Sindell Law Offices E-Min Newsletter BREAKING NEWS

   June 23, 2005

Today marked the first day of the American Immigration Lawyer's Association conference at Salt Lake City. The following is a recap of the hottest news items.


H-1b

AC-106 provides that if a person files a labor certification application 365 days prior to the expiration of their H-1b (6^th year anniversary), the H-1b can be extended in one year increments. Until recently, the applicant could only obtain one year at a time. As of a May 12, 2005 memo written by William Yates, Associate Director of Operations, USCIS, you can tack on the 7^th year along with any other years left on the 6 years. For example, if you are in ending your 4th year of H-1b, and you have applied at least 365 days prior to filing, you can file for another three years at one time. In other words, obtain the two years, plus tack on the 7^th year. Until anomaly also clarified in that memo is when you can apply for the 7^th year. The start date of the 7^th year must coincide at least 365 days after filing, but you can file for the 7^th year, etc.. up to 6 months in advance of the start date, if you know that on that date, at least 365 days will have transpired since the filing of the labor certification.

Another interesting point. Normally, the labor certification, or the next step, the I-140 must be pending, in order to apply for the 7^th year extension. The new exception is that if the I-140 or the labor certification is denied, but is on appeal, the person can still extend their H-1b visa, since the decision is not final until all appeals are exhausted.

Another question came up if a PERM application is approved, can the 7^th year extension be based on a previously pending labor certification? The answer again is yes, if that labor certification is still pending. It is important to note that the labor certification pending could be with a former employer, as long as that employer continues the labor certification process.

One question asked was if the spouse (h-1b holder) of an H-1b holder, can use the other spouse's labor certification to extend his/her H-1b, in other words, where both parties have H-1b status. The answer was no. Each person must be independently eligible for an H-1b 7^th year extension.


The CAP GAP

At this time, we do not know whether J-1/F-1 student's whose status expires prior to October 1, 2005 and who have applied or will apply for an H-1b, will be able to legally stay in the U.S. this year. This is a very politically charged issue and at this time, there has been no pronouncement. We have experienced the USCIS denying those without status until October 1, 2005, the time at which the new fiscal year begins. Therefore, we suggest that you make plans to return to your home country to obtain an H-1b visa stamp.


EB-3 Retrogression

We will write more about this issue. Basically, there are no more numbers for professional and skilled worker green card categories. If the person is in H-1b and cannot adjust status because there are no EB-3 numbers, the person can extend their H-1b status in 3 year increments until such time as numbers become available in the category. H-4 spouses and dependents also acquire this benefit.


H-1b cap

For FY2005 H-1b advanced degree, special quota of 2000, only about 10,000 have been used as of today’s numbers. For FY2006, about 28,000 H-1b numbers have been allocated. That is about half of the amount available. At this pace, H-1b numbers will probably run out in September or October, but no one knows at this point.


Ability to Pay issues

In order to obtain permanent residence, a company must show the ability to pay the prevailing wage to the alien. This is a complicated area of the law. However, one new idea to show ability to pay in a fairly new company situation is if there is an investment by a venture capital company, to show the extent of that investment, and thus the ability to pay through that investment.

MORE TO COME TOMORROW.