The Immigration and Naturalization Service provided a great deal of information on a variety of issues in its recent meeting with liaisons from the American Immigration Lawyers Association. One of the most important matters discussed was the INS’ regulatory agenda for the coming year. In mid-1995, the INS proposed rules affecting the filing of National Interest Waivers. Those rules have been under review since then and the INS was expected to release the rules in the latter part of 1996. According to the INS, the final rule is still in the circulation process at INS headquarters and no release date has been mentioned. The INS noted that Form I-129, the form filed in connection with H-1B visas as well as several other non-immigrant classifications, is undergoing a major revision and the new form will be released sometime this year.
The INS commented on several H-1B issues. With respect to persons nearing the end of the maximum six year stay in H-1B classification who marry another H-1B visa holder with several years of eligibility remaining in H-1B status, the question of whether the spouse with the expiring visa can continue his or her stay in the US as an H-4 dependent was addressed. According to INS, the issue is now before the INS’ chief lawyer who is expected to issues a policy memorandum addressing the question. For now, the INS’ informal opinion is that the H-1B must return home and cannot change to H-4 status. The INS also addressed the question of whether a person can hold and H-1B visa concurrent with an E-2 visa. According to INS, the alien can have two visas in a passport, but may only hold one non-immigrant classification at a time. The INS also commented on the H-1B counting procedures that caused so many headaches last summer when the INS suspended the approval of H-1B cases after they mistakenly determined that the 65,000 limit had been reached. According to the INS, there computer system was counting amended petitions toward the cap which caused an overstatement of more than 11,000. The INS is working on a proposed rule which “will explain our current counting procedure to the public and solicit comments as to whether the procedure appears valid.”
The INS clarified other issues as well. For Indian nationals who were stung by retrogressing EB-2 and EB-3 priority dates last year, the INS has stated that if a priority date retrogresses after an I-485 adjustment of status is filed, the applicants are eligible to apply for employment authorization and advance parole.
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