Month: August 2010

Political Asylum Series: India

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Political Asylum – Part I

Spotlight: India

I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they have a legitimate claim to asylum in the United States.  I am going to start a series on this blog to discuss previous asylum applications and the applicant’s country of origin so you can use these posts to help yourself determine if asylum is a possibility for you

This asylum post will cover asylum applications where the applicant is of Indian origin.

Political Asylum Requirements

Foreign nationals in the US who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social or political group may obtain asylum.

Examples of Successful US Asylum Cases Made by Indian Nationals

  • A married women who contracted HIV and fears her family will disown her or force her to get a divorce;
  • A couple who had an interfaith marriage, Hindu and Sikh;
  • Tamil males between the ages of 15 and 45;
  • A son whose father made a political speech which resulted in the father being beat up by the Bhindrawala Tiger Force (BTF); and
  • A Sikh man accused of supporting Sikh separatists and beaten and arrested by the Indian police.

We can help you win your asylum claim and obtain permanent residency (green card) in the US

Many Indian nationals have credible fear of persecution in India that can lead to an asylum approval.  However, most asylum cases are denied due to applicants failure to articulate their fear and document events that have led to that fear.  We have successfully helped many Indian clients and we are familiar with many circumstances that can lead to a successful asylum claim.  In our experience, most asylum applications are adjudicated in 3-6 months.  It is best, but not mandatory, to file your asylum application within the first 12 months of your entry to the US and while you have a valid immigration status such as a visitor or work visa.   We understand the fear and the pain you’re going through and we’ll make sure that your asylum process is as painless as possible.

USCIS Filing Fees on the Rise Again!

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On August 13, 2010, President Obama signed Public Law 111-230 into law which dramatically increases H1B and L1 filing fees for certain US companies.  The new law went into effect immediately and though Form I-129 has not yet incorporated the new law into the form, all US petitioning companies must disclose whether they are subject or not.

The new law requires additional filing fees of $2,000 for H1B visa petitioner and $2,250 for L1A and L1B petitions where the US petitioning company employs 50 or more employees in the United States and more than 50 percent of its employees in the United States are in H-1B or L visa status.  Petitioners with fewer than 50 employees or those who employ primarily non H1B or L visa workers will not be affected.

However, all applicants will be affected by USCIS’s plan to raise all other filing fees.  On June 11, 2010 USCIS announced their plan to raise fees across the board an average of 10%.  This prospective fee increase is still in the public comment stage but is expected to go into effect shortly.  The agency stated that the fees needed to be increased to offset lost revenue from fewer applications being filed.  This is in sharp contrast to their previous reasoning when they raised fees in 2007 to increase staffing to adjudicate applications faster.

The bureaucracy is expanding to meet the needs of the expanding bureaucracy. – Unknown

H1B Visa Extensions Beyond the Six Year Limitation

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The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.