Green Card for Multinational Manager or Executive or L-1A Intracompany Transferee – New USCIS Clarifications on EB-1C

Generally, a multinational manager or executive (L-1A intracompany transferee) who has worked outside the U.S. for a qualifying multinational organization for at least one (1) out of the three (3) years may apply for an immigrant petition to be a U.S. permanent resident under employment-based classification 1 (EB-1C).  This is pursuant to Section 203(b)(1)(C) of the Immigration & Nationality Act (INA).

Lawful permanent residence is also known as Green Card.  There are many ways for foreign nationals to apply for Green Cards in and to the U.S., and EB-1C multinational manager or executive is just one of them.  An EB-1C Green Card is initiated by a qualifying employer by filing an I-140 Immigrant Petition for Alien Worker.  After complying with the qualifying period as a Green Card holder, a person is eligible to apply for naturalization to be a U.S. citizen.  Once a person is naturalized, he/she may apply for a U.S. passport.

If the beneficiary is outside the United States at the time of filing the Green Card, the multinational manager or executive’s one-year qualifying foreign employment must have occurred within the three years preceding the filing of the petition.  8 C.F.R. § 204.5(j)(3)(i)(A).  If the multinational manager or executive is already working in the United States in L-1A status for the L-1A employer-petitioner, or its affiliate or subsidiary, at the time of filing filing the Green Card, the employer-petitioner must demonstrate that the L-1A multinational manager or executive’s one-year qualifying foreign employment must have occurred within the three years preceding his or her entry as a nonimmigrant.  See 8 C.F.R. § 204.5(j)(3)(i)(B).

An intracompany transferee of specialized knowledge who is not a multinational manager or executive such as those under L-1B does not qualify for Green Card under EB-1C.

The approval of an immigrant petition for multinational manager or executive with the eventual approval of I-485 Applications for Adjustment of Status in the U.S. or approval of immigrant visas consular processing, will confer the multinational manager or executive and his/her qualifying family members with Green Cards.

Recently, the U.S. immigration clarifies that if the multinational manager or executive leaves the qualifying employer for more than two (2) years after working with a qualifying employer for at least one (1) year, he/she will not qualify for Green Card under EB-1C even if he returns to the same qualifying employer.  This ineligibility applies regardless if the interruption of employment happened prior to multinational manager or executive’s admission as a nonimmigrant or after his/her entry to the United States.  To qualify again, the multinational manager or executive must complete another year of qualifying employment with the qualifying employer outside the U.S., before being eligible to apply for Green Card under EB-1C.   However, an employee whose break in continuous employment with the qualifying employer is less than 2 years may still be eligible to apply for EB-1C.

This U.S. immigration clarification is published as a policy memorandum on March 22, 2018 by U.S. Citizenship and Immigration Services (USCIS) based on The Administrative Appeals Office (AAO) immigration adjudication of the Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018) on March 19, 2018.  This AAO adjudication is utilized as a form of policy memorandum by USCIS serving as a guidance only, and does not create any rights to Green Card.  Each case is adjudicated on a discretionary basis by USCIS.  For further information on the Matter of S-P-, Inc., please see

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-03-19-PM-602-0158-Matter-of-S-P.pdf

Even though not all immigration cases are appealed to the AAO, AAO has appellate jurisdiction over approximately 50 different types of immigration case. AAO is under the jurisdiction of the U.S. Department of Homeland Security (DHS).  USCIS is a part of DHS.  Certain immigration cases are appealed to the U.S. Department of Justice (DOJ) such as the Board of Immigration Appeals (BIA).

March 22, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & info at tiyaimmigration dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardships or immigration waivers, U.S. naturalization/citizenship, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law.  Our clients are based nationwide in the U.S. and internationally.  We represent diverse immigration cases including, but are not limiting to: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families; I-140 for employment green card; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; N-400 Naturalization/Citizenship; N-648 Medical Waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; E treaty investors/traders; B-1 business visitor to the U.S.; B-2 visitor to the U.S.; F-1 student coming to study in the U.S.; matters pertaining to consular processing with U.S. consulates and National Visa Centers; cases with USCIS; cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence (RFE); NOID Notice of Intention to Deny (NOID); and many more.

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New Interview Requirement for Certain Permanent Residency Cases

Further U.S. immigration restriction is taking place.  On August 28, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that, starting from October 1, 2017, it will begin in-person interviews of certain lawful permanent residence applications, as outlined below.  Previously, in-person interviews were not necessary for USCIS adjudication under these categories.  Also, USCIS is working on additional incremental expansion of interviews to other types of cases.

1. Employment-based adjustment of status applications (I-485).
2. Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

The phase-in of these in-person interviews is for compliance of Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” as part of larger screening procedure to further improve the detection and prevention of fraud in the immigration system.

USCIS will use the in-person interviews to verify information on an application to discover new, relevant information, and to determine the credibility of the individual applying for U.S. permanent residency.

August 28, 2017 

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: seven zero three – 772-8224 & info at tiyaimmigration dot com; Direct dial from abroad: 001-703-772-8224; 

https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardships or immigration waivers, U.S. naturalization/citizenship, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law.  Our clients are based nationwide in the U.S. and internationally.  We represent diverse immigration cases including, but are not limiting to: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families; I-140 for employment green card; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; E treaty investors/traders; B-1 business visitor to the U.S.; B-2 visitor to the U.S.; F-1 student coming to study in the U.S.; matters pertaining to consular processing with U.S. consulates and National Visa Centers; cases with USCIS; cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence; NOID Notice of Intention to Deny; and many more.

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Experiencing Green Card Delays? Waiting for Immigrant Visa Numbers?  Opening a business or investing in the U.S.?  Are you an Inventor or skilled worker in the U.S.?  November 20, 2014 Executive Actions

The President announced various executive actions on November 20, 2014 relating to, among other things, green card and temporary visa matters.  Some of them are outlined below.

The executive actions are calling for the U.S. Citizenship and Immigration Services (USCIS) to work with the U.S. Department of State (DOS) to make efficient use of authorized immigrant visa numbers, and better determination of immigrant visa number availability.  Various types of green card cases are subject to visa number quota.  [Hopefully, the changes may improve visa number availability such as immigrant visa numbers becoming current.]

Additionally, the executive actions are requesting the USCIS to relax job or adjustment portability for delayed or lengthy adjustment of status cases.  I-485 Adjustment of Status is the final stage in a green card process.  Many adjustment cases remain pending or are delayed because of immigrant visa number unavailability (immigrant visa number not current).  Currently, a foreign national in an employment green card may change or port to a different employer before his/her green card is approved, when the adjustment case has been pending for a certain period of time.  Presently, such job change or portability is restricted to the same or similar green card job classification, which is narrowly interpreted.  Thus, a foreign national who has changed job under the adjustment-of-status portability but who does not have an H-1B or another temporary work visa for the new job may possibly face removal or deportation proceeding. [Hopefully, the changes may allow eligible adjustment applicants to transfer or port to a wider range of jobs.]

In improving the U.S. economy, the executive actions are asking the USCIS to:

1. Clarify the standard for green card national interest waiver cases for founders of start-up businesses, foreign investors or researchers.  National interest waiver is a process for an eligible foreign national who has an advanced degree or exceptional ability to apply for green card without the PERM permanent labor certification process.  His/her contributions or skills must be of U.S. national interests. [Hopefully, these changes may mean widening the range of evidence that would constitute exceptional ability or U.S. national interests.]
2. Parole, on a case-by-case basis, eligible founders of start-up businesses, foreign investors or researchers.  This is for a foreign national who has not yet met the national interest waiver standard, and:

(a) Who has been awarded substantial U.S. investor financing; or

(b) Who has the potential for innovation and job creation through the development of new technologies or cutting-edge research.

Spouses of certain H-1B employees who are in certain green card process may apply for work permit (employment authorization document/EAD).  H-1B visa is for job that requires at least a bachelor’s degree or equivalent in a relevant field.

There may be further clarification and consistency on what constitutes specialized knowledge for employee transferring from company overseas into the U.S.

The above executive actions are not effective yet.  The government will provide further clarifications and guidelines in the coming months.  Please stay tune and sign up for our eNews for future updates.

For additional information on other types of recent executive actions, please visit:  https://immigrationresource.net/in-the-u-s-illegally-need-to-fix-u-s-immigration-status-consider-applying-for-dapa-around-may-19-2015-expanded-daca-february-18-2015/

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship.

By Aik Wan Kok Fillali, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, illegal status, sponsoring family, sponsoring employees, sponsoring relatives, hardship waivers, marriage waiver, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals and families in U.S. Immigration & Nationality Law.

We represent diverse immigration cases in naturalization/citizenship, green card, work visas, waiver and other immigration matters. For examples including, but are not limiting, extraordinary ability; national interest waiver; PERM with Department of Labor; I-130 for sponsoring relatives and families (child, spouse, brother, sister, stepchild); I-140 for employment; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver for spouse, parent, son and/or daughter of U.S. citizen or green card holder; I-751 joint filing or waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; B-1 business visitor to the U.S.; B-2 tourist visiting the U.S.; F-1 student coming to study in the U.S.; consular processing with U.S. consulates; consular processing via National Visa Centers; filing cases with the USCIS; filing cases with the U.S. Department of Labor; PERM audit; RFE Request for Evidence by USCIS; NOID Notice of Intention to Deny from USCIS; and Immigration Courts.

All Rights Reserved

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K-4 Visa Holder (Child of K-3 Visa Spouse of US Citizen) Can Only Apply to Adjust to Green Card Status Based on Original K Visa Petitioner

In Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012), BIA holds that a K-4 visa holder cannot adjust status to U.S. permanent residence status based on her own subsequent marriage to a U.S. citizen, and could only adjust status based on the I-130 filed by the K visa petitioner (parent’s original petitioner for K-3 Spouse of US citizen).

K-4 visa is a derivative visa of parent’s K-3 visa (as the spouse of a United States citizen).  The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws.

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Citizenship Civics Test in 7 Languages & Exemption for Green Card Holders of at Least 20 Years Who Are Over 65 Years Old

U.S. citizenship applicants (N-400 applicants) are required to attend N-400 interviews.  Citizenship applicants are required to undergo, among other things, English and Civics tests (certain exceptions apply).

U.S. Citizenship and Immigration Services (USCIS) offers the official list of naturalization N-400 Civics Test Questions and Answers in 7 languages (English, Arabic, Spanish, Chinese, Vietnamese, Korean and Tagalog) which can be seen at USCIS website at:

http://www.uscis.gov/portal/site/uscis/menuitem.cdb41483187c7c1014fe271b526e0aa0/?vgnextoid=160ec05083f98310VgnVCM100000082ca60aRCRD&vgnextchannel=c242df6bdd42a210VgnVCM100000b92ca60aRCRD&sectionId=160ec05083f98310VgnVCM100000082ca60aRCRD&type=2&filter=1

U.S. citizenship applicants who require help in studying for citizenship/naturalization English and Civics tests may locate Citizenship class (city or zip code search) at http://www.literacydirectory.org/ .

U.S. immigration law affords special consideration of the civics test for applicants who, at the time of filing their Form N-400, Application for Naturalization/Citizenship, are over 65 years old and have been a permanent resident for at least 20 years (the 65/20 exemption).  These 65/20 exemption applicants can:

1. Take civics test in the language of their choice; and
2. Are only required to study 20 of the 100 civics test questions for the naturalization test.  The 65/20 exemption should study the 20 civic test questions and answers for the 65/20 exemption instead of the regular 100 civics test questions and answers.  The 20 civics test questions and answers for 65/20 exemption can also be found at USCIS website at:

http://www.uscis.gov/portal/site/uscis/menuitem.cdb41483187c7c1014fe271b526e0aa0/?vgnextoid=160ec05083f98310VgnVCM100000082ca60aRCRD&vgnextchannel=c242df6bdd42a210VgnVCM100000b92ca60aRCRD&sectionId=160ec05083f98310VgnVCM100000082ca60aRCRD&type=2&filter=1

August 2, 2012: By Aik Wan Kok Fillali, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com; Direct dial from abroad: 001-703-772-8224;

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BIA on Qualifying Relative “Child” for Cancellation of Removal

In the Matter of ISIDRO-Zamorano, 25 I&N Dec. 829 (BIA 2012) Interim Decision # 3756, the Board of Immigration Appeals (BIA) stated that an applicant for cancellation of removal whose child met the definition of a “child” when the application was filed but turned 21 before the Immigration Judge adjudicated the application on the merits no longer has a qualifying relative under section 240A(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).  BIA is the highest administrative body for interpreting and applying immigration laws.

July 26, 2012: By Aik Wan Kok Fillali, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com ; Direct dial from abroad: 001-703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; http://immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on green card cases such as extraordinary ability, national interest waiver and PERM.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

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Washington, DC USCIS in Fairfax, Virginia: Saturday I-485 and I-751 Interviews

In the summer months of 2012, U.S. Citizenship and Immigration Services (USCIS) Washington District Office in Fairfax, Virginia, had started scheduling naturalization interviews on Saturdays.  It has now also stared to schedule Adjustment of Status for the coming months.  Even I-751 interviews may also take be scheduled for  interviews on Saturdays.

July 26, 2012: By Aik Wan Kok Fillali, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com . Direct dial from overseas: 001-703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; http://immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on green card cases such as extraordinary ability, national interest waiver and PERM.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

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Errors in 2012 DV Green Card Lottery Results in Early May 2011. New DV Results Available on or around July 15, 2011

As a result of computer programming problem, The U.S. Department of State (DOS) will conduct new selection for 2012 diversity green card lottery applications that were submitted from October 5, 2010 to November 3, 2010.  The new selection results are expected to be published on DOS website on or about July 15, 2011.  The original DV lottery results were invalid because the selection process did not represent a fair, random selection of entrants, as required by U.S. law. 

As a result, green card lottery applicants who checked the DV website at http://www.dvlottery.state.gov/ during the first week in May and found a notice that they had been selected for further processing or a notice that they had not been selected, will need to recheck the DV website again around July 15, 2011 because the early May 2011 notice on green card lottery results has been rescinded and is no longer valid.

Green card lottery applicants who submitted their applications from October 5, 2010 to November 3, 2010 do not have to resubmit new green card lottery applications.  New lottery selection will be run again for their previously submitted applications and these applicants would be able to check the new DV results on or around July 15, 2011.

Diversity Immigrant Visa (DV) program (Visa Lottery)(also known as “green card lottery”)  applications is one of the U.S. green card programs to allow the lottery winners to apply for immigrant visas to live and work in the U.S. as green card holders.  Each year, The U.S. Department of State conducts a lottery through its DV program to distribute applications for 50,000 immigrant visas.

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net 

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

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10,200 H-1B Cap Work Visas Have Been Received for FY2012 (May 6, 2011) 

As of May 6, 2011, the U.S. Citizenship and Immigration Services (USCIS) has received 10,200 H-1B Regular Cap, and 7,300 H-1B Master’s Exemption. 

H-1B petitions are temporary work visas for foreign nationals to live and work in the U.S.  Many H-1B foreign nationals have successfully gone on to apply for and obtain green card status.

Foreign nationals with at least a bachelor’s degree or the equivalent (equivalent degree or work experience) may be sponsored for H-1B petitions.  A broad range of positions may fall under H-1B specialty occupations; each case depends on a position’s own set of duties.

On April 1, 2011, the USCIS began accepting H-1B nonimmigrant petitions that are subject to the government-mandated annual H-1B cap of 65,000 and the 20,000 U.S. advanced degree cap exemption.   The advanced degree exemption applies to an H-1B beneficiary who has successfully obtained a U.S. Master’s degree or higher.  These H-1B petitions are for Fiscal Year 2012 (FY2012) visa quota (for employment start-date of October 1, 2011 or later).   The FY2011 visas quota (for October 1, 2010 start-date or later) was already closed on January 27, 2011.

H-1B petitions filed under premium processing (faster processing of certain employment-based petitions and applications) during an initial five-day filing window had been undergoing a 15-day processing period that began on April 7, 2011. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

When the H-1B cap is exhausted is the date USCIS will inform the public that the cap has been reached, and this may differ from the actual final receipt date.  In ensuring a fair system, on the final receipt date, the USCIS may utilize the random selection approach by selecting the number of petitions that will be considered for final inclusion within the cap.  The USCIS will reject H-1B cap petitions that are not selected, as well as those received after the final receipt date.  The final receipt date will be the date USCIS physically receives the petition, and it is not based on the date that the H-1B petition has been postmarked.

Not all H-1B petitions are subject to the annual visa cap, depending on the types of H-1B petition being filed, and the types of entity-sponsor. For examples, foreign nationals who already have approved H-1B petitions or H-1B status can still have H-1B petitions filed for them to extend their H-1B status or to change H-1B employers. These H-1B petitions are not subject to the annual visa cap.

In general, H-1B petitions/work visas are approved for three years each time (up to a total maximum of 6 years).  Under certain circumstances, H-1B work visas can be extended beyond the 6-year maximum time limitation.

Potential H-1B candidates who do not make it to the Fiscal Year 2012 H-1B visa quota (October 1, 2011 start-date or later) have the options to have their H-1B cap petitions submitted or resubmitted to the USCIS on or after April 1, 2012 (October 1, 2012 start-date or later) for the Fiscal Year 2013 H-1B visa quota.   They can also consider other immigration options such as self-petition green card filings, if eligible.

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net 

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

More News

• 7,100 H-1B Cap Work Visas Have Been Received for FY2012 (April 15, 2011)
• Filing for H-1B Cap Work Visas Has Begun and 5,900 H-1B Cap Petitions Received (April 8, 2011)!
• 36,700 H-1B Regular Cap Work Visas, and 14,800 H-1B Master’s Degree Exemption Visas Received for FY2013 (May 11, 2012)
• H-1B Work Visa Cap Has Been Reached on November 23, 2011 for FY2012
• 12,300 H-1B Cap Work Visas Have Been Received for FY2012 (May 20, 2011)
• 13,600 H-1B Cap Work Visas Have Been Received for FY2012 (June 1, 2011)
• 13,100 H-1B Cap Work Visas Have Been Received for FY2012 (May 26, 2011)
• Temporary Immigration Relief Measures for Foreign Nationals Affected by Civil Unrest or Natural Disasters

 7,100 H-1B Cap Work Visas Have Been Received for FY2012 (April 15, 2011)

As of April 15, 2011, the U.S. Citizenship and Immigration Services (USCIS) has received 7,100 H-1B Regular Cap, and 5,100 H-1B Master’s Exemption 20,000. These numbers include cases that are still pending or have been approved but do not include petitions that have been denied.

H-1B petitions are temporary work visas for foreign nationals to live and work in the U.S. Many H-1B foreign nationals have successfully gone on to apply for and obtain green card status. Foreign nationals with at least a bachelor’s degree or the equivalent (equivalent degree or work experience) may be sponsored for H-1B petitions. A broad range of positions may fall under H-1B specialty occupations; each case depends on a position’s own set of duties.

On April 1, 2011, the USCIS began accepting H-1B nonimmigrant petitions that are subject to the government-mandated annual H-1B cap of 65,000 and the 20,000 U.S. advanced degree cap exemption. The advanced degree exemption applies to an H-1B beneficiary who has successfully obtained a U.S. Master’s degree or higher.   These H-1B petitions are for Fiscal Year 2012 (FY2012) visa quota (for employment start-date of October 1, 2011 or later). The FY2011 visas quota (for October 1, 2010 start-date or later) was already closed on January 27, 2011.

H-1B petitions filed under premium processing (faster processing of certain employment-based petitions and applications) during an initial five-day filing window are undergoing a 15-day processing period that began on April 7, 2011. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

When the H-1B cap is exhausted is the date USCIS will inform the public that the cap has been reached, and this may differ from the actual final receipt date. In ensuring a fair system, on the final receipt date, the USCIS may utilize the random selection approach by selecting the number of petitions that will be considered for final inclusion within the cap. The USCIS will reject H-1B cap petitions that are not selected, as well as those received after the final receipt date. The final receipt date will be the date USCIS physically receives the petition, and it is not based on the date that the H-1B petition has been postmarked.

Not all H-1B petitions are subject to the annual visa cap, depending on the types of H-1B petition being filed, and the types of entity-sponsor. For examples, foreign nationals who already have approved H-1B petitions or H-1B status can still have H-1B petitions filed for them to extend their H-1B status or to change H-1B employers. These H-1B petitions are not subject to the annual visa cap.

In general, H-1B petitions/work visas are approved for three years each time (up to a total maximum of 6 years). Under certain circumstances, H-1B work visas can be extended beyond the 6-year maximum time limitation.

Potential H-1B candidates who do not make it to the Fiscal Year 2012 H-1B visa quota (October 1, 2011 start-date or later) have the options to have their H-1B cap petitions submitted or resubmitted to the USCIS on or after April 1, 2012 (October 1, 2012 start-date or later) for the Fiscal Year 2013 H-1B visa quota. They can also consider other immigration options such as self-petition green card filings, if eligible.

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

More News

• 10,200 H-1B Cap Work Visas Have Been Received for FY2012 (May 6, 2011)
• 36,700 H-1B Regular Cap Work Visas, and 14,800 H-1B Master’s Degree Exemption Visas Received for FY2013 (May 11, 2012)
• H-1B Work Visa Cap Has Been Reached on November 23, 2011 for FY2012
• Filing for H-1B Cap Work Visas Has Begun and 5,900 H-1B Cap Petitions Received (April 8, 2011)!
• 12,300 H-1B Cap Work Visas Have Been Received for FY2012 (May 20, 2011)
• 13,600 H-1B Cap Work Visas Have Been Received for FY2012 (June 1, 2011)
• New I-9 Employment Eligibility Verification Procedures
• H-1B Work Visa Cap is Almost Met (for Fiscal Year 2011)!