RECENT DEVELOPMENTS IN IMMIGRATION LAW
By Alan Lee, Esq.†‡
Drums are beating along the Potomac as possible legalization bills
and the nearer prospects of the budget reconciliation process offering
up 30,000 H-1B and 90,000 employment based numbers for immediate
use are stoking emotions of pro and anti immigration factions alike.
More will be said in this space about both topics later.
For now, some of the more interesting discussions on immigration
include the following:
1 U.S.C.I.S. has refused to release the leftover fiscal year 2005
Chile/Singapore H-1B numbers for use by persons who filed by September
30, 2005. The background is that H-1B numbers are capped at 65,000
per year of which up to 6800 are set aside for nationals of Chile
and Singapore. The remaining 58,200 were deemed exhausted by the
first day of fiscal year 2005, October 1, 2004. However, it is well-known
that Chile and Singapore missed fulfilling their annual allotments
by thousands. Five senators wrote to DHS head Michael Chertoff on
September 20, 2005, requesting that the unused numbers be returned
to the general supply of numbers and that DHS make the unused numbers
available on October 1, 2005. DHS's response on October 21, 2005,
was that the count for fiscal year 2005 was exceeded without reserving
Chile and Singapore numbers. Whether DHS's action is legal is questionable
as is its reading of the statute. It also appears miserly as U.S.C.I.S.
has approximately 300,000 unused H-1B numbers going back to 1991.
On the same subject of H-1B numbers and my criticism in previous
articles of U.S.C.I.S. for bowing to congressional pressure to limit
the 20,000 additional numbers made available under the H-1B Visa
Reform Act of 2004 to be used only by holders of U.S. master's or
higher degrees, the final count for fiscal year 2005 shows that
only 12,563 numbers were able to be used from the 20,000 available
quota numbers.
2 The case of Liberty Fund Inc. vs. Chao, a case in the U.S. District
Court in Washington D.C., provides insight on the Department of
Labor's (DOL's) real expectations concerning its Program Electronic
Review Management System (PERM) program. The complaint against DOL
focused on the period of time required to process reduction in recruitment
(RIR) labor certification applications. In defense, DOL pointed
out that it had received a staggering number of applications, 247,460,
in fiscal year 2001 because of the extension of section 245(i).
DOL estimated to the court in the September 2005 decision that RIRs
filed between 4/1/01-4/1/02 would be processed within 12 months,
and RIRs filed between 4/1/02-4/1/03 would be completed within 18
months. This of course exceeds DOL's prior optimistic projections
of completing the backlog by the end of fiscal year 2006 (September
30, 2006).
3 Beginning November 7, 2005, labor certifications will be printed
on blue colored paper, and the certification stamp of the certifying
officer will no longer be used. This will be quite a change from
the past and one only hopes that DOL has found a foolproof way to
insure that individuals do not counterfeit labor certification approvals.
The very difficult to counterfeit tricolor certifying officer's
stamp was DOL's standard for many years, and proved to be extremely
effective.
4 U.S.C.I.S. has just begun the process of issuing its own precedent
decisions. In past years, decisions binding the agency's employees
were found along with those of the Board of Immigration Appeals
in the volumes of Administrative Decisions under the Immigration
and Naturalization Laws. U.S.C.I.S. is not using the term precedent
decisions, but "adopted" decisions. So far, two have been
published by U.S.C.I.S. as adopted, with instructions to all U.S.C.I.S.
officers to follow the interpretation and reasoning of these decisions
in all proceedings involving the same issues. In the first case,
06-0001, time spent outside the United States whether for weekends
or holidays or extended trips, can now be recaptured in H-1B or
L-1 extension applications. The previous standard of U.S.C.I.S.
was that trips outside the U.S. had to be significant for the time
to be recaptured. In the second case, 06-0002, U.S.C.I.S. disallowed
porting to a second employer where the I-140 petition filed by the
first employer was denied after the I-485 adjustment status application
had been pending over 180 days. Under the American Competitiveness
in the 21st Century Act (AC-21), the beneficiaries of employment
based cases are allowed to change jobs and not lose their previous
labor certification/I-140 approvals so long as the I-485 adjustment
of status applications pended for at least 180 days, and the new
jobs are in the same or similar occupations. All conditions were
fulfilled, except that the first employer's I-140 petition was ultimately
denied. The U.S.C.I.S. reasoned that it would be absurd to suppose
that Congress enacted the statute that would encourage large numbers
of ineligible aliens to file immigrant visa petitions, if the legislation
was actually meant to be an impetus for CIS to reduce its backlogs,
and that the alien's construction of the law would create a situation
where ineligible aliens would gain a valid visa by filing frivolous
immigrant visa applications and adjustment of status applications
in the hopes that the I-485 application might remain unadjudicated
for 180 days.
5 How many times have attorneys and aliens felt helpless at the
time of immigration interview and even months afterwards upon hearing
the U.S.C.I.S. examiner or clerk explain that everything is fine
with the case, and that the only thing holding up approval are the
security clearances? On asking which security clearance, (there
are four--CIA, FBI fingerprint, FBI namecheck, and Interagency Border
Inspection System (IBIS) check), the main culprit is usually the
FBI namecheck. In the past, the FBI had a procedure in which individuals
could call to determine whether the namechecks had been cleared.
That process was stopped and information relating to the status
of the namechecks could only be received from U.S.C.I.S.. At the
same time, U.S.C.I.S. told attorneys and other individuals that
it did not have authority to clear namechecks, and could only see
whether they had been cleared or request that they be re-done. From
information provided by Loan T. Huynh, ESQ., of Frederickson &
Byron, P.A., the FBI has recently established a national name check
office for individuals to call [ (202) 324-2399 ] and inquire concerning
the status of the checks. On calling the number on November 16th,
we were only able to access a tape recording and not a live voice.
The recording directed us to an e-mail address, fbinncp@ic.fbi.gov,
in which we were instructed to to enter the name, date of birth,
alien registration number if any, and e-mail address. Hopefully
this will be the beginning of a favorable trend towards clearing
namechecks more quickly and establishing a dialogue so that the
FBI is able to distinguish easily between two persons sharing the
same name.
I will continue with interesting developments in immigration law
and procedure in our next article.
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