• 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.

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.  

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. 

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. 

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.

The USCIS just released its latest H-1B count.  So far this fiscal year, it has received 53,800 petitions for new H-1B employment under the 65,000 Cap.  Yearly, there are also an additional 20,000 H-1B numbers available for those with U.S. Master degrees or higher, but that cap has now been reached; thus, those with Master degrees will now have to fit under the 65,000 Cap.

While it is impossible to say exactly how long H-1B visas will remain available, it is certainly possible that the numbers will be exhausted in the next one to two months.  From that time on, H-1B visas will not be available until October 1, 2010.  Therefore, if you are thinking of using this classification, I recommend that you seek immigration assistance as soon as possible.  Also, there are a number of exceptions to the annual Cap.  A qualified immigration attorney can provide advice regarding these exceptions. 

The above-mentioned programs have been lingering in limbo for an extended time while Congress has been debating extensions.  The passage of the bill will end a difficult period of uncertainty for many foreign nationals.  Although the President still needs to sign the bill to make it law, it appears the President will put his signature on it.  You may contact us if you need an Immigration Attorney to help you with one of these programs.

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

The cause of this change in policy can be traced to deficiencies in the Department of Labor’s new LCA technology.  The new program is meant to make the process of obtaining an LCA more efficient, but as with many other releases of new technology, the progress comes with defects.  There have been numerous delays and improper denials of LCAs because of program defects.  In addition, I have noticed that the language implemented in the new application is convoluted and difficult to understand, which makes it harder for most people to use. 

The USCIS has made a very reasonable accomodation to employers facing difficulties with the LCA.  Still, the government will not approve the H-1B petition until the sponsor obtains an approved LCA.  Thus, it is critical that the DOL improve its new system as soon as possible.

 If you are facing an H-1B problem, or simply want to start the process, you may contact our Long Beach immigration attorney. 

The new Visa Bulletin reports that the wait for a 3rd preference immigrant visa is seven years for those in the world-wide category.  If you are from India, the wait is a year longer.  For those with master’s degree who fit into the second preference category, the Visa Bulletin is current unless you are from China (a four year wait) or India (nearly a five year wait). 

 The Family-based categories also remain ridiculously backlogged.  Unmarried sons and daughters of U.S. citizens face a line requiring a six year wait for most people.  If you are from Mexico, the wait is seventeen years!  A brother or sister petition for Philippine nationals is worthless until you have waited twenty-two years!

I certainly hope that Congress and the President address these backlogs in a new Comprehensive Immigration Bill.  Unfortunately they have their hands full with health care issues, but, being an optimist, I am hopeful that next year they will fix many of the system flaws that have been present in the immigration process for years. 

 In the meantime, if you have an immigration issue, contact us.  The immigration attorneys with Garg & Associates will be happy to look for the best available methods to address your immigration concerns. 

Even if the United States Citizenship and Immigration Services (USCIS) issues you a travel permit, you should ask an immigration attorney if travel is recommended.  Many people seeking a green card obtain advance parole when applying for adjustment of status.  The USCIS does not analyze if travel is problematic when issuing these documents; they simply issue the travel document.  If a non-citizen is barred from reentry because of prior unlawful status or a previous conviction, the advance parole document will offer no protection to the individual.  In some cases, the traveler will not be allowed to return to the United States for ten years.

Permanent residents also must understand the potential consequences of travel.  For example, when permanent residents leave the United States for longer than six  months, the USCIS will sometimes seek to terminate their green card status on the basis that they abandoned their residence in the United States.  A trip of one year will automatically terminate green card status, unless the traveler has obtained a reentry permit. 

For those contemplating naturalization, an immigration attorney can help formulate a strategy for a frequent traveler to meet the physical presence and continuous residence requirements for citizenship. 

The above travel concerns touch on just a few of the many possible travel issues for non-citizens.  The immigration attorneys at Garg & Associates, PC can answer your travel questions or any other immigration concerns you may have.