Important New Legislation Pending
Posted Oct 04, 2002

The Department of Justice Authorization Bill, which passed the House of Representatives on September 26, 2002, contained a number of very important immigration provisions. At this point, this bill is not law. In order for the bill to become law, it will need to pass the Senate and gain the President's signature, which is expected in this case. [See our August 02, 2002 article, The Legislative Process : How a Bill Becomes a Law, available on MurthyDotCom.]

Conrad State 20

The provisions of the bill will extend the Conrad State 20 program, which provides a method for J-1 physicians to obtain a waiver of the two-year foreign residency requirement based on practice in a medically underserved area. The bill would extend the program until 2004 and would raise the number of allowed positions from 20 to 30 per state.

H1B "Seventh-Year" Extensions

The bill would expand the provision allowing for the extension of the H1B status beyond the six-year limit by one-year increments so that a person can qualify, even if just the Application for Labor Certification that has been pending at least one year and the I-140 has not yet been filed. This would be a very favorable change to the current AC21 law, which allows for such extensions only if the Application for Labor Certification was filed at least one year prior to the request and an I-140 has also been filed. The I-140 cannot be filed until the Application for Labor Certification has been approved. So the lengthy adjudication times for labor certification cases are quite problematic.

Citizenship

The bill would allow for the grant of U.S. Citizenship posthumously (after death) for non-citizen veterans who die while honorably serving the U.S. Such grants of citizenship are honorary and do not confer immigration benefits upon other family members.

Investors

The bill changes the manner in which eligible investors obtain removal of the conditions on their permanent residence. The changes would apply to individuals who filed Form I-526, Immigrant Petition by Alien Entrepreneur, and were approved between January 1, 1995 and August 31, 1998. If such a person had his/her conditional residence terminated by the INS, s/he would have the opportunity for review of the decision by an immigration judge. The provisions extend to spouses and children of the entrepreneurs, as well.

Another provision applies to those entrepreneurs approved between January 1, 1995 and August 31, 1998 who filed an adjustment of status or applied for consular processing, but who never became conditional residents because they stayed outside of the U.S. or the INS never acted on their applications. For these individuals, if the INS revoked the I-526 approval for failure to meet the capital investment requirement, the revocation is to be disregarded. The cases will be treated as reopened. The investors will then become conditional residents and will have to apply to remove the conditions within two years.

The bill contains definitional changes that apply to investors. The definition of a full-time employment position will be changed to 35 hours a week. Investors will no longer have to show that they established a commercial enterprise. It will be sufficient to show that they invested in one. They will have to show that they sustained the investment actions for the applicable two-year period in order to remove the conditions on residence.

MurthyBulletin and MurthyDotCom will continue to follow this legislation as it progresses. Again, it should be emphasized that the bill is not yet the law, although it is expected to pass. Changes could be made along the way, so it may not pass in its current form.