FY 2010 H1B Visa Cap

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Current regulations provide for 65,000 H1B Visas to be made available for fiscal year 2010.  Fiscal year 2010 or FY2010 covers the period of October 1, 2009 through September 30, 2010.  There are exceptions such as the 20,000 visas reserved for Master’s degree holders but the majority of applicants will fall under the general 65,000 cap.

FY2010 has been much different than the past several years where a flood of applications were made in the initial filing period and every visa was allocated just weeks into the filing season.  As of this posting, there are still several thousand H1B visas available.  On November 27, 2009, the USCIS announced that 58,900 H1B have been filed, leaving just over 6,000 available.  From October 25 to November 27, 6,100 applications were filed so if filings remain steady, we can expect the H1B cap to be met by the end of the year.

If you intend to file a H1B cap subject application, we recommend filing as soon as possible or you may have to wait until April 1, 2010 to file a FY2011 application.

California Service Center Will Issue Duplicate Approval Notices

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The California Service Center (CSC) will now issue one duplicate approval notice if the request is made within 30 days of the petition’s approval, without additional charge.  This can be beneficial where the the applicant did not list a Consulate for the USCIS to notify of the petition’s approval or where the applicant wishes the USCIS to notify a different Consulate than the one listed in the original petition.

J1 Waiver Options for Physicians

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The vast majority of foreign physicians who come to the United States for graduate medical training are going to be subject to INA Section 212(E) if they obtained such training with a J1 visa.  J1 visa holders subject to INA Section 212(E) are required to return to their home country for a period of two year before they may obtain an H1B visa, L1 visa or green card, unless they receive a waiver of this requirement.  J1 visa physicians who are subject to INA 212(E) have three options to obtain a waiver of the home residency requirement.

IGA Waiver

The first option is through an interested government agency (IGA waiver).  There are a limited number of US government agencies willing to sponsor a foreign physician for a waiver, through each have similar requirements.

Veteran’s Health Administration (VHA)

The VHA will act as an interested government agency for waiver purposes provided that the foreign physician agrees to full time clinical care employment with the VHA for a period of not less than three years.  The VHA prefers that the foreign physician be 100% employed at the VHA but will allow 5/8 employment at the VHA and 3/8 employment at an affiliated University.  The VHA is required to offer the position to non J-1 waiver candidates first and only if they cannot find a qualified candidate, may the VHA sponsor a foreign physician for a J1 waiver.

US Department of Health an Human Services (HHS)

The HHS will sponsor J1 waivers for foreign physicians performing research as well as for those performing clinical care.  In order to be considered for a research related waiver, the foreign physician must show that his or her work within the research program is in the national interest and that his or her efforts are essential for the research to be successful.  In order to be considered for a clinical care related waiver, the foreign physician must sign a contract to provide full time primary care services at a medical facility located in a health care professional shortage area for a period of not less than three years.

Appalachian Regional Commission (ARC)

The ARC will sponsor J1 waivers for foreign physicians if the physician agrees to provide primary care on a full time basis for a medical facility located in a health professional shortage area for a three year period or longer.  The foreign physician must be sponsored by a State located in the Appalachian Region before the ARC will consider sponsorship.  Appalachian Region States include the following: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia & West Virginia.

State Department of Health (Conrad 30)

Though not technically an IGA, each State may sponsor up to 30 foreign physicians for J1 waivers per year.  For employment based waivers, this is generally the only option for foreign physicians other than the VHA.  Each State has different requirement but generally, the foreign physician must agree to work full time for a medical facility located in an underserved area for a period of three years or more.

Fear of Persecution

The second option is based on an application based on fear of persecution.  The USCIS in conjunction with the Department of State may issue a J1 waiver if the foreign physician “would be subject to persecution on account of race, religion or political opinion.”  This option is rarely utilized and application processing times are extremely long because there are many sub departments at the USCIS and DOS that have to approve the application.  Moreover, where an applicant meets the legal requirements for a persecution based J1 waiver, they will also meet the requirements for asylum which allows the application to obtain lawful permanent residence (green card) – no J1 waiver required.

Exceptional Hardship

The third and final J1 waiver option for foreign physicians is a hardship based waiver.  This is the best option for physicians who qualify because there is no three year commitment to work at a facility in a remote location for low pay.  Once a waiver is granted, the physician may apply for an H1B visa to work for any medical facility that will hire him or her.  For those applicants who have borderline cases, it may be in their best interest to apply for an IGA based waiver and a hardship based waiver simultaneously.  Even better, for those applicants who plan ahead of time, a hardship based application may be made first and, if unsuccessful, may then pursue an IGA waiver.

In order to qualify for a hardship based waiver, the foreign physician must show that his or her departure from the US would impose exceptional hardship on US Citizen or Lawful Permanent Resident Spouse or child.  Factors to be considered in hardship cases include medical problems, psychological issues, economic, physical and emotional hardships, loss of employment, educational and health opportunities, hardships to third parties, cultural or religious hardships or disabilities.

I-485 Approvals Before Priority Date is Current According to Latest Visa Bulletin

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In the past couple months, we have been seeing some client obtain I-485 approvals where their priority date is not current.  This is contrary to the law and may lead to a future revocation.  The USCIS Service Centers are willing to allow an informal application to rescind the approval and allow the person to retain their pending I-485, along with any approved work or travel authorizations.  Failure to take action in this instance may preclude future immigration benefits such as naturalization and may cause the applicant to lose his or her place in the immigrant visa queue.

Fiancé Visa Processing in Guangzhou, China

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In recent months, we have been seeing the US Consulate in Guangzhou China take a much harder line on K-1 visa applicants.  In the past, the vast, vast majority of cases being approved on the day of application.  Now we are seeing applicants turned away with requests for further documentation.  This is becoming a hardship on some of our K-1 clients as many do not live in or near Guangzhou and most have to take 1-3 day train ride or fly to the city for their visa interviews.  The Consulate does allow applicants to mail in additional documentation but they require the applicant to return personally or hire a local to pick up the passport with the K-1 visa stamp.  Moreover, the Consulate is quoting a response time of 6-8 weeks to make a decision on the K-1 visa after submitting the additional documentation.

We have also been receiving many reports and requests for help from pro se filers who have received these requests for documentation or even for denials.  While it appears that, after review, many of the denials were the result of poor interviews, many requests for documentation were the result of the Consulate’s insistence extreme documentation of the relationship between the parties.  The Consulate’s requests have been quite uniform in these cases and we are now able to better advise of clients when preparing the K-1 visa applications.  In addition to these new documentation requirements, we are educating our clients and are performing mock interview sessions to prepare for the real interview.  It is very important that applicants avoid a denial at all costs because once the case is denied, it makes further applications extremely difficult and time consuming.

While these new K-1 visa policies ar Guangzhou make the application more difficult and time consuming, we have adopted and our clients are more prepared than ever and most are getting their visas the same day as the interview.  For the few that get the request for documentation, we have been able to get final approvals in 1-2 weeks instead of the 6-8 weeks quoted by the Consulate.

Conversion from L-1B Visa to L-1A Visa

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The California Service Center (CSC) has indicated a greater willingness to allow conversions from L-1B visa status to L-1A visa status recently.  Many L-1B visa holders would benefit greatly by this change because holding an L-1A visa status allows them to apply for permanent residence through the fast track EB-1C program which does not require labor certifcation/PERM.  The CSC has indicated that conversions from L-1B to L-1A must take place prior to the 4.5 year point of the 5 year maximum stay and extensions beyond 5 years will not be granted.  The policy decision to deny extensions to 7 years as allowed by the L-1A category deviates from prior statements from USCIS and is likely contrary to immigration law is unfortunate and is something we may attack through appeal, if necessary.

Recent Success in the National Interest Waiver Category (NIW)

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While our firm has always had great success in getting green card applications approved through the national interest waiver category, we have recently have enjoyed noteworthy success in getting them approved quickly.  In the past, we normally saw cases take roughly 10-14 months for NIWs to be approved and green cards to be issued.  Currently, both the Texas Service Center and Nebraska Service Center are showing that processing times are roughly 12 months for NIW Form I-140.  However, in several of our most recent NIW cases, we are receiving NIW approvals, including issuance of green cards, in 4 months or less.  One case in particular was approved in less than 3 weeks!  Bear in mind that premium processing is not available for NIWs.  We encountered the rate situation where both Form I-140 and Form I-485 were approved before the applicants even attended their biometrics appointment!  The green cards were mailed out shortly after the biometrics were taken.  It took a lot of hard work on our part to get these cases approved so quickly and we are working to duplicate these results on behalf of the rest of our clients.

Redacted copies of the latest approval notices are below.

NIW Green Cards Approved in Three Weeks!

H-1B Site Visits: They’re Coming to Visit You

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In nearly every H-1B petition, the petitioner is required to pay a $500 anti-fraud fee.  The Department of Homeland Security (DHS) is using the proceeds of these anti-fraud fees to investigate H-1B petitioners.  DHS is contracting with private investigators to make surprise visits, though they may provide advance notice if they so desire, to H-1B work sites.  These investigators are charged with verifying that the petitioning company is a real business entity operating as stated in the H-1B application and that the H-1B visa holder is a legitimate employee.

Therefore, it is imperative that each H-1B sponsor make sure that their filings are accurate.  If any amendments need to be made to reflect material changes in an already approved H-1B petition, such as change in work location or changes in job duties, the employer must timely file an H-1B amendment to reflect such changes.  Failure to take these duties responsibly can result in monetary penalties as well as criminal prosecution.

Marriage Green Card: From Conditional Resident (CPR) to Permanent Resident (LPR)

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If you were granted conditional resident status through marriage to a U.S. citizen or permanent resident, you will need to petition to remove the conditions before you can obtain your permanent green card.  This petition is typically made in the last 90 days of the two year anniversary of obtaining your conditional green card.

If you are still married at this time, you may petition jointly with your spouse.  If you are separated, divorced or your spouse will not jointly petition with you, you must fall into one of the following categories to self petition:

1. You entered the marriage in good faith, but your spouse subsequently died;

2. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

3. You entered the marriage in good faith and have remained married, but have been battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse; or

4. The termination of your status and removal would result in extreme hardship.

The most common situation where a joint petition cannot be filed is where there is a problem with the relationship and the couple is separated and is either in the process of divorcing or is already divorced.  The USCIS will not approve a self petition under the second category above unless the couple’s divorce is finalized at the time of the I-751 interview.  However, this does not mean that the self petition cannot be filed before the divorce is final.  The petition must be filed before the second anniversary of the issuance of the conditional green card.

In the case where the divorce has not been finalized and the deadline is approaching, you may file your self petition and then finalize the divorce.  Processing times are generally about 6 months and if a divorce cannot be finalized in that amount of time, you may be able to obtain an extension.  However, if that extension cannot be obtained or your divorce proceedings drag on, your conditional resident status will be terminated and a Notice to Appear (NTA) will be issued and you’ll have to continue your petition before an Immigration Judge or be removed from the United States.

Recent USCIS regulations will allow the conditional resident who filed a joint petition with his or her spouse to later amend the petition to be  a self petition where the couple separates prior to the I-751 interview.  USCIS will allow up to 87 days to finalize the divorce.

New Processing Procedure for Form I-140 and I-485 at the Texas Service Center (TSC) and Nebraska Service Center (NSC)

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New processing procures at the NSC and TSC regarding concurrently filed Form I-140 and Form I-485 are creating difficulties for borderline cases.  Previous USCIS Memoranda required USCIS adjudicating officers who denied an Petitioner’s Form I-140 to hold the Form I-485 for up to 30 days after the Form I-140 denial in case the Petitioner chose to appeal.  Then if the Administrative Appeals Office (AAO) sustained the appeal, the USCIS adjudicating officer would approve the Form I-485.  Now, the USCIS will immediately deny Form I-485 when Form I-140 is denied.  This means that every Petitioner should make sure that their Form I-140 petition is presented in the best possible light, especially in cases of concurrent filings.  Beneficiary’s are also advised to maintain nonimmigrant status, where possible, prior to Form I-140 approval and in some cases, before Form I-485 approval.