Recent Updates : Other Issues from March 20, 2002
Posted Apr 12, 2002

As we reported in last week's MurthyBulletin (Recent Updates : AILA D.C. Chapter Meeting, March 20, 2002), several attorneys from The Law Office of Sheela Murthy attended the American Immigration Lawyers Association (AILA), Washington, D.C. Chapter meeting on March 20, 2002. This is a continuation of that report on the latest information from senior INS officials.

Seventh-Year H-1 Extensions

AILA members advised the INS that the Vermont Service Center (VSC) was not approving AC21 "7^th-year H-1" extensions when the I-140 is approved but no I-485 is pending. Previously there was confusion in interpreting the AC21 law on this issue because the wording is that the I-140 must be "filed." The problem will be addressed with the VSC to ensure compliance with the other INS Service Centers.

The INS previously agreed with the AILA Liaison during its meetings that an H1B employee is eligible for the 7^th-year H1B status even if the I-140 has been approved and the I-485 has not yet been filed.

H-1 Extensions : Same Employer, Same Position

The question was asked, what legal standard the INS uses when making a decision on a request for an H-1 extension involving the same petitioner and same position as the prior H-1 approval. Earlier, INS stated a position that the Examiner should not issue a Requests for Evidence (RFE) for such petitions on issues pertaining to eligibility for the H1B status, like beneficiary's job duties satisfying the "specialty occupation" criteria, unless the initial approval involved "gross error." However, lawyers / practitioners are seeing detailed RFEs and often denials even in cases of this type. The INS indicated they would revisit certain issues in the petition. In particular, INS could look into whether the time period requested is justified and whether the position is bona fide. Though, it does not make good "business practice" for the INS to do so in each case. A detailed review of the case, therefore, will be done only when the INS determines it is appropriate.

H-1 Quota

Based on the first quarter figures, it does not appear that the H1B quota will be reached this fiscal year. As mentioned in the March 15, 2002 MurthyBulletin article, First Quarter Fiscal Year 2002 H1B Processing Figures, the H1B petitions filed during the first quarter of the INS fiscal year 2002 (from October 1 through December 31, 2001), was only 28,000 H1B petitions against the maximum allotted quota of 195,000 for the entire year. Note that the H1B quota will drop to 65,000 in fiscal year 2004.

I-140 Revocations

The hottest news item from the meeting came from Efren Hernandez, INS Director of Business and Trade Services. Mr. Hernandez confirmed an earlier indication that an Adjustment of Status (I-485) application could be approved based on AC21 portability, even if the initial sponsoring employer withdraws the I-140 after the I-485 has been pending for 180 days. Moreover, in such instances the 180 days is measured as of the time the INS acts on the request for I-140 withdrawal. That is, if the employer files a request for I-140 withdrawal on day 150, but the INS does not process the request until day 200, the I-485 is still "alive" and approvable.

I-485 Portability

INS representatives were asked their thinking with respect to determining when I-485 portability exists, in light of the fact that there are no regulations as yet. Previously, the INS had indicated that it would accept a "good faith" interpretation of the law even if the final regulations turn out to be contrary to the employer's interpretation. However, in the March 2002 meeting the INS officials advised caution. The review standard may turn out to be closer to "justifiable" interpretation, rather than "good faith." Thus, no new light was really shed on this issue, which is of great interest to MurthyBulletin and MurthyDotCom readers.

IT Improvements

With regard to the online filing of forms, Congress mandated online filing availability for I-765 (Application for Employment Authorization) and I-90 (Application to Replace Permanent Residence Card) renewals by the end of Fiscal Year 2002. The photographs for these applications will be taken at the Application Support Centers.

Exit and Entry Tracking

The INS was asked about the status and timelines for implementation of an automated entry and exit control system. They advised that there is a statutory requirement for exit control by October 1, 2005. Implementing this requirement involves combining three databases into one. The goal for full implementation is October 1, 2004.

We report helpful information such as this for the benefit of our clients as well as regular readers of the MurthyBulletin and MurthyDotCom.