In 77 Interpreter Releases 996 (July 24, 2000), we reported on an Executive Office for Immigration Review (EOIR) proposed rule that would create a uniform procedure for applying the law enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the proposed rule, which announced an interpretive change regarding eligibility for INA 212(c) relief, certain aliens in deportation proceedings that began before April 24, 1996, the date of the AEDPA's enactment, may apply for relief pursuant to 212(c). The proposed rule was published in 65 Fed. Reg. 44476-81 (July 18, 2000), and the original comment deadline was August 17, 2000. The EOIR announced on October 11 that, in response to requests from the public, and to ensure that the public has ample opportunity fully to review and comment on the proposed rule, it reopened the comment period for an additional week, through October 18. The announcement was published in 65 Fed. Reg. 60384 (Oct. 11, 2000). Written comments on the proposed rule, including the original and two copies, should be sent by October 18 to: Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041; phone: (703) 305-0470.

To the relief of the high-tech industry, Congress this week approved legislation that would temporarily boost the number of available H-1B visas through fiscal year (FY) 2003. The Senate, as expected, approved the American Competitiveness in the 21st Century Act (S. 2045) on October 3, 2000, by a vote of 96-1. In a surprise move, however, the House followed later the same day, approving the Senate bill by a voice vote, under suspension of the rules. Because both chambers approved identical legislation, the bill moved to President Clinton without the need for a conference. While the White House did express concerns about the measure as passed, it was expected that the President would nonetheless sign the bill.

The U.S. House of Representatives' Subcommittee on Immigration and Claims took the unusual step on October 5, 2000, of issuing a subpoena to Attorney General Janet Reno mandating the production of a U.S. Immigration and Naturalization Service (INS) report on the number of "illegal immigrants" (undocumented aliens) currently in the U.S., along with all supporting documentation. The action was taken after the INS failed to meet a promised September 28, 2000, deadline for delivery of the report to the subcommittee, Subcommittee Chairman Lamar Smith (R-Tex.) said.

Last week, we announced that the U.S. Immigration and Naturalization Service (INS) has launched a new telephone information line to assist battered aliens seeking to self-petition for permanent resident status. The area code for the number is 802, not 800 as we reported previously. (The number is 802-527-4888). to assist battered aliens seeking to self-petition for permanent resident status. The VAWA (Violence Against Women Act) Information Line provides recorded information about the application filing process, as well as updates on self-petitioning issues, for applicants, attorneys, service providers, and others assisting battered aliens. Individual applicants will not have their calls returned, however, according to the National Immigration Project of the National Lawyers Guild (NIPNLG), which is contrary to what the INS had announced and we had reported previously. The NIPNLG runs a listserve for practitioners handling VAWA cases. To join VAWA Updates, contact Juanita Zerda at the NIPNLG office: nipjuanita@nlg.org

The State Department announced on August 14, 2000, that the United Nations Security Council has unanimously adopted a U.S.-initiated resolution to establish a special court to try those accused of war crimes and other serious human rights violations in Sierra Leone.

The U.S. House of Representatives and Senate have both passed the much-discussed H-1B high-tech worker bill, and President Clinton is expected to sign it. The U.S. Immigration and Naturalization Service (INS) will now be able to issue up to 195,000 H-1B visas per year for each of the next three years; the existing limit is 115,000. The Latino Immigration Fairness Act was not included; Vice President Al Gore issued a statement saying he was "disappointed," and he called on Congress to pass it before adjourning. In other last-minute developments, the Senate was also expected to sign off on a bill that would make the Visa Waiver Pilot Program (VWPP) permanent.

At the last minute, President Clinton has sent a memorandum to Attorney General Janet Reno directing her to implement deferred enforced departure (DED) for eligible Liberians for another year, beginning September 29, 2000. The memo also directs the Attorney General to implement work authorization for one year from the same date.

The U.S. Department of Labor's (DOL)'s Employment and Training Administration (ETA) is in the process of reengineering the permanent alien labor certification program with the goals of streamlining the process while saving resources and improving the overall effectiveness of the program. A notice recently published in the Federal Register sets forth the general principles by which the ETA intends to be guided in its development of proposed regulations to implement the redesign.

The U.S. Department of Labor's Employment and Training Administration (ETA), in concurrence with the Department's Employment Standards Administration (ESA), recently issued an interim final rule detailing the attestation process for facilities temporarily employing H-1C nonimmigrant aliens as registered nurses.

Dr. Mazen Al Najjar, the Palestinian who recently entered his fourth year of U.S. Immigration and Naturalization Service (INS) detention on the basis of undisclosed classified evidence, moved one step closer to possible release from custody on August 14, 2000, when the U.S. District Court for the Southern District of Florida denied the government's motion to stay proceedings pending an appeal.

The U.S. Justice Department's Office of the Inspector General (OIG) has released the results of a three-year investigation into "Citizenship USA," the U.S. Immigration and Naturalization Service's (INS's) controversial initiative to reduce the backlog of naturalization applications. The report, which responds to concerns about the integrity of the naturalization process, finds that the 1996 initiative was flawed, but not for political reasons as had been alleged. Although the INS did not have a political motivation for accelerating application processing, the OIG found, the agency engaged in a "certain recklessness" in speeding up the process in the face of known weaknesses in the existing system. The investigation, according to the report, became the largest of its kind ever undertaken by the OIG.

The U.S. District Court for the Western District of Texas on June 7, 2000, granted the suppression motion of a defendant accused of assisting the entry of illegal aliens along the southwest border, after concluding that the anonymous tip leading to the investigative stop of the defendant's vehicle and the discovery of two undocumented aliens lacked corroboration.

In a recent oral decision, Matter of S-W-,an Immigration Judge (IJ) granted asylum in the U.S. to an applicant based on her claim that she was persecuted by the Taliban in Afghanistan, solely because she is a woman.

The U.S. State Department's Visa Office has released the immigrant visa numbers for September 2000. Readers may recall that the fiscal year (FY) 2000 annual numerical limit for visa numbers was recently increased by over 68,500 numbers. As a result, the State Department noted, cut-off date movement in several immigrant categories for August and September has been greater than might ordinarily be expected. The Department said that the demand being generated by these movements may require the retrogression of some family preference cut-off dates during FY 2001 so that allocations will stay within annual numerical limits, but the Department warned that it is not possible to say whether or when this would occur. Also, on or after October 1, 2000, qualifying "SR" religious workers cannot immigrate under the current provision, which expires September 30, the Department said, adding that the special immigrant classification for ministers of religion is permanent, however, and will not be affected by the expiration of the provisions for other religious workers. The Department noted that legislation is under consideration to extend the SR category expiration date or to make the category permanent.

An undocumented worker whose former employer reported her status to the U.S. Immigration and Naturalization Service (INS) within days of a hearing on the worker's state wage claims was entitled to summary judgment on her retaliation claim against the former employer under the federal Fair Labor Standards Act (FLSA), the U.S. District Court for the Northern District of California ruled June 20, 2000 in Contreras v. Corinthian Vigor Insurance Brokerage Inc. A hearing is scheduled for September 7 to establish damages.

In a highly significant and much anticipated decision, the U.S. Court of Appeals for the Ninth Circuit reversed the determination of the Board of Immigration Appeals (BIA) in Matter of Roldan, Int. Dec. 3377 (BIA 1999), to rule that two aliens, whose petitions involved first-time drug offenses for simple possession that had been expunged under state law, could not be deported on account of those offenses. Lujan-Armendariz v. INS, Nos. 96-70431, 99-70359, INS. Nos. A29-554-987, A90-286-629, 2000 WL 1051858 (9th Cir. Aug. 1, 2000). The court did not, however, address the issue of the immigration effect of expungements or other rehabilitative relief in cases involving other types of offenses.

The State Department recently published a notice in the Federal Register announcing mail-in registration procedures for the diversity immigrant visa program for fiscal year (FY) 2002 (DV-2002). Successful applicants will have the opportunity to apply for one of up to 55,000 permanent resident immigrant visas to be made available during FY 2002, as authorized by INA § 203(c)(1). Entries for the program must be received at the new Kentucky Consular Center between noon (Eastern Time) on Monday, October 2, 2000 and noon (Eastern Time) on Wednesday, November 1, 2000. Entries received before or after these dates will be disqualified from consideration regardless of when they were postmarked.

The Executive Office for Immigration Review (EOIR) has sent notices to aliens in the U.S. who were granted conditional asylum status between October 1, 1998 and March 18, 1999, based on their persecution or fear of persecution related to coercive population control in their countries of origin. The notices have informed those aliens that they are now fully eligible for all asylum benefits. Asylum based on coercive population control is limited to 1,000 applicants per fiscal year (FY).

The Department of Labor (DOL)'s Employment and Training Administration (ETA) has issued a long-awaited proposed rule that would allow employers to convert certain pending "traditional" labor certification applications into expedited "reduction in recruitment"-type cases while preserving the original priority date. The proposal is geared toward reducing the backlog of labor certification applications for permanent employment at the state employment security agencies (SESAs).

On March 24, 2000, we reported that the Immigration and Naturalization Service (INS) had announced that the fiscal year (FY) 2000 limit of 115,000 H-1B approvals likely had been reached. Specifically, the notice announced that the Service would stop accepting new H-1B petitions for this fiscal year, because there were enough cases pending in the pipeline to reach the 115,000 cap. The notice explained that the INS would continue to process the pending petitions until it had recorded 115,000 approvals, and set forth procedures that the Service Centers would follow to ensure that petitions would be processed in the order of their receipt, regardless of the place of filing. The INS has now announced that as of July 20, the agency had approved the total number of petitions available for FY 2000, and that only cases filed March 17 or earlier would have been included in the adjudications for this fiscal year.

The U.S. Department of Justice's Executive Office for Immigration Review (EOIR) has issued a proposed rule that would create a uniform procedure for applying the law enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under this proposed rule, which announces an interpretive change regarding eligibility for INA [Immigration and Nationality Act] section 212(c) relief, certain aliens in deportation proceedings that began before April 24, 1996, the date of the AEDPA's enactment, may apply for relief pursuant to 212(c).

The U.S. House of Representatives on July 11, 2000 passed a bill (H.R. 4681) providing for the expedited adjustment of status of certain Syrian Jews who entered the U.S. on nonimmigrant tourist visas in the early 1990s pursuant to an agreement between the two countries, and were then granted asylum.

The U.S. State Department has released the immigrant visa preference numbers for August 2000. Last month, the Department had predicted that it might become necessary to retrogress visa cut-off dates in several of the family-sponsored preference categories, but instead, the Department has raised the total annual limit for family-sponsored numbers, and has advanced numbers in many categories, in response to an unexpected change in the figures provided by the U.S. Immigration and Naturalization Service (INS) upon which the Department bases its visa allocations. The Department warned, however, that the demand being generated may require retrogression in early fiscal year (FY) 2001.

As the Visa Waiver Pilot Program (VWPP) expired on April 30, 2000, the INS has reportedly developed parole procedures to allow VWPP travelers to continue to enter the U.S. without visas. The procedures are scheduled to end on June 29, 2000. The State Dept. is working with Congress to either extend the VWPP or make it permanent.

The State Department said that the application period for the DV-2002 diversity visa lottery will begin in October 2000. The State Department hopes to release the official instructions in August. Also, the State Department has announced that it plans to move the lottery program from the National Visa Center in Portsmouth, New Hampshire, to a new facility in Williamsburg, Kentucky, to be named the Kentucky Consular Center. The new facility will be open in time to begin processing applications in the fall for the next diversity lottery. Find out more>>>

The U.S. House of Representatives, on May 9, 2000, approved legislation that seeks to halt the illegal trafficking of persons across international borders. Among other things, the bill would establish a new nonimmigrant "T" visa for certain victims of "severe trafficking" who agree to assist law enforcement authorities in the investigation or prosecution of such trafficking, and who would face "a significant possibility of retribution or other hardship" if removed from the U.S. After three years in the new "T" status, such aliens would be eligible to adjust to permanent resident status as long as they had maintained good moral character throughout their nonimmigrant stay. Up to 5,000 of these visas would be available per year. The legislation now moves to the Senate for consideration.

In last week's Release, we reported on the U.S. House of Representatives Judiciary Committee's mark-up of a controversial measure (H.R. 4227) that would temporarily eliminate the cap on H-1B visas while putting in place restrictive measures aimed at preventing the displacement of U.S. workers by their H-1B counterparts. As we reported, the committee was unable to complete the mark-up process due to lack of a quorum for a final vote. The committee subsequently reconvened on May 17 and, without further amendment, approved the legislation by a vote of 18 to 11. As we also indicated last week, while passage of an H-1B bill in the near future is a virtual given, the outlook for H.R. 4227 nonetheless remains uncertain.

The U.S. Immigration and Naturalization Service (INS) has announced that it is extending the temporary protected status (TPS) designation for Honduras, until July 5, 2001, and for Nicaragua, also until July 5, 2001. The extension of TPS for Hondurans and Nicaraguans is effective July 6, 2000, and will remain in effect until July 5, 2001. The 30-day re-registration period for nationals of both countries began May 11, 2000, and will remain in effect until June 12, 2000. The extensions were granted because conditions in Honduras and Nicaragua remain substantially disrupted following the devastating Hurricane Mitch

The Visa Waiver Pilot Program (VWPP) expired on April 30, 2000, as the U.S. Congress failed to act on several pending bills that would terminate the program's pilot status and make it a permanent feature of immigration law. The VWPP waives the nonimmigrant visa requirement for the admission of certain aliens into the U.S. for a period not to exceed 90 days. There are 29 countries participating in the program. The U.S. Immigration and Naturalization Service (INS) expects that Congress will renew the program in the near future, and therefore has established interim procedures through May 30. Should Congress fail to act within that time, the INS will revisit the issue.

In an important case on the issue of ethnic profiling, the U.S. Court of Appeals for the Ninth Circuit found that Border Patrol agents may not justify a stop on the basis of a person's ethnic appearance. United States v. Montero-Camargo. The court explained: "Stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone. Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection - that they are in effect presumed to be potential criminals first and individuals second." The en banc court underscored that it was not deciding a broad constitutional question here, but rather simply addressing "the narrow question of how to square the Fourth Amendment's requirement of individualized reasonable suspicion with the fact that the majority of the people who pass through the checkpoint in question are Hispanic."