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Immigration Law Update

by Alice M. Yardum-Hunter, Esq.

Editor's note: Below is an update of current immigration law issues.

The Engaged Couple

U.S. Citizenship and Immigration Services (CIS) publishes a monthly newsletter. January's issue tried hard to give the agency some needed positive public relations. It reported a story which was portrayed as special but which should be routine. It involved a soon-to-be-married bride who was refused entry into the U.S. a week before her wedding because there isn’t a visa that permits quick entry for long-term commitments, like marriage. Standard fiancée visas take too long to process to have much value. The immigration officers had to work extra hard to get her in; they succeeded after a lot of sweating.

Easy and rapid entry to the U.S. under these circumstances should be routine and not exceptional. Engaged people shouldn’t be forced to live in different countries or wonder whether they’ll be “lucky” enough to be united in the U.S. anytime soon. Our laws should support marriage, not hinder it, as is the state of U.S. immigration law today. If our leaders really believe in family values, they will acknowledge this anomaly and change these laws.

Visa Number Availability

As of January 26, 2006, the Department of State (DOS) has seen a decrease in demand for employment-based visa numbers for CIS adjustment of status cases. This good news has resulted in the rapid advancement of the established cut-off dates. Still, DOS does not want to be too optimistic. If the demand again increases, it may be necessary to hold or retrogress (at some point) those dates. Below are DOS's comments on the outlook for employment-based numbers:

Worldwide: Based on the current level of number use in the Employment First and Second preference categories, there will be no need to impose a cut-off date for the categories…Third: Concern that the number of filings during March/April 2001 (under 245(i)) would result in a large concentration of demand, and limit movement of the cut-off date... has not been the case, and it may be that such cases (if they exist in large numbers) are still in the DOL backlog. China and India: The same lack of demand comments apply to these First and Second preference cut-offs. This has resulted in the rapid advancement of the China and India cut-offs, which [are expected] to continue for the next several months. China Third - Should stay at the worldwide date. India - This cut-off should continue to move, but such movement may become more limited.

H-1B Update and Alternatives to H-1B Status

As promised last time, here is some thought about what to do as H-1 specialty occupations are unavailable for employment that begins prior to October 1, 2006. First, for individuals who don’t need to begin employment right away, the October 1 start date is not far off. Applications for new H-1s can be filed beginning on April 1, 2006. This is the time to prepare those applications, in advance of expected unavailability even earlier than last year, which took place in July 2005. It is possible that the pent up demand could make availability end up very quickly. If you plan to file an H-1 petition, do it as close as possible on or after April 1, 2006.

Alternative strategies to H-1B became critical as a result of unavailability of H-1s even before the beginning of the fiscal year on October 1, 2005, except for those who received master’s level education in the United States. Alternatives to H-1B status could be needed this fiscal year even earlier. For master’s educated H-1Bs, an additional 20,000 new visas became available. But on January 17, 2006, CIS ran out of visa numbers for these people too. Not everyone is subject to this cap though. Exempt are people who already have H-1 status, those employed by nonprofit entities, post-secondary institutions of higher education, nonprofit, and government research institutions. Basically, it applies to new H-1 applicants who hold bachelor degrees or their equivalent. Most of these applicants are also recent graduates from a college or university.

New graduates are in a unique position: in addition to qualifying for H-1 status, they may be able to secure further training at the beginning of their careers as trainees. There are two different visa categories for trainees, the J-1 and the H-3. There are benefits and drawbacks to each. For example, the J-1 does not require a petition to be filed, but the H-3 is valid for twice as long (for three years instead of 18 months). There are other differences as well.

Experienced aliens in H-1 status who are further along in their careers have more options, but they may not qualify as readily. Some of the options are the O-1 (extraordinary ability aliens), E-1 or E-2 (treaty trader or investors and those with specialized qualifications or knowledge), L-1 (multinational executives, managers, and those with specialized knowledge), the R-1 (religious workers), the H-2 (prospective employees offered positions which by their nature are temporary) or the Q (cultural exchange visitors) visa categories.

About The Author

Alice M. Yardum-Hunter, Esq. has been practicing immigration law for 25 years. She is a twice in a row recipient (2004 and 2005) of the Super Lawyer designation published by Los Angeles Magazine as a result of a poll of 65,000 southern California lawyers called upon to name the best lawyers based on their personal experience of the lawyer’s work. She is also a Certified Specialist in Immigration and Nationality Law and served on the Immigration and Nationality Law, Board of Legal Specialization Commission of the State Bar of California. Ms. Hunter has served as an expert witness when parties’ immigration status is an issue in litigation. Her office is located at 15915 Ventura Blvd., Penthouse #1, Encino, CA 91436, (818 609 1953),

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