World Journal Weekly Q & A - February 26, 2012

Q & A 1. 2.


Q&A 1.

How Will H.R. 3012 Affect Those From Countries Other Than China and India Who Have Pending Employment Based Applications?

Some Taiwan EB-3 applicants ask:

We are under the Taiwan EB-3 quota and our priority date is 4/11/06.  It should come up soon.  We're very nervous about H.R. 3012, the bill that will expedite the employment cases for people from China and India.  We have heard rumors that our quota will drop back by two years.  Please inform us of the status of the bill, and if it passes, how it will affect us. 

Dear reader:

H.R. 3012 met a significant roadblock in Senator Charles Grassley's (R-IA) opposition to the bill.  At this time (early February), there appear to be two companion bills in the Senate, S. 1866 and S 1983, the latter with an Irish E-3 visa provision.  Although there is no set timetable, there appears to be sufficient push to put the measure before the Senate quickly.  The bill passed the House by a vote of 389-15 in November.  If passed, the measure will swiftly be signed by the President who has included it in the Startup America Legislative Agenda that he recently sent to Congress.  The bill as written would have a transition period of three years under which a certain percentage of the numbers must be preserved for countries other than the two states with the largest aggregate number of natives obtaining immigrant visas under the employment based categories in the immediate preceding fiscal year. 

Given your situation in which your priority date is so close (EB-3 [employment based third preference] available for most of the world with priority dates before March 15, 2006, in March 2012 visa bulletin) and can be expected to be reached within the next one-two months, it is doubtful that the passage of the legislation would have any effect on your case.  I note that U.S.C.I.S. will normally finish up the processing on an employment based adjustment of status case within a few months after the priority date becomes current.



Q&A 2.

Reader is H-1B Holder at Cap Exempt University and Wants to Know Options If He Transfers H-1B to Private Company Which Requires H-1B Cap Number. When Can He Work?

A H-1B holder asks:

I presently work at a university under H-1B status, and a private company now wants to sponsor my H-1B transfer.  However, it does not want to wait until October to get me on board.  I understand that the university is a cap exempt institution, the private company is not, and that I will have to qualify for one of the H-1B cap numbers.  A lawyer explained that although we could apply in April, the H-1B petition would only be granted as of October 1st at the earliest.  Are there any other options?

Dear reader:

Although it is true that the private company can only begin to sponsor you in April, a 2007 U.S.C.I.S. interpretation would allow you to begin work for that company upon the filing of the H-1B petition papers.  The H-1B petition would be valid in October at the earliest, but the work in the interim for the new employer would be legal.  A possible problem will arise if the new H-1B petition is denied.  In such event, U.S.C.I.S. would consider you illegal if you were no longer working for the University. 

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.