October 2004 AILA Conference Highlights
Posted Oct 22, 2004
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As reported by Law Office of Sheela Murthy attorneys who attended, we share with our MurthyDotCom and MurthyBulletin readers some highlights from the October 15, 2004 American Immigration Lawyers Association (AILA) conference. Some of this information has been touched upon in other articles and recent NewsFlashes [see Travel Possibly Limited for I-551 Stamp Holders, posted Oct 15, 2004, updated Oct 19, 2004, and I-551 Stamps Expected to Continue for Now also posted Oct 19, 2004], but the discussion of the information at the conference confirms the other announcements.
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DHS Officially Confirms Name, "USCIS"
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The Department of Homeland Security (DHS) released a notice effective October 13, 2004 informing the public that its immigration component shall be officially named U.S. Citizenship and Immigration Services (USCIS). We have covered this in a separate article [see  USCIS Now is the Official Name!]
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More H1Bs Available for FY2005?
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As regular MurthyDotCom and MurthyBulletin readers are aware, the H1B cap was reached on October 1, 2004 for the fiscal year (FY) 2005. At this time we have no definite confirmation that any new H1Bs will be available until October 1, 2005.
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AILA is working diligently to encourage the USCIS make the number of H1Bs that have been or will be revoked during this fiscal year available to H1B employers and prospective H1B beneficiaries. A confirmation as to the availability of such additional H1Bs is expected sometime later this month or by November 2004.
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Additionally, AILA is working towards H1B cap relief by pushing Congress to increase the number of H1Bs. At minimum, AILA is requesting that individuals who have earned at least a Master's degree, MD, or Ph.D. be exempt from the H1B numerical limitation.
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These are simply efforts to change the law but, as of today, the law on this matter remains unchanged. Any such future changes, if and when they occur, will be posted on MurthyDotCom and reported in the MurthyBulletin.
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H2B Cap is Close!
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It was reported that the H2B cap will likely be met for the 2005 fiscal year sometime in November 2004, just one month into the fiscal year. For those unfamiliar with this category, it is meant for temporary and seasonal nonagricultural workers. It is not related to the H1B cap and should not be confused with the H1B classification.
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H2B extensions of status do not count against the H2B cap and the USCIS will continue to process such extensions. In addition, any petitions to change the terms of an existing H2B worker's employment, or petitions for an existing H2B worker to change or add employers, are not counted against the H2B cap and will continue to be processed.
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I-551 Stamps
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At the conference, the DHS announced that they intended to begin as early as October 26, 2004 to gradually phase out I-551 stamps. The USCIS subsequently advised on October 19, 2004 that they are not going to phase out the stamps; at least not at this time. The I-551 stamps are temporary evidence of lawful permanent resident status. They are issued for use as proof of this status following approval of permanent residence status and are intended to be used prior to the time that the actual plastic "green" card is received in the mail. Anyone who has been checking MurthyDotCom will have seen the updates we have posted on this topic as it has evolved. As of this writing, the USCIS has not issued a written confirmation regarding their October 19, 2004 advisement. We will continue covering further developments on this issue for our MurthyDotCom and MurthyBulletin readers.
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AC21 Denials
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The USCIS Service Centers have often considered an individual whose I-140 petition has not yet been adjudicated to be ineligible to change employers under AC21 portability. There is a USCIS policy memo covering this issue on which we reported in our August 12, 2003 MurthyBulletin article, BCIS Memo on I-485 Portability after I-140 Revocation, available on MurthyDotCom. There are legal arguments contesting this analysis of the law and AC21 requirements. It is nonetheless important to keep in mind that the current interpretation of AC21 portability requires an approved I-140 petition and that the I-485 has been pending for at least 180 days before it is safe to change employers to another "same or similar" job in order to be eligible to enjoy AC21 portability.
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245(i) Denials
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AILA reports a recent spate of USCIS denials of certain adjustment of status filings in cases where the underlying filing establishing eligibility under Section 245(i) of the Immigration and Nationality Act (INA) has been denied. For those not familiar, Section 245(i) allows one to adjust status to permanent residence, if there is a proper legal basis for adjustment, even if the individual entered unlawfully or fell out of status. In order to qualify for Section 245(i) protection, one must have had either a family-based case or employment-based case filed before April 30, 2001, and s/he must have been physically present in the U.S. on Dec. 21, 2000.
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Such adjustment applicants remain eligible for the 245(i) relief even if they do not seek permanent resident status through the case filed on or before April 30, 2001. That is, the person could, for example, have a family-based filing that was filed in time for the April 30, 2001 deadline, but ultimately seek permanent resident status through a later-filed, employment-based green card case. This is permitted provided the case filed by the deadline was essentially bona fide when it was filed. Circumstances may have changed so that the deadline case could not be approved, but it is supposed to be enough if the case was originally filed in good faith. For instance, a person may have had a labor certification case filed by a company in time for the deadline. The labor certification case may have been a strong, approvable case. However, years later, when the case came up for review, the business may have closed. Thus, the labor certification would be denied, but the case was bona fide when it was filed and that fact should be sufficient to establish 245(i) eligibility. A similar scenario would be one in which a relative might have filed a case in time for the deadline, but not lived long enough for the case to be approved. The beneficiary is still eligible to use the 245(i) provision in connection with a later-filed green card case.
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Unfortunately, the USCIS appears to be denying later-filed cases based simply on the fact that the original 245(i) eligibility case was denied for technical or other reasons. Therefore, MurthyDotCom and MurthyBulletin readers should be cognizant of the fact that denials may occur in such situations.
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Special Registration
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Individuals subject to the NSEERS Special Registration are reminded that they are required to have exit interviews and notify USCIS of any change of address by filing Form AR-11. SEVIS students are not required to file AR-11s as they are able to update their information through the SEVIS system.
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We hope that these updates, gleaned from our attendance of the October 15, 2004 AILA Conference in Chicago, are helpful to our MurthyDotCom and MurthyBulletin readers.