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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.

About The Author

Alan Lee, Esq. is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Related to this article, Mr. Lee correctly analyzed the statutory language to allow the additional 20,000 H-1B numbers to apply to all qualified H-1B applicants in his December 4, 2004 article, "Season's Greetings from the Immigration Front". Also see his April 14, 2005 article, "Additional 20,000 H-1B Numbers For FY-2005 - Should Aliens Apply For FY-2006 Instead?" and "Some Details Appearing For FY-2005 Additional 20,000 H-1B Numbers." Alan Lee can be reached at: immigration@alanleelaw.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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