Jacksonville Immigration Attorney Blog

CBP is short for Customs and Border Patrol. CBP has recently issued a practice pointer useful for Canadians wanting to enter the U.S. with a TN visa under NAFTA. NAFTA, which is the North American Free Trade Agreement, allows Canadians and Mexicans to be eligible for a TN nonimmigrant visa, if they have an employer willing to sponsor them for a professional position.

Citizens of Canada can make an application for a TN visa at a U.S. class port of entry, at a U.S. pre-clearance or pre-flight station, or a U.S. airport handling international traffic. Usually the applicant must submit the filing fee, copies of all relevant degrees showing he or she is eligible for the professional position, and an offer of employment letter from his or her sponsoring employer on original company letter. The Offer of employment letter must specify the offered job, rate of pay, and basic duties required under that offered job. The letter must also state the length of admission requested. Usually proof that the applicant will NOT immigrate to the U.S. permanently should be provided as well.

A TN visa can be issued for a maximum of three years. However, the length of the visa cannot exceed the applicant's passport validity date. In other words, if the applicant wants a three year visa, then his or her passport must be valid for three years or more to qualify.

If the Canadian national is already in the U.S. and has not overstayed his or her visitor visa (up to 6 moths allowed), then he or she can file a change of status request with USCIS instead of traveling in order to obtain a TN visa.

Some positions that qualify for a TN visa include engineers, accountants, architects, economists, social worker, and many other professional level positions.

The U.S. Embassy in Chennai, India has changed the types of cases that it handles. As of January 1, 2012, the U.S. Embassy in Chennai, India no longer handles any permanent immigrant visa applications. Instead, the U.S. Embassy in Chennai, India now will ONLY handle non-immigrant visas, such as B-1 / B-2's (i.e. visitor visas for business or pleasure), student visas, H-1B and other H-1 visas and H-4's for dependents, and other work visas.

The U.S. Embassy in Chennai, India has now become the ONLY U.S. Embassy in all of India that handles L-1 visas. L-1 visas are intra-company visas, which means that a foreign company has opened a branch in the U.S. and wants to transfer one of its main employees (executive or manager) or owner / President to the U.S. in order to expand the business. The foreign business MUST remain open and active in order to qualify for the L-1 visa.

The USCIS has indicated that it wishes to centralize applications so that fraud is reduced and so that Officers can become extremely efficient in one type of case. It seems that centralizing L-1 applications for all of India at only the U.S. Embassy in Chennai, India is a good step to increasing efficiency, as the Officers are or will soon become experts on L-1 visas. L-1 visas are extremely complicated visas, and so it is good for the Officers to become proficient in one type of visa to avoid incorrect applications of law or incorrect denials.

Applicants who had an immigrant visa appointment already at the U.S. Embassy in Chennai, India need not worry, as the U.S. Embassy has indicated that it intends to complete action on those pending cases by March 30, 2012.

The most recent H-1B count shows that there are still large numbers of H-1B's available to the general public. Of the 65,000 H-1B visas allowed, USCIS has now received 41,000 H-1B visas. Of the 20,000 advanced degree visas available per fiscal year, USCIS has received about 19,100 H-1B visas.

As most applicants for H-1B work visas probably know, they were able to file their H-1B petitions starting on April 1, 2011. As of May 13, 2011, USCIS has received on or about 11,200 regular cap H-1B cases and on or about 7,900 advanced cap (i.e. U.S. earned Master's) H-1B cases. The USCIS allows 65,000 regular cap cases and 20,000 advanced cap cases for each year before they begin refusing to accept H-1B petitions.

As you can see, H-1B seekers that are still looking for sponsors have some time left for them to find a sponsor and submit the voluminous paperwork required to obtain an H-1B visa.

USCIS recently released a news alert that changes the filing procedures for U.S. petitioners residing abroad who wish to file for their immediate relatives. As of August 15, 2011, U.S. citizen petitioners who want to file a Petition for Alien Relative for their spouses or other family members MUST file their forms with the Chicago Lockbox Facility. In the past and until August 15, 2011, some petitioners residing abroad were able to file their immediate relative petitions directly with their U.S. Embassy via the Department of State at that U.S. Embassy. Filing directly with U.S. Embassies has generally been a faster way to approve visa petitions.

As of August 15, 2011, USCIS has centralized the filing location of the Immediate Relative Petitions to the Chicago Lockbox address, which can be found on the USCIS website.

There is an exception to this change, which is that if there is an international USCIS office having jurisdiction over the area where a petitioner lives, then those petitioners can continue to file their Immediate Relative Petitions with the international USCIS office.

As most applicants that have H-1B work visas know, there is a 6 year limit on getting extensions. There is an exception to the six years limit that applicants can use to get 7th year extensions and additional extensions in one year increments. Basically, the applicant must have an Application for Alien Labor Certification or the PERM application filed on his or her behalf at least one year in advance of the 6th year deadline.

What this means is that if the 6 year ends on March 31, 2011, then the PERM must have been filed with a priority date of March 30, 2010 or before. If this is the case and the PERM has been certified or is pending, then USCIS will extend in one year increments.
However, is there any way to get an extension for beyond the 6 years where the extension is for more than one year at a time? Yes, there is and our law firm recently received a THREE (3) year H-1B extension for a client that has been on an H-1B for 7 years.

Under AC 21 section 104 (c ), there is a provision that states that if the form I-140 is approved, then "per country" limitations USCIS can approve the H-1B visa extension for 3 years at a time. This is a great bonus, since most extensions for H-1B's are for one year at a time, and given this environment of strict enforcement by USCIS, many clients feel uncertain if they must receive extensions for only 1 year at a time.

Recently, our office is happy to announce that while USCIS may consider the "per country" limitation to apply only to certain countries like India, Mexico and Philippines, our office was able to obtain a 3 year H-1B visa extension for a client that has had the H-1B for over 7 years already. This client is not from the list of countries of Mexico, India, China or Philippines. He now has received a 3 year extension under AC 21 Section 104 (c ).

This is important news, because even when I prepared the case before filing, I checked with several other experienced immigration attorneys, and there is no clear explanation by USCIS of whether the 3 year provision under AC 21 section 104 (c ) applies to only certain countries where the backlogs are greatest or all the countries that are affected by the backlogs in general. In the above case, our law firm was able to get the extension for a country that is not listed on the specific list.

Finally USCIS has announced that the visas available for 2011 have all been used and applicants wanting to file H-1B's must now wait until April 1st to file their H-1B visa. USCIS allows 65,000 H-1B visas per year and an additional 20,000 visas for applicants with an U.S. obtained Master's degree. USCIS announced on January 26, 2011 that they have received a sufficient number of cases to reach the statutory cap for year 2011.

Although new applicants for H-1B visas can file the H-1B petition on April 1st, 2011, the actual H-1B validity period cannot and will not start until October 1, 2011. What this means is that an applicant in the U.S. applying for an H-1B visa for the first time must request a start date of October 1, 2011, and for immigration purposes this means he or she must have another visa valid until that day or else USCIS will not approve the change of status request. Applicants on a student Visa, however, are exempt from this requirement under certain circumstances as per the "cap-gap" regulations. You must consult an experienced immigration lawyer to make sure that not only is your H-1B visa properly filed, but also that the dates of validity are correct and per USCIS regulations.

Amazingly, there are still H-1B visa numbers available for the fiscal year of 2010. Currently, USCIS has received 58, 700 H-1B's as of January 7th, 2011. There are a total of 65,000 regular cap H-1B visas available per fiscal year. So for the year of 2010, there are still about 6, 300 H-1B visa numbers available before the H-1B's run out.

There are an additional 20,000 H-1B visas available per year for applicants who have received a master's degree from a U.S. institution, but for the fiscal year of 2010, the USCIS has already received 20,000 of these cases.

It is important to note that once the remaining H-1B visa numbers are used up, a new batch of 65,000 H-1B visas will become available as of October 1, 2011 to start the fiscal year of 2011. If the H-1B visa numbers are all used up for 2010 by April 1, 2011, then the first day of filing H-1B's for the fiscal year of 2011 will be April 1, 2011.
As noted in my previous blogs, ALL H-1B visas would usually be taken within the first few days of filing. This certainly did not take place for 2010, as shown above. This is probably due to the slow economy.

H-1B visas are a three year work visa available for graduates with baccalaureate degrees in a specific professional area of expertise AND there is a job offer from a U.S. company that is related to the applicant's previous education. Some classic cases of H-1B eligible employment positions are accountants, market research analysts, systems analysts and other IT positions that require a minimum of a bachelor's in computer science for entry into the position, engineers, lawyers, foreign pharmacists if they meet some qualifications, quality control executives, sales managers, etc. There are many more H-1B caliber positions, and so the above list is not a complete list of possible H-1B cases.

The US annual lottery is opening today and applicants have until noon time (Eastern daylight time) on November 3, 2010 to fill out and submit their application(s). There are 50,000 available, and if you think that your chances are slim, there is hope. I have met many people who now have green cards because they won the visa lottery - so take a chance.

A few notes of caution before you jump ahead. Be sure to fill out the form completely and leave no questions blank. If a question does not apply to you, mark not applicable or N/A in the space provided. Also, the Department of State has warned that there are many sites pretending to be the government site, but they are not associated with the US government.

There are no filing fees to file the US visa application. You can locate and read the form instructions at U.S. Department of State website OR direct filing at http://www.dvlottery.state.go