2004 Immigration Update

Here is an update in regard to various immigration matters which you may want to be aware of:

H-1B Usage
As you are aware, no further H-1’s were available after February of this year. However, beginning April 1st, H-1 petitions could be filed for persons who would begin employment on October 1st. At the American Immigration Lawyers Association Annual Conference, it was announced that as of the end of May, 16,100 H-1B’s countable against next year’s cap had already been approved. That is, in 2 months, 16,000 H-1’s were approved. While this is pure speculation on my part but, if the H-1B usage continues at this rate, by October 1st, 48,000 numbers will have been used and the cap will be reached by the end of October or the beginning of November! This requires two things on your part:
1.      Plan ahead and, if at all possible, file your H-1B petitions early;
2.      Write your Congressman, Senator, or Lobbyist and explain the difficulties which you will encounter if you are unable to file for H-1 employees for 10 or 11 months.

Students Caught in the Gap
Because no H-1B’s are available until October 1st and because a person needs to be maintaining legal status until October 1st if they are going to apply for change of status, many alien students are being disadvantaged. At the end of their academic studies, an alien student may obtain one year of practical training. Practical training, for many students, expires between May and July. The “gap” between the expiration of their practical training and October 1st, when an H-1 for them can begin, creates hardship on the students requiring them, at least, to return home for a few months until they can resume employment on October 1st. What is even worse, is that it disadvantages employers who cannot continue to use the services of the alien employee. Our association of immigration attorneys is trying to put pressure on the Department of Homeland Security to issue “cap gap” regulations. That is, regulations which will allow the alien students to remain in the United States after the expiration of their work authorization until October 1st. That will, at least, allow the student not to have to incur the unnecessary expense of going home. However, it will not allow the students to continue to work for their employers. On June 18th, a notice was sent to OMB for review that would allow students to remain in the United States until October 1st so there is some hope. However, as this matter takes longer to resolve, more students are becoming ineligible to be covered by such a provision. It remains to be seen as to whether any such regulation will be issued.

Visa Revalidation in the United States
The Department of States, recently announced that it will end its visa revalidation program in the United States on July 16, 2004. This program has allowed aliens on certain visas including H (Professional Workers), L (Intracompany Transferees) and others who have, at one time, had such a visa in their passport to “renew” that visa by mail while here in the United States. This has prevented persons from having to travel home and wait for lengthy periods of time in their home country while applying for the reissuance of such a visa. Persons will no longer be able take advantage of this option after July 16, 2004. Instead, they will either have to go back home and apply for the reissuance of their visa or try one of the bordering U.S. Consulates in Canada or Mexico. Any persons who still want to take advantage of the visa revalidation process in the United States must file their applications before July 16, 2004.

Denials without RFE’s
Until recently, the Immigration Service has issued Requests for Evidence (RFE’s) in most cases before they make a final decision, including denials. This has allowed employers an opportunity to answer questions or supply additional documentation to enhance their petition or application. In a memo from Washington, D.C., that policy has been changed and now the Service will be allowed to issue denials without the benefit of RFE’s. This means that it is now more imperative than ever that petitions for alien workers such as H’s and L’s be prepared and filed correctly the first time since there may be no opportunity to supplement the record later.

Disclaimer: Nothing in this memorandum should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation.