ImmiLETTER Vol. II – Issue 3: March 1, 2007

Overview of H1B Masters Students’ Quota
Who is eligible & who is not
There is good news for all the students who have finished their Master’s degree in the US and are now looking to transition into a professional life. Since 2005, the H-1B visa Reform Act of 2004, (which went into effect on May 2005) has made way for 20,000 additional H-1B visas for foreign workers with master’s degree or equivalent from a U.S. Institute.
Traveling While H1B Change-of-Status is Pending
Update as per USCIS “Letter of Guidance”
In a “Letter of Guidance” issued recently, the U.S. Citizenship and Immigration Services (USCIS) has clarified that if a person travels abroad while his change of status to H1 request is still pending, he or she will by default abandon the request for the change of status.
Prohibition of Substitution of Labor Certification
DO’S and DON’TS for employers and beneficiaries
As regular IMMITIPS readers you all are aware that, DOL has forwarded its draft of a final rule prohibiting substitution of labor certifications to the federal Office of Management and Budget (OMB) for final approval. The Final rule, when approved, will stop the practice of substituting beneficiaries on pending Labor Certification Applications (LCA), among other things.
  • DHS Launches its Traveler Redress Inquiry Program
  • March 2007 Visa Bulletin
  • DOL Update on RIR
    Conversion, PDS Case
  • Nebraska Service Centre I-140 Contact Details Updated
  • USCIS Planning to Increase US Citizenship fees
Case studies
  • Maintain Student Status If OPT Expires Before Oct 1st.
Useful tips
  • H1B holder can re-enter US without being subject to cap
Dedicated email ID for Students!

    Immitips has always been trying to give special focus and attention to students and in an effort to further help students seeking H1B status for FY 2007, IMMITIPS has created a dedicated help email for Students: Please email your questions with your contact number and your queries will be answered accordingly.

    Meet our sponsor !
    For Professional Legal Advice or Services Contact Our Sponsor.

    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.
    The Case
      • Ms. A is pursuing her OPT in US on a F1 Visa
      • Ms. A’s OPT will expire in March 2007 along with her visa.
      • Ms. A has filed for her H1B which will come into effect from October 2007.
      • Ms. A cannot stay in US as she will be legally out of status between March and October
      The Rule
      Students on F1 status, whose OPT is expiring prior to the start date of H1B status on 1st October 2007, should note that USCIS’ 2004 memo on “cap gap” is no more applicable. Cap gap was allowed by the USCIS previously for students whose F1 status expired prior to the start date of H1 from 1st October.

      Students are allowed a 60 day grace period to change status after the expiration of their F1 status. Accordingly F1 students whose OPT is expiring on or after 31st August 2007 can stay back in the US.

      All the students whose OPT is expiring before 31st August must seek any other status until 30th September 2007 to get extension of stay on H1B from 1st October 2007.

      The following are two possible options for students whose OPT will expire before 31st August 2007 to maintain their legal stay until 30th September 2007;

      1. Apply for F1 status and get a valid I-20 and apply for H1 with a start date of 1st October 2007
      2. Apply for an extension of stay request as a visitor on form I-539, showing proof of funds to support yourself until 30th September 2007.
      Copyright © 2007, All Rights Reserved

      What lawyers aren’t telling you?

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

      If an H1B holder left the US before completing six years and was away for more than a year, he or she can return for the remaining period (out of the total six-year period) without being subject to the H1B cap again.

      Background: In such cases, previously, the person could avail another six years but had to be counted against the cap, which meant a battle against backlogs and long queues.

      The Scenario:
        • X is a programmer analyst who worked in LA as a crystal reports specialist for 4 years on H1B visa status.
        • His H1 was valid until March 2006 but he returned to India.
        • He still has 2 years of unexpired H1B status.
        • X has two options based on the latest USCIS memo
          1. Re-enter the US based on an approved H1B petition for the remaining 2 year period. X is not subject to quota and is allowed to transfer his H1 to any other eligible company for the remaining period of his H1B status.
          2. Apply for a fresh 3 year period, ignoring his previous stay, as he has been out side the US for more than 365 days. But the start date for the H1B in this scenario would be from 1st October only.
          The Tip:

          People in this scenario could opt to enter the US for the remaining period of 2 years as the quota rules doesn’t apply to them and opt for Green Card processing upon arrival. Since beneficiaries are eligible to get 3 years extension on H1B status upon approval of I-140 petition, they do not have to wait until 1st October to get 3 years validity.
          Copyright © 2007, All Rights Reserved

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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.
          Copyright © 2007, All Rights Reserved