H-1B visas

by SCwpadmin SCwpadmin 143 Comments

H AND L ADJUSTMENT APPLICANTS NO LONGER NEED I-485 RECEIPT NOTICES TO TRAVEL

In a new rule effective November 1, 2007, USCIS has removed the requirement that H and L adjustment applicants must travel with their receipt notice.

An adjustment applicant needs certain documentation in order to travel once the I-485 application has been filed. Advance Parole is the most common travel document used by adjustment applicants. Adjustment applicants who are on H or L status, however, can travel without adjustment of status under certain conditions. Before the new rule, H and L adjustment applicants needed to have their I-485 receipt notice at the time they re-entered the United States. This proved to be challenging in that it has been taking USCIS a number of weeks, if not months, to issue receipt notices thereby limiting travel during this period of time. Under the new rule, if a person is maintaining H or L status he or she can travel without first obtaining the I-485 receipt notice.

The new rule will help thousands of H and L adjustment applicants who seek to travel after they have filed for adjustment of status but before they receive the receipt notice.

by SCwpadmin SCwpadmin 103 Comments

Business Community Remains Virtually Silent on Comprehensive Immigration Reform

The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.

by SCwpadmin SCwpadmin 58 Comments

H-1B Master’s Cap Not Yet Reached

USCIS announced on April 10, 2007 that the cap of 20,000 H-1B visas for aliens holding a master’s degree or higher from a U.S. institution has not yet been reached. On April 2 and 3, approximately 12,989 total master’s cap cases were filed. USCIS will provide updates as the processing continues for the FY 2008 H-1B cap cases.

by SCwpadmin SCwpadmin 447 Comments

USCIS Releases Preliminary Count of H-1B Filings

Immigration (USCIS) issued a preliminary tally of H-1Bs received on April 2nd and 3rd. Immigration has indicated that the counting continues. Immigration initially reported that they had received 150,000 pieces of mail on April 2nd and April 3rd. They have downgraded this number to 133,000. As of Wednesday April 4th, 28,052 of the cases sorted were H-1B petitions subject to the general H-1B cap, and 4,703 cases were to be applied to the master’s degree cap. Immigration will continue to update these figures as it sorts through the mail. It is widely believed that immigration received more than the maximum number of H-1B visas allowed under both caps and that there will be a lottery to determine which applications receive a cap number.

by SCwpadmin SCwpadmin 27 Comments

USCIS Announces Direct Filing of I-129 and I-539 Applications

USCIS has announced that, effective April 2, 2007, all Forms I-129 and I-539 are to be filed directly with either the Vermont Service Center or the California Service Center, depending on where the employment will take place. This is a change from the past practice of filing all I-129 applications with Vermont.

In light of the fast-approaching H-1B season, and the possibility that the H-1B quota will be quicklly exhausted, applications must be filed in the correct location.

by SCwpadmin SCwpadmin 34 Comments

H-1B Season Starts April 1, 2007

On April 1, 2007, USCIS will start accepting H-1B visa applications for fiscal year 2008. By regulation, USCIS can start accepting H-1B applications against the 2008 H-1B cap six months in advance which translates to Monday, April 2, 2007. People have been speculating as to when the cap will be exhausted. Estimates range from April 16 to the end of May.

H-1B applications approved under the 2008 cap will become effective on the first day of the next fiscal year which is October 1, 2007. Any company interested in pursuing a new H-1B visa on behalf of a current or potential employee should act immediately.

In addition, USCIS has indicated that it intends to increase the filing fee for H-1B visas to $320. This does not include the fraud fee or training fee.

Finally, H-1B transfers and H-1B applications filed by exempt employers are not subject to the H-1B cap.

by SCwpadmin SCwpadmin No Comments

H-4 and L-2 Time De-Coupled From H-1B and L-1 Time

USCIS has recently clarified that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation promotes family unity by affording each qualified spouse the opportunity to spend six-years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six-year maximum period.

For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, this memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.

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