--Posted 10/6/04--
Q - I filed my labour certification in regular processing from Colorado 6 months ago, but it is very slow in processing the cases. I heard if PERM comes all cases would transfer from regular to PERM processing. Could you please clear my doubt? Is it true?
A - Nobody knows because the regulations have not been released. The Department of Labor has stated that there would be a conversion process for cases already pending under the old Labor Certification procedures. However, what the conversion process will be and whether you would be able to take advantage of it is anybody’s guess.
Q - I am an Indian, currently working in India as a Senior Software Specialist (Executive Grade) for an Indian company with offices in the U.S. and other parts of the world. Earlier I joined this company in India on 03-March-1997 and after working for a year in India, I came to the U.S. on 09-March-1998 through this company and worked for a client on H-1B visa with a validity of 18 months. As my work in the U.S. with the client was an open ended project, my H-1B was extended twice while I was in the U.S. to use up the full 6 year maximum on H-1B visa. I finally returned to India on 16-Feb-2004, and I was given a multiple-entry B-1 visa for 10 years. Based on this B-1 visa, my company sent me for a business study to U.S. again for a different client on a short term for 6 weeks (from 21-June-2004 to 31-July-2004). During this time, I was not paid in the U.S., but all my expenses were borne by the company. My questions are: (1) will there be any issue in the future in applying for H-1B or L-1 visa because of frequent traveling on the B1 visa soon after completing the whole 6 years on my H-1B visa? If yes, what do I need to do? If no, can I take my wife on a B-2 visitor visa during my business trips? (2) One of my friends suggested this option- as I am in Executive Grade, can I ask my company to process an L1 visa and make a trip using the L1 visa? Is this possible as I also heard that the L1 cannot be applied for before completing one year outside India (and I already exhausted my 6 years of H-1B status in March 2004)?
A - In order for you to come to the U.S. on either the H-1B or L-1, you need to be physically present in India for a full year. The immigration service’s instructions are as follows:
"Limitation:
After a five/six-year period of stay, the alien cannot reenter the United States in the H or L visa classifications unless he or she has resided and been physically present outside the Untied States for one year. Brief trips to the United States for business or pleasure will not be interruptive of the one-year requirement, but will not count towards fulfillment of that requirement. For aliens who reside continually in the United States for extended periods, the filing of a new petition after spending a short time abroad will not exempt the alien from the five/six-year limit. The new petition’s approval period should be based on the five/six year limit. For example, a petition for an alien who spends three years in the U.S. and leaves for three months will receive an approval period of no more than two years, after which the alien must reside abroad for a year.”
Where you are paid will not matter. If you are spending more time in the U.S. than in India, the Immigration Service will not consider the trip brief and could ask you to restart the clock after returning home.
If you bring your family in on B-2 visas, it makes it look even more like you are not in the U.S. for a brief trip.
Q - Is the “6-9 months” of residency for naturalization from the date of application receipt or the date of permanent residency fulfillment? Obviously the question is only applicable if the application is sent within that 90-day window just prior to fulfilling residency.
A - It is from the date of filing.
