Alan Lee's Talk At Rutgers University On January 27, 2008 - H-1B Issues (Part 3 of 6). Published in Sing Tao Weekly on 3/2/08

By Alan Lee, Esq.

(This is the third of six parts of the talk given by Alan Lee, Esq, before the Rutgers University Chinese Students and Scholars Association on January 27, 2008. In this part, Mr. Lee discusses the filing addresses for H-1B's cap cases for April 1st and the correlation between visa number availability and U.S.C.I.S.'s processing time charts. The next installment will discuss PERM labor certifications. The talk has been edited to improve readability and is available on our website at www.AlanLeeLaw.com. )

The next item on this outline is direct filing addresses for I-129 H-1B's. I'm giving you the filing addresses from last year. They may be the same or they may change this year. We have not heard at this time that they're changing addresses this year.

[NOTE: Since the date of the talk, we understand that the addresses will remain the same and that e-filing will not be permitted. H-1B petitions for applicants applying on April 1st for cap cases are to be submitted to the Vermont Service Center if the work site will be in Alabama, Arkansas, Connecticut, Delaware, Washington D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Virgin Islands, or West Virginia. Persons without U.S. master's degrees who are not applying for premium processing should file at U.S.C.I.S., Vermont Service Center, ATTN: H-1B Cap, 1A Lemnah Drive, St. Albans, Vermont 05479-0001. For U.S. master's cases without premium processing requests, H-1Bs should be filed at U.S.C.I.S., Vermont Service Center, ATTN: H-1B U.S. Master's Cap, 1A Lemnah Drive, St. Albans, VT. 05479-0001. Premium processing addresses for H-1B cap cases (without U.S. master's or higher degrees) are Premium Processing Service, U.S.C.I.S., Vermont Service Center, ATTN: H-1B Cap, 30 Houghton St., St. Albans, VT. 05478-2399 and (with U.S. master's or higher degrees) Premium Processing Service, U.S.C.I.S., Vermont Service Center, ATTN: U.S. Master's Cap, 30 Houghton St., St. Albans, VT. 05478-2399.

If the work site will be in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming, the petition should be filed to the California Service Center. Persons without U.S. master's degrees who are not applying for premium processing and sending by the U.S. Postal Service should file at U.S.C.I.S., California Service Center, ATTN: H-1B Cap, P.O. Box 10129, Laguna Niguel, CA. 92607-1012. For U.S. master's degree holders, non-premium H-1Bs sent by U.S. Postal Service should be filed at U.S.C.I.S., California Service Center, ATTN: H-1B U.S. Master's Cap, P.O. Box 10129, Laguna Niguel, CA. 92607-1012. Delivery by private courier for non-U.S. master's H-1B cap cases without premium processing requests should be sent to U.S.C.I.S., ATTN: H-1B Cap, California Service Center, 24000 Avila Road, 2d Fl., Rm. 2312, Laguna Niguel, CA. 92677. U.S. master's and higher degree cap cases without premium processing requests should be sent to the same address with the different legend, "ATTN: H-1B Masters Cap". Premium processing for H-1B cap cases sent by the U.S. Postal Service should be addressed to Premium Processing Service, U.S.C.I.S., California Service Center, P.O. Box 10825, Laguna Niguel, CA. 92607. The appropriate legend of "ATTN: H-1B Cap" or "ATTN: H-1B U.S. Master's Cap" should be included in the address. The same insertion of the appropriate legend applies for private courier deliveries of premium processing cases which are to be filed at Premium Processing Service, U.S.C.I.S., California Service Center, 24000 Avila Rd., 2d Fl., Rm. 2312, Laguna Niguel, CA. 92677.]

I now want to talk about processing times and the visa chart. The processing times of U.S.C.I.S. service centers is published periodically by U.S.C.I.S.. You can access them through the U.S.C.I.S. website or on our website, www.AlanLeeLaw.com., in a consolidated form which shows the processing times of the four major U.S.C.I.S. service centers on the majority of forms which are used by the public. All we try to do is to amalgamate and post the times so that you can see in a glance what the four service centers are doing instead of accessing each one's times separately through the government's website. Knowing about the processing time chart is good for you because it can help you stop wondering when your case may begin to be processed by U.S.C.I.S. You can just look on the chart to see when you should start tracing your case. When you file an employment based case or application for any other benefit with Immigration, you're going to get a receipt. The receipt will have two dates, the receipt date and the date of receipt notice. Immigration believes that you should hold off contacting them until at least 30 days after the receipt notice date has been reached on the processing time chart. At that time, if you have not yet received any further word from Immigration, you can contact them. But Immigration does not want to hear from anyone until the processing times have been reached. Immigration would otherwise tell you that your inquiry is premature. Our clients often ask us, "Why don't you check my case with Immigration?" We have to tell them many times that the cases have not yet exceeded Immigration's stated processing time, and that they should read the processing time chart on our website. Even when we attempt to inquire with Immigration on a case which has not been reached, Immigration tells us, "Counselor, read the processing time chart. "

Immigrant visa numbers -- This is the visa bulletin. (Mr. Lee pointing to a copy of the visa bulletin as part of his power point presentation. It is also available on his website at www.AlanLeeLaw.com). It tells you what is the visa availability date of certain categories of cases. If you have a case which is pending but visa availability has not yet been reached, there's no point in checking on that case also. For example, if you file an I-485 adjustment of status application, Immigration cannot approve the I-485 before the date is reached. The priority date of the case actually has to be surpassed. In a case where you are from China and submit a national interest waiver I-140 case, pick up a filing date of January 7, 2003, your I-140 has already been approved, you filed an I-485 and are just awaiting its adjudication, Immigration will tell you to don't bother inquiring about the case until the priority date has been surpassed on the visa bulletin. [At the time of the talk, the priority date for that category for China born was January 1, 2003. It has since surpassed that date.] In other words, if your priority date is January 7, 2003, and the visa chart says January 8, 2003, Immigration has authority at that time to approve the case. They did not have the authority to approve it before that time.

[At this point in the talk, Mr. Lee flashed copies of the processing time chart and visa bulletin side-by-side on the screen in the power point presentation.] Why are they in combination? They are because this is the way that we look at them to see whether we can chase a I-485 adjustment of status case with Immigration. If your visa number is open, but Immigration has not reached the case on the processing time chart, Immigration would not welcome your inquiry. By the same token, if Immigration has already reached the case on the processing time chart, but the visa bulletin shows that the visa number is not yet available, Immigration would also not welcome your inquiry. Looking at the two charts and knowing that most employment cases in this region are being handled out of the Texas Service Center, in a typical case we look at the processing time chart and see that Texas is processing I-485s submitted by January 21, 2007. So there would be little point in inquiring about your case if you filed in February or March 2007. But even if the time has already passed on this chart, you have to look to see whether the priority date of the case has been surpassed on the visa bulletin. If you look and there is no visa availability, there's again little reason to inquire about the I-485 since Immigration has no authority to approve the case anyway.

I bring up the point about the visa and processing time charts to assist you in knowing what to expect in your future cases. I can't tell you how many times clients have called me and other lawyers to demand that we check on their cases when to do so would be entirely fruitless. You have to look at the combination of the two to determine whether you can actually effectively chase your case.

 


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2008 Alan Lee, Esq.

 

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