Article 2003-3-16
Ten Lesser Known Facts About Immigration Procedures and Developments
The
idea for this article came about while watching the David Letterman
show and his list of 10 favorite things the people can do or say,
etc.. The field of immigration is highly technical in some areas,
and even attorneys make mistakes or do not know the ins and outs
of procedure or developments. This article discusses 10 lesser known
facts in the field of immigration, starting just like the Letterman
show with number 10 and working up to number 1.
No. 10
When you
file with the INS for an extension of employment authorization under
form I-765 (Application for Employment Authorization), you are not
allowed to continue work from the expiration date of the present
employment authorization until the time that the new employment
authorization is approved. Many individuals are under the mistaken
impression that they should file employment authorization extensions
as late as possible to maximize the period of time under the next
employment authorization, and so want to wait until the last possible
moment to file the extension secure in their belief that they can
continue to work legally while the extension application is pending.
That is wrong, and many individuals have regretted the late filings
when their company or organization's human resources officer requests
to see the extended employment authorization card before allowing
them to continue employment.
No. 9
It does
not matter when you file for an extension of employment authorization
because the INS offices by and large will now accept I-765 filings
far ahead of time because of the present backlog of adjudications,
and will not reject the filings as was the practice in the past.
No. 8
When the INS adjudicates an application form for employment authorization
extension, the beginning date that will appear on the EAD card will
generally not be the date of adjudication, but the next day after
expiration of the previous employment authorization so long as the
INS is aware that this is an extension of the previous employment
authorization. A copy of the current EAD card should be attached
to the I-765 application. This method of connecting the dates of
employment authorization upon adjudication makes it even more puzzling
to understand why individuals would want to file employment authorization
extensions at the last moment.
No. 7
Persons who are awaiting advent of the PERM program to obtain a
fast labor certification should be prepared to wait longer. PERM
or Program Electronic Review Management System is a widely anticipated
program of the Department of Labor to do away with the current labor
certification application system of local state offices and regional
offices of the Department of Labor, concentrate all applications
and adjudications in the regional offices of the Department of Labor,
and simplify the process by implementing a labor certification application
consisting of a questionnaire and prevailing wage sheet which can
be processed electronically within a very short period of time (21
calendar days) such as is being done today with labor condition
applications for H-1B visa holders . Late last year, the Department
of Labor announced its intention to have an interim final rule by
April 2003 with an implementation date of July 2003. At a meeting
of the American Immigration Lawyers Association New York chapter
with the Department of Labor certifying officer in February 2003,
the certifying officer stated that an implementation date of October
2003 is now the goal for the PERM program. It should be noted that
when PERM was first proposed, the Department of Labor expected to
publish its proposed regulation during the first quarter of 2000
and to implement the program on October 1, 2000. With the huge backlogs
still in many state labor departments, it is difficult to see how
PERM implementation can soon be justified as the OMB has said that
the Department of Labor will not be able to run parallel systems
of labor certification application processing. Our personal guess
is that a more realistic date for implementation is October 2004
as the federal budget did not allow sufficient funding in 2003 to
hire enough persons on the state level to cut significantly into
the backlogs. The recently released federal budget for fiscal year
2004 does allow more funding for this purpose.
No. 6
PERM will not be the panacea which many individuals believe it to
be. It may turn out to be harder to apply for labor certification
under PERM than under the present methods of traditional labor certification
or reduction in recruitment (RIR) processing. Under the proposed
rule of May 6, 2002, employers that wish to play by the book and
not cheat will find that they will have to do more to show affirmative
recruitment of U.S. workers. Such steps will include for professional
positions placement of a job order with the State Workforce Agency
(SWA) for 30 days; 2 Sunday job ads in an newspaper of general circulation
appropriate to the occupation (the ads must be placed at least 28
days apart and meet certain criteria); and for positions involving
experience and an advanced degree, a job ad in a journal in lieu
of one Sunday ad. Employers must also select 3 additional alternative
recruitment steps including web searches, job fairs, on campus recruitment,
trade or professional organizations or professional search firms.
Under PERM, the ads will have to state the rate of pay (which is
not now required), have a harder standard for rejecting U.S. workers,
disallow experience gained with the employer to qualify the alien
for the labor certification even if the experience was gained in
a dissimilar job, or abroad, or in the contract position, or if
it is not feasible to provide the same opportunity to a U.S. worker.
Excessive experience or training requirements will no longer be
able to be justified through an argument of business necessity;
and alternative requirements as a means of qualifying for the job
opportunity would be rejected, e.g. if an employer requires two
years of work experience in the occupation, the alien must be able
to demonstrate it through two years of prior experience with another
employer and in the same job. The alien will not be able to qualify
using related experience as is commonly the case today.
No. 5
Labor certification applicants who filed professional RIR labor
certification applications into the New York State Department of
Labor after April 2001 finally have an occasion to smile. That agency
has divided its backlog of over 50,000 cases into different categories,
of which all but RIR cases involving professionals are still wading
their way through April 2001 cases. Professional cases at the Labor
Department are defined as those requiring a degree to perform the
job duties. For professionals, May cases are being processed. The
reason for the many thousands of applications in that office can
be attributed to the last extension of section 245(i), which allows
individuals who filed immigrant visa petitions or labor certification
based applications by April 30, 2001, to be grandfathered and allowed
to pay the super fee to the INS at the end of their cases to adjust
status in this country rather than being processed overseas for
immigrant visas. The premium on adjustment of status rose sky-high
with the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRAIRA) which mandated 3 and 10 year
bars on entry for most aliens staying illegally in the U.S. for
180 days and one year respectively after April 1, 1997. Further
information from the manager of labor certification processing of
the New York State Department of Labor is that, past April 2001,
there is still much volume in May, but that the amount of cases
tapers off beginning in June 2001.
No. 4
There's a new sheriff coming to town. A new organization, Technical
and Management Services (TMS) headquartered in Gaithersburg, Md.,
has been contracted by the Department of Labor to adjudicate labor
certification applications from the beginning to the end, and even
certifying the cases at the end. The labor certification which is
issued will have the name of the chief of the foreign labor certification
division, Dale Ziegler, on the certification rather than the name
of a local certifying officer. No labor certification is to be certified
by TMS without review by three national officials. TMS has already
started picking from labor certification applications filed in New
York, New Jersey, Texas, Maryland and Virginia. So far it has picked
up approximately 1500 cases, including 600 from New York. There
is some concern that TMS will have its own standards insofar as
adequate recruitment effort is concerned, and its views on other
matters such as business necessity, experience gained with the same
employer, etc., may not necessarily be the views of the local certifying
officer, and that cases that would have passed if adjudicated by
the local certifying officer might not be approved by TMS.
No. 3
As of March
17, 2003, landed immigrants of Canada with common nationality of
Commonwealth countries will no longer be allowed to enter the United
States exempt from visa and passport requirements. Under present
law, nationals of the 54 Commonwealth countries including the United
Kingdom who hold landed immigrant status of Canada are allowed to
enter the U.S. in the same manner as Canadian citizens without visa
or passport so long as the travel is not from outside the Western
Hemisphere. From that date onwards, such individuals will be required
to present both valid passport and visa to enter the U.S.. This
may certainly affect the travel plans of this class of individuals
who are now able to enter the U.S. without security check delays
at the consulates and embassies which are commonly encountered today.
It has been rumored that there are over 600,000 Canadian Commonwealth
landed immigrants and many of them appear to have U.S. work visas.
This further means that the U.S. embassy and consulates in Canada
will become clogged in the next months as many of these individuals
will be applying there for visas.
No. 2
Asylees
who are given conditional asylum status under population control
policy cases will be allowed to have their aged out children join
them as family members if the children were under the age of 21
at the time that the asylum application was filed and a final asylum
grant was not made until the date of enactment of the Child Status
Protection Act (CSPA), August 6, 2002. The CSPA requires that an
application still be pending before the Department of Justice or
Department of State on or after August 6, 2002, and it was unclear
as to whether INS would consider an asylum application to be still
pending where the conditional asylum had already been granted prior
to August 6, 2002. This was clarified in answer to my question by
the supervisor for operations, asylum division, Office of International
Affairs, BCIS (formerly INS), Washington D.C.
No. 1
The top
lesser-known fact concerning immigration law is that even if a final
grant of asylum was given prior to August 6, 2002, aged out children
of asylees who were under the age of 21 at the time that the asylum
application was filed will be allowed to follow to join the principal
asylees if an I-730 follow to join asylum petition was pending as
of August 6, 2002. This was also unclear because the I-730 is a
petition and not an application and because the legislation generally
referred to an asylum application and not a follow to join petition.
This was clarified in answer to the second part of my question by
the supervisor for operations, asylum division, Office of International
Affairs, BCIS (formerly INS), Washington D.C.
These are 10
of the lesser known facts in the field concerning immigration procedure
and developments. If readers find this format appealing and wish
to see more columns like this, please send your opinions to the
World Journal.
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