Often times the public can be unsympathetic with the plight of an immigrant.  They may feel that because someone came to the US illegally or overstayed their visa, that they should not be entitled to anything.  Well, what if that person is a child who had no say in the matter?  The Senate is currently considering the Development, Relief and Education for Alien Minors (DREAM) Act .  To be eligible, a child would have to have been brought to the US before the age of 16, be a person of good moral character (not having committed certain heinous offenses) and either attends college or joins the military.  This would place that person on the path towards permanent residence (green card) in the US.  Many members of the US Senate support the Act.  Those who do not argue that it is not appropriate to attach it to a defense spending bill or that immigration should not be tackled in a piecemeal fashion.  However, with the comprehensive immigration bill failing twice in the Senate and with an upcoming presidential election, I think that any immigration reform under possible consideration should be explored.

 

As many of you are aware, there are only 58,200 “new” H-1B visas available per fiscal year. Applications are first accepted on April 1 (or the first business day after April 1) for work to begin on October 1. These are for cases subject to the H-1B cap. Our office completed a frenzy of H-1B filings last night so that our clients would be assured (as best as possible) of being amongst those receiving an H-1B visa for this coming fiscal year. There are some exceptions to the cap though. If you are filing for an H-1B extension (or H-1B renewal), the cap does not apply to your case. If you are being sponsored by an institute of higher education or a non-profit research institute affiliated with an institute of higher education the cap does not apply. An interesting exemption is if you’ve had H-1B status in the past six years and not left the US for more than a year since that time. It is predicted that all of the new cases subject to the cap will be used up on the first day that applications are accepted this year. I’ve previously expressed my thoughts on the ridiculousness of this process (meaning that if there is such a demand for these visas from US businesses, why does Congress not increase the available numbers?). So, if you’ve found yourself with an expired H-1B or if you were not able to submit your petition in time for this year’s season, do realize that there are other options available. Some are specific to your country of nationality while others can apply to anyone. Please see our post from June 8, 2006 (What to do now that H-1B Visas have been exhausted) which discussed some of these other options. As the H-1B has turned into a very limited opportunity, it has become all the more important to concentrate on some of these other options.

 

The latest news from US Immigration is that fees are proposed to increase in the coming few months.  I am providing our readers with a link to a chart for applications and petitions for which fees are proposed to increase.  The chart illustrates the current filing fees and the proposed filing fees side by side for easy comparison.  A press release was issued by the USCIS explaining the need for the fee increase based upon several factors including increased cost of processing applications and the fact that prior fees were based upon an older model.  One interesting proposal relates to the fee increase for adjustment of status (form I-485).  The current fee (excluding the biometrics cost) is $325.00.  The proposed fee is $905.00.  However, the fee is to include ancillary applications such as the applications for employment authorization and advance parole.  This is all well and good.  However, some people do not want or need these benefits and many others are not even eligible for advance parole (at least not without seriously jeopardizing their case).  It is also not clear whether renewals of those benefits are included based upon long processing times for adjustment of status.  The overall reason for the fee increase is to improve customer service and to shorten processing times while ensuring security.  If this is the result, then I would not have a problem with it.  If applicants are to pay much higher fees without seeing improved results, then applicants will really be at a disadvantage.

 

On our subsection category of “Immigration Through Marriage” we received a comment asking for further clarification.  The comment was as follows: “What happens AFTER the interview and you’re told you must wait for a name check?  Is there any way any of the attorney services out there could help expedite this process?  Also, what happens after the interview, and your spouse’s H1B status comes to the 6 year limit? will he/she have to leave the country even with the green card pending? will he/she be able to continue to work?”

 

Name and background checks are supposed to be completed before the applicant is interviewed.  I would say that in about ten percent of cases, this is not done.  When it has not been completed, these checks can take anywhere from weeks to years to resolve.  It is no USCIS that completes these checks, but rather another agency.  Therefore, when one is told that their case is being held up as a result, there really isn’t anything that the immigration officer can do about it.  Someone in each office is assigned to check on these cases once per week for any updates.  Other than waiting for the results, one could institute a Mandamus action against the government to in effect push them into obtaining the needed results rather than sitting on it endlessly. 

 

The commenter’s second question asks about how his or her foreign spouse will be able to work after H-1B visa status expires.  Whenever you have an adjustment of status case pending, you have the right to apply for an employment authorization document (work permit).  This card allows you to work anywhere in the US and is not limited to a specific employer and specific job as is the H-1B.  The commenter’s spouse would be best advised to apply for a work permit as soon as possible and it will allow him or her to continue to work with the greatest amount of flexibility.

 

As always, we invite our readers to comment on our blog and as always, we’ll do our best to answer your questions.