Sindell Law Offices E-Min Newsletter FLASH NEWS - English Article #1
The following is an article, hot off of the press from the AILA (American Immigration Lawyer’s Association) in Philadelphia, PA.
Question:I have heard that the labor certification process talked about for the last few years, called PERM will greatly reduce process times. When is that program going on-line.
Answer:
The labor department has not issued any final regulations regarding this program. Unfortunately, we have written and all expected that we would have an answer this year sometime. The labor department has stated that they are close to publishing a final regulation on PERM but nothing has been published. We all hope to see PERM implemented within the next year and I think we can assume it will be implemented within the next year. In the mean time, the labor department is implementing a backlog reduction program to reduce the backlogs people have been experiencing over the past three years, especially in New York and in New Jersey. These cases will be sent to regional centers to be processed more quickly, We are looking forward to seeing cases certified more expeditiously now.
Question:
I have heard about US VISIT, where the BCP (border control) takes photographs and fingerprints. Will this effect me?
Answer:
By October of this year, all NIV holders will be fingerprinted and photographed. In addition, citizens of VWP countries will also have to go through a similar process at the border. As we have stated previously, MR passports will also be required to enter into the US in the VWP. Congress may extend the machine readable passport requirement for another two years to allow certain countries to comply with the requirement.
Question:
What is happening at the department of state, and the US Embassy in Tokyo.
Answer:
As of July 1, 2004, all applicants for all non-immigrant visas, whether for extensions, or other, including H & L visas will be required to be interviewed at the U.S. embassy in Tokyo or the US Consulate in Osaka, depending on the jurisdiction over the applicant’s place of residence. The embassy and consulate is not increasing interview days but will increase staff to deal with the increasing number of applicants. Every person who wishes to obtain an NIV will have to obtain an appointment on the embassy web site. The reason for this is that by October 24, 2004, all applicants must be fingerprinted at the embassy, so physical presence is required. Also, the embassy will not be conducting IV (immigrant visa) interviews for the month of July, to adjust to the new policy and make proper arrangements for NIV applicants.
We also have received notice that the State Department’s revalidation unit will be closing. If the person is applying for a second H-1, L or E visa stamp or certain other types of stamps, up until now, they could send their passport to St. Louis or Washington D.C. to revalidate their visa stamps. Because of the fingerprint requirement, the Department of State is closing the revalidation unit. All visa applications for this unit must be submitted by July 16th in order to be processed by the October 24th cut off date. The department of state is in discussions with US CIS to make use of their biometric data facilities so that the revalidation unit can re-open. However, there is nothing concrete which has been decided as of yet.
Question:
I have heard about the H-1b cap and that it is full. I had an H-1b but I switched to B-1. Now, I want to go back to H-1b. Am I subject to the cap?
Answer:
If you have had an H-1b visa within the past six years, you are not subject to the cap, which means that you don’t have to wait until H-1b visas are available to work. You cannot start your job immediately, in other words, you cannot use the H-1b portability provisions unless you had H-1b status immediately prior to the filing of a new H-1b visa.
Question;
I have heard that USCIS has electronic filings for I-129 petitions, like H-1b or L-1 visas. How does that work.
Answer:
The US CIS just implemented e filings. However, in their current form, there is not much use for them since you have to send the petition by mail later anyway. The best use of the e-filings are when you to file immediately, for example, in the portability context where the applicant wishes to work immediately. Once you file the I-129, the applicant can work immediately, in the H-1b portability context. This is the biggest benefit of the e-filings.
Question:
I want an F-1 or J-1 to study in the U.S. Do I have to speak English?
Answer:
If you are attending an F-1 or J-1 program that doesn’ t require proficiency in English, the consular officer should not deny your petition merely based on the fact that you don’t speak English. It may be denied for a slew of other reasons, including immigrant intent, but the ability to speak English should not be a factor in the denial.
Question:
I am thinking about obtaining citizenship. How long do I have to live in the U.S. before I can apply.
Answer+ :
This is a very complex issue. First, it depends on how you obtained permanent residence. If by marriage, three years, if by employment, five years. There is also a physical presence, you have to have had no absences for more than 6 months to a year and if you did, you need to present evidence that you intended to return and live in the U.S. at the time. In addition, you need to have lived in the U.S. 912 .5 days within the past five years (if employment based) prior to the filing of the petition. You also need to prove good moral character in order to obtain naturalization.
Question:I have applied for an EAD (employment authorization document) for an employment based permanent residence case in the last stages. How long is that EAD valid for?
Answer:
Up until now, an EAD has always been issued for one year. Just hot off the press, USCIS will be publishing a rule in the next couple of weeks allowing the centers to issue EAD cards for up to three years depending on the case. This does not just cover permanent residence, but also for example, E-2 spouse’s EAD cards. This does not mean that everyone’s card will be good for three years, but that US CIS will, depending on the processing times at the various district offices, be able to issue the EAD for up to three years. Now, most people will not have to reapply for the EAD every year.
Question of the Day:
How many H-1b visas have been issued so far for FY 2005.
Answer:
As of May 31, 2004, 16,100 H-1b visas have been issued. This is about 8000 per month, since the beginning of April, 2004, when the USCIS opened up the numbers for FY 2005, with an October start date. If we calculate 8000 cases per month, we are looking at the quota being filled sometime in November. This is very hard to calculate at this time, but it is an estimate. Filings may increase so keep tuned.
Follow Up Question:So, should I file premium processing and spend a $1000 to get my case adjudicated before the cap is reached?
Answer:
We were notified that H-1b numbers are allocated at the time of receipt of the application. Therefore, premium processing gets you the answer quickly but even if you file regular processing, as long as numbers are available, as soon as the case is receipted, your number has been allocated. Therefore, unless you need a quick answer, there is no longer a need to file premium processing for H-1b cases, just to meet the cap.
The GAP from the CAP:
As many applicants have found out, if the person is in F-1 or J-1 status, and that status is lapsing prior to 10/1/2004, USCIS will not grant a change of status to the H-1b category. The beneficiary will have to leave the country and return. US CIS may be changing its mind, or least making up its mind on this issue. We have not heard either way, but expect a definitive announcement on this issue in the near future.
This is HOT OFF THE PRESS.
