- H-1B Usage For Fiscal Year 2005
As of this writing, more than 16,000 H-1Bs against the Fiscal Year 2005 cap of 65,000 have been approved. Based on these numbers, It does not seem likely that the cap will be reached before the start of the new fiscal year, October 1, 2004.
The United States Citizenship and Immigration Services (USCIS) began accepting H-1B filings for Fiscal Year 2005 (October 1, 2004 – September 30, 2005) since April 1 of this year.
It has also been announced that there is not likely to be a breakthrough with legislation to increase the H-1B cap this summer. Moreover, USCIS has disregarded prior policies with regards to assisting people who are F-1 and J-1 visa holders who have been caught in a status gap before October 1. Informally known as the "Cap Gap," a person on F-1 status that expires before October 1 would not be able to change status in the US but would have to leave the country to apply for the H visa at a US consulate overseas.
In previous years, when the cap was reached, the former INS used its authority to automatically extend F or J status till October 1 so that the H-1B applicant could remain in the US and change status. A panel comprising USCIS officials has announced that it is reviewing the "Cap Gap" issue and policy guidance will be published soon. However, USCIS admitted it currently has no intention to reinstate the favorable policies that bridged the gap for those individuals in F or J status who would be out of status by September 30th and who had approved H-1B petitions with an October 1st start date.
- State Department To End Visa Revalidations
The Department of State has announced that applications for visa revalidations will no longer be accepted after July 16, 2004. The visa revalidation procedure allows people who already have C, E, H, I, L, O, and P visa stamps in their passports to have them revalidated within the US instead of going overseas for a new visa.
The rationale for terminating visa revalidation is that the Department of State lacks the capacity within the US to acquire biometric identifiers required by all visas from October 26, 2004.
- 60-Day Residency Requirement For I-130 Direct Filing in India
The USCIS office in New Delhi, India, has always accepted I-130 petitions by US citizens who have married their spouse in India even though they were temporarily present there. A direct filing of an I-130 facilitates quicker processing than filing an I-130 petition with a service center in the US.
USCIS, India, recently announced that it will no longer accept such direct filings unless the US citizen spouse can establish that he/she was in India for at least 60 days prior to the filing. The 60-day waiting period cuts off a relatively quick processing facility for a US citizen to quickly bring his newly married spouse to the US on a green card. Those who cannot wait 60 days in India will be forced to file the I-130 petition at a service center, which takes over a year before the spouse can obtain an immigrant visa to come to the US. Fortunately, on December 21, 2000, the US Congress introduced K-3 visa. The K-3 visa allows the spouse to enter on that visa more quickly while the I-130 petition is still pending with a service center.
- Customer Service Hotline
The USCIS officials announced that they will open telephone lines back at the Service Centers by the end of the fiscal year (September 30, 2004). The national customer service line was established after the legacy Immigration and Naturalization Service (INS) was reorganized into the Department of Homeland Security in the Spring of 2003. As a result of the reorganization, all telephone inquiries from the public were directed to a central number, 1-800-375-5283. In practice, the new 800 number has been inefficient and not very helpful with respect to a variety of immigration issues. The information officers repeat the information that appears on the USCIS website, and callers are urged to write to the relevant USCIS office adjudicating the case, from which a response is seldom obtained. Prior to the reorganization of INS, a caller was able to speak to an Immigration Officer directly at the Service Center where detailed information could be obtained on the case in question. It is clear that the USCIS has finally heard the public’s outcry for restoration of a more useful customer service telephone system.
- § 245(k) for Employment-Based Adjustment of Status
USCIS officials also discussed Section 245(k) of the Immigration and Nationality Act. This provision states that an employment-based adjustment applicant may adjust status in the US notwithstanding his/her failure to maintain continuous lawful status, if subsequent to a lawful admission, the violation did not occur for an aggregate period exceeding 180 days. USCIS has confirmed that it will issue policy guidelines that the 180 period runs only after the lawful re-entry of the alien into the US. violations prior to that re-entry will not be counted in determining the 180 period.
- Employment Authorization Documents (EAD's)
USCIS officials also announced the forthcoming publication of a rule that will allow Employment Authorization Documents (EAD) to be valid for the duration of processing dates at each district office or a service center. Therefore, if an adjustment of status application takes 20 months to process at a local district office, the rule will permit the issuance of an Employment Authorization Document for 20 months. This rule stems from increasing delays from service centers to process employment authorization documents. Many service centers are taking up to six months out of the one-year maximum authorized time to process an extension. Such delays often require an applicant to file an extension almost as soon as he/ she obtains an EAD.
- Info Pass
A new program called Info Pass has been implemented in some district offices. Info Pass allows people to obtain an entry pass into a District Office by logging into the USCIS website and request a Pass. USCIS officials announced that Info Pass will be expanded to other districts and will be in most District Offices by the end of this fiscal year. The benefit of Info Pass is to significantly reduce the lines outside district offices for those who wish to obtain forms and other basic information that do not require appointments.
This newsletter was adapted from the article by Cyrus Mehta and Romulo E. Guevara appearing in the "Immigration Daily" of July 1, 2004.
