"Sense" of INS on Key AC 21 Substantive Issues
As reported, the INS AC 21 Guidance memorandum of June 19, 2001 left many key substantive questions open for the enactment of AC 21 Regulation. It is unclear when this regulation will be released and in what format (proposed regulation vs. interim or final regulation.).
However, the AILA discussion with the INS leaders on March 21, 2001 gives some clues on the direction of upcoming AC 21 Regulation.
Readers are reminded that the discussions here are neither INS official opinion nor decisions. People should not rely on this posting to make any decision. The purpose of this posting is to figure out the "sense" of the INS leaders as to which direction they were heading. People may take this discussion purely as a guesswork. Until the regulation is released, all the discussion here remain 100% a guesswork.
180-Day Rule for 485 Waiters:
When 180 days should start to run remains a big unanswered question. The INS keeps a tight lip on this issue. The INS denies that it has decided not to apply it retroactively. This will remain a big unanswered question until the regulation is released.
Regarding change of employer for similar or identical occupation classification, the determination of "occupation" may rely on the DOL definitions of occupation classifications and one big question on whether it will limit to the same location may be answered in favor of the immigrants, according to the INS leadership. It means that the regulation may provide that change of location is within the parameter of the AC 21 legislation on this issue inasmuch as the nature and type of duties and responsibilities are same or similar.
Regarding corporate name change or restructure pending 485 application, the regulation may accomodate the business realities and incorporate such situations either within the context of AC 21 provision on change of employment or the current H-1B policy not requiring amended or new petition. Currently, the INS official position is that when the name of employer changes, employer needs to file amended or new I-140 petition. In this regards, the NSC has been taking a liberal approach as opposed to the hardline approach of VSC. Where there is a corporate structure change, the current policy also requires amended or new I-140 petition. However, it is likely that the regulation may follow the suit of H-1B policy, not requiring amended or new petition in the situation of change.
H-1B 7-Year Extension:
The question as to whether the INS will process extension "petition" (I-129H) has been answered by the AC 21 memorandum, answering to the DOS that a valid petition may be issued for the qualified H-1B professional so that DOS can issue an extended visa for travelling. However, there is still a lingering issue with the DOS as to when 365 should be reached. The DOS opines that at the time 365 days reaches, the alien\'s H-1B I-94 should remain valid and if the alien\'s 6-year limit has already reached by the time 365 day reaches, such alien may not be qualified for extension of a "visa." Accordingly, people with the 7th year extension should review their situation before they make a trip.
There is a question as to whether the 7th extension should also apply to H-4 family members. It appears that the regulation may answer positively on this issue.
H-1B Portability:
As announced in the AC 21 memorandum, the INS made it clear that the AC 21 regulation will take a liberal approach on the gap between the current job and the new job for jumpting upon filing of a new H-1B petition by a new employer. It will take a concept of "reasonable" interpretation approach, which is interpreted to encompass a 60-day out-of-job leniency. However, "reasonable" will incorporate requirement for "no-fault" of the alien. Alien who voluntarily jump for another employer to earn more money may face a problem of the scope of this upcoming policy.
People are reminded that the foregoing discussion is
As reported, the INS AC 21 Guidance memorandum of June 19, 2001 left many key substantive questions open for the enactment of AC 21 Regulation. It is unclear when this regulation will be released and in what format (proposed regulation vs. interim or final regulation.).
However, the AILA discussion with the INS leaders on March 21, 2001 gives some clues on the direction of upcoming AC 21 Regulation.
Readers are reminded that the discussions here are neither INS official opinion nor decisions. People should not rely on this posting to make any decision. The purpose of this posting is to figure out the "sense" of the INS leaders as to which direction they were heading. People may take this discussion purely as a guesswork. Until the regulation is released, all the discussion here remain 100% a guesswork.
180-Day Rule for 485 Waiters:
When 180 days should start to run remains a big unanswered question. The INS keeps a tight lip on this issue. The INS denies that it has decided not to apply it retroactively. This will remain a big unanswered question until the regulation is released.
Regarding change of employer for similar or identical occupation classification, the determination of "occupation" may rely on the DOL definitions of occupation classifications and one big question on whether it will limit to the same location may be answered in favor of the immigrants, according to the INS leadership. It means that the regulation may provide that change of location is within the parameter of the AC 21 legislation on this issue inasmuch as the nature and type of duties and responsibilities are same or similar.
Regarding corporate name change or restructure pending 485 application, the regulation may accomodate the business realities and incorporate such situations either within the context of AC 21 provision on change of employment or the current H-1B policy not requiring amended or new petition. Currently, the INS official position is that when the name of employer changes, employer needs to file amended or new I-140 petition. In this regards, the NSC has been taking a liberal approach as opposed to the hardline approach of VSC. Where there is a corporate structure change, the current policy also requires amended or new I-140 petition. However, it is likely that the regulation may follow the suit of H-1B policy, not requiring amended or new petition in the situation of change.
H-1B 7-Year Extension:
The question as to whether the INS will process extension "petition" (I-129H) has been answered by the AC 21 memorandum, answering to the DOS that a valid petition may be issued for the qualified H-1B professional so that DOS can issue an extended visa for travelling. However, there is still a lingering issue with the DOS as to when 365 should be reached. The DOS opines that at the time 365 days reaches, the alien\'s H-1B I-94 should remain valid and if the alien\'s 6-year limit has already reached by the time 365 day reaches, such alien may not be qualified for extension of a "visa." Accordingly, people with the 7th year extension should review their situation before they make a trip.
There is a question as to whether the 7th extension should also apply to H-4 family members. It appears that the regulation may answer positively on this issue.
H-1B Portability:
As announced in the AC 21 memorandum, the INS made it clear that the AC 21 regulation will take a liberal approach on the gap between the current job and the new job for jumpting upon filing of a new H-1B petition by a new employer. It will take a concept of "reasonable" interpretation approach, which is interpreted to encompass a 60-day out-of-job leniency. However, "reasonable" will incorporate requirement for "no-fault" of the alien. Alien who voluntarily jump for another employer to earn more money may face a problem of the scope of this upcoming policy.
People are reminded that the foregoing discussion is