Agency Updates (posted April 19, 2001)

DOL

The Department of Labor ("DOL") on December 20 issued its Interim Final Rule governing H-1B labor certifications and implementing provisions of the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA"). The original proposed rule was issued in January 1999, and contained very little actual regulatory language. The majority of the proposal was explanatory language in the preamble, which listed alternative implementation ideas the agency was considering. DOL received 92 comments to its proposed regulations, many of which were extensive in length and detail, from AILA, Members of Congress, the Office of Management and Budget, law firms, associations, companies, Federal agencies, labor unions and individuals.

In response to the Interim Final Rule, at least two members of Congress have written to DOL expressing their displeasure with the rule’s issuance and the agency’s interpretation of its statutory authority. Representative Pete Hoekstra (R-MI), former Chairman of the Oversight and Investigations Subcommittee of the Education and Workforce Committee, wrote to Secretary of Labor Alexis Herman just prior to the publication of the rule stating "this Subcommittee is very concerned that the Department may publish final or interim final regulations without first publishing additional proposed regulations or providing the public with an appropriate opportunity to comment."

Former Senator Spencer Abraham (R-MI), as Chair of the Senate Immigration and Claims Subcommittee, and Senator Bob Graham (D-FL), wrote "[W]e must note that ... on many … issues, DOL has ignored not only the clear language of the legislation but also the contemporaneous statements that Senator Abraham made as chief bill sponsor and negotiator with the Administration prior to the floor consideration of the [ACWIA]." The Senators specifically cite their concerns regarding the regulation’s paperwork requirements, DOL’s assumption of additional authority to administratively remedy violations (including "make whole" relief), the exclusion of part-time employees from the definition of H-1B "exempt" employees, and the DOL’s complex system governing the movement of H-1B professionals.

The LIFE Act

While the Legal Immigration and Family Equity Act (LIFE Act) became law on December 21, INS and Department of State (DOS) have yet to issue any details or regulations about the new law implementation. INS is advising the public that it is moving as quickly as possible to develop application procedures for immigration benefits created by the LIFE Act, and has indicated it would inform the public as procedures are finalized. In the meantime, the widespread, but mistaken, belief that the new law is an amnesty has caused growing confusion and anxiety in immigrant communities.

The temporary reinstatement of Section 245(i) is one of the provisions of the LIFE Act.

Section 245(i) of the LIFE Act is not an amnesty for all persons unlawfully in the US. It benefits only those who are out of status and residing in the U.S. who have the requisite family or employer relationship, are otherwise eligible for an immigrant visa, and are barred currently from adjusting their status in this country. It allows such persons to adjust their status here rather than having to return to their home countries to acquire their visa, and there face the likelihood of the three and ten year bars.

To preserve eligibility to file for adjustment of status under Section 245(i), an individual must be the beneficiary of an immigrant visa petition or an application for labor certification filed by April 30, 2001. If the petition or application was filed after January 14, 1998, the beneficiary must demonstrate physical presence in the United States on December 21, 2000. Although the deadline for filing these applications is quickly approaching, INS has yet to indicate how it will interpret this new physical presence requirement.

The LIFE Act also creates a new nonimmigrant visa category, the "V" visa and expands the current "K" visa category. The new "V" visa is available only to the spouses and minor children of legal permanent residents who filed a family based petition before December 21, 2000, and have been waiting more than 3 years for the approval of the petition or an available visa. The new "K" visa will allow the spouses and minority children of U.S. citizens who are waiting outside of the U.S. for the approval of a visa petition to enter legally and obtain work authorization during the delay in their process. INS has said that it cannot process applications for these two visa categories until application and adjudication procedures are finalized. In its public advisory, INS has noted that it is consulting with the DOS and hopes to issue guidelines on these new visas by early spring.

Another aspect of the LIFE Act is the part of that law pertaining to late legalization applicants. The LIFE Act allows certain members of three specific class action lawsuits against the INS (CSS, LULAC and Zambrano) to apply directly for permanent residence under the slightly modified terms of the original 1986 legalization program. Eligible applicants will be required to submit an application for adjustment of status within one year of the date on which the Attorney General issues final regulations. The LIFE Act requires Attorney General to issue those regulations no later than March 21, 2001 (120 days after the law was enacted). However, the INS has not meet this deadline.

INS Premium Processing Fee

The FY 2001 Commerce, State, Justice (CSJ) appropriations bill authorized the INS to collect a "premium processing fee" of $1,000 on business immigration petitions in exchange for expedited service, by which a decision or a request for additional information is sent within a certain period. The INS in mid-January held a stakeholders’ "focus group" to discuss the agency’s implementation of this new fee. INS hopes to begin the program sometime between April 1 and June 30. The INS sold this fee to Congress as a means to address growing case backlogs. (Although provisions in the H-1B law also created a new account at INS into which Congress could provide appropriated funds for backlog reduction, no funds were actually allocated to the account for the current fiscal year.) INS officials met with representatives from AILA, employers, employer associations and individual attorneys to discuss the new program and employers’ expectations. (INS is planning to conduct separate meetings with community-based organizations.)