H-1B Doors are Open Again!

Question: I have been able to get a work visa for some time because the H-1B’s have been expired for a long time. When will they permit filing again?

Answer: The doors opened again on April 1, 2006. You should file right away and you need to ask for a starting date of October 1, 2006 as that when the new allotment of H-1B’s will begin. If you do not file right away, it is very possible that this year, the H-1B’s will be used up even sooner than last year (which was about August 10, 2005.) Therefore, not only should you file right away, but you should file under Premium Processing to ensure that you get in this years allotment.

Question: Is there anything special that I should keep in mind when filing the H-1B?

Answer: You want to do everything you can to try to avoid a Request for Evidence. The game here is to make sure you get in this years allotment. 8 CFR 214.2(h)(2)(B) requires that the petitioners or employees provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. This means that from the time you entered the U.S. until the time you applied for the H-1B, you must have maintained legal status. Otherwise, you will have to apply for the Visa outside of the U.S. If you are applying at a Consulate, it is still important to make sure you get the H-1B petition in prior to the closing of H-1B’s for this year.

In situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations in which the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs. This is a somewhat higher burden that previously imposed. However, it must be complied with to ensure quick and rapid processing of the application.

=========================================================

Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 2^nd, 3^rd, 4^th, 5th, 6^th, 8^th, 9^th and 11^th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.