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Do New Immigration Laws Affect You?

February 2001

Our Immigration Practice Group would be happy to assist you with any questions relating to this article.

Employers are often frustrated by administrative backlogs, visa quotas, and inflexible rules that stymie their efforts to employ critical foreign employees in the U.S. New legislation and administrative rules offer some relief while others impose new requirements. Highlights are summarized below.

Employment portability. Foreign workers formerly were tied to their sponsoring employers throughout the immigration process. Now certain workers have some flexibility to change jobs. H-1B workers in temporary status can work for a new employer immediately upon the new employer's filing it's own new nonfrivolous H-1B petition; they don't need to wait for approval. Intending professional or skilled immigrants with an offer of permanent employment can change jobs or employers if their adjustment applications have been pending for 180 days or more, as long as the new job is in the same or a similar occupational classification.

Corporate re-organizations. Formerly, employers undergoing mergers or acquisitions had to file amended petitions on behalf of their H-1B employees. Now, an employer who "succeeds to the interests and obligations" of the original petitioning employer need not amend, as long as employment conditions remain the same.

Extended H-1B status pending employment-based processing backlogs. Employment-based immigrants who are otherwise fully eligible to adjust their status to permanent residence are sometimes prevented from adjusting because immigrant visa quotas for their countries have been exhausted. Formerly they were approaching the 6-year maximum stay in H-1B status, they had to go abroad to wait for an immigrant visa. Now, applicants blocked by a country quota can extend their H-1B status and remain in the U.S. beyond the 6-year maximum stay until their adjustment is completed. Similarly, employment-based immigrants faced with administrative processing backlogs can now extend their H-1B status beyond the 6-year maximum stay if 365 days have passed since the filing of a labor certification application or an immigrant petition on their behalf.

Expanded H-1B labor condition requirements. Employers must comply with certain wage and labor condition requirements as a pre-condition to INS approval of H-1B employees. The Department of Labor has revised the Labor Condition Application form and attestation and filing requirements.

Pseudo-amnesty ["sec. 245(i)"]. Aliens who entered illegally or have fallen out of status ordinarily are prohibited from remaining in the U.S. to adjust to permanent resident status, even if they otherwise qualify for an immigrant visa based on a family relationship or offer of employment. They are required instead to apply for an immigrant visa abroad. But a lengthy period of invalid status may bar them from returning to the U.S. for as much as 10 years. Now, such aliens may adjust their status while remaining in the U.S. if, before April 30, 2001, an immigrant petition or labor certification is filed on their behalf and later approved. At the time of adjustment, they must show that they were present in the U.S. on December 21, 2000 (the date of enactment) and pay a penalty of $1,000. This provision does not confer travel permission, employment authorization, or protection from deportation while the immigrant petition or labor certification application is pending.
New K and V visas to address family-based processing backlogs. Permanent residents sometimes face 5-6 year delays in bringing their spouses and children to the U.S. and even U.S. citizens must wait months to process petitions for their foreign-born spouses. Soon, the V temporary visa will be available to allow entry and work authorization to spouses and unmarried minor children of permanent residents who have been waiting more than three years for immigrant visas. The K temporary visa (formerly available only to fiancées) will be available to allow entry and work authorization for spouses of U.S. citizens and their unmarried minor children.

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