The Visa Bulletin

UPDATE: The forums are here! Don’t forget to register.

Thanks to everyone who has visited this site over the last few months, especially the return visitors. Traffic has been huge!

One of the most popular features on the site has been the comments. In fact, there have been so many comments that I’m having trouble moderating and responding to all of them. We need a more intuitive system that will make it easier for visitors to find information and post questions. So I’ve come up with a solution — forums!

I’m in the process of installing and testing the forums software right now. The forums might be up this weekend (or even today). To that end, is there anyone who would like to help me test the software? You’ll just need to register with an email/username and you’re good to go. If you’re interested, send me a quick message using this form.

Thanks! –John

In the upcoming days and weeks, I’ll be posting information about H-1B extensions beyond the general 6-year limit aka 7th year H-1B extensions. These types of H-1B extensions can be extremely complicated and fact specific. But the information should help provide a solid foundation.

It’s always best to start with the statutes. Under the American Competitiveness in the Twenty-First Century Act (AC21), H-1B extensions beyond the sixth year can be valid for either 1 year or 3 years.

Statute for 3-Year H-1B Extension Under AC21 -

Sec. 104(c) One-Time Protection Under Per Country Ceiling.
Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)), any alien who–

1. is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
2. is eligible to be granted that status but for application of the per country limitation applicable to immigrants under those paragraphs,

may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made theron.

Statute for 1-Year H-1B Extension Under AC21 -

Sec. 106(a). Special Provisions in Cases of Lengthy Adjudications.
(a) Exemption From Limitation - The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since –

1. the filing of a labor certification application on the alient’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
2. the filing of the petition under such section 204(b).

(b) Extension of H-1B Worker Status - The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

Conclusion

The statutes are a great starting point. But you need the regulations and other guidance from USCIS to really understand H-1B extensions beyond the 6 years. Regulations, guidance, and come of my own insight to follow.

From USCIS.gov.

U.S. Citizenship and Immigration Services (USCIS) advises customers that, due to a tremendous increase in the number of applications filed, processing of fee payments and entry of cases into our tracking system is behind schedule. As a result, applicants can expect notices of receipt to be delayed. USCIS is working hard to deal with the increased volume and has published the following frequently asked questions in order to provide additional information to applicants.

What is the cause of the receipt delay?

The receipt delay was caused by a significant workload increase, in part based upon filings by individuals attempting to beat a planned fee increase and a significant influx of applications associated with visa availablility [sic] in the Department of State’s July 2007 Visa bulletin. This resulted in an influx of applications and fees that exceeded USCIS’ capacity to timely issue receipts and deposit application fees.

(more…)

Before a labor certification can be approved by the Department of Labor (DOL), the Employer must show that they have made a good-faith effort to recruit qualified U.S. workers.

The Board of Alien Labor Certification Appeals (BALCA) reversed a labor certification denial, in a decision released January 19, 2007, finding that the Employer made a good-faith recruitment effort for a Cook position. Outback Steakhouse, 2005-INA-00096. 

(more…)

United States Citizenship and Immigration Services (USCIS) recently issued a new memorandum relevant to H-1B visa applicants. Read the entire memo(.pdf, 105.5K), or here is a summary of the issues:

(1) Time spent in H-4 status will not count against the 6 year limit;
(2) Extensions of status are available even if outside the U.S. and not in H-1B status; and
(3) H-1B visa holders who leave the US before expiration of the 6 year limit and stay outside the US more than one year have the option of reentering for the remainder of the time left on the 6 year limit (and avoiding the "Cap") or applying for a new six years and being subject to the Cap.

(more…)