Relief for H-1B Holders – H-1B Seventh-Year Extensions for Pending Labor Certifications, Other Fixes in DOJ Reauthorization Bill

On October 3, 2002, the United States Senate passed the Department of Justice Authorization Bill, HR 2215. The bill, which had passed the House during the last week of September, is notable as the first DOJ reauthorization to be passed by both houses in more than 13 years. As of the date of the writing of this report, the bill is undergoing technical corrections though it is expected to be signed shortly by President Bush.

The Authorization Bill contains provisions Greenberg Traurig drafted and lobbied for that would apply "seventh-year extensions" to labor certifications that have been pending for more than one year prior to the end of the nonimmigrant worker’s sixth year in H status. This provision allows non-immigrants who have labor certification applications caught in lengthy agency backlogs to extend their H-1B status beyond the 6th year limitation, or if they have already exceeded such limitation, to have a new H-1B petition approved so they can apply for an H-1B visa to return from abroad or otherwise re-obtain H-1B status.  This is a necessary complement to the H-1B extension legislation that was passed in 2000 permitting extensions beyond the 6 year maximum for persons with pending permanent residence applications.

The bill will also expand the Conrad program for J-1 waivers of the two-year home country presence requirement from 20 to 30 waivers per state and extend the program for two years.

The bill contains provisions regarding citizenship, including extending the deadline to allow family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. in past wars; and authorizing a child’s grandparents or legal guardian to submit an application for naturalization on behalf of certain children eligible for naturalization, where the child’s parent died during the preceding five years.

Additionally, the bill addresses certain immigrant investor issues, including new procedures for removal of conditions on permanent resident status and Immigration Court review of denials of applications to remove conditions. Also included are provisions for the reopening of certain INS-revoked petitions so that investors may pursue previously filed adjustment of status or overseas immigrant visa applications. The bill provides for a new definition of "full-time employment" as being at least 35 hours of work per week, 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.

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