Congress Passes Measure to Apply AC21 to Pending Labor Certifications

Cite as "AILA InfoNet Doc. No. 02100440 (posted Oct. 4, 2002)"

The Senate on the evening of October 3 passed the Department of Justice Authorization bill that includes provisions that would: apply AC21 6+ year extension provisions to long-pending labor certifications; expand the Conrad J-1 program from 20 to 30 waivers per state and extend the program for two years; and address certain EB-5 issues.  Click on the "Related Links" section for details on these and other immigration provisions in this bill

Because the House passed the same measure, the bill has been sent to the President for his signature. He has 10 days to sign the bill.



Immigration Provisions on DOJ Authorization Bill:  Several immigration-related provisions are included in the Department of Justice Authorization bill that the House passed on September 26 and the Senate is expected to pass next week. If passed, the President is expected to sign the bill.  The immigration-related provisions include:

Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. (Sec. 11018):  Extends until 2004 the program authorizing visas for foreign medical graduates wishing to serve in the United States, and raises the number of visas available per State from 20 to 30. 

Posthumous Citizenship for Non-Citizen Veterans. (Section 11030):  Extends the deadline for allowing family members to apply for honorary posthumous citizenship for non-citizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications.  (Section 11030A):  Recognizing that lengthy processing times by the Department of Labor has precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000 (Pub.L. 106-313), this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the 6th year limitation.  As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed their status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died.  (Section 11030B):  Amends the Immigration and Nationality Act to authorize a child's grandparents or legal guardian to submit an application for Naturalization on behalf of the child under section 322 of the INA where the child's parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Removal of Conditional Basis of Permanent Resident Status for Certain Alien Entrepreneurs, Spouses, and Children.  (Section 11031):  This provision applies to investors who filed and had their Immigrant Petition by an Alien Entrepreneur (Form I-526) approved between January 1, 1995 and August 31, 1998, obtained conditional resident status and filed a Petition by Entrepreneur to Remove Conditions (Form I-829).  The section sets forth numerous new procedures for determining whether an eligible investor can have the conditions removed from his permanent resident status.  It also states that an investor whose conditional status is terminated by the INS may have that decision reviewed by an immigration judge.  The provision also provides that any alien who was admitted on a conditional basis as a child of an investor shall remain a "child" for purposes of this title.

Conditional Permanent Residence for Certain Alien Entrepreneurs, Spouses, and Children. (Section 11032):  This provision applies to individuals who filed an Immigrant Petition by an Alien Entrepreneur (Form I-526) that was approved by the INS between January 1, 1995 and August 31, 1998, and who timely filed an adjustment of status application or applied for an immigrant visa overseas, but who never became conditional residents because they remained overseas or because the INS never acted on their adjustment application.  The provision provides that if the INS revoked the Petition by an Alien Entrepreneur (Form I-526) on the ground that the investor failed to meet the capital investment requirement, that revocation is to be disregarded for purposes of this bill, and the adjustment or immigrant visa application overseas is to be treated as reopened.  Once the investors become conditional residences, they must file a Petition by Entrepreneur to Remove Conditions (Form I-829) within two years.

Definition of Full Time Employment for Investors (Section 11035):  This section defines full time employment for purposes of section 203(b)(5) of the INA as a position that requires at least 35 hours of work a week.

Eliminating Enterprise Establishment Requirement for Alien Entrepreneurs.  (Section 11036):  Eliminates the "establishment" requirement from section 203(b)(6) of the INA.  Investors must only show that they have invested in a commercial enterprise and do not have to show that they established one.  This section also eliminates the "establishment" requirement from section 216A of the INA for investors who have filed a Petition by Entrepreneur to Remove Conditions (Form I-829).  Investors must also show that they have sustained their investment actions over the two-year period.  The section also makes clear that the term "commercial enterprise" may include a limited partnership. 

Amendments to Pilot Immigration Program for Regional Centers to Promote Economic Growth.  (Section 11037):  Amends section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 to refine the description of an EB-5 regional center and clarify that the regional centers can promote increased export sales, improve regional productivity, job creation or increase domestic capital investment.  The section also indicates that the INS should approve applications for EB-5 regional center status where the application is based on a general prediction concerning the kinds of commercial enterprises that will receive capital from investors, the jobs that will be increased directly or indirectly as a result of the investment, and the positive economic impacts that will result from the investment.


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