In 1990, Congress mandated that a cap be placed on the number of H-1B’s issued in anyfiscal year.Congress set the cap at 195,000 for FY 2001-2003, and reduced the numberto 65,000 for the current FY 2004 and following years.
The government’s fiscal year runs from October 1 to September 30. The annual capwas reached mid-February 2004,before half the fiscal year had passed. U.S.C.I.S. willnot issue any new H-1Bs with employment start dates earlier than October 1,2004.Because H-1B petitions cannot be adjudicated earlier than 6 months prior to theemployment start date,U.S.C.I.S. will not accept new H-1B filings until April 1, 2004.
Given the speed with which the cap was reached,and the ability to file H-1B petitions asearly as April 1,it is highly possible that next year’s H-1Bs will be used up before thenew fiscal year even begins. H-1B employers will need to adapt their hiring practices tothe new H-1B cap rules, and should be ready to file new H-1B petitions right around taxseason.
Some H-1B petitions are not counted against the cap.First,only H-1B holders,and nottheir dependent family members,are counted against the cap.Second,any H-1Bnonimmigrant who was already counted against the cap in the last six years will not becounted against the cap unless he would be eligible for a full 6 years of H-1B status at thetime the petition is filed. Where multiple petitions are approved for 1 alien,the alienshall be counted only once. Third, any H-1B petition filed by an institution of highereducation will not be counted against the cap. And finally, H-1B petitions filed bynonprofit research organizations or governmental research organizations are not countedagainst the cap.
U.S.C.I.S. to Raise Filing Fees
U.S.C.I.S. published a proposed rule to increase filing fees. When the rule goes intoeffect, all filing fees will be increased by either $55 or $60.
Is That a Visa In My Passport?
Visas are frequently confused with I-94 Arrival/Departure cards. Both are entrydocuments and people from most countries are required to have both a visa and an I-94card in order to come to the U.S. The two documents are issued by separate governmentagencies,however,and have separate purposes.
The Department of State,which runs all U.S. consulates and embassies abroad, is theonly U.S. government agency that can issue a visa. In order to obtain an R-1, B-1, B-2,E-1 or E-2 visa,or a Mexican TN,an applicant can apply directly at the consular posthaving jurisdiction over his foreign residence.He need not obtain any approval fromU.S.C.I.S. prior to making thevisa application at the consulate. Other nonimmigrantcategories,such as L-1 and H-1B,cannot be submitted to the Consulate until afterU.S.C.I.S. has already approved the nonimmigrant petition and an approval notice hasbeen granted.
If,after an in-person interview,the consulate agrees that the visa applicant qualifies forthe nonimmigrant status he or she seeks,the Department of State stamps a visa in theperson’s passport.The visa is a machine-readable document with a photograph of thealien
.An I-94 Arrival/Departure card,on the other hand,is issued by U.S.C.I.S. and notes thestatus conferred on the beneficiary.Aliens receive I-94 cards either upon entry to theUnited States or,if the alien is applying for an extension or change of nonimmigrantstatus from within the U.S., a new I-94 card will be attached to the bottom of theapproval notice issued by U.S.C.I.S.
Apart from being issued by different agencies,visas and I-94 cards also serve separateand distinct purposes. The only purpose that a visa serves is to let an alien into the U.S.at a border;it is like a ticket into the U.S.Once an alien enters the U.S. on a visa,heneed not maintain a valid visa in his passport.He can extend his stay with U.S.C.I.S. orchange his status,and never obtain a new visa.The only problem is that if the alien everdeparts from the United States,he cannot be readmitted until he obtains a visa from aU.S.consulate abroad.An I-94 card, on the other hand, must be maintained throughout an alien’s stay in theU.S. Apart from his U.S.C.I.S. approval notice,the I-94 is the only documentation analien has of his valid nonimmigrant status in the U.S. Unless the I-94 card is a “multipleentry” card issued to a Canadian citizen,it must be turned in to Customs every time thealien leaves the U.S., so that the Department of Homeland Security can track the arrivalsand departures of aliens.The alien will be issued a new I-94 card upon his return to theU.S.,so long as he enters the U.S. with the proper visa, and the I-94 will be valid for theduration of the alien’s remaining status.
Every nonimmigrant entering the U.S.,other than a Canadian coming down on a shorttrip,is issued an I-94 card. However,not all nonimmigrants are required to obtain visas.Canadian citizens,for example,are not required to carry either passports or visas in order to enter the United States.In addition, aliens entering the U.S. for less than 90 dayspursuant to the Visa Waiver Program are not required to obtain visas.
What Happens if you Don’t Turn in Your I-94 Card When You Leave the U.S.?
The USCIS records the arrival and departure of nonimmigrants from the U.S. by use ofthe I-94 card. Unless you are a Canadian with an I-94 marked “multiple entry,” you mustsurrender the card at a land, air, or sea port when you leave the U.S. If you fail tosurrender it, USCIS has no record of your departure.You may be considered a visaoverstay,in which case you would face difficulty in reentering the United States uponyour return.Your status may be cancelled or you may be returned immediately to yourforeign point of origin.Or,if you were in the United States under the Visa WaiverProgram and you were recorded as having overstayed,then you would have to apply for avisa before you would be readmitted to the United States.
There is a remedy available if you fail to turn in your I-94 card. You must provide theUSCIS with sufficient information so that they can record your timely departure from theUnited States.To validate departure,USCIS will consider original boarding passes thatyou used to depart from the United States; photocopies of entry or departure stamps inyour passport indicating entry to another country after you departed from the UnitedStates;photocopies of other supporting evidence,such as dated pay slips or vouchersfrom your employer to indicate you worked in another country after departing the U.S.;dated bank records;school records showing dates of attendance at a school outside theUnited States;or dated credit card receipts (delete credit card number but leave name).
You should mail this evidence along with a description of your situation to the followingaddress:
ACS-INS SBU
P.O. box 7125
London, KY 40742-7125
USA
Do not mail your I-94 card or supporting information to a United States Consulate orEmbassy or to any other USCIS office in the United States.
Department of State Advises on Visa Number Availability for Fiscal Year 2004
The Department of State has advised that there could be a backlog in visa numbers for I-140 “other worker” petitions starting in the summer months of 2004.The “other worker”category includes workers performing unskilled labor,not of a temporary or seasonalnature,for which qualified workers are not available in the United States.
Department of State to Adopt Face Recognition System for Diversity Visa Lottery Applicants
The State Department has contracted Viisage to develop a facial recognition syste,forvisa applicants seeking to immigrate to the U.S. under the Diversity Visa lottery program.The face recognition system will be able to flag duplications or fraudulent applications.The system is expected to reduce fraud and increase border security.This trackingsystem is separate from US-VISIT,which U.S.C.I.S. is implementing at ports of entry.Consulates to Require Biometric Identifiers from All Visa ApplicantsThe Border Security Act and USA PATRIOT Act require the State Department to collectbiometric information from all visa applicants by October 26,2004.Many consular postswill start collecting biometrics prior to that date. Currently the biometric includes thedigital photo and two digital index fingerprints,which are checked through and recordedin the IDENT biometric database.It can take up to three days to clear fingerprintsthrough the Department of State.
U.S.C.I.S. Revisits Religious Worker Visa Requirements
Immigration regulations require that any religious organization petitioning for anonimmigrant or immigrant religious worker be tax exempt under §501(c)(3) of theInternal Revenue Code.Section 501(c)(3) includes several types of nonprofit religiousorganizations,such as religious publishing companies,radio stations,and churches.However, within the past couple of years,U.S.C.I.S. has adopted a very restrictive viewof the 501(c)(3) requirement,stating that only organizations that qualify as “churches”can petition to bring foreign religious workers to the U.S.This requirement is not foundanywhere within immigration law or regulation.
The good news is that the U.S.C.I.S. recently issued a memo stating that all organizationsclassifiable under I.R.C. 501(c)(3) may petition for religious workers.Further, theAdministrative Appeals Office,which reviews appeals of applications denied byU.S.C.I.S.,is holding meetings with the American Immigration Lawyers Association todiscuss the impact of the memo on adjudications.
How Do I Import My Vehicle from Canada?
Canadians with full ownership of their vehicles may enter the U.S. in nonimmigrantstatus and,upon presentation of evidence of full ownership of the vehicle,register thevehicle with Customs.The car can then be registered in the U.S.Canadians without a certificate of ownership,however,must apply for a TemporaryImportation Under Bond (TIB). Under the TIB,Canadians must pay a bond to U.S.Customs to ensure that the vehicle will be exported within a year.When a vehicle isbonded into the U.S.,no duty is imposed.However,the amount of the bond is double theestimated duties.The vehicle must then leave the U.S. within that year in order for thebond to be paid back to the owner. Canadians who will be in the U.S. for longer than oneyear will have to post bond for the car,by crossing the border with it and re-entering theU.S. on an annual basis.
Will I Have to Attend an Interview Before My I-485 Adjustment of Status Application is Approved?
While U.S.C.I.S. can require an adjustment of status applicant to attend an interview at alocal U.S.C.I.S. office prior to obtaining permanent resident status,the interview iswaived for most employment-based immigrants.
In its discretion,however,U.S.C.I.S. can require the interview.For example,if theprincipal adjustment applicant is no longer employed with the I-140 petitioner because hehas used “portability” to work for an employer in a similar job,then the alien may becalled in for an interview on a case by case basis.
Adjustment applications may also be sent for interviews on a case by case basis if thereare concerns with negative security checks,fraud,and/or misrepresentation.And in othercases,U.S.C.I.S. randomly calls adjustment of status applicants in for interviews,even ifthey do not suspect any fraud,simply as a spot check.
All Minors Applying for U.S. Passports Must Appear in Person
As of February 2004,the Department of State has begun requiring the personalappearance of all minors applying for U.S. passports.This applies to all regular,official,and diplomatic passports for children under the age of 14,even if the child has previouslybeen issued a passport.Prior to the introduction of this requirement,parents were notrequired to bring a child with them when they applied on the child’s behalf.This newrequirement was created to help prevent international child abduction and trafficking.
Alcohol-Related Driving Incidents Could Make Aliens Inadmissible as Immigrants to the U.S. on Medical Related Grounds
In January 2004,U.S.C.I.S. circulated an internal memo advising officers that adjustmentof status applicants who have a record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute initial evidence of health-related inadmissibilityas a physical or mental disorder with associated harmful behavior.
U.S.C.I.S. reasons that alcohol abuse and alcohol dependence are medically classifiablemental disorders,and that operating a motor vehicle under the influence of alcohol is anassociated harmful behavior that poses a threat to the property, safety,or welfare of thealien or others.
The memo states that some applicants may fail to report,or may underreport,alcohol-related driving incidents in response to the civil surgeon’s inquiries during the medicalexam.Where it is clear that aliens did not report these incidents to the civil surgeon,thereby cutting off the civil surgeon’s inquiry into whether the applicant has a mentaldisorder,the immigration officer may order that the medical exam be re-done.Onlyapplicants with a significant criminal record of alcohol-related driving incidents that werenot considered by the civil surgeon should be referred back for re-examination.According to the memo,a “significant criminal record of alcohol-related drivingincidents” includes the following:
-One or more arrest/conviction for alcohol-related driving (DUI/DWI) while the driver’s license was suspended,revoked or restricted at the time of the arrest due to a previous alcohol-related driving incident(s)
-One or more arrest/conviction for alcohol-related driving where personal injury or death
-One or more conviction for alcohol-related driving where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed
-Two or more arrests/convictions for alcohol-related driving within the preceding two years
-Three or more arrests/convictions for alcohol-related driving where one arrest or conviction was within the preceding two years
If an alien is referred back to the civil surgeon for a subsequent examination,the civilsurgeon will be wholly responsible for determining whether the applicant has an alcohol-related medical disorder.If the civil surgeon determines that the person has a mentaldisorder,he will be inadmissible to the U.S.and there is nothing U.S.C.I.S. can do toimpeach that determination.
While the memo has been circulated within U.S.C.I.S. and only professes to apply toadjustment of status applicants, it is possible that the Department of State will adopt thesame or similar guidelines for dealing with permanent resident applicants applying forimmigrant visas at consular posts.
