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Immigration FAQ
H-1B Processing
In the aftermath of the speedy and complete
exhaustion of FY2008 H-1B numbers, USCIS has clarified some
issues:
•The premium processing clock for H-1B petitions will
begin ticking only after the random selection process is complete.
However, before that lottery can occur the agency must open
133,000 pieces of mail containing one or more H-1B petitions
and sort the contents. This is likely to add “several
weeks” to the fifteen day processing period guaranteed
by USCIS, according to the agency’s April 3 press release.
•USCIS will also not know how many of the 20,000 cap-exempt
H-1B numbers (for aliens with U.S. masters’ or higher
degrees) remain until after the mail is opened and sorted.
The determination and announcement of a final receipt date
for these petitions must therefore wait.
•Not affected are cap-exempt petitions filed by non-profits
and educational institutions, and filings on behalf of current
H-1B workers. USCIS will continue to process extensions and
changes as usual; however, the agency has issued no information
on whether the volume of new petitions will slow handling
of these matters.
STRIVE Act Aims to Reduce Visa Backlogs, Give Undocumented
Legal Status
The Security Through a Regularized Immigration and Vibrant
Economy, or STRIVE, Act of 2007, was introduced into the House
March 23. The name nicely summarizes the issues concerning
the bipartisan group of legislators sponsoring the bill; thus
the Act addresses -- under separate titles -- border security,
interior enforcement of immigration law, worker shortages,
employment verification, reform of the visa system and earned
citizenship.
Certain to be welcome to immigrant petitioners in all categories
is the first subtitle in the visa reform section: “Backlog
Reduction.” STRIVE would provide for visa availability
sufficient to eliminate or sharply reduce backlogs and waiting
times in all family- and employment-based categories through
a judicious combination of quota exemptions and increases,
“recapture “of unused visa numbers, and redistribution
of visa numbers gained.
In family-based immigration, immediate relatives of U.S.
citizens would no longer count against the annual quota. The
resulting 480,000 visa numbers would go to the remaining categories.
Recapture would provide additional visa numbers.
In employment-based immigration, STRIVE would double the
number of visas available, and, as with the family-based categories,
recapture unused visa numbers from previous years. Spouses
and children of employment-based immigrants, and a list of
selected professionals, would no longer count against the
numerical cap; the immediate relative exemption would be retroactive
to October 1, 2004. A special benefit for residents of countries
with a large population would be the provision raising the
per-country limit from 7% to 10% of the worldwide EB cap.
Meantime the H-1B category would see an increase to as many
as 180,000 visas annually; and employment-based immigrants
in a retrogressed first, second or third preference category
would be able to extend EAD and advance parole validities
as long as visa numbers remained unavailable. In further relief
for this oversubscribed category, the law would exempt from
the cap some advanced-degree graduates in science and technology.
Another attractive provision would restore the option of visa
revalidation within the U.S.
Cultural Exchange Made Easier
More than one cultural arts agency or festival promoter in
the U.S. has suffered a disappointment when the entertainer
they were hoping to bring over for a performance didn’t
receive a visa in time for the event. USCIS has made matters
a bit easier by extending the filing periods for the appropriate
O and P visas to up to a year ahead of the planned performance
date. The U.S.-based sponsor must file the visa petition with
the USCIS office that has jurisdiction over the performance
venue; it cannot be initiated in the performer’s home
country. However, certain performers who are amateurs or are
participating in a cultural event sponsored by their government
may be able to use a B-1 or B-2 visa.
Contributed
by the staff of Immigration law Associates,P.C.
Disclaimer:
The materials contained herein have been
prepared by Immigration law Associates, P.C. for informational
purposes only and are not to be considered legal advice. The
materials on this or associated pages, documents, comments,
answers, e-mail, articles or other communications related
to this article should not be taken as legal advice for any
individual case or situation. The materials and /or transmission
of the information are not intended to create and receipt
does not constitute, an attorney client relationship
Sixty-five
thousand (65,000) H-1B visas become available April 1, 2007
for an employment start date on or after October 1,
2007. In recent years, the supply has run out within just
a few months. We remind employers and foreign nationals that
they may strengthen their chances of timely approval by preparing
their H-1B cases now. In addition, as a service to our
readers we present a short discussion of some recent USCIS
policy changes, as they may affect an H-1B individual’s
present or planned immigration status.
New USCIS Memo Expands Options for H-1B Visa Holders
A USCIS internal memo released to the immigration legal community
last month has expanded options for foreign nationals who
hold or have ever held H-1B status, as well as for those in
H-4 or L-2 status. The memo gives regional and service center
directors guidance on determining periods of admission for
these aliens. All sections of the memo establish new policy
in favor of beneficiaries and applicants; however, in some
sections, due to ambiguities in the underlying law, the extent
of the change is unclear.
The first
section clearly confirms that time spent in H-4 or L-2 status
is in no way coupled to time spent in H-1B or L-1status. The
time spent in dependent status does not count against the
period of admission available to a principal alien. Therefore,
for example, an H-4 spouse may change status to H-1B, and
hold the new status for a full six years, no matter how much
time he or she previously spent in H-4 status. To effect such
a change of status, however, the dependent spouse must meet
all the requirements for the H-1B. In addition, an H-4 foreign
national seeking H-1B status is subject to the cap (unless
the employer is cap-exempt.)
The second section of the USCIS memo addresses periods of
stay in H-1B status beyond the six-year maximum. The American
Competitiveness in the Twenty –First Century Act (AC21)
provides for exemptions to the six year maximum period of
stay for certain H-1B holders who are being sponsored by their
employers for permanent residence, and whose cases have been
subject to lengthy delays. The memo clarifies that those eligible
for the 7th year extension may be granted the extension regardless
of whether they are currently in the U.S. and even if they
don’t currently hold H-1B status. However, the service
will ultimately make the determination in each individual’s
case as to whether the alien is eligible for an additional
period of admission in H-1B status.
A third
section of the memo confirms that when an alien in unexpired
H-1B status departs the U.S. for longer than one year, he
or she has a choice of either being not subject to the cap
and re-admitted for the remainder of the original period of
admissibility; or seeking admission as a new H-1B alien subject
to the cap.
Although
the memo offers no specific comment on the subject of previous
H-1B status holders out of status in the U.S., all sections
emphasize the importance of maintaining legal status to gaining
the immigration benefit. Moreover, the burden of proof rests
with the alien to establish eligibility including admissibility
and maintenance of status; and USCIS retains the power to
deny or revoke status. Nonetheless, USCIS does approve visa
applications and petitions when circumstances are not ideal.
Therefore, an individual out of status or confronting any
other immigration problem may have much to gain from consulting
a qualified immigration attorney.
Immigration
Law Associates, P.C. has seventeen years experience in the
practice of a wide range of immigration matters, including
H-1B petitions. To find how the new USCIS policy memo may
benefit you or your employees, or for a consultation tailored
to your individual situation, call (847) 763-8500, or visit
our web site at www.immig-chicago.com
Contributed by the staff of Immigration law Associates,P.C.
Disclaimer:
The materials contained herein have been
prepared by Immigration law Associates, P.C. for informational
purposes only and are not to be considered legal advice. The
materials on this or associated pages, documents, comments,
answers, e-mail, articles or other communications related
to this article should not be taken as legal advice for any
individual case or situation. The materials and /or transmission
of the information are not intended to create and receipt
does not constitute, an attorney client relationship
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