 or earlier should be completed in FY 2003.

Since 1998, all applications for asylum adjustment are mailed directly to the Nebraska Service Center. Once all applications filed in 1998 or earlier have been completed, NSC will begin processing the direct mail applications in sequence according to the earliest filing dates. NSC will adjudicate those applications each year until 10,000 have been approved, but no more.

 
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