News Update - March 30, 2007

By Alan Lee, Esq.^†‡

H-2B Cap Reached. H-1B Quota May Open and Shut Immediately!

USCIS announced on March 23 that it had reached the cap for the final six months of Fiscal Year 2007 and that the “final receipt date” for H-2B applications to qualify for the cap was March 16, 2007. USCIS will reject petitions of any worker not certified as a returning worker and petitions with a combination of returning workers and workers subject to the cap.

H-1B applications for validity periods beginning October 1, 2007 will be first receipted by USCIS April 2, 2007 – the first business day of April. Practitioners and the USCIS believe the 65,000 quota for new H-1Bs will be used quickly. Should the cap be met on the first day, applications received on Monday April 2 and Tuesday April 3 will be placed in a lottery system. USCIS has stated there will be no benefit to applications received on Saturday March 31, 2007 and has stated that applications received on Friday March 30 or anytime prior will be rejected.

Consular Posts Resume Accepting I-130 Immigrant Petitions

The Department of State and the USCIS issued media advisories in the last week announcing that American citizens, including members of the military, who live abroad, may file I-130 petitions for their relatives at an American Embassy or consulate where there is no U.S.C.I.S. international office. Where there are U.S.C.I.S. international offices, those offices have and will continue to be the place to file the I-130. American citizens must show residency by showing they have permission to reside in the consular district and that they have been doing so continuously for at least six months prior to filing the petition. Exceptions may be made for individuals who do not reside abroad in cases of true emergencies dealing with life and death, health or safety, or minor children who would be left without a caretaker, and where allowing overseas filing would be in the national interest, such as facilitating the processing of petitions filed by U.S. military personnel stationed overseas who are pending transfers.

A Comprehensive Immigration Reform Bill is Referred to Committee in Congress

On March 22, 2007, The STRIVE ACT of 2007 (Security Through Regularized Immigration and a Vibrant Economy Act of 2007), introduced by Rep. Guttierez of Illinois and co-sponsored by 31 members of Congress was referred for consideration to the House Committee on the Judiciary and the Committee on Homeland Security. The Strive Act covers a wide range of immigration concerns and seeks to amend the Immigration and Nationality law. The bill’s stated purpose is “To provide comprehensive Immigration Reform, and for other purposes.” Among its many provisions, the bill addresses border security, expedited removals, aggravated felonies, a worker program, legalization, earned adjustment and includes the DREAM Act. We will follow this bill to see what form, if any, it evolves into. You may read the text of the entire bill, H.R. 1645, at http://thomas.loc.gov.

† 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 © 2007 Alan Lee, Esq.

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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.