ImmiLetter Vol. I – Issue 2: October 1, 2006


In this Edition:

Know-How
- Featured Article: Extension of Nonimmigrant Status
- Points to Ponder: Permanent Ineligibility for Citizenship
- Visa Bulletin October 2006: EB2 Available For Indians
- I-485 Pilot Program Extended
- I-140 Premium Processing Expanded: More EB Categories Eligible
- USCIS Eliminates of Naturalization Application Backlog

Can This Happen To Me?
– How Did My H1 Status Change Back To H4?
- Traveling With Fiance

What Lawyers Are Not Telling You!
– 7th & 8th Year Extension Possible Even When Pending Labor Petition is Closed

Dear Readers,

We at Immitips.com would like to thank you for bearing with us, as we fine tune and smoothen the kinks in our newsletter. As it is with new projects and ideas, we are still going through trial and errors, glitches and goof ups. We will not bore you with the gory details. But we promise you we will come up with the best newsletter on Immigration Matters.

And we would like your help with that. What would YOU like to read about? What topics are relevant to you? What questions and doubts should we address? Yes dear readers, we want to know WHAT YOU WANT TO KNOW.

So, help us help you by sending in your suggestions to tipme@immitips.com

Know-how

Featured Article: Extension of Nonimmigrant Status

If an alien wants to stay in the U.S. past the departure date listed on his or her Arrival-Departure Record, he or she must apply for an extension of stay.

What is Extension of Stay?

As a rule, non-immigrant travelers are admitted to the United States for only short periods of time on specific nonimmigrant status (work visa, student visa, visitor visa etc) which is assigned based on the purpose of his or her visit. If a non-immigrant visitor wants to stay in the country past the temporary period authorized by the immigration officer on the alien’s Arrival-Departure Record, he or she must request an extension of stay.

However, there are some conditions that the visitor needs to meet to apply for extension. Most importantly, the visitor is required to prove that he or she has been compliant with U.S. immigration laws during the stay. Additionally, any violation of immigration laws may result in deportation for the alien.

Who can extend their non-immigrant stay?

The eligibility criteria for extension of non-immigrant status may be better explained if we start with the categories that are considered Ineligible. Mainly two categories of exchange visitors as well as some vocational students and holders of certain types of visas are considered ineligible.

1. The two categories of exchange visitors ineligible are:

a. J visa holders who came to the U.S. to receive graduate medical training who have not received waivers; and
b. J visa holders who have foreign residence requirements before they may be admitted to another nonimmigrant category who have not obtained a waiver of this requirement. This latter category of aliens may only apply for changes of status to that of to foreign governmental officials or international organization representatives.

2. For aliens admitted in the M visa category for vocational students, there are two restrictions on changes of status:

a. They may not change their status to that of academic students (F visa).
b. They may not change their status to that of a temporary worker (an H visa) if the only reason they qualify for the category is the vocational training they received in the U.S.

3. Additionally, aliens admitted with the following visa types are ineligible to change their nonimmigrant status:

a. The Visa Waiver Pilot Program;
b. The Guam Visa Waiver Program;
c. D crewman visas;
d. C visas for aliens in transits or transit without visas;
e. K visa holders, fiance or spouses of U.S. citizens and their dependents; and
f. S informant visas and their families.

Who qualifies for extension of stay?

Non-immigrants who do not fall into any of the above mentioned categories must fulfill four basic requirements to show eligibility for an extension of stay:
1. The non-immigrant must have been lawfully admitted to the U.S.
2. The non-immigrant’s nonimmigrant status must be valid at the time the application for extension is filed.
3. The non-immigrant must not have committed any acts that would make him or her ineligible for an extension.
4. The alien’s passport must be valid for the entire planned stay in the U.S.

Note: The application and appropriate fee must be filed before the departure date on the non-immigrant’s Arrival-Departure record, (USCIS recommends filing at least 45 days before the scheduled departure date). If the application to extend is filed after the non-immigrant’s departure date has passed, the non-immigrant must show that the delay was reasonable, that it was due to extraordinary circumstances he or she could not control, and that he or she has not violated nonimmigrant status in any other way.

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Points to Ponder: Permanent Ineligibility for Citizenship

Every year countless hopeful visitors to US apply for citizenship in this land of opportunity. However, if they are not the law abiding, rule following people the country prefers, then they might face permanent exclusion from citizenship. So not of caution to future citizens, avoid the situations listed below or risk permanent ineligibility for citizenship.

An alien may become ineligible for U.S. citizens for a variety of reasons. These reasons include:

1. Aliens who are convicted by court marital (or by another court) of desertion or evasion of service by leaving the United States
2. Aliens who apply for an exemption from U.S. military service based on their alien status (if they were advised of the fact that such exemption would operate as a waiver to all future rights to U.S. citizenship).
3. Aliens who leave the United States or remains outside the country in order to evade bring drafted into the military. (Aliens including green card holders, refugees/asylum seekers, undocumented aliens, illegal nonimmigrant aliens, and applicants for adjustment of status etc are required to register with the U.S. Selective Service and are drafted in times of military need. An exception is if an alien was a nonimmigrant at the time of departing the United States and seeks to reenter the United States as a nonimmigrant.)

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Visa Bulletin October 2006: EB2 Available For Indians

According to the October 2006 Visa Bulletin issued by the U.S. Department of State (DOS), the EB2 visa category just became available for Indians again, with a cut off date of June 15, 2002. The category became unavailable for Indians on August 2006 and had been so till now. The Bulletin also shows forward movement in some of the other employment-based immigrant visa categories.

The EB-3 category has experienced some gains since, as has the EB-2 category for persons born in China and India. The Schedule A category remains current, but those visas are expected to be exhausted soon.

The cut-off dates for the first three employment based immigrant visa categories are as below:
- EB-1: This category is Current for all countries.
- EB-2: April 1, 2005 (China); June 15, 2002 (India), Current for all other countries.
- EB-3:

o Skilled Workers and Professionals: May 1, 2002 (China); April 22, 2001 (India); May 1, 2001 (Mexico); May 1, 2002 (all other countries).
o Schedule A Workers: This category is Current for all countries.
o Other Workers: January 1, 2001 (all countries).

Persons with priority dates earlier than the dates listed are eligible to proceed with their applications.

What Is In Store?

The DOL had not made any predictions in the current bulletin. However, we can say that the future advancement of both EB-3 and EB-2 and the other categories will continue to depend upon the demand in the categories. The exemption from the employment-based immigrant visa category quota for foreign nationals in occupations which qualify for the U.S. Department of Labor (DOL) Schedule A continues to remain available. However, depending on demand, the 50,000 exemption numbers may be used up prior to the end of October 2006 and the DOS may issue an interim Visa Bulletin making the category unavailable.

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I-140 Premium Processing Expanded: More EB Categories Eligible

The U.S. Citizenship and Immigration Services (USCIS) have announced that as of Monday, September 25, 2006, the Premium Processing Program (PPP) for I-140 petitions filed by employers will expand to include additional employment-based (EB) categories. As of now, the PPP for I-140s is limited to EB3 cases, and even excludes EB3 “other worker” cases.

The three new EB categories eligible for premium processing from September 25th are:
- EB1 for Outstanding Professors and Researchers
- EB2 for Advanced Degree professionals/ Persons of Exceptional Ability (but not National Interest Waiver cases)
- EB3 for “Other Workers”

This expansion will mean that from Monday almost all I-140 categories will be eligible for premium processing, except for:
- EB1 (Extraordinary Ability and Multinational Executive or Transferee) and
- EB2 (National Interest Waiver) cases.

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I-485 Pilot Program Extended

In a bid to achieve a 90-day processing time for Form I-485, the U.S. Citizenship and Immigration Services (USCIS) is expanding a pilot program which allows for new filing procedures for aliens submitting Form I-485 based on a family relationship, the diversity visa lottery, or qualification for most special immigrant categories. The Federal Register notice is available on the AILA website: http://www.aila.org/content/default.aspx?docid=20609

The expanded pilot program requires the applicants residing within the jurisdiction of the Dallas District Office, El Paso District Office, or Oklahoma City Sub-Office to file form I-485 in person and not by mail, at the appropriate local office. The applicant will also have to schedule an appointment for filing though the agencies InfoPass service.

For aliens residing in the Dallas District Office, the pilot program will be effective from October 23, 2006 to September 21, 2007. In the El Paso District Office and Oklahoma City Sub-Office, the program will run from November 20, 2006 to September 21, 2007. If the program is found to be successful in reducing the processing time, USCIS might make the pilot program a norm.

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USCIS Eliminates Naturalization Application Backlog

U.S. Citizenship and Immigration Services (USCIS) have announced the elimination of the backlog for the N-400 Naturalization Application. The Agency processed some 342,290 backlogged cases within approximately 5 months, recording the fastest processing times in its history.

Overall, USCIS has cleared backlogs at an incredibly fast time. The numbers of 3.8 million backlog applications recorded in 2004 have decreased to only 1.1 million by July 2006. Of these, the USCIS is processing only 140,000 applications. The rest of the back logged applications fall outside USCIS control, as they fall into categories like:

1. Cases that are pending law enforcement security checks,
2. Naturalization test retakes,
3. Naturalization candidates awaiting scheduling of a judicial ceremony and
4. Cases in which an applicant has failed to respond to a request for additional evidence.

Online Tracking System for Backlog Processing Centers Cases

To the delight of many applicants, the U.S. Department of Labor (DOL) has launched an online case tracking system for labor certifications pending with the Backlog Processing Centers (BPCs).

To use the system, go to http://workforcesecurity.doleta.gov/foreign/times.asp, click on the link Check backlog case status, type in the Employment and Training Administration (ETA) case number. This number starts either with a D or a P and can be found in the 45-day letter. The system returns status annotations as to whether the case is in queue, approved, rejected, pending, closed etc.

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Can This Happen To Me?

We devote this section to highlighting specific cases where you as an immigrant might find yourself in. If you have a related problem or feel the case study does not answer your question, you are welcome to post your question on our forum section.

Case Study 1

We often get questions and cases regarding change in visa status, most common being people who visa status changed back as they failed to take a simple precaution. Let us take the case of Mrs. Patel (fictitious name).

- Mrs. Patel* entered the US in the year 2000 on a H4 visa as a dependent. Mrs. Patels H4 visa was valid for 3 years, up to 2003.

- In 2001, Mrs. Patel changed her status from H4 to H1. However, she eventually did not work on H1. As a result, she failed to maintain her status on H1.

- In 2002, Mrs. Patel traveled out of the country to her home. On her way back, she entered the US on her H4 Visa which was still valid.

- So, by default, Mrs. Patel managed to change her status back, from H1 to H4.

As we can see above, it is possible change your status from H1 to H4 without going through a whole process. However, many people end up unknowingly changing their status by doing exactly the same thing. So unless the person intends to change his or her status back in a similar way, we suggest the person takes care to maintain H1 status and enter the US under the correct status.

Case Study 2

We often get questions from our readers which are not explained clearly in the law or is not possible for our readers to understand from the law. We have picked one of this questions and this is the answer provided by a legal representative from our sponsor:

Question: I have been with my fiance now for 2 years. I am on an F-1 visa. We were considering getting married at some point this year. Once married, do I get any type of paperwork allowing me to travel and come back in the US?

Answer: Assuming your fiance is a US citizen. Once you are married, you can apply to adjust status to become a permanent resident and you should be able to apply for what is called an advance parole document that will allow you to travel. Travel is usually only a problem for certain people who have immigration status violations.

Assuming that is not the case for you, then getting the parole document should not be a problem except that you would want to apply for the document as early as possible since it can take a few months to process the application and you need to remain in the US while the document is being processed.

Also, note that the travel document would be valid for a year and you’ll want to make sure you return from any trip before the document expires. Hopefully, the green card would be processed before that became an issue.

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Do you have a question regarding any of these cases? Email us and a legal representative from our sponsors will answer your question in this Section.

What Lawyers Are not Telling You!

In this section, we will reveal the exceptions to the rules and the ambiguities in the law – information that most lawyers will not reveal but that can save you a lot of time and headache.

7th and 8th year extensions possible even when the pending labor petition is closed

The Rule

The USCIS allows the benefit of 7th year and extensions beyond even if there is an appeal pending against the closure decision of the DOL.

The Exception

Recently there have been situations where the Department of Labor has erroneously or otherwise closed the pending labor petitions. This has caused considerable distress for aliens who are on 7th or 8th year of their H1Bs.

We at Immitips would like to point out that it is possible for the applicant to contest this decision. As per rule, based on justified reasons, when an appeal is pending against a case closure decision of the DOL, the USCIS still allows extensions on the H1B status for aliens.

Note: An appeal against the DOL case closure notice has to be made on bona fide reasons with all sufficient supporting documentation.

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Disclaimer:
The information provided on this newsletter is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney.

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