John Valdez’s Legal Blog

This blog is sent to remind foreign nationals to consult with their immigration attorney before traveling outside of the U.S.  They are many situations where traveling outside of the U.S. can harm a foreign national’s interests.  Consider these examples:

• Most applicants for adjustment of status must wait to receive an advance parole document before leaving the U.S.  If this rule is not observed, all of the expense for filing the adjustment application (lawyer fees, filing fees, medical exam fees, etc.) will be wasted.  The government will consider the application abandoned in this situation.  One exception to this rule occurs if the applicant is in H or L classification.  You should consult your attorney to see if you are covered by an exception.
• A applicant for a Reentry Permit must wait until he or she has completed the biometric requirements before leaving the U.S.  After filing for the Reentry Permit, the applicant must wait for the USCIS to send the applicant a biometrics appointment, and then attend the appointment.  If this formality is not observed, the application is deemed abandoned.
• Green card holders should listen to their immigration attorney’s advice before traveling.  There are a number of important rules for such individuals to keep in mind. For example, if a green card holder leaves the U.S. for more than six months, the government may very well question whether the person has given up permanent residence status.   If the person leaves the U.S. for more than a year, permanent residence status is deemed abandoned.  If the person has a Reentry Permit, these rules may not apply.   

There are some exceptions to the rules stated above, but the point is that foreign nationals need to seek out immigration counsel to make sure they will not suffer adverse immigration consequences.

These can be good times for foreign student graduates looking for an H-1B visa.  The H-1B visa is a category that helps college graduates work in the United States if they can land a job offer that specifically requires their bachelor’s degree for the job. 

In the past, students had faced some pretty tough obstacles to obtaining H-1B status.  Employers can begin filing H-1B petitions beginning on April 1st each year, with a work start date that cannot be earlier than October 1st of the same year.  A recurring problem has been that the general H-1B Cap (65,000 per year) has been filled in the first week of April.  This is not a problem this year.  It appears that H-1B numbers will be available for several months.

Another, major problem in the past was an issue called the Cap-Gap. The Cap-Gap occurs when a student is the beneficiary of an H-1B petition filed in April or May, and that student’s status (counting the 60 day grace period) will expire before October 1st, the first date the H-1B petition can be valid.  In some years, these students needed to leave the U.S. and return later, on or after October 1st.  This was a major inconvenience to students, especially those needing to travel long distances to their native country, like China or India. 

Last year, the U.S. government solved the Cap-Gap problem with new regulations. Now the law permits students to remain in the U.S. during the Cap-Gap period, so long as the H-1B petition was timely filed while the students were in status.  In addition, any students in this position should use the H-1B filing to obtain a new I-20 from their school, so that they will have proof of continuing legal status.

If you are a student looking for an H-1B, you should consult with an experienced immigration attorney to make sure you continue to properly maintain your legal status during the immigration process.  

You just married your sweetheart in a foreign country.  You are a U.S. citizen and you want to bring your foreign wife to the United States.  It should be a fast, easy process, right? 

Wrong.  Unfortunately, the process can be much more lengthy than people imagine.  First, even if your wife has a visitor visa, she may not be able to use it after her marriage to you.  There is a presumption in the immigration rules that any visitor coming to the United States wants to stay here permanently, an impermissible intent under the B (visitor) visa.  Thus, the visitor must overcome this presume with his or her statements at admission.  If someone is married to a U.S. citizen, the inspecting officer may not believe that the visitor will leave the U.S. as required within six months.  Therefore he or she may refuse entry for your wife.

Moreover, obtaining an immigrant visa takes time.  Anywhere from six months to, in extreme cases, years. 

The one thing that can save you much time and money is the retaining of an experienced immigration attorney. Any slip ups in the paperwork, misunderstanding of the rules, or other unfortunate errors, can cost an inspiring immigrant severe delay and loss of money.  If possible, seek immigration advice before marriage, since there may be a strategy that you have not thought of.  There are even times when marriage in the U.S. could work out better, but only if the correct immigration rules have been followed.

The immigration attorneys at Garg & Associates are very experienced in these matters. 

Now is an excellent time for employers to sponsor highly skills foreign nationals for a non-immigrant visa.  The must useful immigration category for this purpose is the H-1B. 

The H-1B Category 

This category allows employers to hire a foreign national when the foreigner has at least the equivalent of a U.S. bachelors degree and the open position specifically requires that degree.  Because the category is reserved for people with very specialized knowledge, the position normally must only require one specific degree or possibly just a few specific degrees.  If the position simply requires any bachelors degree, it is not specialized enough to meet the H-1B rules.

Availability

The H-1B visa is not usually available all year long. There is a statutory cap of 65,000 H-1B visa each year, with an additional 20,000 available for individuals with a U.S. Masters degree or higher.  The cap is sometimes reached within a week of the new fiscal year.  Other times it is available for several months before it is filled.  The cap is reached quickly when the economy is humming, and much later when it is sluggish.  April 1st is the first day of the year a company may petition for an H-1B worker.  Thus, this month (April) is the best time to file an H-1B petition.

Compliance Rules

There are many compliance rules that govern the H-1B visa.  These rules, for example, cover wages, work conditions, and the work to be performed.  Garg & Associates attorneys are skilled in managing all aspects of the H-1B petition. 

It is only February, but already the direction of immigration is shaping up.  Once again, there are no H-1B visas, as the cap has been filled.  The visa bulletin is extremely backlogged, which means that the wait for most immigrant visas is very, very long.  The government is readying to conduct a record number of audits in H-1B and Religious Worker cases.

Despite the mostly poor news I note above, there are some good signs in the direction of the all powerful immigration winds.  Blowing our way is the fact that beginning April 1st, we will once again be able to submit H-1B petitions (for a start date of October 1st).  I have also noticed that, in general, the USCIS is processing petitions and applications much faster than in past times. 

 It is too early to determine if Congress will seriously try to make improvements in immigration laws, but I am hopeful.

In the meantime, Garg & Associates will monitor changes in the immigration field and continue to inform you of the latest information.