INS General Counsel Update on Important Legal Issues
Posted Mar 05, 2000

We outline below a brief summary of recent issues of interest between the INS General Counsel and AILA's General Counsel :

a. H1B Count: INS commented that since the H-1B counting problems involve a number of INS offices, they are not able to provide us any information on this topic at the present time.

b. EB2 Definition: As many of you may be aware, INS changed its definition of EB 2 and EB 3 in 1998, causing much hardship to many applicants who had filed labor certifications based on the original INS position that a B.S. or equivalent and five years of experience in the field or a related field would allow EB 2 classification. At present, the INS requires the labor certification to state Masters Degree or equivalent to qualify for the EB 2 category. INS stated that the EB 2 Memo was more or less ready but they could not release it for a few weeks till it received approval. INS agrees with AILA's position on this issue. We will have to wait and see how this Memo will clear up issues for employment based clients who have been adversely affected by INS's change of position.

c. INS Raid in San Antonio: INS's General Counsel's office is conducting extensive internal reviews of the well publicized raid which has been mentioned in previous issues of the MurthyBulletin. The INS is reviewing the legality of the raid and the General Counsel's office expects to provide an update to AILA .

d. Unlawful Presence: As many Readers may be aware, INS rules provide that if a person who is legally in the U.S. applies for an extension or change of status, and the application is filed before the expiration date on his or her current status, then the person can legally remain in this country for 120 days past the expiration date while waiting for the INS decision. However, under existing INS interpretations, if such a person departs from the U.S. after the expiration date of the prior status but before the INS makes a decision on the extension or new status, he or she is then considered to have been unlawfully present in the U.S. for having stayed past the expiration date on Form I-94. In other words, the 120 day period does not protect persons who depart the U.S. while the application is pending. It now appears that the INS General Counsel has changed its opinion on this issue, having agreed in principle with AILA's position that departure should not have any negative effect on the person's status. INS expects to release a Memo on this issue in the near future.

e. H, L or E Status Extension and Advance Parole: INS General Counsel opined that a person can extend H or L or E status after entering the U.S. on an advance parole. However, the INS Adjudications Section (which makes the actual decisions on applications) apparently takes the position that, while H, L and E non-immigrants can resume employment under the prior non-immigrant status after returning as a parolee, the person cannot extend the prior non-immigrant status. INS General Counsel's office agreed to resolve any inconsistency within the INS.

The fact that the INS General Counsel has agreed to review the above issues is a very promising sign. Previous issues of the MurthyBulletin have mentioned many of these issues and the need for some resolution. We hope and trust that with the constructive relationship and professionalism between the INS legal team and AILA many such issues will be resolved.