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H-1B Visa Numbers, Flip-Flop On 7th Year H-1B Extensions, New Entry Policies, And Other Late Breaking Developments

by Cyrus Mehta

As we near the end of Summer 2004, we provide you with an update on the latest developments.

H-1B Visa Numbers

The US Citizenship and Immigration Services (USCIS) has advised that as of August 4, 2004,[Ed. corrected 8/31/2004] it has received 40,000 H-1B filings subject to the fiscal year 2005 cap. The 2005 fiscal year commences October 1, 2004. Of these filings, 21,000 have been approved, and the rest are in the pipeline.

The maximum number of visas available for fiscal year 2005 is 65,000. Out of the 65,000, approximately 6,800 visa numbers are reserved for Chile (1,400 visas) and Singapore (5,400 visas) under separate free trade agreements. Thus, there are only 18,200 visa numbers available before the quota runs out. At the rate of current usage, it is expected that the cap will be reached shortly after October 1.

The USCIS has also reported that it has adjudicated 56,100 approvals towards the fiscal year 2004 H-1B cap thus far. These are the numbers for which filings were cut off in February 2004. Fiscal year 2004 started October 1, 2003 and will end on September 30, 2004. USCIS has also reported that there are 2,100 H-1B visas that are caught in IBIS security checks, and the remaining are reserved for Chile and Singapore.

USCIS Flip-Flops On H-1B 7th Year Eligibility

Under the American Competitiveness in the 21st Century Act, the beneficiary of an H-1B visa is entitled to a 7th-year extension (even though the maximum time for an H-1B is 6 years) if a labor certification application or an I-140 petition were filed 365 days prior to the 6th-year. In recent times, the USCIS has issued Requests for Further Evidence (RFEs) in situations where the Labor Certification or an I-140 petition has not been pending for 365 days, even though it was filed more than 365 days prior to the 6th-year. There is nothing in the law that requires the Labor Certification/I-140 to be actually pending for 365 days. USCIS had earlier agreed with this position in a liaison meeting with the American Immigration Lawyers Association (AILA).

AILA has recently reported that the USCIS has again flip-flopped on its position and indicated that the Labor Certification /I-140 should have been both filed and actually pending for a year.

This would create lot of inconvenience and hardship for people eligible for the 7th-year. The current rule allows an H-1B extension request to be filed up to six months prior to the last date. Let’s suppose an individual’s six years on an H-1B is expiring on December 31, 2004, and this individual filed a Labor Certification/I-140 on December 30, 2003. This individual would only be able to file the H-1B extension request on the last date, which is December 31, 2004, even though he/she is eligible for filing for the H-1B extension after June 30, 2004. If this individual has travel plans, he/she would not be able to get an approval until after filing on December 31, 2004.

It is hoped that the USCIS reverses its policy, and allows the 7th-year to be filed so long as the LCA/I-140 petition is filed 365 days prior, regardless of how long it has remained pending. The USCIS relies on the memo from William Yates, Associate Director for Operations, USCIS, dated April 24, 2003, which indicates that the LCA/I-140 petition should have been pending for a year. However, this memo has no force of law. If the USCIS wants to promulgate such a policy, it must do so through the regulatory process and allow an opportunity for public comment before it promulgates a final regulation.

DHS Announces Expansion Of Expedited Removal To The Interior

The 1996 Immigration Act introduced the concept of expedited removal. The DHS has so far applied expedited removal to “arriving aliens” who seek entry at a port of entry and to a limited class of individuals who arrive in the US by sea. If an inspecting official determines that a person arriving in the US is inadmissible under INA § 212(a)(6)(C) [attempting entry with fraud or misrepresentation) or § 212(a)(7) [does not possess valid and proper documents to enter the US], the official has the authority to remove this person from the US, which carries a 5-year bar to re-enter the US. This arriving alien, subject to summary removal, is not allowed to consult with an attorney and has very limited judicial review.

The only exception to summary removal are those who express a fear that they may be persecuted in their home country or express an intent to apply for asylum, as well as for people who claim to be US citizens, lawful permanent residents, and refugees or asylees.

On August 11, 2004, the DHS Secretary, Tom Ridge, announced that he was exercising his discretionary authority, provided under the 1996 law provision, to expand expedited removal to any non-citizen who:

· is encountered within 100 miles of the US/Mexico or US/Canada border;

· is inadmissible under INA §§ 212(a)(6)(C) or (7); and

· cannot establish that he/she has been continuously present in the US for 14 days or longer.

According to a Practice Advisory of the American Immigration Law Foundation (AILF),1 “the DHS’s decision to apply expedited removal to individuals apprehended within the US is unprecedented.” The AILF advisory goes on to state that a non-citizen who has made a land entry into the US can be removed without the procedural safeguards of a removal hearing, including the right to counsel, right to cross-examine the government’s witnesses and examine the government’s evidence, and significantly, the right to an impartial immigration judge. Those placed in expedited removal also loose the opportunity to apply for relief from removal other than relief based upon a fear of persecution, according to AILF.

The new policy will result in a lot of mistakes. It will be difficult for an individual to establish that he has been in the US for 14 days or longer. Moreover, people who would be eligible for relief such as cancellation of removal, including battered spouses’ claims for cancellation, may be deprived of their ability to claim such relief. It is also possible that US citizens, and other non-citizens legally in the US may be mistakenly be put into expedited removal. The DHS policy notes that it does not intend to place Mexicans or Canadians in interior expedited removal unless the individual has a history of criminal or immigration violations.

US Customs And Border Patrol (CBP) Commissioner Broadens Authority To Admit No-Risk Visitors to the US

On August 12, 2004, CBP Commissioner, Robert Bonner, announced new discretion that gives USCBP officers to grant no-risk visitors who overstayed under the Visa Waiver Program on a prior visit a one-time parole. The use of discretion by USCBP officers will avoid the detention and handcuffing which Commissioner Bonner said was “inappropriate” for minor violations of the Visa Waiver Program.

Commissioner Bonner stated: "A number of situations have come to my attention where CBP officers have denied entry to travelers from Visa Waiver Countries, on their arrival at U.S. airports, because of brief, prior overstays, sometimes just a few days, of the Visa Waiver Program, although these travelers posed no threat whatsoever to the U.S. The consequence of the decision has been that the person has been detained, often overnight, until a flight back to the country from whence they came and handcuffed while transported to and from the detention facility. This treatment is grossly disproportionate to the inadvertent prior overstays. By my action today, I have directed CBP port directors and supervisors to see that parole is granted to permit entry, except where the person poses a threat for terrorism, criminality or is likely to become an economic migrant."

The Visa Waiver Program permits nationals from designated countries to apply for admission to the United States for 90 days or less as non-immigrant visitors for business or pleasure without first obtaining a visa. Under the Visa Waiver regulation, those individuals who overstay as part of the Visa Waiver Program must obtain a visa for subsequent visits to the U.S.

With this new authority, CBP port directors and supervisors at ports of entry can grant no-risk travelers who are VWP overstays a one-time parole into the U.S. Parole is granted on a case-by-case basis and those who receive it will be informed of their status as a Visa Waiver overstay and the need to obtain a visa for any future visits to the U.S.

Commissioner Bonner's memorandum to the field stated that CBP's failure to admit certain visitors without formal approval "is causing and will continue to cause significant public detriment to the United States" and that "under the limited circumstances such disproportionately harsh treatment warrants a modification of CBP policy. I have concluded that there is an urgent humanitarian reason and a significant public benefit in granting parole where an individual seeking admission under the Visa Waiver Program poses no risk whatsoever."

DOS Website Includes Nonimmigrant Processing Times For Consular Posts Around the World

The State Department website,, now provides information on waiting times for interview appointments and visa processing for nonimmigrant visas at posts all over the world. This information is really useful, as the visa processing times at consular posts had been significantly delayed because of biometric requirements. Individuals have to appear personally so that their fingerprints are implanted on the US visa. People should plan well in advance and be aware of the processing times if they wish to get visas from overseas consular posts. Also note that the visa revalidation process in the US has now been eliminated.

New Delhi Clarifies 60-Day Presence Policy

In our previous article, (“H-1B Usage, End of Visa Revalidation And Other Late Breaking Developments In Immigration Law,” dated June 19, 2004), we indicated that the USCIS in New Delhi implemented a requirement of a 60-day presence in India prior to a US citizen filing directly for a green card for a spouse. However, it was not clear as to when this 60-day period started.

AILA reports that the DHS office in New Delhi responded to attorney Allen Kaye on this issue, as follows:

“60 days starts upon arrival into India, not from date of marriage. The 60 days also must be immediately preceding the filing of the petition, with no departures from the country within that 60-day period.

It is not necessary for the petitioner to remain in India subsequent to the filing of the I-130 at this office, however, filing at this office must be done in person, by both spouses.”

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555. [Ed. changed 8/31/2004 ]

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.