ImmiLetter Vol. I – Issue 4: December 1, 2006

ImmiTips Digest
Vol. 1 – Issue 4 – December, 2006
In This Edition
Featured Article

  • Transition from Student to a Professional: An Immigration Perspective


  • December Visa Bulletin Shows Little or No Movement for EB Categories
  • US Companies Request Congress to Fix H-1B Visa/Green Card Process
  • Backlog Cases Withdrawn Due to Technical Glitch!
  • Premium Processing To Include EB-1 Aliens with Extraordinary Ability
  • Exchange Program For Professor & Researcher Extended To 5 Years
  • New Visa Rule for Indians in Canada
  • US cuts $50 VISA issuance fee for Indians

Can This Happen To Me?

  • Retaining Priority Dates by Switching Visa Category

What Lawyers Aren’t Telling You!

  • How long does it take to obtain an H-1 visa?
  • What happens when permit to work expires and the H visa has yet to be approved?
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Featured Article
Transition from Student to a Professional: An Immigration PerspectiveIt’s become quite common for foreign students in US to opt for professional employment in the U.S. itself after completing an academic program or practical training. However, a person holding a student visa cannot simply start working as and when he or she wishes to. For that, the student requires a change of Visa status, from student visa to work visa, which would then allow him or her to work in the US legally. The most preferred is the H-1B visa category, which eventually allows the visa holder to apply for a citizenship in the long run as well.

H1B Cap and Student’s Dilemma

A limited number of H-1B visas are allotted per fiscal year i.e. October 1- September 30, by the United States Citizenship and Immigration Service (USCIS). These Visas become open for application six months before the beginning of the fiscal year. Which means a student can apply for a H1B say on April 1, 2006 with a work start-date of October 1, 2006.

Unfortunately, the number of students seeking H-1B status, and the number of companies seeking to hire them is much greater then the allotted number. Consequently the number of H-1B visas available for those holding bachelors’ degrees, which is capped by law at 65,000 per fiscal year, gets over long before the end of fiscal year.

For fiscal 2007 the cap was reached by May 2006, even before the fiscal year had started. But because they were the following year’s allotment, all these H-1B visas had start dates of October 1, 2006 or later. This led to a problem for students who were graduating this year or completing OPT.

The students holding F-1 visa are generally approved for “duration of status,” or for the length of time the holder maintains status. The visas expire when that activity ends, i.e. when the academic year is over and the course completed. Now, unless the students have made the change to H-1B, they are at that point immediately out of status and are legally required to return home.

Now, if the earliest H-1B start date a student can secure is October 1, 2006 while his or her student status expires in June, 2006, he or she will either have to leave the U.S. by the expiration of the grace period or remain in the U.S. unlawfully.
Previously, the immigration service used to extend the duration of status for F-1 visa holders in such situations. However, for the coming year we are yet to see any sign that the government will grant that relief. In such a situation F-1 visa holders who have filed for change of status will find the H-1B classification approved but the change to H-1B status denied. This will lead to a “status determination” – a finding that that the F-1 student is out of status – and they will be forced to return to the country of origin and process the application from there and lose valuable time and money in the process.

Other Avenues Available

There are a few alternate options open to the students. For students who have not yet filed for change of status, we suggest – avoid status determination by designating the application for consular notification, not change of status, and apply for the H-1B at a border post in Mexico or Canada.

In such cases, the student may submit the visa application as soon as the H-1B petition is approved by the immigration service. The Department of State has indicated that most consular posts will process the H-1B application before October 1. However, the visa holder won’t be able to enter the U.S. on the H-1B until 10 days prior to the effective date of the approval notice.

Another possible avenue around the cap gap is the extra allotment in the present fiscal year of 20,000 H-1B visas for those graduating with master’s degrees or higher from U.S. institutions.

Student should also explore employment at an institution of higher education, a related or nonprofit entity, a nonprofit research organization, or a governmental research organization as they are not subjected to the cap.

What is happening on the legislative front?

There are currently proposals in congress that would make significant changes to immigration law for international students and scholars, but it is still too early to know which proposed legislation will ultimately become law. One of the proposed changes would increase the H-1B cap to 115,000, and another proposal would exempts all who have received an advanced (Master’s) degree from a U.S. institution from the H-1B cap. Copyright © 2006, All Rights Reserved

Do you have a question regarding this article? Email us and a legal representative from our sponsors will answer your question in this section.

December Visa Bulletin Shows Little or No Movement for EB CategoriesThe Visa Bulletin December 2006 was published today. There is not much movement in the employment based categories for Indians at least.

  1. The Eb1 Category is current for all countries.
  2. The EB2 category moved one week forward to 8th January 2003 for India. It remains current for all other countries except China, where the cutoff date is 22nd April 2005.
  3. EB3 remains frozen for Indian, but moved forward by four weeks for the worldwide. The cutoff dates are as follows:
    • All Charge-ability Areas Except Those Listed – 1st August 2002
    • China-mainland born – 1st August 2002
    • India – 22nd April 2000
    • Mexico – 8th May 2001
    • Philippines – 1st August 2002
    • EB3 “Other Worker” category jumped forward by five months, to October 1, 2001.
  4. The Schedule A numbers are completely exhausted and the category has been marked unavailable.
  5. The new category of Translators (for Iraqi or Afghani nationals who have worked with the U.S. Armed Forces as translators for at least 12 months) has been exhausted. The category allows for 50 translators per fiscal year.

Copyright © 2006, All Rights Reserved

US Companies Request Congress to Fix H-1B Visa/Green Card ProcessShowing considerable support for foreign talent in US workforce, a “coalition of over 200 corporations, universities, research institutions and trade associations” sent a letter urging the Congress to reform the “broken” H1B and Employment based green card system in the upcoming session.

This is the last Congressional session of the year and if no decision is reached, the issue will remain pending until 2007, when the control of the Congress will most likely go into the hands of democrats who are more opposed to the idea of allowing foreign workers into the US economy.

Spokespersons for the conglomerate are quick to point out that if the congress keeps denying the US industry of its necessary manpower, companies will soon have to resort to outsourcing in earnest. Currently the number of work visas issued annually is capped by law at 85,000.

The coalition, known as Compete America, is “committed to assuring that U.S. employers have the ability to hire and retain the world’s best talent”. Copyright © 2006, All Rights Reserved

Backlog Cases Withdrawn Due to Technical Glitch!The Office of Foreign Labor Certification (OFLC) recently discovered that a technical glitch had caused a number of PERM cases to be marked as pending re-file applications and were withdrawn by the U.S. Department of Labor (DOL) from the backlog list. The office is confident that the cases in question will be reinstated to their appropriate processing status by the end of November 2006.

The OFLC is also launching a Backlog Public Disclosure System (PDS) from December 1st which will provide the status of applications at the Backlog Processing Centers. The PDS can be accessed by clicking on the “Check Backlog Case Status” under “Quick Links”, or by clicking on .

The DOL has also requested specifically that people should not approach the Backlog Elimination Centers directly for this information, as too many online enquiries will overtax the system and cause it to crash.

The DOL has also put forward a number of trouble-shooting guidelines for instances where employers, attorneys or applicants have failed to receive any notification from the BEC. The guidelines are available here. Copyright © 2006, All Rights Reserved

Premium Processing To Include EB-1 Aliens with Extraordinary AbilityU.S. Citizenship and Immigration Services (USCIS) today announced that it will extend its Premium Processing to employment-based immigrant visa category EB-1, involving “Aliens with Extraordinary Ability” starting November 13, 2006.

Effective November 13, employers who wish to avail the Premium Processing Service will submit Form I-907, (Request for Premium Processing Service) along with Form I-140 (Immigrant Petition for Alien Worker). Premium Processing Service allows for 15-calendar-day processing of a case for a fee of $1000.

Since earlier this year, USCIS has begun accepting Premium Processing Service requests for petitions involving five other immigrant visa categories:

  1. EB-1 Outstanding professors and Researchers
  2. EB-2 Members of Professions with Advanced Degrees or Exceptional Ability (except National Interest Waiver seekers)
  3. EB-3 Professionals
  4. EB-3 Skilled Workers, and
  5. EB-3 Workers other than Skilled Workers and Professionals

For a detailed explanation of Premium Processing and its effects read our feature article on September 2006 issue of our newsletter.

Related news:

  • Three more EB Categories Eligible for Premium Processing
  • EB 3 (I-140) Premium Processing: Are You Eligible?
  • Premium Processing Available for EB3s from August 28th

Copyright © 2006, All Rights Reserved

Exchange Program for Professor & Researcher Extended To 5 YearsIt took more then a year after the final rule was adopted, but finally the permitted duration of stay for Professors and Researchers entering the US under the Exchange Visitor Program will be extended to five years, effective November 4, 2006.

The Department of State had adopted the amended final rule (70 FR 28815) on May 19, 2005 but the implementation was delayed as the Department of Homeland Security required time to update the Student and Exchange Visitor Information System (SEVIS) so that the system could reflect the changes.

Apart from the extension, the modified rule also clearly outlines the eligibility criteria for re-participation “as a professor or researcher in the Exchange Visitor Program following a two-year bar”. Therefore, as of November 4, current and future professor and researcher program participants will be eligible for five years of program participation as provided for in the final rule. These participants will also be subject to the eligibility requirements for repeat participation set forth in the final rule. Requirements governing initial eligibility for participation as a professor or researcher are unchanged.

The final rule also makes way for a new “G- 7” administrative classification for program sponsors. These sponsors will be contacted directly by the Department and informed of their eligibility for this classification. Copyright © 2006, All Rights Reserved

New Visa Rule for Indians in CanadaThe Indian Consulate in Canada has announced that starting November 20, 2006 people of Indian origin in the country will have to apply for a visa through post only. The filled out visa application with requisite fee and supporting documents will only be accepted via mail under the new rule. The visa will be dispatched within five working days.

In case of emergencies the Consulate General is willing to accept visa applications in person, along with a confirmed air ticket and the emergency service fee. The visa will then be issued the same day.

According to Satish Mehta, the Consul General of India in Canada, the new visa system “would help to maintain public order, and security at the premises, and provide efficient services to the people”. The new procedure will completely eliminate the need for travel agents, who usually took care of the process previously. Copyright © 2006, All Rights Reserved

US cuts $50 VISA issuance fee for IndiansEffective November 8, all Indian applicants for non-immigrant US visas need only pay the mandatory processing fee of $100, as the US government has scrapped the additional $50 reciprocal issuance fee which was charged previously.

The cut of 33 per cent in the visa cost was announced by the American ambassador to India, David C Mulford, who stated that he hopes the cost cut will encourage more Indian business people and tourists to travel to America.

In a press conference held in Mumbai, Glen Keiser, the consular section chief at the American Consulate General explained that while the $100 visa processing fee is same for every country, the reciprocal fee is based on how much the host nation charges American citizens for their visa. As most American citizens opt for short term Indian visas, which are much cheaper, the US decided to unilaterally waive the reciprocal fees for Indian citizens, he added.

Exchange Rate Adjusted

In view of the recent increase in rupee value against dollar, starting from November 13, 2006, the U.S. Embassy in India will re-adjust the consular exchange rate from Rs.48 to the dollar back to Rs.46 to the dollar, as it was earlier this year in July.

The new exchange rate will be applicable for all visa and passport fees. For non-immigrant visa, the new application fee is Rs.4,600. The US Embassy has cut the additional $50 (now Rs.2300) issuance fee for this category, so for applications dated November 8,2006 and after are exempt from paying this amount. For other visa categories, the issuance fee remains same.

The exchange rate was adjusted previously this year in August, from Rs.46 to Rs.48 following an increase in the market exchange rate. Copyright © 2006, All Rights Reserved

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.Retaining Priority Dates by Switching Visa Category

The Scenario

  • Mr. X applied for a labor certification and I-140 petition under EB-3 visa category through company A.
  • Mr. X first got his Labor Certification and then his I-140 was approved.
  • Mr. X discovers that the priority date for EB-2 cases is better positioned than EB-3 cases.
  • Mr. X can now apply under EB-2 Visa Category.

NOTE: In most cases, the priority date of an employment-based application is established as of the date of filing the labor certification application. If an alien has approved I-140 (immigrant Visa petition) in the past, he or she may be able to transfer an old EB-1, EB-2, or EB-3 priority date to a new I-140 case, even if the I-140 petition was filed by a different employer. An exception exists where the prior I-140 petition is revoked due to fraud. Copyright © 2006, All Rights Reserved

In this section, we will reveal the exceptions to the rules and the ambiguities in the law – tips and information that most lawyers won’t reveal but that can save you a lot of time and headache.Q: How long does it take to obtain an H-1 visa?

A: The H-1B petition process requires filing applications with two government agencies, the Department of Labor and the U.S. Citizenship & Immigration Service (USCIS). Normal processing time varies from two to six months, but during peak season the processing time is approximately six months.

For an additional fee of $1000, premium processing may be available, which guarantees USCIS adjudication within fifteen calendar days.

NOTE: If you are a student, and you commence employment in F-1 status having been granted post-completion practical training, you should ask your employer to start the process for H1-B status at least 6 months prior to the expiration of the practical training period so that you do NOT run out of practical training or academic training.

However, you do not need to file for an H-1B visa immediately after starting your employment on completion of practical or academic training. Your employer may prefer to evaluate your performance and to wait until after you complete a probationary period before starting the H1-B process. You also may want to take advantage of an additional year of non-immigrant employment and certain tax benefits before changing status to H-1B.

In any case, it is advisable to be sure the process starts early enough so that your practical training/academic training period doesn’t expire before the H1-B Petition is approved. If this happens, you will have to stop working until the H-1B Petition and Change of Status are approved.

NOTE: Please talk to our sponsors, International Legal and Business Services Group about your ability to remain in the U.S. while an application is pending for a change of status. Copyright © 2006, All Rights Reserved

Q: What happens if I am currently working using F-1 Practical Training and my permit to work expires and the H visa has yet to be approved?

A: This situation basically puts you out of status and legally you are required to return to your country of origin within the grace period.

However, in such cases, the USCIS Director can at his/her discretion extend the period of time needed to complete the adjudication of the H-1B application by publishing a notice in the Federal Register. In the past, F1 students who filed petitions to change to H-1B status could legally remain in the country as long as an application for an H-1B visa and Change of Status (COS) had been filed before the expiration of the student status. However, there are new concerns about the good-faith COS application since the application is not “immediately approvable.”

Another provision affecting F-1 non-immigrants allows employers to pay a signing bonus to F-1 non-immigrants before those non-immigrants are approved for work on an H visa. However, the signing bonus cannot represent a salary or reimbursement for services rendered. Once the H visa is approved and your change of status takes place you will no longer be in F1 status. Any unused practical training will be lost and may not be reclaimed later. Copyright © 2006, All Rights Reserved

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. Copyright © 2006, All Rights Reserved
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