To:       ALL DIPLOMATIC AND CONSULAR  POSTS - ROUTINE

Origin:   VO

From:     SECSTATE WASHDC (STATE 102000 - ROUTINE)

TAGS:     CVIS

Captions: VISAS

Subject:  OTHER NEW H-1(B) PROVISIONS

Ref:      (A)P.L. 106-313, (B)STATE 27960

_______________________________________________________________

1. SUMMARY: In addition to the changes mentioned in ref. B., Public Law 106-313 (The American Competitiveness in the 21ST Century Act of 2000) also provided for extension of authorized stay beyond the statutory limit of six years in H-1B status if:

(1) an H-1B alien is a prospective immigrant under INA 203(b) and

(2) the petition, labor certification, or the alien's application for adjustment of status has not been acted upon for 365 days or more.

That Act also adds two other new provisions to the INA to protect aliens seeking immigrant status from unwarranted penalties because of delays on the part of the INS in adjudicating applications.

2. Extension of permissible H-1B period of stay:

(a) Section 106(a) of P.L.106-313 (erroneously cited as 106-396 in reftel) waives the INA 214(g) six-year limit on stay for H-1B aliens as described in the summary.  Paragraph (b) provides for the extensions as H-lBs to be in one-year increments beyond the six-year limit until the final determination regarding the alien's permanent resident status is made.

(b) There are two points in particular to notice with respect to the provisions described above. One is the need for the delay to be at least one year (365 days).  The other is that the provision respecting the extension beyond six years relates solely to the length of stay permitted.  It does not automatically extend the validity of the petition underlying that status. Therefore:

(I) The labor certification, immigrant visa petition, or application for adjustment must have been filed before the end of 5 years after entry as an H-1B (at a port of entry or by change of status). Otherwise, the petition (which would have been extended only to six years) would have expired before the 365 days could run. Restated, if the alien's six-year period of stay expires before the end of the requisite 365 days, the alien does not benefit from this provision and is simply out of status.

(ii) Even if an alien does benefit from the time extension, there is no basis for issuance of a new H-1B visa at a consular post unless/until the prior petition has been extended or a new one approved. As in the case of H-1B portability (see reftel), a valid petition is a basic condition for issuance of a new H-1B visa, whether it is the original or a new petition. Therefore, no visa may be issued unless a valid H-1B petition exists.

3. Compensating for administrative delays:

(a) The new provisions added to the INA by Section 106(c) are:

(I) INA 204(j). Job Flexibility for Long Delayed Applicants for Adjustment of Status. This provides for a continuing validity of an initial approved petition, even if the alien has subsequently changed jobs if:

 (A) the alien has applied for adjustment of status based on the petition filed and approved to accord INA 203(b) status and the adjustment application has not been adjudicated within 180 days, and,

(B) the new job is in the same or a similar occupation to that for which that petition was approved. If these requirements are met, an I-140 filed by the new employer is not required.

(ii) An amendment to INA 212(a)(5)(A) (new clause (iv)) to accord an identical continuing labor certification validity under the same circumstances as those stated above with respect to petitions.

(b) Thus, consular officers could adjudicate an application for a visa without the necessity for a new I-140 if an alien benefitting from this provision were to apply for an immigrant visa at a consular office and:

(i) the job is in the same or a similar occupation as that for which the original petition was filed and approved; and

(ii) the application for adjustment had been pending the requisite time (180 days).

4. Consular officers may reasonably expect an applicant described in para 3(b) to have a copy of the INS Form I-797 showing the approval (and the filing date) of the petition on the basis of which the alien applied for adjustment of status. S/he might also be reasonably expected to have a receipt showing the date of his/her application for adjustment. It should therefore be fairly simple to establish the second criterion shown above. Careful interviewing with respect to the job for which originally hired and the current job should enable the consular officer to establish to his or her satisfaction whether the jobs are sufficiently alike. If post is unsure whether the provisions of INA 204(j) apply in a particular case, the post should submit an advisory opinion request to VO/L/A for guidance.

POWELL