USCIS Interprets H-1B Visa Reform Act of 2004 to Permit the Filing of 20,000 Additional H-1B’s Regardless of Whether the Beneficiary Holds a Masters or Higher Degree
The H-1B Visa Reform Act of 2004 provided that effective March 8, 2005, theImmigration and Nationality Act would be amended to exempt from the cap any alien who
has earned a master’s or higher degree from a United States institution of higher education ... until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.
Most of us interpreted that this provision would permit the filing of an additional 20,000H-1B petitions on behalf of aliens with masters or higher degrees starting on March 8,2005. However, this interpretation turned out to be incorrect on two counts. First, wewere incorrect to presume that the March 8, 2005 effective date of the provisionestablished by Congress would be given effect by USCIS. USCIS issued a Press Releaseon March 4, 2005 stating that they are currently preparing guidance for theimplementation of the provision allowing for 20,000 additional H-1Bs. The PressRelease advises that any H-1Bs submitted prior to publication of that guidance in theFederal Register will be rejected. Today is March 9, one day after Congress said the rulewas to take effect, and USCIS has not yet issued its promised guidance on the newfilings. To date no new H-1Bs that are cap-subject can be submitted. The guidancecould be published this afternoon, this evening, sometime tomorrow, or sometime in July.No one knows. Our office is preparing for the publication of the guidance by preparingH-1B petitions for submission immediately upon publication of the guidance.
Our assumption was also incorrect that the 20,000 new H-1Bs made available this fiscalyear would be given to H-1B beneficiaries with a masters degree or higher from a UnitedStates institution of higher education. USCIS issued another press release on March 8,2005 stating,
Pursuant to an exemption established under [the H-1B Visa Reform Act], USCIS will be able to process additional H-1B petitions for H-1B workers for FY 2005. The available petitions for FY 2005 will be applied to all qualified H-1B nonimmigrant aliens, and will not be limited to those individuals holding a master’s degree or higher from a U.S. institution.
USCIS apparently concluded that there must have already been 20,000 H-1B’s issued toaliens with masters or higher degrees from U.S. institutions this fiscal year, and thereforethe additional 20,000 H-1B visas allotted by the Act can be taken by anyone qualified foran H-1B. We are issuing this notice to alert those readers who are qualified for an H-1Bvisa and would otherwise have to wait until the next fiscal year to file. Please contact ouroffice immediately if you would like our assistance in preparing an H-1B petition to befiled under the 20,000 cap.
If you do file under the limited 20,000 cap, please be aware that the numbers are going tobe snatched up immediately the first day USCIS issues the guidance allowing us to filethe H-1Bs. Therefore, the paperwork will need to be assembled as rapidly as possibleand will need to be ready to file the moment the guidance is published in the FederalRegister. Even so, there is no guarantee that the petition will get there in time to get anumber. Immigration attorneys all over the country no doubt are adopting the samestrategy, and USCIS will be flooded with petitions.
Cross-Chargeability May Help Aliens from Countries with Visa Backlogs to Obtain Immigrant Visas More Quickly
Nationals of mainland China, India, and the Philippines are backlogged in theemployment-based third preference category. Currently visa numbers are available foraliens chargeable to these countries who have priority dates on or before January 1, 2002.The general rule on chargeability is that an alien is “chargeable” to one of these countriesif he or she was born there. However, section 202 of the Immigration and NationalityAct allows for cross-chargeability. Consider the following example:
Babek was born in Pakistan and came to the U.S. to work on an H-1B visa for MacIntosh in 2002. His wife, Halil, who was born in India, accompanied him on an H-4 visa. His employer concurrently filed an I-140 petition and an I-485 Adjustment of Status application on his behalf. Last week, his I-140, employment-based third preference petition was approved. His priority date is January 1, 2003 (the date on which is Labor Cert was filed).
Babek’s priority date is current for India. However, his wife as a citizen of India does not have a current priority date. The Immigration and Nationality Act allows that because Halil is his derivative, she is entitled to be charged to Pakistan along with her husband. Her Adjustment of Status application can therefore be approved at the same time as her husband’s, even though she is an Indian citizen and would otherwise have to wait years for her priority date to become current.
As illustrated in the scenario above, the Immigration and Nationality Act allowsderivative beneficiaries of I-140s to be charged to the country in which their principalapplicant spouse (or parent) was born. But the Immigration and Nationality Act does notallow the principal applicant (i.e. the one whose employer filed the I-140) to be chargedto the country of his derivative spouse. In the example above, therefore, if Babek was from India and his wife Halil was from Pakistan, Babek could not be charged to Pakistanin order to get his Adjustment of Status approved more quickly.
While the Immigration and Nationality Act does not permit cross-chargeability of aprincipal applicant to his spouse’s country, the Foreign Affairs Manual does permit thisreverse cross-chargeability. The National Visa Center has indicated in correspondencewith our office that, at least principal applicants from India can be charged to the countryof his or her spouse. Therefore it appears that applicants who use Consular Processingmay use cross-chargeability and be charged to the country of either the derivative spouseor the principal applicant, whereas applicants for Adjustment of Status may only usecross-chargeability to be charged to the country of the principal applicant.
In short, if you are the beneficiary of an I-140 third preference petition and your prioritydate is not current, and your spouse is from a country with current third preferencepriority dates, you may be able to obtain permanent residence much more quickly byconsular processing than by adjusting status.
For more information... see the article on Visa Number Retrogression from the lastedition of Immigration Newswire at http://www.usvisahelp.com/nw_vol4_iss3.html. Seealso, “Immigrant Visa Preference Categories Explained” for an overview of priority datesand visa number allocation, at http://www.usvisahelp.com/art_prefcat.html.
USCIS Issues Revised Interview Waiver Criteria for I-485 Applications for Adjustment of Status
USCIS has discretion to interview any Adjustment of Status applicant, but in most casesinterviews are waived. Currently interviews are waived if:
- The principal applicant is employed by the same petitioner who submitted the approved underlying employment-based (I-140) petition
- The principal applicant has been approved as an alien of extraordinary ability or alien of exceptional ability and is otherwise eligible for adjustment of status
- The principal applicant has been approved as an outstanding professor or researcher, or a multinational executive/ manager and has a continuing offer of employment from the same petitioner who submitted the underlying approved petition
- Adjustment applicants who received national interest waivers based on performing primary medical care to a medically under-served area who demonstrate that they intend to continue according to the terms and conditions of the underlying petition.
USICS issued a memo on January 5, 2005 revising the situations in which cases shouldbe sent to local offices for interviews. Prior to the memo, cases would be automaticallytransferred if there was a need for validation of identity or legal status; if it wasquestionable whether the alien was admissible or there was apparent fraud; if there weremultiple adjustment of status applications filed, or an A-file could not be located at the time of adjudication. However, the memo advises Service Centers not to sendapplications to local offices for interviews where there is a need to validate legal status,unless a determination of legal status cannot be obtained through file review and/or byrequesting additional evidence from the applicant. In addition, cases should no longer betransferred to local offices for interviews where there have been multiple filings, untilUSCIS issues an RFE seeking evidence to clear up any issues surrounding the multiplefilings. This will give Adjustment of Status applicants a chance to respond to an RFErather than going for a USCIS interview in many cases. Also, where an A file is lost,officers are now advised to create a temporary file rather than transferring the case to thelocal office for interview. And finally, the memo advises that not all “hits” in USCIS’sIDENTS database should be referred to local office for review, as many of the hits in thedatabase are for immigration violations that have already been resolved. Instead, officerswill only send cases with “questionable” IDENT hits for interviews. In sum, the memoshould cut down on the number of applicants called in for Adjustment of Statusinterviews.
