  | Changes In Immigration Law and Procedures
H-1B Petition Limit
There is a limit to the number of H1-B (professional worker) visas that can be issued in one year. The previous limit of 65,000 visas was increased to 115,000 visas for Fiscal Years 1999 and 2000, and 107,500 for FY 2001. When all the available visas have been issued for a fiscal year, the INS stops approving H-1B petitions unless the job starting date is on or after 01 October. Petitions for jobs starting before the 01 October date cannot be approved unless the INS allows the start date to be changed.
On 21 March 2000, the INS announced that the limit of H-1B visas had been reached for Fiscal year 2000. H-1B petitions received after that date will not be approved unless the starting date of the H-1B job is in Fiscal year 2001 (that is on or after 01 October 2000).
It is possible that the INS may again allow students in F-1 or J-1 status whose employers file H-1B petitions remain in status until the new H-1B visas become available after 01 October. Students who may be affected by this should determine if the INS has made this announcement.
Note that employees in H-1B status who plan a transfer to a new employer and who will make the transfer with no break in service (on the next business day) are not subject to the H-1B visa cut-off and can have the petition approved without delay if the INS has been informed of the intent to make an immediate transfer. (Of course, the transfer can only be made after the new employer's petition has been approved.) Also a petition extending an existing H-1B for the same employer is not affected by the H-1B visa limits.
New Rules for H-1B Visas
In return for increasing the number of H-1B visas available, Congress required employers to pay a new $500 fee on each H-1B petition to train US workers. This was effective December 1, 1998. Also, petitioning employers will have to state that no US workers were fired to make room for the H-1B employees.
Immigration Law Changes
The last big changes to US immigration laws became effective on April 1, 1997. Some of the changes have been applied retroactively to pending cases. Some of the changes relating to criminal convictions are being applied even when the criminal case was completed many years ago.
The law contains provisions that prevent appeals courts from reviewing some actions of the Immigration Service. The law contains some inconsistencies and is subject to varying interpretations.
Here are some of the changes:
Bars to Re-Entry. A person who is in the US in unauthorized status for 12 or more consecutive months beginning April 1, 1997 and who leaves the US will be barred from admission to the US for 10 years. People who were here in unauthorized status for 6 consecutive months and then leave can be barred from admission for 3 years.
INA Section 245i, Adjustment of Status in the US. The law which allowed people to apply for a green card in the US (adjustment of status) even if they overstayed, worked without permission, or entered without inspection, has ended except for some savings clauses which will permit those who had Immigration petitions or Labor Certificate applications filed by January 14, 1998 to continue to adjust status (apply for a green card) in the US under Section 245i. Others who are out-of-status will have to apply for the green card outside the US and if they have been in the US in unauthorized status for more than 6 months, they can be barred from re-rentry for 3 years. (10 years if in unauthorized status for over 1 year). There are exceptions to every rule including this one. For example, it does not apply to immediate relatives of US citizens who entered with inspection and to some others.
With Section 245i no longer in effect, an unauthorized person cannot apply for a Diversity Lottery visa in the US. If they go back home to apply, they are subject to the 3 year and 10 year bars to re-entry. It seems that the Lottery is no longer a possibility for those in the US in unauthorized status for over 6 months.
Changes in the Financial Support Form and Rules. For adjustment of status applications or applications to a US consul for a green card submitted on or after December 15, 1997, more complicated financial support forms must be used for all family and some employment cases . A sponsor of a person for a green card will have to show they have income at least 125% of the published poverty level to have a valid Affidavit of Support. (Previously only 100% of the poverty level was required.) The support obligation is being made more like a contract. The person who signs the support papers may be held liable for support for 10 years or more. Others can agree to provide additional support if needed. If the petitioner does not sign the affidavit of support, the family member cannot get a green card.
Summary Exclusion at the Border/Airport. Any person who comes to the US with no passport, with fraudulent documents, or who is believed entering in violation of the type of visa they hold, can be sent back immediately unless the person can show a credible fear of persecution. All applications for asylum must be made within 1 year of entering the US.
People who entered the US without inspection (EWI) and who are in the US less than 2 years may be summarily excluded (removed.)
Comments:
These are not all the provisions and are not the official wording. Some of the provisions contain waivers and exceptions not noted here. These few extracts are just to give the reader an idea of the kinds of provisions contained in the new law.
Change in Filing Adjustment of Status Applications (Form I-485)
Adjustment of Status applications based on employment, entrepreneur, or religious worker petitions should be filed at the appropriate INS Regional Service Center and not at the INS District Offices. Relative and most other adjustment cases are filed at the INS district offices.
INS Regional Service Centers are located in Vermont, California, Nebraska, and Texas. Cases filed at the wrong INS location will be returned for refiling.
Applications for employment authorization and advance parole (travel) can be filed with the adjustment application. If an interview is needed, the Regional Service Center will send the case to the local Immigration District office for scheduling. WARNING: Even if a person has been given Advance Parole, if they travel out of the US and return in parole status, they can still be denied an adjustment of status if they were in the US in unauthorized status for more than 6 months before they filed the adjustment application.
Multiple Visa for Third Country Nationals
The State Department has announced that US Consuls can issue H-1, L-1, F-1, or other multiple entry visas to nationals of other countries who are out of status IF the only reason for being out of status was a delay by the INS in deciding an application or petition that was filed on time. Being out of status for this reason is considered merely "technical". However, any unauthorized work during the "out of status" period may cause refusal of the visa.
CSS Case has been dismissed (ended)
A US Court of Appeals sent the CSS case back to the lower court with instructions to dismiss the case. The INS no longer gives work authorization or prevents deportation of CSS class members. A CSS class member who arrives to enter the US may be immediately returned to where they came from. This ruling does NOT affect LULAC (Newman) or Zembrano cases.
Change in the Employment Authorization Card
The INS EAD card which is issued to show that a person is authorized to work in the US, is being changed to a new form. The old form (I-688) is being replaced by a more secure document (Form I-766).
The new cards are being processed and issued by the INS Regional Service Centers and not by the local INS District Offices. This is to increase the security of the issuing process. The current I-688 cards will remain valid until they expire when they will be replaced by the new form. During the transition to the new card system, some INS local District offices will continue to issue EAD cards.
Will all children born in the US be citizens at birth?
There have been several news reports that a law was passed so that children born in the US of non-citizen parents will no longer be US citizens at birth. These reports are not accurate.
There has some discussion of such a change. The right of a person born in the US to be a citizen at birth comes from the 14th Amendment to the US Constitution passed in 1868 after the US Civil War. To change this would require amending the Constitution. It could not be done by passing a law.
To amend the Constitution, a proposed amendment must be passed by both Houses of Congress then ratified by the legislatures of three-quarters of the States. It is very difficult to get 38 States to agree on anything so amendments are not common. In over 200 years since adoption of the Constitution and the original Bill of Rights, there have been only 16 amendments to the US Constitution.
The idea of having some children born here treated differently and not be Citizens at birth is not a popular idea. In this writer's opinion, it is an extreme view held by a small minority at this time with little chance of being adopted as a Constitutional amendment.
So for now at least, all children born in the US subject to the jurisdiction of the US will continue to be US citizens at birth. |
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