Is This The Turning Of The Tide In Favor of Foreign Nationals?
Frieda Wong & Bernard P. Wolfsdorf
The House of Representatives passed, by an overwhelming vote of 400-4, the 21st Century Department of Justice Appropriations Authorization Act. The Bill has now been sent to the Senate and is expected to be passed this week. Included in this Act are several immigration provisions that are beneficial to certain foreign nationals.
1) 7th-Year Extension for H-1Bs with Labor Certifications Pending for more than 365 days
Specifically, Section 11030 A, a provision sponsored by Rep. Lamar Smith (R-Texas), amends Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") and allows an H-1B nonimmigrant to file for a 7th-year extension provided that a labor certification or an immigrant visa petition has been filed on behalf of the nonimmigrant for more than 365 days. This provision attempts to correct a problem created by the AC21. When it passed AC21, Congress intended to protect foreign nationals and employers from the inequities of government bureaucracy and inefficiency, by including Section 106(a) of AC21, which addresses delays at the Immigration and Naturalization Service in adjudicating immigrant visa petitions. Section 106(a) allows for 7th-year extensions of H-1B status beyond the usual six years if both a labor certification and an immigrant visa petition have been filed for the nonimmigrant before the end of the sixth year. Since the passage of AC21 however, processing time at the Department of Labor has significantly slowed down. The Department of Labor's delay in processing the prerequisite labor certification has made it impossible for H-1B nonimmigrants who are about to exceed their sixth year in H-1B status to meet the additional requirement of filing an immigrant visa petition before the end of the sixth year. Section 106(a), as originally written, has therefore become defunct in practice, once again as a result of agency delays.
Section 11030 A of the proposed Act allows for H-1B nonimmigrants to obtain extensions beyond six years when a labor certification was filed for more than 365 days, without regard to the ability to file an immigrant petition within the year. Moreover, Rep. Smith made it clear that this provision is meant to permit those who have already exceeded their six-year limit to have a new H-1B petition approved and be able to return from abroad with a new visa or otherwise re-obtain H-1B status.
2) Conditional Permanent Resident Status for Certain Alien Entrepreneurs, Spouses, and Children
Another provision of this Bill provides amelioration for certain EB-5 immigrant investors whose approved immigrant petitions have been revoked or whose petitions to remove conditional basis of permanent residency have been denied. The provision attempts to address the problems created by the AAO precedent decisions in 1998 that imposed new restrictions retroactively on eligibility for this visa category and allow for reajudication of affected cases.
By way of background, Congress created the EB-5 category in 1990 for immigrants seeking to enter the United States to engage in commercial enterprise that will benefit the U.S. economy and create at least 10 full-time employment positions for U.S. citizens, lawful permanent residents, or other qualified workers. However, few immigrants have qualified as immigrant investors because of the four AAO precedent decisions. One of the limitations invoked in these decisions made it impossible for immigrant petitioners who are involved in limited partnership investment schemes to meet the "establishment of commercial enterprise" threshold created by the AAO precedent decisions. The AAO decisions held that the petitioner is only considered to have established an original business if he had a hand in its actual creation. Matter of Izumii, 22 I. & N. Dec. ___, 19 Immigra. Rep. B2-32 (Interim Decision No. 3360, Assoc. Comm'r, Examinations July 13, 1998). This has since been interpreted to require the petitioner to have joined the partnership at its inception and to have been actively involved in identifying and negotiating the investment project. Due to the inherent nature of a limited partnership - where no individual partner or partners purchase the business in its entirety and where partners typically join the partnership sequentially - petitioners who invested substantial amount of money in these limited partnership investment schemes no longer qualify for investor immigrant visa. Thus, the retroactive application of the AAO decisions resulted in revocation of approved visa petitions in some cases and denials of the petitions to remove conditional basis of permanent residency in others.
The proposed provision, if passed, will require the INS to reajudicate these affected EB-5 immigrant investor cases as if some of the AAO decisions were never issued. In particular, Section 11036 of the Bill eliminates the "enterprise establishment requirement" for alien entrepreneurs, replacing it instead with, "investment in" commercial enterprise, and calling for an expansive reading of "enterprise" to include a limited partnership. This would hopefully spell the end of a long drawn-out battle with the INS for many immigrant investors.
3) Increase in Numerical Limitation on Waiver Requested by State
Finally, in another provision, Congress proposed to extend the Conrad State 20 Program for J-1 waivers to 2004. Under the Conrad State 20 program, state departments of health can recommend waivers for foreign medical graduates serving in underserved areas in their state. Additionally, the provision further proposes to increase the annual limitation from 20 waivers per year per state to 30 waivers per state.
There is a good chance that the Bill will pass the Senate this week due to the overwhelming support of the House. The President is also expected to sign the legislation. It appears that this new pro-immigrant legislation may signal the turning of the tide or, could it be an attempt to secure immigrant support in a critical pre-election period?
About The Authors
Frieda Wong is a supervising attorney at Wolfsdorf Associates and practices exclusively in the area of immigration and nationality law. She is the resident attorney at the firm's New York office. Ms. Wong graduated from the University of Wisconsin in Madison with a B.A. in Business Administration, and received her J.D. from Northeastern University School of Law. If you have any questions concerning this article, please contact Frieda Wong at firstname.lastname@example.org or 1(800)-visa-law.
Bernard P. Wolfsdorf practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors and on the AILA INS Enforcement Committee. He has previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee. With offices in New York, Torrance and Pacific Palisades, the firm assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at Bernard@wolfsdorf.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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