H-1B Petitions

Q: Last year, the H-1B cap was reached on Oct. 1, 2004. When will be it be possible to apply for H-1B status this year?

A: Immigration Service regulations permit employers to start filing H-1B petitions six months prior to the beginning of the fiscal year, which begins on Oct. 1. Our law firm has filed numerous H-1B petitions since April 1, 2005. Of course, employees may not start working in H-1B status until Oct. 1, 2005.

Q: Didn’t Congress pass a law in December providing for an additional 20,000 H-1B petitions?

A: Yes, and employers were supposed to be able to submit these petitions starting on March 8, 2005. Unfortunately, the Immigration Service advised employers not to file H-1B petitions under the new law until the agency published regulations sometime in April 2005. That’s the bad news. The good news is that although Congress specified that only persons with advanced degrees from U.S. universities would be eligible to partake in these 20,000 visas, the Immigration Service has stated that they are thinking about approving such visas for all qualified H-1B workers. For more information, seehttp://shusterman.com/toc-h1b.html

Q: I just got married to a U.S. citizen. Where do I file my application for adjustment of status?

A: Prior to April 1, 2005, you would have submitted your application to your local Immigration Service office. Now, you must file it with one of the two following addresses:

* U.S. Citizenship and Immigration Services, P.O. Box 805887, Chicago, IL 60680-4120

* For non-U.S. Postal Service deliveries: U.S. Citizenship and Immigration Services, Attn: FBASI, 427 South La Salle 3rd Floor, Chicago, IL 60605-1098

Q: I have heard that the new PERM program works much like an amnesty. Is this true?

A: Not at all. However, PERM promises to shorten the process of labor certification, the first step in obtaining a green card through your employment from 2-3 years down to 6-8 weeks! Employers may file PERM applications either by mail or online at www.plc.doleta.gov

Q: Is there any hope for reducing the three-year retrogression of EB-3 applications filed by persons born in India, China, and the Philippines?

A: The situation looks grim. However, there is some hope that Congress may allow some EB-3 visa numbers to be “recaptured,” particularly those for registered nurses and physical therapists. There may be further retrogressions of the EB-3, and perhaps the EB-2, visa numbers later this year. Advice: Be one of the first to apply for PERM and lock in your priority date now.

Q: What is the outlook for persons who have overstayed their visas? Do you expect that there will be an amnesty this year?

A: President Bush is facing massive resistance to his proposed “guest worker” program, which falls far short of an amnesty. Persons who are illegally present in the United States should explore other options for obtaining permanent residence.

Carl Shusterman is a former INS Trial Attorney and a Certified Specialist in Immigration and Nationality Law. He manages a five-attorney practice based in Los Angeles. (213) 623-4592.www.shusterman.com

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