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.

Premium processing can be thought of as an upgrade to certain non-immigrant and immigrant employment based visa categories.  The way that it works is that the sponsoring employer pays $1,000 to the US immigration service in exchange for a commitment to process the petition within 15 calendar days.  What does "process" mean you may ask?  It means that they will either approve, deny or request additional evidence within that time frame.  If they request additional evidence, then the 15 day clock restarts anew when they receive your reply for additional evidence.  The process is available for nearly all of the first three employment based immigrant categories (with the exception, currently, of multinational executives and managers).  It also does not apply to immigrant investors and immigrant religious workers.  Nearly all of the applicable non-immigrant employment based categories are covered.  Additionally, you can either file the premium processing request initially with your petition or you can upgrade it at any point.  It can be a real time saver.  The question to ask yourself is whether the time savings is worth $1,000.  Many times it can be.  For example, if an alien is in H-1B status that will expire in the next month or two and has an employment based immigrant petition pending, upgrading that petition through premium processing may mean that the alien can apply for adjustment of status and a work permit sooner and avoid having to renew his H-1B status and the costs associated with it.

As many of our readers are aware, there is an artificially set number of H-1B visas available each fiscal year, 85,000 to be exact.  Of these, some are set aside for people who graduated with Masters’ degrees in the US and some are put aside for Chile and Singapore free trade agreements.  The fiscal year runs from October 1 to September 30.  Six months prior to the beginning of the fiscal year, one may submit a new (as opposed to renewal or extension) H-1B petition.  As mentioned in our blog post from earlier this year, the season only lasted about seven weeks.  Think about how few visas are available for this big country.  These are jobs that are only for professionals.  This means we’re turning away talent rather than keeping it here.  On the same note, employment based immigrant visas are backlogged in several categories.  For jobs that require education and/or experience (but something less than a Master’s degree or equivalent) there is a backlog of more than four years.  This basically means that the labor certification process is theoretically flawed.  An employer goes through a detailed process of showing that it cannot find an employee who meets certain minimum qualifications (of which of course, the foreign national possesses).  Then, after having proved this, the process is relatively on hold for four years.  The American Immigration Lawyers Association recently posted a letter to Congress from nearly one thousand businesses, schools and hospitals in the US complaining about these backlogs and shortfalls and asking for relief.  If we as a country are going to have these categories in place, should we not at least make sufficient visas available so that they can be used as intended?

I am angry right now and I’ll tell you why.  I just met with a potential client who wasted significant time and money by obtaining advice from a non-lawyer rather than a qualified immigration attorney.  The person who came to visit me arrived in the US about two years ago and his lawful stay expired about a year and a half ago.  Around the time his status was to expire, he paid several thousand dollars to a non-lawyer who blindly told him to sign a form that that person had prepared that would lead to a work permit in the US.  If it’s too good to be true then it is.  The form that this person signed was an application for a process designed for people who arrived in the US before 1982 (when this particular applicant would have been only a small child).  He was not even remotely eligible for this process.  Non-lawyers prey upon uninformed people by promising them unachievable results for large sums of money and of course, they never deliver.  They call themselves, notaries, notarios, immigration consultants, etc.  The bottom line is that unless they have a law degree that allows them to practice law in the US, they are not qualified to give advice.  State legal bar associations, to differing degrees, seek out these non-lawyers for prosecution.  The State Bar of Texas actively pursues violators of their statute.  The previous link is to an article on their web site related to the unlawful practice of law.  The Florida Bar also pursues violators of Florida law related to this matter.  The bottom line is that people should seek immigration advice only from qualified immigration attorneys.  In my immigration practice, I have a number of cases  devoted to fixing the damage that non-lawyers have done to people’s cases.  Sometimes, the damage is so great that it cannot be fixed.