INS Headquarters Discusses Various Issues with AILA in Oct 2000
Posted Nov 10, 2000

Recently the Immigration Services Division (ISD) at INS Headquarters provided the following procedural notes to representatives of the American Immigration Lawyers Association (AILA). AILA holds regular teleconferences with ISD, as well as the INS Service Centers, to discuss a variety of legal and procedural issues.

We include items below that may be of particular interest to MurthyBulletin readers:

a) I-140 requesting Substitution of a new beneficiary in an approved LC

In addition to the usual supporting documentation for the I-140, it is necessary to enclose a copy of the approved labor certification and a new original ETA 750B with information on the new beneficiary. The ETA 750B is the part of the labor certification form that describes the beneficiary's qualifications and experience.

b) Filing an H1B Petition with an uncertified LCA

In view of the technical glitches at the U.S. Department of Labor in the processing of LCAs (Labor Condition Applications) for H1Bs, INS confirms that it is acceptable to submit proof that an LCA was filed, as opposed to submitting a certified LCA, with an H1B petition. Proof of filing is generally considered to mean a copy of the LCA that was filed. It is also a good idea to include a fax confirmation sheet showing it was sent.

c) New Exemptions from H1B Training Fee

As previously reported in the MurthyBulletin, a companion bill to ACTA was signed into law on October 17, 2000, increasing the H1B training fee and also exempting more employers than before from the requirement to pay the training fee. The new training fee exemptions take effect immediately, even though the fee increase does not go into effect until December 17, 2000. The new fee exemptions are for primary and secondary educational institutions as well as for certain nonprofit entities that provide clinical training.

The I-129W form for claiming the fee exemption does not at this time include these two new exemptions. Therefore, ISD advised that the new exemption claimed should be written out in red marker on the I-129W form, below the exemptions that are listed. Use the actual language from the new law: "a primary or secondary education institution" or "a nonprofit entity related to or affiliated with an institution of higher education or a primary or secondary education institution which engages in established curriculum-related clinical training of students registered at such institution."

d) Informing Inspectors at Port of Entry of the New H1B Portability

Many employers, employees, and attorneys are concerned that a person who takes advantage of the new H1B portability provision of the new law ACTA may have a problem at the port of entry when returning from foreign travel. The typical situation would be as follows. An H1B worker who has a petition pending to change employers goes to work for the new employer prior to the approval of the petition. The H1B Beneficiary then travels abroad, and, upon returning, the H1B Beneficiary does not have a new H1B approval notice to show the INS inspector. (A person changing jobs does not necessarily need a new visa stamp; rather the person shows the latest H1B approval notice along with the old visa stamp and is admitted to work for the new employer.) If the H1B petition is still pending, then if asked where the person will work, s/he will have no proof of authorization to work there; at best the only documentation would be an INS receipt.

ISD agreed that INS Inspectors do need to be educated on this issue. They are providing a new memo to the field on this issue.

e) Further Questions on ACTA

Several other questions raised by AILA are now under consideration by ISD. Stay tuned for future updates from The Law Office of Sheela Murthy as more information becomes available.