Changes In Immigration Law and Procedures

H-1B Professional Work Visa Limit Reached for Fiscal Year 2007   On the first day that new H-1B applications could be submitted (April 2, 2007), the limited numner of H-1B were all used up. Petitions for those already in H-1B status to immediately transfer to another employer or to extend current H-1B status will continue to be accepted and processed.

An H-1B petition can be submitted 6 months before a job is to begin. Petitions with a job start date of 01 October 2008 can be filed beginning 01 April 2008.

A $1,500 fee in addition to the usual filing fee must be paid by employers (unless exempt) when submitting an H-1B application ($750 for smaller companies). Employers also pay a $500 Security Fee.

Passport Style Photos Required  "Green card style" photos with the head slightly turned to show the ear will no longer be accepted by Immigration. All photos for applications and forms must be in the standard passport style (full front view of head and shoulders).

Visas Cannot Be Re-Issued (Renewed) in the US.   The US State Department will no longer renew visas in the US. Previously, H, E, L and a few other visas could be re-issued while in the US by sending the passport to the State Department. This is no longer possible except for specified diplomatic visas. Visas renewals will be done at US Consulates outside the US.

Change in Approval Time for I-130 Family Petitions.   Relative petitions I-130 will be approved only when the petition becomes "Current". Previously, a petition was approved when it was reached in the processing backlog even if it would not be "Current' for several years.

Under the new rules, Relative petitions with waiting lists including Family 1st, Family 2A and 2B, Family 3 and Family 4 will all be held until they are "Current. Approval will not be done before that time. This means that a petition filed for person with a waiting list date, say 5 years in the future, will not be approved for 5 years.

Since petitions for Immediate Relatives of US citizen do not have waiting lists, these petitions will continue to be approved as they are reached in the processing backlog.

Changes After the 9/11 Attacks.   As a result of the September 11 attacks, inspection and visa procedures were tightened and made more restrictive. All visas and entry documents are being given greater scrutiny.

A person will no longer be able to change to Student Status (F-1) while in the US unless they inform the US Airport/Border Inspector of the possible plan to attend school here. It is probably better for person to apply for a student visa at a US consulate or inform the consul that they might want to go to school so the visit visa can be marked "Potential Student"

Nationals of Islamic and Arabic nations are being especially questioned by US consuls regarding their background and the reasons for coming to or being in the US.

In the past, Border and Airport Inspectors have had discretion to excuse or forgive technical errors in visas or passports. For example, a person who had an H-1B work petition approved, departed from the US then came back without obtaining the correct H-1B visa was generally allowed to enter with a visit visa since it was considered to be a minor problem. Now the Inspectors no longer have this discretion. Applicants for entry with even minor visa problems are being taken into custody and immediately Removed from the US. This includes H-1B, L-1, E, and P status applicants. These business related visas had been given the benefit of the doubt in the past. Not any more. Applicants must be sure to have the exact, correct visa when arriving in the US else they could be on the next plane back home.

The Homeland Security Act was enacted into law December 2002.   This law created the Department of Homeland Security and consolidated many US government agencies and functions relating to security into one agency to be more efficient. The US Immigration and Naturalization Service (INS) became the US Citizenship and Immigration Services (USCIS) in the new Homeland Security Department. More changes in immigration, border, and visa procedures can be expected in the future.

Law to Help Some Children Over 21. Some over 21 year old children can keep benefits of their parent's petitions. Previously when a child becamne 21, the child was dropped from a parent's case. The rules and Regulations implementing are complicated but allow some children to benefit even after they turn 21.For more information, look for the Child Status Protection Act (CSPA)

British Commonwealth Nationals residing in Canada need a visa and passport to visit the US.   Visitors to the US who reside in Canada and have a common nationality with Canadians are now required to have a passport and a US visa to enter the US. Includes most British Commonwealth citizens who have been able to enter the US without a visa or passport.

Spouses of Persons in the US In E Treaty or L Intra-Company Status Can Apply for Work Authorization.   The law allows the spouse of person in the US in E-1, E-2, or L-1 status to apply for work authorization. This applies to spouses in the US in E-1 or E-2 Dependent status or in L-2 status. These spouses will be required to apply for an Employment Authorization Document (EAD). The EAD is a photo ID card verifying the right to work in the US. Children will not be authorized to work.

The "LIFE" Act Allows Use of Section 245i of the Immigration Act if papers were submitted by April 30, 2001.   Originally Section 245i allowed people with an Immigration petition or a Labor Certificates filed on or before January 14, 1998 to apply for a green card in the US even if they entered the US illegally or were out-of-status in the US. The LIFE Act extended the qualifying filing date from January 14, 1998 to April 30, 2001. This allows the beneficiary of a Labor Certificate or BCIS petition filed on or before April 30, 2001 to apply for Adjustment of Status if they are eligible and have an approved BCIS petition. They can apply even if out-of-status. Caution: anyone who is the beneficiary of a Labor Certificate or petition filed after January 14, 1998 must also prove that they they were physically present in the US on 21 December 2000, the date of enactment of the LIFE law.

Some people are confused by Section 245i of the Immigration Act. This section applies to people who are in the US and who are out of status (stayed too long, worked without permission, etc.); or who entered the US illegally. These people not usually permittted to apply for a green card in the US (some exceptions for the spouse of a US citizen) but if a person meets the requirements of Section 245i, the person can apply for the green card in the US by paying a larger filing fee. Important: to use Section 245i the applicant must have an approved immigrant petition from an employer or a qualified family member. Section 245i is NOT an amnesty, it does not create a new way to get a green card. It just allows more people to apply in the US if they have an approved and current immigrant petition.

The LIFE Act Allows Family Members Waiting for a Green Card to Come to the US.   The "V" visa allow the spouse and minor children of Legal Residents (spouse and children who are under 21 and unmarried in Family 2A Preference) to come to the US if they have been waiting for a green card for at least three years.

Here is a summary of the rules for the "V" visa:

Must have filed an Immigrant Petition for FAMILY 2A Preference for the qualifying family ON OR BEFORE 21 December 2000, the date the law was signed by the President.

The petition must have been pending with the BCIS for at least three years or the family must have been waiting for the quota or for consular processing for at least three years Consuls are now issuing V visas.

More Good News: The LIFE Act allows those who were in the US and who were out-of-status will be eligible for the V visa. The law barring re-entry for these applicants will not be applied. The LIFE Act also allows eligible family members who are in the US to apply to change the new V status even if they are in the US illegally, and with the extension of Section 245(i), V visa holders should be eligible to apply for Adjustment of Status to green card status.

The LIFE Act Allows Spouses Of U.S. Citizens Waiting for an Immigrant Visa to Enter the US with a "K" Visa.   The LIFE Act enlarges the eligibility for the so called "Fiance" visa (K) by allowing the spouse of a U.S. citizen to come to the US and be authorized to work while waiting for the petition to be processed. This new visa is a K3 visa. Minor children who will accompany the spouse can also apply for K3 visas. (Caution: minor children of a US citizen's spouse usually need their own petition and cannot "accompany" a parent).

Here are the rules:

The Petitioner must be a US citizen. The US citizen must already be married to the K3 visa applicant. (Do not confuse this with the existing K visa for Fiances To be eligible for the original "K" visa the couple cannot be married.) An immigrant visa petition must be submitted before the application for a "K3" visa can be made.

The applicant for the new K3 visa must be outside the US. A spouse already in the US in unauthorized status cannot apply for a K3 visa. The K3 visa petition is filed in the US. It is NOT filed at a consulate.

  Where the marriage to the U.S. citizen occurred outside of US, the K3 visa applicant must apply for the K-3 visa at a US consulate in the country where the marriage took place.

K3 status is available those with currently pending petitions as well as those who apply in the future. A K3 visa allows a person to work in the US.

Changes to H-1B Regulations.  Employees in valid H-1B (professional worker) status can transfer to a new H-1B petitioner employer when the new employer has filed the new petition with the Immigration Service. Employees should use caution in making such a pre-approval transfer since serious consequences may occur if the new petition is not approved.

A petition extending an existing H-1B for the same employer is not affected by the number of H-1B visas available. An extension with the same employer (and a next-day transfer to another employer) is not subject to the limit of H-1B visas.

With Section 245i no longer in effect, an unauthorized person will not be issued a Diversity Lottery visa in the US.   If they go back home to apply, they are subject to the 3 year and 10 year bars to re-entry. It seems that the Lottery is no longer a possibility for those in the US in unauthorized status for over 6 months.

Summary Exclusion at the Border/Airport.   Any person who comes to the US with no passport, with fraudulent documents, or who is belived entering in violation of the type of visa they hold, can be sent back immediately unless the person can show a credible fear of persecution. All applications for asylum must be made within 1 year of entering the US.

Comments:

These are not all the provisions and are not the official wording of new laws. Some of the provisions contain waivers and exceptions not noted here. These few extracts are just to give the reader an idea of the kinds of provisions contained in some of the new laws.

Travel Permission (Advance Parole) While Waiting for Adjustment of Status Decision

Applications for Advance Parole (travel) can be filed with an adjustment application. Generally applicants who have been in the US in out-of-staus condition for 6 months or more should not travel even with Advance Parole. Even if a person has been given Advance Parole, if they travel out of the US and return in parole status, they can still be denied an Adjustment of Status if they were in the US in unauthorized status for more than 6 months before they filed the adjustment application.

Will all children born in the US be citizens at birth?

There have been several news reports that a law was passed so that children born in the US of non-citizen parents will no longer be US citizens at birth. These reports are not accurate.

There has some discussion of such a change. The right of a person born in the US to be a citizen at birth comes from the 14th Amendment to the US Constitution passed in 1868 after the US Civil War. To change this would require amending the Constitution. It could not be done by passing a law.

To amend the Constitution, a proposed amendment must be passed by both Houses of Congress then ratified by the legislatures of three-quarters of the States. It is very difficult to get 38 States to agree on anything so amendments are not common. In over 200 years since adoption of the Constitution and the original Bill of Rights, there have been only 16 amendments to the US Constitution.

The idea of having some children born here treated differently and not be Citizens at birth is not a popular idea. In this writer's opinion, it is an extreme view held by a small minority at this time with little chance of being adopted as a Constitutional amendment.

So for now at least, all children born in the US subject to the jurisdiction of the US will continue to be US citizens at birth.

Send general questions by e-mail to rmadison@lawcom.com


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© Richard Madison 2007   Last edit 15 May 2007

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