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Employment-Based Issues Addressed in Q&A Session

June 2008
Employment-Based Issues Addressed in Q&A Session

By Subhani & Subhani

U.S. Citizenship and Immigration Services (USCIS) responded to questions posed by the American Immigration Lawyers Association's liaison committee and released information in April 2008 regarding a number of matters. These include consideration of a multi-year Employment Authorization Document (EAD) and Advance Parole (AP) for travel, as well as the use of Form I-102 to correct I-94 cards, and other employment-based matters. There was mention of a possible regulation for the American Competitiveness in the Twenty First Century (AC21) Act, which allows for approval of employment-based adjustment of status applications through an employment offer other than the one contained in the labor certification and I-140, provided certain requirements are met. AC21 also affects H1 employees, allowing for extensions of the H1 status beyond the six-year maximum.

The USCIS is considering extending the duration of Employment Authorization Documents (EADs) beyond one year for applicants affected by employment-based visa retrogression. The proposal is being considered as part of an effort toward issuance of a combination EAD/AP document. There was no timetable established for a decision on this matter. Readers who rely upon their EAD and AP documents for work and travel are urged to renew them in a timely fashion, about 120 days before the expiration date to be safe. It is not advisable to wait for any potential changes in the regulations or policy. Until definite regulations are issued on the matter, readers should proceed as though the rules will remain unchanged.

USCIS has clarified that Form I-102 should be used to replace lost I-94 cards, regardless of whether they were issued by the USCIS (with an extension or change of status) or by an inspector of the Customs and Border Protection (CBP) at a U.S. Port of Entry. The wording on Form I-102 is a bit confusing in this regard, since it is not appropriate for use when requesting a correction of an I-94 determination made by CBP. The I-102 can be used to correct mistakes made either by the applicant or the USCIS. The filing fee must accompany the form if the request for a correction is due to an applicant's mistake. Any submission based on an alleged error by the USCIS should be accompanied by supporting evidence showing fault on the part of the department.

It is subject to interpretation whether one who holds H-1 or L-1 status and who otherwise is maintaining that status can do so while also using an EAD to work in a part-time or other position. AILA outlined a number of arguments in support of allowing the EAD work while an individual also should be considered to be holding H1B or L-1 status. The USCIS is reviewing and considering this matter. We will update readers on USCIS’s response.

The liaison notes made brief reference to an AC21 regulation being under revision, with publication expected in the near future. AC21 became law in October 2000 and has been interpreted through a series of Legacy INS and USCIS memos, rather than regulations. There have been previous announcements of anticipated regulations on AC21, so it is unclear whether something is finally in the offing. We will provide details of any changes on AC21 as soon as they become available.


Family-Based Preferences

India Pakistan/Bangladesh

1st 15Mar02 15Mar02

2A 15Jul03 15Jul03

2B 01Aug99 01Aug99

3rd 08Jun00 08Jun00

4th 01Feb97 22Aug97

Employment-Based Preferences

India Pakistan/Bangladesh

1st Current Current

2nd 01Apr04 Current

3rd 01Nov01 01Mar06

Other 01Jan03 01Jan03

4th Current Current

5th Current Current

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