Sixty-five thousand (65,000) H-1B visas become available April 1, 2007 for an employment start date on or after October 1, 2007. In recent years, the supply has run out within just a few months. We remind employers and foreign nationals that they may strengthen their chances of timely approval by preparing their H-1B cases now. In addition, as a service to our readers we present a short discussion of some recent USCIS policy changes, as they may affect an H-1B individual’s present or planned immigration status.
New USCIS Memo Expands Options for H-1B Visa Holders
A USCIS internal memo released to the immigration legal community last month has expanded options for foreign nationals who hold or have ever held H-1B status, as well as for those in H-4 or L-2 status. The memo gives regional and service center directors guidance on determining periods of admission for these aliens. All sections of the memo establish new policy in favor of beneficiaries and applicants; however, in some sections, due to ambiguities in the underlying law, the extent of the change is unclear.
The first section clearly confirms that time spent in H-4 or L-2 status is in no way coupled to time spent in H-1B or L-1status. The time spent in dependent status does not count against the period of admission available to a principal alien. Therefore, for example, an H-4 spouse may change status to H-1B, and hold the new status for a full six years, no matter how much time he or she previously spent in H-4 status. To effect such a change of status, however, the dependent spouse must meet all the requirements for the H-1B. In addition, an H-4 foreign national seeking H-1B status is subject to the cap (unless the employer is cap-exempt.)
The second section of the USCIS memo addresses periods of stay in H-1B status beyond the six-year maximum. The American Competitiveness in the Twenty –First Century Act (AC21) provides for exemptions to the six year maximum period of stay for certain H-1B holders who are being sponsored by their employers for permanent residence, and whose cases have been subject to lengthy delays. The memo clarifies that those eligible for the 7th year extension may be granted the extension regardless of whether they are currently in the U.S. and even if they don’t currently hold H-1B status. However, the service will ultimately make the determination in each individual’s case as to whether the alien is eligible for an additional period of admission in H-1B status.
A third section of the memo confirms that when an alien in unexpired H-1B status departs the U.S. for longer than one year, he or she has a choice of either being not subject to the cap and re-admitted for the remainder of the original period of admissibility; or seeking admission as a new H-1B alien subject to the cap.
Although the memo offers no specific comment on the subject of previous H-1B status holders out of status in the U.S., all sections emphasize the importance of maintaining legal status to gaining the immigration benefit. Moreover, the burden of proof rests with the alien to establish eligibility including admissibility and maintenance of status; and USCIS retains the power to deny or revoke status. Nonetheless, USCIS does approve visa applications and petitions when circumstances are not ideal. Therefore, an individual out of status or confronting any other immigration problem may have much to gain from consulting a qualified immigration attorney.
Immigration Law Associates, P.C. has seventeen years experience in the practice of a wide range of immigration matters, including H-1B petitions. To find how the new USCIS policy memo may benefit you or your employees, or for a consultation tailored to your individual situation, call (847) 763-8500, or visit our web site at www.immig-chicago.com
Contributed by the staff of Immigration law Associates,P.C.
Disclaimer: The materials contained herein have been prepared by Immigration law Associates, P.C. for informational purposes only and are not to be considered legal advice. The materials on this or associated pages, documents, comments, answers, e-mail, articles or other communications related to this article should not be taken as legal advice for any individual case or situation. The materials and /or transmission of the information are not intended to create and receipt does not constitute, an attorney client relationship