H4 Does not Count towards the six year H1B Limit On December 20th an important Interoffice Directive was posted on the AILA web site. Dated December 5, 2006, Associate Director of Domestic Operations for USCIS, Michael Aytes issued an Interoffice Memorandum to all Regional Directors of USCIS. This memorandum provided guidance on the following two important issues:
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What is Visa Retrogression?
The U.S. government makes only a certain number of immigrant visas (green cards) available each year and these are allocated among the various immigrant visa categories and countries from which applicants seek to immigrate. For the past few years, the number of immigrants approved for employment-based immigrant visas has been lower than the number of visas available, resulting in no backlog in visa numbers. Recently, the DOS has seen far more immigrants approved for employment-based immigrant visas and has run out of visa numbers in certain categories, causing a temporary backlog or "retrogression" of visa numbers.
When worldwide demand for employment based visas exceeds worldwide availability, immigrant visa numbers are further apportioned among the various countries from which applicants seek to emigrate. Each country has a limit and each approved applicant is "charged" against his or her country's limit. Most countries have fewer applicants than available visa numbers. However, certain high-immigration countries often meet or exceed their chargeability limit. These countries include China, India, Mexico, and the Philippines.
Please note that for chargeability purposes, a person’s country of birth controls. A person cannot claim country of citizenship for retrogression purposes. For instance if applicant A is born in India, but possesses Canadian citizenship, applicant A will be unable to adjust status (based on EB1 or EB2) until visa numbers for India become current.
In addition, please note that a spouse can take on their spouse’s country of birth for retrogression purposes. For example, applicant A is a national of Bangladesh and applicant A’s spouse is a national of India. Applicant A’s spouse WILL be able to adjust status even though he or she was born in India because he or she can take on applicant A’s country of birth for retrogression purposes.
Immigrant visa numbers are given out according to a "first come, first serve" policy. The date an applicant first begins the green card process (often a Labor Certification Application filed with the U.S. Department of Labor or an I-140 or I-130 Petition filed with the U.S. Citizenship and Immigration Services) becomes that person's priority date, which will determine the order in which that person will receive a visa number and thus be further processed for an immigrant visa or adjusted to immigrant status. When a retrogression occurs in visa numbers, applicants will have to "wait in line" until their priority date becomes current before they can be adjusted or receive an immigrant visa.
A visa number retrogression means that EB1, EB2 or EB3 applicants from certain high-immigration countries will not be able to apply for an immigrant visa (by filing an I-485 or through Consular processing) until a visa number becomes available for their priority date. According to the Visa Bulletin for October 2006, nationals from the following countries will be affected: China and India for EB1 and EB2 categories and all countries for EB3. Please note however that we expect retrogression to affect all countries in the EB2 and EB3 categories in the months to come. This is because approximately five years of EB-2 and EB-3 cases lie unprocessed with the Department of Labor. When they are processed which the DOL says will be within a year, it will have word-wide impact.
Please note that Taiwan is not considered a part of China for immigration purposes.
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All Chargeability Areas Except Those Listed |
CHINA |
INDIA |
MEXICO |
PHILIPPINES |
Employment-Based |
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|
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1st (EB) |
C |
C |
C |
C |
C |
2nd (EB) |
C |
01APR05 |
15JUN02 |
C |
C |
3rd (EB) |
01MAY02 |
01MAY02 |
22APR01 |
01MAY01 |
01MAY02 |
Schedule A Workers |
C |
C |
C |
C |
C |
As is evident from the above, visa numbers in the EB1 category for Indian nationals is current. Visa numbers in the EB2 category for Indian nationals however, has been oversubscribed and is retrogressed to June 15, 2002. On the other hand, visa numbers for Philippine nationals are current in both EB1 and EB2 categories. In addition, please note that Schedule A category is current. For more details on this preference classification, please see below.
Because of this, visa applicants without a current priority date and outside the United States will have to wait longer to apply for immigrant visas to come to the United States. Those inside the United States will no longer receive the benefits of concurrently filing I-140, I-485, I-765, and I-131 applications, and will have to submit the I-140, wait for an approval, and then wait until their priority date is current in order to submit the I-485, I-765, and I-131 applications.
Visa number availability is determined by using a simple formula of supply and demand.
Each fiscal year (October 1-September 30), DOS reviews the demand for the above referenced classifications and per-country limits. If DOS finds that the demand for any of the above classifications is too high and that they do not have enough supply, they pull back the ‘priority dates’ of the visas in order to ride the wave of demand and ensure that supply is not exceeded. By pulling back the priority dates, DOS is able to regulate the flow of these visas. If the demand for a certain preference classification is too high, the visa will retrogress and will not become available until the priority date for that classification has been reached.
For instance, according to the immigrant visa bulletin that was just released in October 2006, the visa numbers for nationals of India in the EB2 category have retrogressed to June 15, 2002. This means that a person who filed an I-140 immigrant visa petition in the classification of EB2 category, after June 15, 2002 cannot file an adjustment of status (or consular process) until their priority date has been reached or becomes current.
It is this office’s prediction that in the months to come, EB2 will retrogress for all countries as we have already seen for India and China!
It is important to note however, that these priority dates are subject to change during the fiscal year. It is entirely possible that visa numbers in the EB1 category for Indian nationals could suddenly become retrogressed a few months from now or that the priority date in the EB2 category could jump ahead a year. The reason for this is that the DOS is making an assessment based on what they believe will be the demand for these types of visas. It is their way of ‘testing the waters’ of demand. If a month from now, DOS reviews the demand for these visas and finds that it is not what they believed it would be, they will push the priority dates forward. Consequently, if the demand is as high as first believed, they will push the priority dates back. Right now, DOS is taking a very conservative approach to meet the their perception of demand and they will reassess their position on a monthly basis as the year moves forward. This is simply a regulatory mechanism where by DOS can control the number of visas issued in any given year to ensure that the demand does not exceed the supply.
It is important to understand that, at least for India, EB1 numbers have never retrogressed for a protracted period of time. On the other hand there have been periods of time (though none since 1999) when EB-2 retrogression has been protracted. As discussed above, these priority dates can change at anytime. You may therefore want to consider filing an EB1 petition even though you already have an approved I-140 based on a labor certification (EB2 or EB3 category—labor certification can never be EB-1) or an NIW or NIW/HPSA. It is much more likely that the EB1 visa numbers will remain available. It would therefore be a good backup option to consider (assuming that you qualify for this category). It should be also noted that if you have a petition approved in the EB-2 or EB-3 categories and subsequently an EB-1 petition is approved, the EB-1 can be given the earlier priority date of the earlier submitted petition. For example, if you have a Labor certification based I-140 with a priority date of January 2002 and subsequently an EB-1 is later approved, the EB-1 can assume the Jan 02 priority date.
Although a year ago we were recommending Schedule A, this is no longer the case. At that time, Schedule A was current and EB1 had retrogressed and Schedule A was plentiful and not soon to be retrogressed. Now the reverse is true. Although both are now current, EB1 should remain so for an extended period of time. Schedule A, on the other hand, will soon be permanently retrogressed. Beyond that, both EB1 and Schedule A require a comparable effort and showing, but Schedule A has the disadvantage of any labor certification-a certain involvement by and commitment to an employer.
If you have an I-140 (EB2 or EB3 category) based on an approved Labor Certification, you may want to also consider filing a supplemental EB2 (National Interest) or NIW/HPSA petition as well as an EB1.
Even though these are also in the EB2 preference classification and are currently retrogressed, it would also be a good back up option for those clients who are uncertain that they will remain long term with their labor certification employer. Because the EB2 numbers are retrogressed, you cannot obtain portability (because you cannot file an I-485 application which must be pending at least 180 days in order to port). This would mean that you have to remain with the labor certification employer until the visa number becomes available and then add another 180 days from the time of filing of the I-485.
According to Section 104 (c) of the American Competitiveness in the 21st Century Act (AC21), an alien that is the beneficiary of an approved I-140 petition that is unable to adjust status because of per country limits will be eligible to extend their H1B nonimmigrant status until their application for adjustment of status has been adjudicated. An H1B nonimmigrant will be eligible for this benefit even if he or she has exhausted the maximum six-year period of authorized stay for H1B non-immigrants.
RECOMMENDATIONS:
Please contact one of our attorneys to discuss the above issues and specific strategies for your case.
Premium Processing for I-140 Petitions
Effective May 23, 2006, USCIS is offering Premium Processing of certain I-140 petitions including, EB-1 extraordinary ability petitions, I-140 applications based on approved labor certifications, and Schedule A petitions. Premium processing has also been extended to include I-539 petitions and I-765 renewal applications.
The notice extending premium processing to certain visa classifications and employment- based petitions was published in the May 24, 2006 Federal Register which is available at http://www.bibdaily.com/pdfs/06-4755.pdf.
Premium Processing is a service under which USCIS guarantees that it will process a designated petition within 15 calendar days for an additional processing fee of $1000.
Please note that premium processing is NOT available for National Interest Waivers at this time.
H-1B Cap:
USCIS imposes an annual H-1B cap of 58,200 (congressional cap of 65,000 less 6,800 set aside for workers from Singapore and Chile by the Free Trade Act). In addition, USICS exempts from the H-1B cap 20,000 aliens with a U.S. - earned master's or higher degree. Other exemptions to the cap are available to aliens who are currently in H-1B status or who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
Medical Professionals and Strategies Regarding H-1B Transfer Cap Issues:
The limited amount of H-1Bs available each fiscal year poses a wide range of problems to U.S. employers and may have lasting effects on aliens. Many of our physician clients face some unique challenges regarding the H-1B cap upon completion of their residency or fellowship or when they attempt to enter the job market by accepting a private practice position (for example, in the context of someone moving from an employer that is cap exempt to one that is not).
In such cases, a “cap gap” problem may arise if the USCIS improperly interprets INA 214(g)(6), which states that an alien who ceases to be employed by an exempt employer and has not been previously counted should be counted the first time the alien is employed by a non-exempt employer. Our opinion, is that INA 214(g)(6) does NOT block such a transfer as long as it submitted as an application to extend status. To the contrary it is our opinion that the numerical restrictions only apply when new H-1 status is sought, that is when the applicant is applying for a change of status to H-1B from a different nonimmigrant status such as the H-4 or B-2 or when consular notification is requested rather than extension of H-1B status.
The basis of our view is a precise reading of the statutory language of INA 214(g) and numerous explicit directives issued by USCIS. Specifically INA 212(g) holds that the numerical limitation only apply to those who are being “provided” H-1B status, not to those already in such status and seeking its extension.
Therefore, it is our belief that a physician who is finishing a residency or fellowship and going into private practice (not cap exempt) MAY apply for a change in previously approved employment so long as the physician applies for an extension of his H-1B from within the US (not through consular processing). While our office can make a strong argument that an H1B transfer should not be subject to the cap and such a transfer petition should be filed early on, this strategy alone, can be unreliable and can often result in a gap in status. It is often the case that a physician whose H-1B expires on June 30 and is approved for an H1B with a new employer (subject to the cap) on October 1 finds that he is suddenly without status for the period June 30 to October 1. In such cases, aliens should consider changing their status to H-4 or to B-2 in order to prepare and take the Board exams. In addition, it would be wise to extend an exempt H-1B to cover the July to October gap. Clients should be aware that a temporary extension with the H-1B exempt employer is possible even where the physician will provide services a few hours per week. Otherwise physicians who are not able to pursue the above options may be forced to leave the country until they can return in H1B status on October 1.
Another excellent option to avoid the above scenario the “cap gap” problem is the NIW/HPSA immigration strategy. An NIW/HPSA is an immigrant petition in which the alien agrees to serve as a primary care physician (unless employer is a VA) for a five-year period in an underserved area. The benefit of such an application is that the alien may able to file an I-485 adjustment of status immediately and work authorization (as long as such is not prohibited by retrogression in the EB-2 category) . This allows the applicant and his or her derivative family members to receive employment and travel authorization for the duration of the pending application and it prevents the alien from falling out of status . In addition, many clients fear this type of application because they do not want to commit to one employer for such a long period of time. Clients should know that the terms of employment can allow the five year contract to terminate at will or by giving due notice. The alien may not indeed actually need to complete the five year commitment either. This strategy can be supplemented by an independent immigration strategy such as a labor certification strategy or an EB-1 strategy which if successful would allow immigration to complete in the time frame typical for such a strategy.
In many circumstances, physicians may pursue other avenues such as the O-1 or EB1/NIW petitions.
Although navigating through the transfer process is a meticulous one when the H-1B cap is an issue, physicians may gain comfort in the fact that options and relief are available to their unique challenges.
SERVICES FOR PHYSICIANS UNDER THE IMMIGRATION AND NATIONALITY ACT:
Physicians are subject to a number of unique provisions relating to their eligibility for visa issuance. Also because of the nature of U.S. licensing for medical doctors, physicians often obtain either J-1 visas or H-1B visas for substantial periods of time before they can actually practice medicine in the U.S. This in itself may impose special burdens on the physicians’ desire to be in the U.S. beyond training the physicians’ needs.
Fortunately, there are a number of strategies that may be implemented to deal with the problem by either putting a “freeze” on the accumulation of additional H-1B status while obtaining an alternative basis of employment, or by providing the legal foundation to extend H-1s for seven years and beyond.
A “freeze” can be placed on the additional accumulation of H-1B status toward the six year by the filing of an adjustment of status application with applications for work authorization and travel permission filed simultaneously. Once the work authorization and travel permission application are approved the physician can use the travel permission to be admitted to the United States as a “parolee” using form that point on their work authorization as a basis of employment and no longer accumulating additional H-1B status. The basis of the adjustment of status may be a labor certification or a petition filed under the “extraordinary” or “national interest” categories.
A strategy to extend H-1B status beyond the sixth year involves the timely filing of either a labor certification or I-140. If such an application is pending for one year, an application to extend status beyond the sixth year may be approved an unlimited number of times in one year increments. The H-1B petitioner need not be the same as the labor certification or I-140 petitioner. Additionally, if visa retrogression bars the filing of adjustment of status, an approved I-140 provides the basis for a three year H-1B extension beyond the six year limit.
Finally, if a physician is already at the end of their six years of H status, there may be other non-immigrant alternatives that would permit continued employment including the O-1, TN, E-1, and E-2 visas. If all else fails, the physician must exit the country for a year, ath which time the physician may be eligible for a fresh additional six years of H-1B status.