Summary Overview of Immigration Legislation
Posted Sep 21, 1998

The framework of our immigration laws in the U.S. is established by the Immigration and Nationality Act of 1952. Since then, we have had several amendments and new issues being addressed. The past few years have witnessed a variety of important pieces of legislation pertaining to immigration matters. These include the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and several regulations and interpretations from the Immigration and Naturalization Service (INS) interpreting these laws. In addition, the Immigration Act of 1990 (IMMACT) for the first time imposed a cap on the maximum number of H1B Petitions for temporary workers each fiscal year. These recent laws are briefly addressed below.

Most of the current important developments in immigration law stem from the passage and subsequent implementation of the IIRAIRA. Though its name includes the word "illegal," this law actually affects many persons who have followed all the rules. For example, INS inspectors now have enhanced powers to turn persons away at ports of entry, even if they have valid visas, if the inspector is not satisfied that they seek to enter for the proper purpose. The consequence of this "expedited exclusion" process is a five-year bar on applying to reenter the U.S. Since these decisions, made by relatively low-level officials, are unappealable, there are few if any safeguards to protect against incorrect determinations.

Other onerous clauses of this statute include the so-called "three and ten year bars." A person who is out of status for 180 days (counting from April 1, 1997) and leaves voluntarily is subject to a three-year bar on returning to the U.S., while one who has been out of status for one year faces a ten-year bar. Though the requirement for imposition of the bars is that one be here "without authorization," there has been much controversy over the interpretation of that term. And the fact is that many persons fall out of status through no fault of their own, for example, those who may be waiting for the USIA to decide on J1 waiver requests; or dependents of H1 or L1 workers who were unaware that they had to apply for separate extensions when the principal extended her/his own stay.

Section 222(g)imposes the requirement that persons who have overstayed their authorized periods of admission on nonimmigrant (temporary) visas, will have to apply for all future nonimmigrant visas in their home countries, rather than at other consulates that may be more convenient. Exemptions from this requirement are possible if "extraordinary circumstances" exist. The Department of State has indicated that it will find "extraordinary circumstances" in the following situations: physicians working in under served areas, and persons whose current foreign residence is different from their country of nationality. It is also possible to apply on a case-by-case basis for such an exemption, though it is not possible to obtain an advance opinion prior to travel. The applicant appears at the consulate, presents the evidence of "extraordinary circumstances," and the consulate has the discretion as to whether or not to accept the case. If refused, the applicant must then apply in the home country.

The AEDPA is significant because now the INS can commence deportation proceedings against a person who had committed a crime that was not deportable when committed, for example, possession or distribution of a drug or controlled substance, even forty or fifty years ago! The Law Office of Sheela Murthy had a case of a grandmother who is married to an U.S. citizen, has children and grandchildren who are all U.S. citizens but she was born in France and did not file for U.S. citizenship and now is trapped here and in fear of traveling abroad to meet her family in France because the INS could prevent her reentry into the U.S. and start deportation proceedings against her when she attempts to reenter!

Another hot issue of the moment is the so-called "H1B cap," created by IMMACT which imposed a limit of 65,000 new H1B professionals per fiscal year. Although IMMACT has been in existence for 8 years, only from the last fiscal year of 1997-98 has the cap been met and the predictions are that this coming fiscal year of 1998-99 quota could get exhausted as early as November or December of 1998, when the fiscal year starts from October 1, 1998 and runs until September 30, 1999!! Fortunately, persons who already hold H1 status and are applying to extend their stay or change employers are not subject to this cap. The allocation for the 1998 fiscal year (October 1, 1997 to September 30, 1998) was used up in May of 1998. Petitions approved subsequent to that time were required to have a start date of October 1, 1998, i.e. the first day of the fiscal year 1999, to start their H1 employment. This has obviously resulted in a tremendous burden to both employers and foreign nationals. INS announced that as of August 31, 1998 it had already approved 20,000 such petitions for the 1999 fiscal year, and that 18,000 more were pending for decision. It is therefore likely that the 1999 allocation will be used up by the end of 1998.

U.S. companies and businesses who are concerned about this state of affairs should make their opinions known now. There is a bill, H.R. 3736, which contains a proposed increase of the H1B cap. Please contact your Senators and Representatives to lobby for an increase of the H1B cap. Use our wonderful democratic process to make your voice heard -- it is both our duty and our right and we owe it to ourselves and our future generations to actively participate in our democratic process.