INS Issues FAQ on the New Law (ACTA) in November 2000
Posted Dec 11, 2000
On November 21, 2000, the INS issued a list of frequently asked questions (FAQs) with their answers and their interpretations of the American Competitiveness in the Twenty-First Century Act (ACTA), the separate law increasing the H1B "training fees" and the provision in the visa waiver program extension regarding H1B amendments. The American Immigration Lawyers Association (AILA) subsequently made the FAQs, with INS responses, available to its members.
Most of the FAQs and their answers are consistent with interpretations we have discussed in various articles of the MurthyBulletin pertaining to ACTA's provisions. In this article, we point out significant lapses or issues that have not yet been addressed.
Surprisingly, the FAQs are completely silent where guidance is needed most: under what circumstances can a person change jobs after the adjustment of status (I-485) has been pending for 180 days or longer? With respect to what benefits ACTA provides for people going through the I-485 process, the INS response describes the changes in calculating the employment-based visa quotas, as well as the two provisions which can enable an extension of stay beyond the 6-year H1B limit. However, there is no mention of that hot item of discussion known as Section 106(c), the provision allowing a person to change jobs 180 days after filing the I-485, as long as the person works in the same job classification, without jeopardizing the Green Card process.
As we have mentioned in the MurthyBulletin in October, November and December of 2000, the INS is still in the process of deciding what its final interpretation of this provision will be. However, we would have expected them to at least address it and provide some guidance about their issues of concern. We are not sure whether this omission was intentional. The FAQs do mention another undecided item: whether or not the ability to extend the H1B beyond six years would also apply to H4 dependents. On that issue, the INS response indicates that the statute does not specifically mention dependents but they will provide further information in regulations. According to the INS, those regulations are now being developed. So although we do not have any definite guidance on the dependents' ability to extend their stay in the U.S. beyond the 6 years, at least INS has recognized that this issue is unclear, and has promised to address the matter in its regulations.
The FAQs contain a lot of useful information. The INS confirms in the FAQs that the H1B portability provision (Section 105 of ACTA) can be immediately used by one who meets the stated criteria: the person must be in legal status, and the petition must not be frivolous.
Interestingly, they do not specifically state that the person must now be in H1B status. As mentioned in a prior article in the MurthyBulletin about an AILA attorney teleconference, the language of the statute would appear to allow a person who has previously been on H1B, but now is in some other lawful status, such as F1, etc., to obtain the benefits of Section 105. The INS has not specifically confirmed this point; the FAQ is in general terms and does not address every detail. Of course, it is possible that the open issues will be discussed more directly in the forthcoming regulations. Because there are additional legal requirements associated with regulations that contain fee increases, the regulations might be subject to a more lengthy clearance process than usual, delaying issuance until March of 2001. The INS is looking into ways to expedite the process of issuing regulations on ACTA.
With respect to the processing time goals for nonimmigrant and immigrant applications under Title II of ACTA, the INS notes out that these processing times are not mandates. The INS also makes the important point that additional funding would be needed to meet these ambitious goals. Helpfully, the law does indicate the necessity for additional appropriations, but it does not guarantee that the U.S. Congress will pass a budget that includes this funding.
The U.S. Department of State (DOS) interpretation of ACTA in Nov. 2000 (see article below) is only an outline of the law in summary fashion, providing us no additional guidance. Traditionally, the DOS tends to defer to the INS on immigration-related provisions. We will continue to post important developments on interpretations by INS and other governmental agencies on ACTA in future issues of the MurthyBulletin, as and when we obtain the information. © The Law Office of Sheela Murthy, P.C.
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