November 5, 2002

President Signs DOJ Appropriations Act Containing Several Immigration Provisions, Including Expansion of Eligibility Criteria for 7^th Year H-1B Extensions

On November 2, 2002, the President signed into law the "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). As GT previously reported on October 4, 2002, this law contains several immigration provisions including those that deal with extension of H-1B status beyond the six year limit, J-1 physician waivers, and EB-5 entrepreneurs.

One of the most significant provisions relates to the so-called "seventh year" H-1B extensions. The new law contains provisions GT drafted and lobbied for that would enable extensions beyond the ordinary six-year limit to H-1B holders with labor certifications that have been pending for more than one year prior to the end of their sixth year in H status. This provision is intended to benefit those in H-1B status who have labor certification applications caught in lengthy agency backlogs. Such individuals would be able to petition for and obtain extensions in one year increments, beyond the six year limit, while they complete their permanent residence process.

In addition, this applies even if the foreign national has since changed his or her status or left the country. In cases where the foreign national has already exceeded such limitation and has departed the U.S., employers may file a new H-1B petition on their behalf. In such a case the foreign national would need to apply for an H-1B visa at a U.S. consulate abroad prior to returning to the U.S. and commencing employment. However, if an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the ability to extend H-1B status ends.

Other immigration related provisions in the new law include:

• The "Conrad State 20" program for J-1 physician waivers has been extended until 2004. This program allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J-1 physicians who agree to work in medically underserved areas for a period of at least three years. The number of waivers available per state was also increased from 20 to 30, adding an additional 500 potential positions.
• Alien Entrepreneur Petitions:
  1. New definition of "full-time employment" as being at least 35 hours of work per week.
  2. Eliminates the "establishment" requirement so that an investor need show only that he or she has invested in a commercial enterprise, and need not have established one, and clarifies that "commercial enterprise" may include a limited partnership.
  3. Provisions on conditional permanent residence for certain alien entrepreneurs, spouses, and children filing a Petition by Entrepreneur to Remove Conditions (Form I-829) within two years of becoming conditional permanent residents.
  4. If the INS revoked the Petition by an Alien Entrepreneur (Form I-526) on the ground that the investor failed to meet the capital investment requirement, that revocation is disregarded for purposes and the adjustment or immigrant visa application overseas is reopened for adjudication.
  5. Revoked petitions meeting the following criteria are also considered reopened:
     • The petition was approved by the INS between January 1, 1995 and August 31, 1998;
     • An adjustment of status application or an immigrant visa application abroad was timely filed; and
     • The investor applicant never became conditional residents because they remained overseas or because the INS never acted on their adjustment application.
• Amendment to the Immigration and Nationality Act to authorize a child's grandparents or legal guardian to submit an application for naturalization on behalf of the child where the child's parent, who otherwise would be authorized to submit the petition, died during the preceding five years.