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The immigration
activity resumed this month
with the Senate continuing
the debate on the Comprehensive
Immigration Reform Act of
2006 (S. 2611) popularly
known as the “Hagel-Martinez
compromise”. The Senate
voted on the various amendments
to the proposed legislation
and finally passed the bill
by a 62-36 vote. During
the first week, the Senate
struck down amendments that
would have eliminated guest
worker program and legalization
provisions. Now the real
fight begins when the bill
is presented before the
Senate-House Conference
Committee.
While the immigration debate
continues, the H-1B numbers
for FY 2007 seem to be dwindling
fast. You may be tracking
the latest cap update through
our Immigration News section.
While everyone is still
guessing when the cap will
be reached, over 44% of
our readers who participated
in last month’s Opinion
Poll are of the view that
H-1Bs for FY 2007 will be
over by June. As of May
25, 2006 USCIS has over
49,000 cap-subject H-1B
petitions approved or pending.
This means there are less
than 12,000 H-1Bs remaining
before the USCIS decides
that it has received enough
petitions to count towards
the cap. We again remind
and urge the last-minute
decision makers to act fast
and contact
us immediately, if you
intend to file an H-1B petition
for an alien worker.
Would you mind paying a
little extra to get a quick
decision on your petition
from the U.S. Citizenship
and Immigration Service
(USCIS)? USCIS is planning
to expand the Premium Processing
service to Form
I-140 - Immigrant Petition
for Alien Worker; Form
I-539 - Application
to Extend/Change Status;
and Form
I-765 - Application
for Employment Authorization.
A notice to this effect
was posted in the Federal
Register by the USCIS. However,
the notice indicates that
premium processing for those
categories will not begin
until notification is posted
on the USCIS website.
Our In Focus
article explores the benefits
of premium processing of
a petition to get a speedy
decision. Should the USCIS
also consider expanding
the benefit of premium processing
to family visa petitions
such as K-1 or K-3? Don’t
forget to express Your
Opinion in this
month’s poll.
Martina
Powell is the winner
of last month’s Immigration
Quiz. Unlike the
past few months, there was
little competition for Martina
this time. Although a few
participants answered correctly,
their responses lacked proper
explanation. Ms.
Powell wins a FREE
online consultation
with a VisaPro attorney.
Congratulations!
We often receive queries
from various users of our
website on how to obtain
a U.S. work permit. VisaPro
readers are aware that there
are various visas available
for working in the U.S.,
depending upon the nature
of work, the employing organization
and the employee’s
background. I have already
informed you all that we
have various exciting projects
in the pipeline, one of
which will allow you to
determine your visa options
for working in the U.S.
at the click of a few buttons.
While we continue to work
towards adding that feature
on our website, I have a
wonderful article for you
in this month’s Immigration
Article section.
The article discusses the
various options available
to people of different professions
to obtain a work authorization
for U.S. I wish you the
best of luck for your American
Dream!
As always, I am looking
forward to your wonderful
feedback
on your Immigration
Monitor. Did you
check the new version of
VisaPro
Message Boards? It is
really great fun posting
your queries and responding
to others’ queries.
I am learning a lot about
U.S. Immigration through
the message boards. Are
you?
See you next month with
more news from the world
of immigration. |
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Senate approves Comprehensive Immigration
Reform bill
The Senate yesterday approved, by a
vote of 62-36, the Comprehensive Immigration
Reform Act of 2006 (S. 2611). The bill
sets the stage for a Senate-House showdown
as the bill will now have to be harmonized
with the bill (H.R. 4437) passed by
the House in December.
H-1B
TRACKER: Cap Count as of May 25, 2006
As of May 25, 2006 USCIS has approved
7,718 petitions that are subject to
H-1B cap and 41,316 petitions are pending.
I-140 and EAD may become eligible for
Premium Processing
USCIS recently published a notice in
the Federal Register identifying Forms
I-140, I-539 and I-765 for addition
to an expanded Premium Processing Service.
Jeff
Conklin is Chief Information Officer
at USCIS
Director Emilio T. Gonzalez
announced the appointment of Jeff Conklin
as the Chief Information Officer of
United States Citizenship and Immigration
Services (USCIS).
When
to use Premium Processing
On June 1, 2001, the U.S. Immigration
and Naturalization Service (now U.S.
Citizenship and Immigration Services)
put into place a Premium Processing
Service, promising to speed up the agency's
applications decision process on selected
work visas.
How do I get a US Work Permit?
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| DOWNLOAD |
| Download
this Newsletter in PDF Format. |
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| YOUR
OPINION |
| USCIS
is considering allowing
premium processing
of Employment-Based
green card and EAD
applications? Should
the USCIS also expand
the benefit of premium
processing to family
visa petitions such
as K-1 and K-3? |
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a. |
Yes |
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| b. |
No |
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Cast
Your Vote |
| View
Results |
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| IMMIGRATION
QUIZ |
Win
a FREE Online Consultation!
Submit
your answer to the
query below. The best
response will be published
in the next Immigration
Monitor and
the winner will receive
a FREE
Online Consultation
from an Experienced
VisaPro Immigration
Attorney during the
month of June 2006. |
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| I
am getting married
to a French citizen
next month. He is
currently in the U.S.
on E-2 Investor visa.
I am a citizen of
India, which is not
a treaty country.
Does that mean I cannot
accompany my husband
to the U.S. on E-2
dependant visa? |
| Submit
Your Answer |
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| Winner
of the Immigration
Quiz - April 2006:
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| Martina
Powell |
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| The
Question: |
| I
was born in Australia
but my family migrated
to the U.K. when I
was 3 years old and
I have a British citizenship.
I am 35 now and have
received an offer
from a U.S. company.
Can I use E-3 visa
rather than the H-1B?? |
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| The
Winning Response: |
| E-3
visa classification
applies only to nationals
of Australia as well
as their spouses and
children. Since you
were born in Australia,
you may qualify for
Australian citizenship
by birth. However,
you need to confirm
that your present
country (U.K.) recognizes
dual citizenship (Australia
recognizes dual citizenship).
Once you are able
to prove that you
are an Australian
citizen, you may apply
for an E-3 visa. Otherwise,
the best bet may be
H-1B. Also, for both
visas, the position
offered to you must
be a specialty occupations,
requiring at least
a bachelor's degree,
and you must possess
the degree or its
equivalent. |
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| Martina
Powell
receives a FREE
Online Consultation
from an Experienced
VisaPro Immigration
Attorney during the
month of May 2006. |
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There are many
types of work visas, each with specific
requirements as to type of position,
type of employer, duration, etc. One
of the most important steps in the visa
application process is to determine
what category/ies may be the most suitable,
considering the nature of the position,
your background and goals, and other
factors.
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| QUESTIONS
AND ANSWERS |
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| 1. |
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My
friend submitted his
I-140 and I-485 last
year and they were
filed in Vermont Service
Center. The receipt
number starts with
EAC. A few days ago
when I checked the
case status online,
it said that his case
had been transferred
to Lincoln NE Center.
Will the new center
use the filing date
as the date when they
got the application
or the date when Vermont
Service Center received?
The USCIS recently
instituted new policies
regarding where cases
will be filed and
where they will be
adjudicated. They
are in the process
of establishing greater
specialization with
the Nebraska and Texas
Service Centers handling
the employment based
permanent residence
cases (Forms I-140
and accompanying adjustment
of status applications)
and the Vermont and
California Service
Centers handling the
nonimmigrant employment
based cases (Form
I-129 and accompanying
forms). It is our
understanding that
with this change the
service centers will
be exchanging cases
for processing. |
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| GOT
A QUESTION? |
If
you have
a short,
simple
query
on immigration
to the
U.S.,
send your
questions
to us.
We will
select
and answer
a few
of the
queries
in every
issue.
Note:
Responses
posted
in this
section
provide
only general
information.
Since
immigration
law is
a complex
matter,
please
consult
an immigration
attorney
before
acting
upon any
responses
provided. |
| Ask
Your Question |
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It
is also our understanding
that the case should retain
its original date for processing
and should be processed
in order; it should not
"go to back of the
line" as if it was
just received. As with any
major change in procedures
there may be some initial
delays in the process, and
some cases may end up out
of order for processing.
These bugs should be worked
out fairly quickly and the
overall processing times
should decrease. |
| 2. |
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I
with my husband and two
sons got our green card
in December 2003. We went
to the US in May 2004 and
applied for a reentry permit
as my second son had to
complete his studies here
in India. We (my husband,
my second son and I) have
been given permission to
return to the US by November,
2006. My first son is in
the US pursuing his MS.
Do we (the three of us)
need to again apply for
a re-entry permit when we
go to the US now or is it
possible to visit the US
henceforth once in a year
without applying for a reentry
permit? |
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It
all depends on your intent
to make the US your permanent
home. Maintaining your permanent
residence status is dependent
on your intending to make
the US your permanent home
and living here. If you
plan to make the US your
permanent home but spend
a significant period of
time outside the US you
should continue to get a
re-entry permit for those
extended periods outside
the US.
Any time you are outside
the US for longer than six
months there is a presumption
that you have abandoned
your permanent residence
status. The USCIS looks
at several factors in determining
abandonment: whether you
have kept a home in the
US that you have unrestricted
access to, whether you maintained
US bank accounts and filed
your US tax returns as a
US resident, whether you
kept a US driver's license
current, whether you are
working for a US employer
overseas or for a foreign
employer, and whether you
have obtained a re-entry
permit. Each case is based
on the facts involved. However,
as a rule of thumb, the
longer you remain outside
the US the more difficult
it will be to show that
you intend to make the US
your permanent home. |
|
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Failure to
file a change of status
for your spouse is
not necessarily fatal
to your case
We received a frantic
call from Dr. Wang.
It seems that his
wife has been out
of status now for
over a year (close
to a year and a half).
When Dr. Wang joined
his current employer,
they filed for his
change of status from
F-1
to H-1B,
but failed to file
a change of status
for his wife, even
though they knew he
was married and that
she was in the US
with him. Once Dr.
Wang’s H-1B
status was approved
his wife no longer
qualified as an F-2
and technically fell
out of status. This
error was only discovered
when Dr. Wang accepted
a position with a
new employer and they
were preparing his
new H-1B petition.
Because she had been
out of status for
so long it became
critical to find a
way to get Mrs. Wang
back into status in
the US. If she were
to leave the US to
get a new visa it
was possible that
a consular officer
could have determined
that she was out of
status for over a
year and thereby subject
to the 10 year bar.
Some quick research
confirmed that we
could still seek a
change of status for
Mrs. Wang under 8
C.F.R. § 248.2
if we could show that
the error in not filing
was “through
no fault of her own.”
We gathered as much
information as possible
to show that the attorneys
that filed Dr. Wang’s
change of status to
H-1B was aware that
he was married and
that his wife was
in the US with him.
We were able to show
that Dr. Wang had
provided the attorney
with his wife’s
information but that
he failed to prepare
the change of status
for her. We also got
a statement from Dr.
Wang that the attorney
did not advise him
to file a change of
status for his wife,
and that the Wang’s
relied on the attorney‘s
expertise and assumed
that everything that
was required had been
completed and filed.
To our great delight
Mrs. Wang’s
change
of status application
was approved after
about 6 months (because
of the length of time
that Mrs. Wang had
been out of status
the USCIS asked for
additional evidence
about what Mrs. Wang
had been doing in
the US since her husband
had changed status,
which was quickly
provided to the service
center) and her status
was extended to match
that of Dr. Wang.
The regulations require
that a change of status
application must be
received by the service
center with jurisdiction
over the place of
residence of the applicant
before the applicant’s
current status expires.
If the application
is not timely filed,
USCIS has the discretion
to excuse the late
filing if the applicant
can show that:
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a.
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the
late filing
was due to extraordinary
circumstance
beyond the control
of the applicant,
and that the
delay was commensurate
with the circumstances; |
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| b. |
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the applicant
has not otherwise
violated their
status (e.g.,
has not engaged
in unauthorized
employment);
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the applicant
remains a bona
fide nonimmigrant;
and |
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the applicant
is not in removal
proceedings. |
The outcome is clearly
dependent on handling
the facts of the case,
and as demonstrated
here, can be successful
even when the applicant
has been out of status
for a lengthy period
of time.
Our
attorneys have the
experience to review
and analyze difficult
cases and formulate
strategies for success.
We would be happy
to review your case
and discuss your options.
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Your Feedback |
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on topics that you want us to
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Immigration News |
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interesting immigration-related
news to report? We will give a
FREE Online Consultation
to whoever provides us with the
best news story of the month.
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your story. |
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Our goal is to help keep you informed
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