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| Sunday, February 17, 2008 |
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USCIS Announces Centralized Procedure for Filing H1B Applications for Cap-Exempt Employers
By admin @ 6:09 AM :: 310 Views ::
0 Comments :: News, H1B Visas
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U.S. Citizenship and Immigration Services (USCIS) announced a new customer service initiative to streamline the adjudication of H-1B petitions. USCIS will employ a special unit dedicated to processing these types of H-1B cap exempt petitions at the USCIS California Service Center (CSC). Foreign nationals employed by certain types of educational, nonprofit or governmental organizations, as defined below (normally referred to as “cap exempt,” aliens employed by such entities are not subject to the H-1B numerical limitations). See section 214(g)(5)(a) and (b) of the Immigration and Nationality Act (INA); and 8 CFR 214.2 (h)(8)(A).
H-1B “cap exempt” petitions, as referenced here, include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);]
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)c).
Such institutions and organizations can indicate that the H-1B filing is cap exempt by marking Form I-129 (Petition for Non-Immigrant Worker) with a “yes” answer to question 1, 2, or 3 in Part C of the H-1B Data Collection and Filing fee Exemption Supplement (page 10).
H-1B petitioners are now encouraged to use the following special mailing address for qualifying H-1B cap exempt petitions. To determine if your petition qualifies, please make sure your institution or organization fits one of the categories listed above.
For Direct Mail:
U.S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
P.O. BOX 30040
Laguna Niguel, CA 92607-3004
For non-United States Postal Service (USPS) deliveries (e.g. private couriers):
U.S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
24000 Avila Road, Room 2312
Laguna Niguel, CA 92677
Each H-1B petitioner is encouraged to mark the outside of the envelope and the top margin of the I-129 form, with “EXEMPT”. This will ensure quick identification of the H-1B filing throughout the petition’s processing at CSC.
If a cap exempt H-1B petition is received at a different Service Center, that Service Center will expeditiously forward the petition to the CSC for processing. In the near future, USCIS will post special filing instructions to Form I-129 requiring all qualifying H-1B cap exempt petitions to be filed at the CSC.
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| Friday, January 18, 2008 |
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Five Important Reminders for Foreign Nationals Coming to the United States
By admin @ 11:41 AM :: 263 Views ::
0 Comments :: News, H1B Visas, Family Immigration, Other
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1. It's the I-94 that governs your stay in the U.S., not the Visa
When a foreign national enters the United States in nonimmigrant status, he/she will receive an I-94 Arrival/Departure Record at the port-of-entry. This I-94 card will state the class of admission (such as B, H, L, F etc) as well as the expiration date of the nonimmigrant status. It is the expiration date on the I-94 card that governs one's stay in the United States. If a foreign national remains in the United States past this date (without having a pending extension or change of status application at that time), he/she will be out-of-status (or illegal).
A U.S. visa, on the other hand, allows the foreign national to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not guarantee entry to the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.
In some cases, the admission period you receive on your I-94 will be different than the validity dates shown on your visa. This is particularly true for some categories of visas, such as E visa holders (who normally receive 5-year visas, but are admitted for only two years at a time) or for certain nationals (such as Chinese H-1B visa holders (who normally receive a 3-month visa validity, but may be authorized to remain in the U.S. for up to three years at a time). Problems may also arise where a foreign national travels on a valid, unexpired visa for a prior employer, but has since been approved for an extension of stay. For these reasons, it is very important that you check your I-94 as soon as you have been admitted to ensure that you have been admitted in the appropriate visa status for the appropriate period of time.
2. If you overstay your I-94 card for even one day, your visa is automatically cancelled
Under Section 221(g) of the Immigration and Nationality Act, a foreign national's nonimmigrant visa is automatically cancelled if the foreign national overstays the expiration date of his/her I-94 Arrival/Departure Record. (Some exceptions exist for those who have legitimate extension or change of status applications pending.) If the visa is cancelled, a foreign national cannot use it to reenter the United States and must apply for a new visa at a U.S. consulate abroad B normally in one's home country. Why is 221(g) important to keep in mind when in the U.S.? First, violating one's nonimmigrant status could have a negative impact when applying for another visa abroad. Second, as hard as it is to get a nonimmigrant visa approved at a U.S. consulate abroad, once a foreign national has it why do something to lose it? Third, being forced to apply for your visa in your home country can be expensive and time-consuming, particularly for nationals of China and India. Do not overstay the expiration date on your I-94 card.
3. If you enter the U.S. with your spouse, don't forget about him or her!
We have seen many situations where a person enters the U.S. in H1B status with his or her spouse who enters as a dependent in H4 status. However, when the H1B nonimmigrant applies to extend his/her status, they forget to do the same for the spouse. Often the main applicant thinks that the spouse's status is automatically extended when his/her extension application is approved. This is not the case. One must file a separate application to extend the status of the dependent spouse. If this is not done, the dependent spouse can fall out-of-status and be subject to removal from the United States. This applies not just to persons who enter in H status, but many other nonimmigrant statuses as well. So do not forget about your spouse!
4. If you enter under the Visa Waiver Program, you cannot change or extend your status
The Visa Waiver Program allows citizens of certain countries, traveling temporarily to the United States under the nonimmigrant admission classes of visitors for pleasure and visitors for business, to enter the United States without obtaining nonimmigrant visas. Admission is for no more than 90 days. Unlike a person who enters the United States as a visitor with a B1/B2 visitor visa, a person who enters under the Visa Waiver program cannot extend their stay in the United States nor can they change their status to another nonimmigrant status. Furthermore, if a person who enters under the Visa Waiver program overstays his/her I-94W Arrival/Departure Record or otherwise violates his/her nonimmigrant status, he/she can no longer enter the U.S. under the Visa Waiver program and must apply for a B1/B2 visitor visa at a U.S. consulate abroad.
5. If you're not sure about something, ask for help
U.S. immigration law is complicated. Even the smallest violation of one's nonimmigrant status could result in removal, bars to reentry and other negative consequences. Sometimes it is difficult to understand what a person can or cannot do while holding a certain nonimmigrant status. For example, can an H1B work on the side for someone other than his/her employer? Can a student in F status do volunteer work? What will result in a visitor in B status violating his/her status? If you're not sure, ask a qualified immigration attorney for advice. A little good advice could save you many headaches in the future.
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| Wednesday, March 07, 2007 |
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USCIS Announces Direct Filing Instructions for Forms I-129 and I-539
By admin @ 5:09 AM :: 621 Views ::
0 Comments :: News, H1B Visas
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U.S. Citizenship and Immigration Services (USCIS) announced new Direct Filing instructions for a variety of immigration forms that were transitioned into the bi-specialization initiative. Effective April 2, 2007, all Forms I-129 and I-539 are to be filed directly with the California Service Center or the Vermont Service Center, whichever is applicable. USCIS will release filing charts that delineate the proper filing location, and will post those charts on its web site prior to April 2, 2007. USCIS will accept Forms I-129 and I-539 filed in accordance with the old filing instructions during the first 15 days of implementation of Direct Filing (from April 2-16). However, if a Form I-129 or I-539 is filed on or after April 17, 2007, and is not submitted to the correct filing location, it will be rejected and returned to the petitioner/applicant with the fee and instructions for proper filing. Given that the filing period for the Fiscal Year 2008 H1B cap is about to begin, please stay tuned to www.bashyamspiro.com for further updates on where to file your H1B applications. We will post the filing charts on our web site when they are released by the USCIS.
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| Sunday, February 25, 2007 |
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Q and A on the New USCIS H/L Status Memo
By admin @ 5:35 PM :: 850 Views ::
3 Comments ::  :: News, H1B Visas
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Q: I held H1B status for two years from 2000-2002. I left the U.S. in 2002 and have been outside the U.S. since then. I have an employer who is willing to employ and sponsor me for H1B status. Am I subject to the H1B cap?
A: This is a great question and one that is frequently asked by clients and others who call our office. The law states that a person who had previously held H1B status but who has been outside of the U.S. for one year or more is eligible for a brand-new six year period in H1B status. Therefore, a person in this situation has traditionally been subject to the H1B cap. However, the USCIS recently issued a memo clarifying this issue. According to the USCIS, 1) if a person applies for and wants a full six years in the U.S. in H1B status, they will be subject to the cap; 2) if a person does not want a full six years in H1B status in the U.S., they will not be subject to the cap and can return to the U.S. for four years in H1B status. This is important to keep in mind since the Fiscal Year 2008 H1B cap is likely to be 'hit' anywhere from a day to a few weeks starting April 1, 2007. If you have previously held H1B status for less than six years and have subsequently been outside the U.S. for over a year, you can still get H1B status even if the Fiscal Year 2008 cap gets hit in the coming months.
Q: My husband has held H1B status for four years. During that time, I held H4 status. Can I switch my status to H1B? If so, will I get a full six-year period in H1B status?
A: This is again a very good and relevant question. The law states that time spent in H status counts towards the six years allowed under in H1B status. However, the USCIS recently issued a memo that clarified and seemed to have changed this position. According to the recent USCIS memo, time spent in H4 status does not count towards the six-year limit allowed for H1B status. Therefore, if you been in H4 status for four years and decide to change your status to H1B, you can hold that status for up to six years.
How can this help you?
Let's assume Person X and Person Y are married. Person X has held H1B status for five and a half years. Person Y has held H4 status (as a dependent of an H1B) for five and a half years as well.
A person's H1B status can be extended past the six-year limit under one of the following situations: 1) a labor certification has been pending for at least 365 days prior to hitting his/her sixth year in H status or 2) he/she received an approved I-140 petition prior to hitting the sixth year in H status and he/she cannot file an I-485 adjustment application due to per country visa backlogs.
If an extension based on the above is not possible for Person X, and if Person Y has a legitimate job offer in a professional position, Person Y can file for a change of status to H1B and (if approved) can hold that status for six years. Person X can change his/her status to H4 as the spouse of Person Y as long as person Y holds valid H1B status. This will allow Person X and Person Y to remain in the U.S. for a new six year period with Person X now in H4 status and Person Y in H1B status. It is important to remember that a person in H4 status cannot work in the United States.
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| Friday, February 16, 2007 |
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Filing H1B Applications for Fiscal Year 2008
By admin @ 6:39 AM :: 8868 Views ::
30 Comments ::  :: News, H1B Visas
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The fiscal year 2008 H1B cap begins October 1, 2007. The earliest an employer can file an H1B application for an October 1, 2007 start date is April 1, 2007. That date is fast approaching. Last year, the USCIS received a heavy volume of H1B applications between April 1st, 2006 and the end of May 2006. The regular cap of 65,000 visas were exhausted by the end of May 2006. The second cap of 20,000 visas for persons with advanced U.S. degrees lasted until mid-July 2006.
Due to pent up demand, we expect there to be a heavy volume of filings in April and May of this year as well. So if you are an employer, please plan accordingly and be prepared to have the appropriate employer and employee information/documentation to your immigration attorney as soon as possible so that a timely filing in April can be made. Once the cap has been reached, employers must wait until October 2008 to hire an employee in H1B status.
The H1B cap only applies to 'new employment' H1B applications or applications to change an employee's status to H1B. One example of the latter would be filing an application to change an employee's status from TN NAFTA to H1B. A person who has already been counted against the cap and applies for another H1B with another employer is not considered to be applying for new employment and is not subject to the H1B cap. The cap does not apply to H1B extensions either. Our office will be providing information on H1B usage once filings begin on April 1, 2007. Please stay tuned to www.bashyamspiro.com for further updates.
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