Seguritan US Immigration Articles

Extending H-1B Status Beyond Six Years

There is a maximum period of six years during which a worker can be on H-1B status. The 6-year period begins from the date on the I-94 form given to the foreign national upon first entry in the U.S. with an H-1B visa.

Except for those who do not reside continually in the U.S. and work in the U.S. only on a seasonal or intermittent basis, workers on H-1B status generally must live abroad for at least one year before returning to H-1B status. In short, if they want to restart the 6-year period they must remain outside the U.S. for 1 year.

However, H-1B workers are often unable to apply for adjustment of status before the end of the 6 years due to government delays or the heavy backlog for immigrant visas.

The delay could be due to the slow processing of the labor certification application or the adjudication of the I-140 immigrant worker petition. Per-country visa limits keep a worker with an approved labor certification and I-140 petition from filing an adjustment application because a visa number is not yet available to him/her.

A law passed in 2000, the American Competitiveness in the Twenty-First Century Act (AC21), as amended, allows H-1B workers in these two circumstances to file for an extension of their H-1B status beyond 6 years.

Under Sec. 106(a) of AC21, a post-sixth year extension is available to H-1B workers if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. In other words, the labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.

The length of extension permitted under Sec. 106(a) is one year, and subsequent one-year extensions are available until a final decision has been made to deny the labor certification application or I-140 petition or to revoke the approval thereof. Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.

Under Section 104(c) of AC21, if the H-1B worker is the beneficiary of an approved I-140 petition, an extension is available if he/she is otherwise eligible to adjust status except for the unavailability of an immigrant visa number. The extension can be for a three-year period in this case and is available to the principal H-1B beneficiary and eligible H-4 dependents.

H-1B workers affected by the visa backlog can continue to remain in H-1B status until their priority date is reached and they become eligible to file an adjustment application. Right now, there is a long waiting period for a visa in the third preference employment-based (EB-3) category for nationals of all countries, and there is also a backlog in the second preference (EB-2) for nationals of India and China.

Only workers who are in valid H-1B status may be issued an extension. Extension applications for workers who are “out-of-status” will not be approved unless the delay in filing was due to extraordinary circumstances beyond their control and the length of the delay was reasonable. They must also demonstrate that they have not violated their nonimmigrant status, remain bona fide nonimmigrants, and are not in removal proceedings.

Once the worker files an adjustment application and obtains an employment authorization document (EAD), there is strictly speaking no need for H-1B extensions under Sections 106(a) or 104(c). However, an H-1B worker who has worked using the EAD will immediately be out-of-status if his/her adjustment application is denied and the EAD revoked. Therefore, it is prudent for the worker to maintain H-1B status until he/she is approved for a green card.

USCIS Expects H-1B Cap To Be Reached April 5

The USCIS announced last March 15 that more petitions than the H-1B cap may be filed between April 1, 2013, the start of the filing season and April 5. It is therefore recommended that employers file cap subject H-1B petitions within those first five days. A petition is considered accepted, not on the date the petition is postmarked, but on the date the USCIS receives it.

Each fiscal year, an H-1B visa quota of 65,000 is allotted for foreign workers in specialty occupations. An additional 20,000 H-1B visas are made available to graduates with advanced degrees from U.S. universities. For fiscal year 2013, the H-1B cap of 65,000 was reached on June 11, 2012.

The public will be notified of the final receipt date or the date when the quota is reached. When the number of petitions received by the USCIS exceeds the quota, the USCIS will conduct an H1-B lottery which will randomly select the petitions to be accepted for processing. Petitions not selected in the lottery will be rejected and returned. Petitions filed after the final receipt date will also be rejected. It was in 2008 when the USCIS last used the lottery system.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year however the USCIS will start premium processing of H-1B petitions subject to cap on April 15, 2013. This is to address the expected high volume of premium processing requests and the likelihood that the cap will be met in the first five days of filing.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $320 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

Immigration Reform Bill Falls Behind Schedule

The push for comprehensive immigration reform has gained huge momentum since President Obama announced his proposal early this year. The call for an overhaul of our immigration laws has grown louder, with even business and labor groups uniting in support of a law mending our broken immigration system.

Of late, however, there have been signs of obstacles in the way of reform. The “Gang of Eight” Senators who had promised to have a bill by mid- March recently expressed doubts that they could meet their self-imposed deadline, although they hope to release one after their return from the recess, which runs from the last week of March to the first week of April.

Some believe that this is a problem. Legislative business is placed on hold during a recess as members of Congress go home and visit their constituents. Back in 2007 when immigration reform was last on the front page, angry town hall debates and opposition to amnesty unnerved politicians and derailed support for reform.

There are senators who think that the kind of opposition they faced in 2007 is a thing of the past. In a town-hall meeting held in his home state of Arizona last month however, an angry crowd fired criticism at Sen. John McCain so much so that the senator, a member of the bipartisan group working on immigration reform, had to remind the people to be civil. This backlash is seen as a portent of things to come.

According to a Bush administration official involved in the last effort, the longer the time between the release of the bill and voting, the lesser the chance of the bill being passed.
On the other hand, one of the senators, Sen. Lindsey Graham, believes that even if the bill is finished before the recess, releasing it without getting voted on is not a good idea. To Republican Senator Marco Rubio of Florida, it is better to “do it right than do it fast”.

Another development that complicates the effort which otherwise enjoys broad support is the piecemeal approach adopted by some members of the House of Representatives. Some Republican Congressmen seem to believe that a series of smaller bills instead of a comprehensive bill is the better way. This fragmentary approach runs counter to the party’s current immigration platform.

Further still, the idea of immigration reform could be a hard sell to the many Republican House members that come from overwhelmingly white districts.

One of the most divisive issues is the pathway to citizenship of undocumented immigrants, which for President Obama and Democrats is an essential part of immigration reform. The bipartisan Senators’ plan would include a path for undocumented immigrants to become citizens, while other politicians prefer to withhold citizenship and support a plan that stops at permanent residency.

Senator Rubio advocates a plan that would give these immigrants the chance to apply for citizenship someday after many years in some kind of a nonimmigrant status or for a much longer time than what his party mates in the Gang of Eight believe is sufficient. On the other hand, his mentor and Florida Governor Jeb Bush – brother and son of past U.S. Presidents – would deny the immigrants the possibility of citizenship. Both Sen. Rubio and Gov. Bush are potential Republican presidential nominees.

As the battle for immigration reform unfolds, we will witness if our lawmakers are capable of rising to the challenge. They must put aside their differences, overcome these hurdles and work together towards a goal that serves the national interest.

Improved Protections Under VAWA for Battered Immigrants

The House finally passed the Senate’s bipartisan bill reinstating and extending the Violence Against Women Act (VAWA) for another 5 years. The bill passed after many months of long and heated debates with 87 Republicans and 199 Democrats voting for the bill. This was after the Republican version of the bill was defeated.

Since its passage 19 years ago, various provisions have been incorporated in the Violence Against Women Act (VAWA) to provide better protection to vulnerable immigrants mostly women and children from the crimes of domestic violence, sexual assault, dating violence and stalking.

When it was initially passed in 1994, VAWA allowed battered immigrants to self-petition. The process provided victims of battery and extreme cruelty to file a petition independent of their abusive spouse/relative.

When it was later reauthorized in 2000, it created the U and T visas which protected victims of violent crimes and sexual assault or trafficking, respectively. The U visa allowed victims of qualifying crimes, mostly undocumented women and children who are victims of domestic abuse and rape, to remain legally in the U.S. and assist in the investigation and prosecution of the crimes. These protections were further expanded when the VAWA was reauthorized in 2005.

With the passage of this bipartisan Senate bill this year, no new immigration benefits are created but improvements to the current immigration protections are introduced. The bill is in stark contrast to the failed bill introduced by the Republicans which did not give enough protections to gay communities, Native Americans and undocumented residents against sexual and domestic abuse.

One of the more important provisions under the bill is preventing children of U visa holders from aging out. Under the current law, aliens who file for U visa may include their spouse and their children below 21 years of age in the petition. The bill clarified that the children are still qualified to receive immigration benefits under their parent’s petition even if they turn 21 years of age and the application is still pending.

The bill also includes “stalking” as one of the qualifying crimes under the U visa. Under the current law, qualifying criminal activities under the U visa are crimes which vulnerable immigrants are often targeted such as sexual exploitation, extortion, domestic violence, among others.

Another significant improvement is protecting foreign fiancé(e)s/ spouses of U.S. citizens by providing vital disclosures regarding any violent criminal histories of sponsoring U.S. fiancé(e)s/spouses and as well as other information they need to protect themselves from entering abusive marriages.

The bill further provides that self-petitions under VAWA will extend to surviving minor children of the self-petitioner when the abusive spouse dies after filing of the petition. The bill also extends hardship waivers for conditional residents in case of invalid bigamous marriages of U.S. citizen or LPR spouse. It also clarifies the individuals who are exempt from public charge inadmissibility grounds which include the VAWA self-petitioner, a U visa petitioner or holder, among others.

The reauthorization of VAWA with its improved protections will without doubt further serve and safeguard vulnerable immigrants from being victims of sexual abuse, domestic violence and other crimes. The bill is now on its way to the President’s desk where it will be signed into law.

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