Should I Rely on USCIS's AC21 Guidance?

Section 106(j) of the American Competitiveness in the Twenty First Century Act(AC21) states that where an I-485 application for adjustment of status has beenfiled and remained unadjudicated for 180 days or more, the I-485 will "remainvalid with respect to a new job if the individual changes jobs or employers if thenew job is in the same or a similar occupational classification as the job for whichthe petition was filed." The process of changing employers in this situation isknown as "porting."

AC21 was passed over five years ago and the Department of Homeland Securityhas not yet implemented any new regulations to interpret AC21. USCIS hasissued interpretive memoranda on AC21, but these memoranda are intended forinternal use by USCIS personnel only; they cannot be relied upon in a court oflaw. Therefore, an alien has no assurance that the interpretation of AC21 uponwhich he has relied, even if articulated by USCIS, will be the interpretation of theDepartment of Justice if the alien is placed in Removal Proceedings.*

One problem that arises in the application of AC21 section 106(j) is when an alienports to a new employer in a same or similar occupational classification and, as aresult, the I-140 petitioner withdraws the approved I-140 petition. The mostrecent USCIS memo on AC21, issued on May 12, 2005, states that where the I-140 petiti0ner withdraws the underlying petition after 180 days have passedfrom the date of I-485 filing, the approved I-140 petition remains valid withrespect to the new position. However, where the I-140 petitioner withdraws thepetition before 180 days have passed, the I-140 petition does not remain validand hence the I-485 adjustment of status application based upon it must bedenied. This interpretation comports with the language of AC21.

In spite of the wording of AC21 and the USCIS memo interpreting it, severalattorney-members of the American Immigration Lawyers Association arereporting that their clients have had I-485 adjustment of status applicationsdenied where: (1) the alien ported to a new employer in the same or a similaroccupational classification; (2) after their I-140 had been approved and aftertheir I-485 had been pending for over 180 days; and (3) the I-140 petitioner hadthen withdrawn the approved I-140 petition. These denials are based onwithdrawal of the underlying, approved I-140 petition. It appears that in thesecases, the alien applying for adjustment of status did not notify USCIS of thechange of employers. It is unclear whether, had they done so, it would have madea difference. It very well may have. While AC21 does not require an alien to notifyUSCIS that he has ported, USCIS Service Centers have stated to liaisons from theAmerican Immigration Lawyers Association that they prefer that I-485 applicantsprovide notification to USCIS when they invoke AC21 106(j) to port to newemployment. We therefore strongly recommend that our clients who wish to portto new employment during the pendancy of their adjustment applicants notifyUSCIS immediately upon doing so, and that they provide evidence that the newemployment is in the same or a similar occupational classification. It would alsobe best for our clients to consult with our office before invoking this provision ofAC21.

* See our article entitled "Recent BIA Decision Brings Into Question the Extent to WhichImmigrants Can Rely on AC21"

USCIS Reaches H-1B Exemption Cap for FY2007

The H-1B Visa Reform Act of 2004 amended the Immigration and NationalityAct to exempt from the H-1B cap any alien who "has earned a master’s or higherdegree from a United States institution of higher education ... until the number ofaliens who are exempted from such numerical limitation during such yearexceeds 20,000."

Last year, for FY2006, the H-1B cap was reached on August 10, 2005; and the20,000 H-1B numbers that were set aside for those with advanced U.S. degreesremained available for several months, until January 17, 2006.

This year (FY2007), the H-1B cap was reached on May 26, 2006 and USCISannounced recently that the Advanced Degree Exemption Cap of 20,000 hasalready been reached, on July 27, 2006.

Now that the 20,000 Advance Degree Exemption Cap has been reached, no newnon-cap exempt H-1B petitions can be submitted until April 1, 2007, and thencan only request a start date that is 1.) later than October 1, 2006, and 2.) nomore than six months later than the date of filing.

(Cap exempt petitions include the following: (1) Any H-1B nonimmigrant whowas already counted against the cap in the last six years will not be countedagainst the cap unless he would be eligible for a full 6 years of H-1B status at thetime the petition is filed. Where multiple petitions are approved for 1 alien, thealien shall be counted only once; (2) Any H-1B petition filed by an institution ofhigher education will not be counted against the cap; and (3) H-1B petitions filedby nonprofit research organizations or governmental research organizations arenot counted against the cap.)

Furthermore, USCIS headquarters has stated that there will be no "cap gap"legislation passed this year. Some years, Congress passes"cap gap" legislation toassist those students in F-1 or J-1 status who, upon graduating from college, wishto change status to H-1B but who would go out of status due to the unavailabilityof H-1B visa numbers.

USCIS to Expand Premium Processing to Some I-140 Petitions

The American Immigration Lawyers Association has confirmed with USCIS thatUSCIS plans to expand premium processing to "certain types" of I-140 petitions.Premium processing is an expedited adjudication procedure which allows thepetitioner or applicant to pay a $1,000 fee in addition to any required filing fees,and which guarantees adjduciation within 15 calendar days. Premium processingalso affords the attorney, applicant or petitioner direct telephone contact with anactual USCIS adjudicator rather than with a mindless drone available at USCIS'sgeneral 1-800 number.

It should be noted that the 15-day processing is only guaranteed so long as thereare not any delays caused by security clearances or other unforeseen difficultieswith the case. In the event that processing is delayed beyond 15 days, the $1,000premium procesing fee will be refunded.

Currently premium processing is available only for petitions filed on form I-129.

It has not been announced which types of I-140 petitions will be covered bypremium processing. The effective date is anticipated to be the end of August butthe exact date has not been set.

USCIS Local Offices Will No Longer Accept Employment Authorization Applications

USCIS issued a Public Notice on July 28, 2006 notifying customers that as ofOctober 1, 2006 local USCIS offices will no longer accept I-765 (employmentauthorization application) filings. All applications for Employment AuthorizationDocuments (EADs) will be processed at a central facility that is capable ofcreating EAD cards with security features.

Aliens entitled to interim EAD cards due to USCIS processing delays may still fileI-765 applications at local offices but the applications will be forwarded to thecentral EAD card processing facility and the applicant will receive the card bymail in approximately a week.

All applicants for renewal EAD cards should file the application approximately100 days in advance of the expiration date of the current card, to avoid a lapse inemployment authorization.

Real ID Act Amends the Terrorism Ground of Inadmissibility

Section 212(a)(3)(B) of the Immigration & Nationality Act makes inadmissible tothe United States any alien who has engaged in terrorist activity; who is likely toengage in terrorist activity after entry to the U.S.; who has incited terroristactivity with intent to cause death or serious bodily harm; who is a representativeof a terrorist organization or a group that endorses terrorist activity; who is amember of a terrorist organization; who endorses or persuades others to endorseor support a terrorist organization; who has received military-type training froma terrorist organization; or who is the spouse or child of such a person.

Section 212(a)(3)(B)(vi)(III) of the Act defines "terrorist organization" to includean organization that has been designated as such by the Department of State aswell as any group of "two or more individuals, whether organized or not, whichengages in, or has a subgroup which engages in..." certain activities.

The Real ID Act, Public Law 109-13 (H.R. 1268), has expanded the range ofactivities for which an organization meets the definition of a terroristorganization. Section 213(a)(3)(B)(iv) classifies as a terrorist organization anyorganization that commits an act that "the actor knows, or reasonably shouldknow, affords material support, including a safe house, transportation,communications, funds, transfer of funds or other material financial benefit, falsedocumentation or identification, weapons (including chemical, biological, orradiological weapons), explosives, or [terrorist] training."

Someone can thus be found inadmissible to the United States, and his or herspouse and children excluded as well, because he is a "member" of a group of twoor more individuals that offers "material support" to an organization which itselfengages in, or which has a subgroup that engages in, terrorist activities of whichthe alien "knew or should have known," regardless of whether the alien actuallyknew of those activities or not. According to section 212(a)(3)(B)(i)(VI) of theAct, such an alien can only overcome this by showing by "clear and convincingevidence" that he "did not know, and should not reasonably have known, that theorganization was a terrorist organization."

Startlingly absent from section 212(a)(3) is a definition of the term "member."The Act broadly defines what can constitute a "terrorist organization," broadlydefines what constitutes "material support" to such an organization, and thenfails to specify at all what constitutes membership in such an organization. Thisleaves the government with nearly unfettered discretion to deny aliens admissionto the United States on this ground.

In the 1952 U.S. Supreme Court decision Harisiades v. Shaughnessy, 342 U.S.580 (1952), the Court decided a combined case regarding the deportation of threealiens from the United States pursuant to the Alien Registration Act. The AlienRegistration Act, similarly to the current section 212(a)(3) of the Immigrationand Nationality Act, made aliens deportable, not for membership in a terroristorganization, but in the Communist Party at a time when the party advocatedgovernment overthrow by force or violence. The first alien challenging the lawwas a Greek national who had worked as an organizer for the Communist partyand had written for its newspaper, but had since ended his membership.Nevertheless he continued to associate with members and to agree withCommunist principles, although not with the use of force. The second alienchallenging the law was an Italian national who had been a member of theCommunist party for six years. He knew that the Communist party advocated aproletarian dictatorship, and that the use of violence was advocated, but he didnot personally believe in the use of violence and did not know exactly what theparty policy was. The third and final alien challenging the law was a Russiancitizen who had been a member of the party for about a year. Her activities withthe party were not significant and she never held office in the party. She claimedto have joined the party because of the injustice it was fighting, but knew verylittle of the party's principles.

The aliens attacked the law primarily on the ground that it deprived them ofliberty without due process of law. However, the court refused to grant reliefbecause,any policy toward aliens is vitally and intricately interwoven withcontemporaneous policies in regard to the conduct of foreign relations, the warpower, and the maintenance of a republican form of government. Such mattersare so exclusively entrusted to the political branches of government as to belargely immune from judicial inquiry or interference.

Harisiades, 342 U.S. at 588. The rationale is based on the concept of separationof powers between the three branches of the federal government. Immigration isconsidered a political question in which the executive and legislative brancheshave primary authority and in which the courts should exercise judicial restraint.Thus, the court upheld the Alien Registration Act as constitutional. Based on thisrationale, the court would likely find section 212(a)(3) of the current Immigrationand Nationality Act, as modified by the Real ID Act, constitutional as well, at leastas written.

US-VISIT To Be Extended To All Aliens Except For Canadian Visitors for Business or Pleasure

The Department of Homeland Security published a proposed rule in the FederalRegister on July 27, 2006 that would extend US-VISIT requirements to all aliensexcept for certain specially exempted aliens and Canadian citizens applying foradmission as B1/B2 visitors for business or pleasure.

The Federal Register Proposed Rule aptly describes US-VISIT as an "integrated,automated, biometric entry and exit system that records the arrival anddeparture of aliens; verifies the identities of aliens; and authenticates traveldocuments presented by such aliens through the comparison of biometricidentifiers. Aliens subject to US-VISIT may be required to provide fingerscans,photographs, or other biometric identifiers upon arrival at, or departure from,the United States." See 71 Fed. Reg. 42605 (July 27, 2006).

Once the proposed rule becomes final, US-VISIT will be expanded to apply tolawful permanent residents, aliens seeking admission on immigrant visas,refugees and asylees, aliens paroled into the United States, and Canadian citizensissued an I-94, including aliens in C, D, F, H, I, J, L, M, O, P, Q-1 and Q-3, R, S, T,and TN nonimmigrant statuses. Specifically exempt are Canadian citizensentering as B1/B2 visitors for business or pleasure.