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Citations for ILW.COM's Seminar
"Unraveling The Mysteries In Adjustment Of Status "
Session 3 held on December 2, 2004

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From Dinesh Shenoy

H-1B Visa Reform Act – adding the $500 fraud fee, and $1500 or $750 training fund fee for most H-1B petitions. AILA Doc. No. 04112366.

9 FAM 40.63 N4.7 – 30/60 day rule from DOS— not officiallly binding on CIS, but seems to be generally followed by CIS – relevant to when its best to hold off filing a 485 for any alien other than an H-1B or L-1 or their dependents.

May 25, 2000 memo implementing the June 1, 1999 regulation that created 8 CFR * 245.2(a)(4)(ii)(C). AILA Doc. ID: 00052603

No Limitaton on H-4 status, even if you’ve used up 6 years of H-1B status and then want to switch to H-4: INA 214(g)(4) says the 6-year limit applies in the case of a nonimmigrant "described in section 1101(a)(H)(i)(b)" It does NOT say (as I sometimes mistakenly recall it), "described in section 1101(a)(H)" (i.e., it does not say all Hs, including H-4s). So right in the Act itself it's made clear the 6-year limit applies to H-1B status, not H-4 status. Now, in the regs you have 8 CFR 214.2(h)(13)(i)(B) and (iii)-- they say any time an H-1B alien has spent in H or L classification counts towards the 6 year limit. That is, if you were an L-2 or H-4 and now are H-1B, you have to worry about this reg (which flows directly from INA 214(g)(4)). But conversely, if you were an H-1B and now you are an H-4, you do NOT have to worry about this reg. That is, this reg only limits "an H-1B alien", not "an H alien." I think the Act and regs are enough to settle this issue (that regardless of how much time you spent as an H-1B, L-1A or L-1B or combinations of those statuses, if you get into H-4 or L-2 status at some point, you thereafter face no limit of 6, 7, or 5 years.) Two memos support this: Jackie Bednarz memo at 71 interpreter releases 954 (July 18, 1994), memo dated March 25, 1994. She's dealing with the 6 year limit on H-1B status, not a limit on H-4 status. But to this question of possible limits on H-4 status, her memo is helpful because it points to 8 CFR 214.2(h)(9)(iv), which says spouses and kids get H-4 for the same time as the H-1B. That is, that reg should be read to say that even if someone did 6 years of H-1B, if they then switched to H-4, they've got as many years of H-4 ahead of them as they can get off their H-1B spouse. Finally, Yates' memo at AILA Doc. ID: 03050145 says "Derivative family members are eligible for H-4 status for the same period of authorized stay granted to the principal beneficiary. A family member who has been in the United States in H-1B status for the maximum period of admission may be eligible to change to H-4 status and remain in the United States beyond the sixth year based on the principal alien's status." Because of what the Act provisions cited at the beginning above say what they say before AC21 was passed, the fact that there is no limit on H-4 status does NOT hinge on AC sec 106's existence. (Also, Dinesh Shenoy can confirm from a case in his office that after using up 6 years of H-1B you can change status to H-4 and be an H-4 for several more years beyond the 6-year limit because the other spouse is getting AC21 sec. 106 extensions).

Questions & Answers from NSC Liaison Teleconference (4/14/03) – Item #50, NSC has said things about 245(k) that have been recently contradicted, see AILA InfoNet at Doc. No. 04041669

ISD telecon notes 5/15/03, InfoNet Doc. No. 03060343 – re: how early can 765 ext. be filed.

NSC Liaison notes at AILA InfoNet at Doc. No. 04082471 – Item #11 – re: earliest date can file extensions of nonimmigrant statuses (6 mos. early for H-1B cases, but no more than 4 months early for L, O, etc.?)

9/4/03 ISD notes at InfoNet Doc. No. 03092311 say can file 131s up to one year in advance of when you need them (i.e., to coincide with expiration of current sent of I-512 Adv Parole papers), but then more recent announcement counters that, see AILA InfoNet at Doc. No. 04081366 – if file the 131 more than 4 months before current I-512 expires, it is treated as a replacement request, not new 1-year period of parole.

DOS Answers to AILA Qs, InfoNet Doc. No 04042164 (Apr. 21, 2004) – Item #14 specifically – some discussion of derivatives getting visas (e.g., H-4) when principal is in the USA maintaining status but holds no actual approved visa stamp to show the consulate a copy of— be careful in trying to extend this to the situation where, say, former H-1B nonimmigrant left and returned on Adv. Parole, has an unexpired I-797 for H-1B status but really is a parolee (see May 25, 2000 memo)— can the derivatives still get H-4 visas? Not clear to me they can.


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