02/07/02

Many of the issues surrounding I-485 portability still remain unsettled. Folks who have written/called me in these past few weeks need to keep that in mind. We will keep you updated.

INS has repudiated a widely-distributed story that quoted INS sources as saying that INS is "going to let things slide" for laid off H-1B workers and that reported that INS will allow them to change jobs "without leaving the country, even if they have been unemployed for a while." INS still takes its view that H-1B nonimmigrants who remain present in the U.S. without changing status, when they are no longer employed under the H-1B, are considered to be in violation of their status. INS indicates that it will continue its past policy of reviewing such situations on a case-by-case basis to determine whether to exercise discretion under 8 CFR section 214.1(c)(4) to grant an extension of status (the procedural stance for a change of employer). The length of the individual's presence in the U.S. under the H-1B admission is one factor in such exercise of discretion.

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US Department of Labor has Issued the following advice to prevent LCA problems (which abound)

We thought it might be helpful to advise your members of some commonly made mistakes we've been seeing on the LCAs we've processed in the past week. We've added these to the list of "Tips" we recently sent to you.

1. No G-28s whether LCA is faxed or mailed

2. No cover letters whether LCA is faxed or mailed

3. No 2-sided forms. The computers are designed to read only one side of a page and not the reverse. The new 3-sided form you file will therefore consist of 3 separate pages.

4. No return Federal Express or other priority mail envelopes. Completed LCAs, whether faxed or mailed, will be returned via fax. If you would like the LCA faxed back to you as the employer's legal representative, your fax number - and not the employer's - must appear as the return fax number on page 1 of the new form. There is no place on the new form for the attorney's mailing address.

5. The page link numbers (bottom left of each page) must be identical on all 3 pages. This can be assured if you use the form filler program on our national website each time you file an LCA. That system automatically assigns the same page link number to all 3 pages.

6. Separate applications require separate page link numbers. Page link numbers should never be repeated from application to application. Once again, this can be assured if you use the form filler program on our national website each time you file an LCA. That system automatically assigns the same page link number to all 3 pages.

Common Mistakes

7. Page 1, Sections B and D are often incorrectly filled out. If a wage range is indicated in Section B, then the beginning wage must equal or exceed the prevailing wage listed in Section D.

8. Page 2, Section E is often blank. This section must be completed in the affirmative, eg., *Yes.* The employer must attest that the employer has read & agrees to the Employer Labor Condition Statements.

9. Page 3, Section G is often blank. The employer must indicate whether public disclosure information will be kept at the principal place of business or place of employment. Only one response is acceptable.

Call us on 215-861-5250 if you have questions about this memo.

The new law (LIFE Act) creates the following changes:

- Section 245(i) of the Immigration and Nationality Act will be available temporarily to people physically present in the United States on the date of enactment, December 21, 2000. The provision will allow a person who qualifies for permanent residency, but is ineligible to adjust status in the United States because of an immigration status violation, to pay a $1,000 penalty to continue processing in the United States. In order to be eligible for 245(i) adjustment under the LIFE Act, a person must be the beneficiary of an immigrant petition or application for labor certification filed on or before April 30, 2001.

- A new temporary "V" non-immigrant status will be available to the spouses and minor children of lawful permanent residents waiting more than three years for an immigrant visa based upon an immigrant petition filed on or before the enactment date of the LIFE Act. Persons granted "V" status would receive employment authorization and are protected from removal.

- A new temporary "K" visa status will be available to spouses of U.S. citizens (and their children) living abroad. The current K visa is only available to fiances of U.S. citizens who are coming to the United States to get married within 90 days of arrival.

 - Persons who filed before October 1, 2000, for class membership in one of three "late amnesty" lawsuits (CSS v. Meese, LULAC v. INS, and Zambrano v. INS) and who are eligible under the LIFE Act's amended legalization provisions may apply to adjust status during a 12-month period that begins once regulations are issued. Spouses and unmarried children of the class action claimants will be protected from certain categories of removal and will be eligible for work authorization if they entered the United States before December 1, 1988 and resided in the United States on that date.

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Frequently Asked Question from both Employers and Employees: We have an employment contract with some reimbursement terms, or we have a contract signed outside the USA. Are these contracts enforceable in USA.

Ans: It is impossible to predict rights and liabilities under immigration related employment contracts. Some of them could be enforceable, and some not. The only reliable way to find out is if one gets actually sued and the courts decide one way or the other. My advice in most cases is try to work things out in a friendly way. If not possible, then decide whether you wish to take a chance on losing and act accordingly.

15 February 2000 The following Memo was circulated to the gang in our office by Fidelina Batista, our lead attorney (the power that watches over all of us :-)) who has the pleasure of speaking with INS all over the country almost every day. In case you folks are interested, here it goes:

MEMORANDUM
TO: All Colleagues
FROM: Fidelina Batista

RE: SERVICE CENTER EXPEDITE CRITERIA FOR ALL APPLICATIONS

There has been an increase in requests by clients to expedite their applications, particularly I-140s and I-485s because of the long processing times it is currently taking the Service Centers to process these. Hope that this helps you assist them with their questions. We will make the requests when warranted. Any questions about inquiries you receive, please direct them first to your supervisors.

As of today's date, the Service Centers have informed that they will only expedite I-140s or I-485s in a "do or die" situation for the petitioner or main applicant. Spouses are "derivative beneficiaries" in I-485 applications and have no "standing" for I-140 petitions since the petition is the employer's petition and it is a petition for the main applicant only.

• Humanitarian - Example, when a Permanent Resident or United States citizen (visa available) petitions a relative that requires immediate medical treatment, OR
  
  Minor child who lacks sufficient supervision or security
• Financial Loss - severe harm or financial harms - failure to adjudicate within specific time frames would cause severe harm to U.S. employer.
• Emergency - one family member "aging out," OR
  
  Emergent or Unforeseen Circumstance - petitioner (employer), through no fault of his, is faced with an emergent situation: Example, musical singer or performer scheduled to be on a tour is stricken with a sudden illness or accident and petitioner (employer) must replace him immediately.
• Service Error - the Service incorrectly transferred a file and straightening this out has caused delay in processing.

31 August 1999

Recent Disturbing Development in EB-3 Cases

Are National Interest Waivers Dead?

The new and ridiculous requirements promulgated by INS certainly appear to suggest so. Here are the requirements, folks:

---------FROM INS---------
The specific evidence you must provide to establish the alien’s eligibility for a national interest waiver is as detailed below, pursuant to Matter of New York State Dept of Transportation, Interim Decision 3363, (Acting Assoc. Comm’r, Programs, Aug. 7, 1998).

1. Provide evidence the benefits of the alien’s proposed employment will be national in scope. His/her employment may be limited to a particular geographic area. However, you must establish benefit to more than a particular region of the country. Moreover, there should be little or no adverse impact on the interests of other regions of the country.
2. Submit evidence the alien seeks employment in an area of substantial intrinsic merit. His/her employment must be important to the national interests of the United States. Additionally, the benefits of his/her employment should be immediately apparent to the national interests of the United States.
3. Submit evidence related to the alien’s ability to perform the duties of the proposed employment position. To be considered in the national interest the alien must make a showing significantly above that necessary to prove the “prospective national benefit” required of all aliens seeking to qualify as”exceptional”. Exceptional is defined under service regulation as---- “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
4. You must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required. You must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of his/her services by making available to U.S. workers the position you seek.
5. You must establish you are not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The national interest waiver is not warranted solely for the purpose of ameliorating a local labor shortage.
6. If you demonstrate that the alien hold a patent or is responsible for an innovation, then you must demonstrate that the specific innovation serves the national interest.
7. You must establish the alien has a past record of specific prior achievement which justifies projections of future benefit to the national interest. You must establish, in some capacity, his/her ability to serve the national interest to a substantially greater extent than the majority of his/her colleagues. You must demonstrate to some degree his/her influence in the particular field of employment as a whole.