Lawyer Says that HR 2215 is "pretty cool"

Date: Thursday, November 21, 2002 4:22 PM

H-1B and JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

So why do immigration attorneys like Latour think that HR 2215 is "pretty
cool"? The reason is that if an H-1B visa isn't reviewed within 365 days of
their visa expiration, they get an automatic one year extension. Since there
is no limit to the number of extensions granted the H-1B could continue to
work in the USA for an indefinite period of time.

This new law could cause the INS to be flooded with extension requests. The
huge load of new work could prevent them from processing the extension
requests within 365 days, and therefore allowing the H-1B to have an
automatic extension.

Family visas are a good example of how bad things can get. The INS is 7
years backlogged on family visas and those will probably always get a much
higher priority than H-1B extension requests. HR 2215 could potentially
flood the INS with extension requests and that could gridlock the system
unless far more manpower and resources are allocated. Since the law doesn't
mandate that more money be used for enforcement we can't assume that the
money will be there as needed.

Lawyers are very clever at exploiting weaknesses in the system and I have no
doubt Latour will be happy to do that for a fee.

http://www.usvisanews.com/memo1910.html

HR-2215 And What It Means For Our H-1B Clients

By Jose Latour Monday, November 11, 2002

- Jose Latour's Port of Entry Daily Column -

You probably haven't heard about this because it has not exactly been the
hot topic of choice on the major media, but on November 2, 2002, President
Bush signed into law the "21st Century Department of Justice Appropriations
Authorization Act." Today and tomorrow I'm going to tell you guys about the
most important two aspects of this law. I will not, however, be addressing
the third immigration-related aspect of HR-2215 in a specific article, so
let me touch upon that in a really quick paragraph:

Under HR 2215, J-1 physician waivers have been extended until the year 2004
for those beneficiaries under the so-called "Conrad State 20" program, which
permits states to request waivers of the two-year residence requirement for
J-1 physicians who agree to work medically in under-served areas for a
period of at least three years; it further increases the number of visas
available per state from 20 to 30. Because we do not have any clients
currently under representation within this particular category, I won't
waste any more of our readers' time on the subject.

Okay, let's hunker down on the H-1B issue. I'm sure that President Bush
spent many lengthy hours studiously analyzing the provisions relevant to the
H-1B changes of HR-2215 (which, by the way, may already have an official
public law number by the time you read this, but I haven't seen it.) NOT!
Seriously, although I'm sure our Chief Executive barely had a clue what he
was signing, he was dispensing fundamental justice in signing it, and for
that we should all be grateful.

What the new law does is essentially this: the provision extends the
time-in-class permissible for H-1B workers who are in the United States and
who are being subjected to extraordinarily long adjudications. Anybody out
there know what I'm talking about? (-: The purpose is to allow folks who
have a labor certification stuck in the mud to allow them to extend their
status beyond the ordinary six-year limit. Under the rule, as long as one
calendar year - 365 days - have elapsed since the time of the original
filing of the labor certification or an immigrant visa petition (the timing
start date is determined by the appropriate category under which the person
is being solicited), H-1B status can be extended accordingly in one-year
increments. Pretty cool eh?

The rule applies, amazingly, even in cases where the individual in question
has changed his or her non-immigrant status or even left the United States.
However, if the application for the labor certification, adjustment of
status, or the immigrant visa petition is denied, at that point the H- 1B
extension (that is, the underlying H-1B status) effectively terminates at
that same point.

When you look at the fundamental fairness and humanitarian aspect of this
provision, we should all breathe a colossal, collective sigh of relief as to
the implications. If this were the early- to mid-90s, I honestly can tell
you that I would be cringing in fear that despite the generous language
given to us by Congress and the President, we should be bracing ourselves
for a virtual regulatory emasculation at the hands of INS rule-makers by the
time the regulatory drafting is complete. I am glad to say, however, that
the past few years have been significantly different in that regard. The INS
has, in recent years, adhered to generally fair principals in defining the
minutiae necessary to implement congressional and presidential intent, and I
am very optimistic that such will be the case in this particular situation.

Congress, Mr. President: on behalf of the tens of thousands of deserving
families who have needlessly suffered separation because of bureaucratic
delays beyond their control, we thank you from the bottom of our hearts.
INS, please keep the spirit of this new law intact in drafting the necessary
rules.

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