Immigration lawyers are getting lots of calls because of information received by the immigrant community about important new laws recently passed. News travels really quickly nowadays, and misinformation and misunderstanding travels with it. Because of interest and because of importance, I want to bring these new laws to your attention now in this issue of Torchline. Please understand, however that until governmental agencies publish regulations (or at least issue policy memoranda), no one really knows yet how the new laws will be interpreted and implemented. Most people are not aware that the Department of Labor ("DOL") and the Immigration and Naturalization Service ("INS") have also recently published important new regulations affecting quite a few areas of immigration law. Next month, I will tell you about the new regulations. 

The recently enacted Legal Immigration Family Equity Act ("LIFE"), was passed by Congress in November with further amendments passed Friday, December 15 shortly before Congress adjourned. The President and most Democrats in Congress had favored the Latino Immigration Fairness Act (LIFA), which contained much more favorable provisions for the immigrant community. Unfortunately, the Republican-dominated Congress passed greatly limited provisions of benefit to the immigrant community. Although President Clinton had threatened a veto if LIFA were not passed, he signed LIFE on December 21 and it became law. Following is a very abbreviated summary and very preliminary analysis of its major provisions: 

Section 245(i) of the Immigration and Nationality Act ("INA") had existed for several years, but sunsetted in 1998. It had allowed persons who benefitted from approval of an immigrant visa petition, but who had entered the United States without inspection, as a seaman, or "in transit," or who had violated their status in some way to adjust status in the United States by paying a $1,000.00 penalty at the time of filing for adjustment. LIFE restores Section 245(i), but only where a labor certification application (with a later filed immigrant visa petition) or an immigrant visa petition (where no labor certification application is needed) is filed on or before April 30, 2001. Also, persons who file under Section 245(i) under LIFE will need to prove that they were present in the United States on the date of its enactment, December 21, 2000. Obviously, at some point an immigrant visa petition will need to be approved before this mini-amnesty can assist the beneficiary at the time of filing an adjustment application. Time is of the essence in preparing and filing an approvable labor certification application or immigrant visa petition before the mini-amnesty sunsets after April 30, 2001. Although a significant number of people could benefit under this LIFE section, one must remember 1) it provides NO benefit other than the ability to adjust status to permanent residence at some point and 2) most persons who need to file for adjustment under Sec. 245(i) of the INA must NOT leave the United States until they are granted lawful permanent residence status (because they would be subject to the three-year/ten-year inadmissibility bars). INS has not issued any regulations or policy memoranda as of this date (January 7, 2001) to explain how it intends to implement or interpret this LIFE section. 
 

LIFE provides a new nonimmigrant visa category ("V") for spouses and minor children of lawful permanent residents waiting more than three years for an immigrant visa, based upon an immigrant visa filed on or before December 21, 2000. As enacted, this provision will not benefit spouses and minor children whose petitions are filed by lawful permanent residents after December 21, 2000. Persons who qualify will be allowed to enter the United States to await their priority dates becoming current [See the article entitled "The Quota System" on this website about the preference system and priority dates.], they will be granted employment authorization, and they will be allowed to remain here if they are already here. By paying a $1,000.00 penalty, persons physically present in the United States between July 1, 2000, and October 1, 2000, will be able to adjust status to permanent residence, rather than having to leave the United States to process an immigrant visa abroad and, thus often subject themselves to the three-year/ten-year admissibility bar. Although LIFE does it address what procedure is to be followed for the spouse and minor children to obtain this V visa, apparently an application for change of status to V will need to be filed, if they are already in the United States. It remains for regulations and policy memoranda to explain the practical implementation of this new visa category. For example, the statute fails to address whether persons who come to the United States with a V visa will be required to return to their country of last residence to apply for immigrant visas. 
 

LIFE provides a new category for the nonimmigrant visa K (formerly available only for fiancees of U.S. citizens). Now, spouses of U.S. citizens and their minor children will be able to come to the United States in the nonimmigrant K category, based upon approval of a petition filed for them by the U.S. citizen spouse. Apparently, these people will be eligible to adjust status here, rather than having to return to their country of last residence to apply for an immigrant visa. 
 

Under LIFE persons who filed a written claim with the Attorney General (i.e., INS) before October 1, 2000, for class membership in two lawsuits [Catholic Social Services, Inc. v. Meese, later Reno v. Catholic Social Services, Inc. OR League of United Latin American Citizens v. INS, later Reno v. Catholic Social Services, Inc. ("LULAC")] will be able to file for adjustment of status to permanent residence under the provisions in effect for temporary permanent residents (Sec. 245A of the INA). Applications must be filed within 12 months of the INS's publishing regulations to implement this section of LIFE. The applicant must prove he entered the United States before January 1, 1982, AND that he has resided here in an unlawful status since then (and through May 4, 1988), AND that his period of authorized stay expired before January 1, 1982, or that his unlawful presence was known to the Government before January 1, 1982. He must prove that he was continuously physically present in the United States from November 6, 1986, until May 4, 1988, except for "brief, casual, and innocent absences." Generally, the same regulations last in effect under Sec. 245A shall apply to eligibility for adjustment. By no means are a large number of persons going to benefit from this section of LIFE. 

Finally, LIFE amends certain laws affecting Nicaraguans, Cubans, and Haitians, but not in any significant way to a great many people.
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American Competitiveness in the 21st Century Act of 2000

Last October President Clinton signed several new laws which significantly changed the H-1B program and employment-based immigration. The most significant law was the American Competitiveness in the 21st Century Act of 2000 ("AC21"), which was enacted and generally effective October 18, 2000. 

H-1B Program: 

The previously set 65,000 annual cap for H-1B entries and changes of status has been reached each of the last several years. AC21 increased the cap to 195,000, but only for federal fiscal years 2001, 2002, and 2003 (between October 1, 2000, and September 30, 2003). Beginning October 1, 2003, the annual cap reverts to 65,000. H-1B beneficiaries to be employed by institutions of higher education, related or affiliated non-profit entities, and nonprofit or governmental research organizations are exempt from the cap. Physicians who have obtained a Conrad 20 ("interested state agency") waiver of the J-1 two-year home residence requirement from the cap, as is any H-1B beneficiary who has been counted against the cap within the last six years (unless he would be eligible for an entire six-year period at the time the H-1B visa petition is filed). 
 

The "user fee" for the H-1B petitioner has been increased (effective December 17, 2000) from $600.00 to $1,000.00. However, AC21 provides further "user fee" exemptions for certain H-1B petitioners. Previously, no "user fee" was required where 1) the petitioner was an institution of higher education or a related or affiliated non-profit institution, 2) a nonprofit or governmental research organization, 3) the petition was for a second or subsequent request for extension of H-1B stay for the same alien, 4) the petition was an amending petition not requesting extension of H-1B stay, or 5) correction of an INS error was being requested. AC21 provides further "user fee" exemptions for primary or secondary education institutions and for nonprofit entities engaged in "established curriculum-related clinical training of students." 
 

In a related act, the law is amended so that an H-1B visa petition is no longer required to be filed when the petitioning employer undergoes a corporate restructuring, so long as 1) the new corporate entity succeeds to the interest and obligations of the original H-1B petitioner and 2) where the terms and conditions of employment remain the same. 
 

An extremely useful section of AC21 allows "portability" of H-1B beneficiaries. Now, as soon as a "non-frivolous" H-1B petition is filed for someone already in H-1B status, the H-1B beneficiary may begin working for the new H-1B employer. It is not clear (until regulations are published) what effect the subsequent denial of the new petition might have on the H-1B beneficiary's lawful status. To provide satisfactory documentation that the H-1B visa beneficiary has permission to be employed, the INS suggests that the new employer attach a copy of the new H-1B receipt notice with the current H-1B approval notice to the new employer's I-9 form for the H-1B beneficiary. 
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Employment-Based Immigration Program

Where the total number of visas available during a calendar quarter exceeds the number used, AC21 lifts the per-country limits on employment-based immigrant visa numbers. This section should help employment-based immigrants in the second and third preference categories who were born in China and India. It remains to be seen how much this will help. Currently, visas are back-logged for these beneficiaries for several years or more. [See the article entitled  on this website about the preference system and priority dates.] Significantly, AC21 grants H-1B beneficiaries who also benefit from an employment-based immigrant visa petition the ability to apply for and be granted an extension of H-1B status until their adjustment applications have been processed and a decision made, regardless of the normal six-year maximum stay in H-1B status. Until regulations are issued, it is not clear whether these application for H-1B extension will be granted for a time certain or for some time similar to "duration of status." 
 

AC21 grants extensions of H-1B status in one-year increments to H-1B beneficiaries who also benefit from an employment-based immigrant visa petition if it has been more than 365 days from the time a labor certification application (where applicable) or an immigrant visa petition was filed, regardless of the normal six-year maximum stay in H-1B status. 
 

A very significant section of AC21 allows an adjustment applicant whose application has been unadjudicated for 180 days or more to change jobs and/or employers if the new job is in the same or a similar occupational classification as the one for which the immigrant visa petition was filed. 
 

Although AC21 directs the INS to process adjustment applications in 180 days and nonimmigrant petitions in 30 days, the INS isn't making any promises! 
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Battered Immigrant Women Protection Act of 2000

Although this law passed Congress last Fall, because its provisions are mostly retroactive to earlier dates, it will greatly benefit a large number of men, women, and children (not just "women," in spite of its title). In 1994 Congress first passed legislation to provide immigration benefits to women and children (and men) who had been physically abused or who had suffered extreme cruelty at the hands of a U.S. citizen or lawful permanent resident. Previously, there were some major gaps in providing relief; now those gaps have been filled. Approved self-petitioners are now able to adjust status to permanent residence, without regard to the usual Sec. 245 of the INA limitations. (See the discussion above about the LIFE provisions affecting Sec. 245 of the INA.) The previous requirement to prove "extreme hardship" if the self-petitioner were required to return to her home country is removed. The self-petitioner must no longer be married to the "batterer"; it is sufficient if the marriage was terminated no longer than two years from the date of filing the self-petition. The self-petitioner may apply from abroad, if there was some domestic violence in the United States. The self-petitioner no longer has to have "resided" with the "batterer" in the United States. Lawful permanent residents who adjusted based upon an approved immigrant visa petition for an abused spouse may apply for citizenship in three years, rather than the usual five years. There are now rather generous procedural remedies relating to persons in removal proceedings and rather expansive inadmissibility and deportability waivers. There is more. 
 

Unlike the usual immigration-related laws passed since 1986, this law really helps a lot of people who need help. As Congress stated, its purpose was 1) to remove immigration laws as a barrier that kept battered and abused immigrant women and children locked in abusive relationships, 2) to provide protection against deportation to immigrant women and children who were experiencing domestic violence at home without fear that the batterer/abuser would retaliate by withdrawing or threatening withdrawal of immigration benefits, and 3) to expand those groups of women and children who were not previously covered in order to prevent their batterers/abusers from being immune from prosecution. 
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