Publications

June 2005

IMMIGRATION BIPARTISAN REFORM BILL: H-5B

Immigration Reform has been introduced by Senators McCain, and Kennedy, both leaders of their parties as well as Representatives in the House in the second week of May 2005. This Secure America and Orderly Immigration Act would transform our chaotic and failed immigration system into a fair, equal and orderly one. Instead of treating aliens as potential terrorists, this bill would allow undocumented aliens to receive work authorization for six years by paying a $2,000.00 penalty. After four years of lawful presence, these undocumented workers would be entitled to apply and obtain permanent residence. Workers from abroad would also have the right to apply after paying $500.00 to file but they would need a job offer.

H-1B ADDITIONAL NUMBERS AUTHORIZED ON MAY 12, 2005

The United States Citizenship and Immigration Services (USCIS) has reopen the filing period for fiscal year 2005 on Thursday, May 12, 2005, granting an additional 20,000 visas for aliens who have received a master’s degree or higher from a U.S. university. To avoid a double fee, the USCIS will first issue up to 20,000 visas for fiscal year 2005 and any that are left over will be issued for fiscal year 2006. For future years, the first 20,000 H-1B petitions with U.S. master’s degrees or higher will be exempt from the H-1B numerical caps.

ADJUSTMENT OF STATUS UNDER THE LIFE ACT (SECTION 245(i), RIGHTS CONFERRED)

Section 245(i) of the Immigration and Nationality Act (INA) allows an alien to adjust status upon the payment of a $1,000.00 fine despite that the alien had entered without inspection or overstayed. To qualify, the alien’s application must have been approvable when filed, that is, an alien relative petition or labor certification had to have been filed between January 15, 1998 and April 30, 2001, and the alien was present in the U.S. on December 21, 2000.

To be approvable when filed, a labor certification would have had to be approvable at the time of filing, namely the application was meritorious, non-frivolous and properly filed.

If an alien, qualified for 245(i), has a sponsor who goes bankrupt or dies, an alien may reapply through a substituting employer; or if a parent petitioner were to die, the alien applicant may substitute the surviving parent or a person or company for a labor certification. In each of these examples, the 245(i) original qualification subsists, although a new visa approval is required. An eligible alien who were to win the lottery might even substitute the lottery eligibility for a not yet current or approved alien relative petition or labor certification.

Spouses and children of the alien have the right to adjust status provided the relationship existed prior to April 30, 2001, even if the child becomes 21, or the spouse divorces. A spouse married after April 30, 2001or a child born after April 30, 2001 may not qualify under Section 245(i) but would only qualify as dependents of the principal alien.

REMOVAL OF CONDITIONAL RESIDENCE FOR ALIENS MARRIED TO U.S. CITIZENS

The USCIS has been denying applications for the removal of conditional residence for applicants who have separated from their spouses. This practice on the part of the USCIS is legally unacceptable because a removal of the conditional status may still be approved if the alien spouse can prove the good faith of the marriage up to the time of separation and the alien spouse obtains a divorce, and applies for the removal based on his/her own application and not as a joint petition. A separation may occur because of the loss of a job or change of job requirements wherein the citizen or resident spouse is not able to move; still the marriage may be in good faith, justifying a good faith joint petition, notwithstanding the separation.

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New York Immigration Lawyers > Immigration Publications > May 2005