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Immigration FAQ
A
recent decision by immigration officials underscores the importance
that immigrants seeking permanent residence need to be fully
aware of the terms and conditions of their visa category and
take personal responsibility in maintaining lawful status
and following rules. A Polish-born scientist, who conducted
research on bioterrorism defenses for nearly 14 years at the
University of Idaho, is facing deportation after being denied
residency by U.S. immigration officials. She was granted outstanding
researcher status as a step toward applying for permanent
residency, which she did in 2003 with the help of the university.
When her previous work permit had expired, she continued to
work without authorization for eight months, claiming that
the university's human rights office told her she could keep
working during a 240-day grace period. She later learned that
the grace period did not apply to the type of document she
held. Immigrations officials then told her that, because she
had worked illegally for eight months without a work permit,
her application for permanent residency was being denied.
They further asserted that irrespective of who told her she
could keep working without a permit, it was her responsibility
to ensure she was following the terms of her visa status.
This
case brings to mind a newly released memorandum by the Department
of Homeland Security that serves to clarify the applicability
of section 245(k) of the Immigration and Nationality Act.
The memorandum explains in detail how section 245(k) grants
relief to certain employment based adjustment of status applicants
who have not maintained lawful status or engaged in unauthorized
employment for an aggregate period of 180 days or less since
their last admission to the U.S.
Only the following classes of employment based adjustment
of status applicants are eligible for relief under 245 (k):
- EB-1:
aliens of extraordinary ability, outstanding professors
and researchers, certain multinational managers and executives,
- EB-2:
aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability
- EB-3:
skilled workers, professionals, and other workers;
- EB-4:
religious workers
If
for example, an alien in B-2 status who worked without authorization
will also have violated a lawful status and failed to maintain
continuously a lawful status. USCIS reads the phrase "aggregate
period exceeding 180 days" to refer to the total of all
types of violations rather than permit up to 180 days of each
type of violation. Only the period from the date of the applicant's
last lawful admission to the United States is examined and
not the violations that occurred before the last lawful admission
The filing
of an adjustment of status application does not, in itself,
authorize employment or excuse unauthorized employment, and
accordingly the filing of an adjustment of status application
will not stop the counting period of unauthorized employment.
The count commences on the first date of the unauthorized
employment and continues until the date the unauthorized employment
ended, the date an employment authorization document (EAD)
is approved, or the date the pending adjustment of status
application is adjudicated. Therefore, it is possible for
an individual to accrue days of unauthorized employment against
the 180 day period after the filing of the adjustment of status
application.
An individual's
engagement in unauthorized employment depends upon the existence
of the individual's employment or employer-employee relationship
rather than simply the number of days he or she actually works
or claims to have worked. Each day an individual is engaged
in unauthorized employment must be counted against the 180-day
period, regardless of whether or not the individual unlawfully
worked a few hours on a given day, a part-time schedule, or
a full-time schedule with leave benefits and weekend and holidays
off. For example, if an individual worked without authorization
for four hours a day Monday through Friday throughout the
month of April, all 30 days for that month must be counted
as unauthorized employment. For periods in which it appears
that the applicant has engaged in unauthorized employment,
the applicant bears the burden of establishing that any such
periods were authorized or that he or she did not engage in
unauthorized employment. In addition, an applicant who works
without authorization after filing for adjustment of status
will not stop the clock by departing the United States and
re-entering pursuant to a valid advance parole document.
An applicant
is not considered to be engaged in unauthorized employment
while his or her properly filed adjustment of status application
is pending final adjudication or if the applicant has obtained
permission from USCIS to engage in employment based on his
or her pending adjustment of status application and this authorization
remains valid. Further, if the applicant had been granted
employment authorization prior to the filing of the adjustment
of status application and this authorization does not expire
while the adjustment of status application is still pending,
he or she is not considered to be engaged in unauthorized
employment.
Contributed
by the staff of Immigration law Associates,P.C.
Disclaimer:
The materials contained herein have been
prepared by Immigration law Associates, P.C. for informational
purposes only and are not to be considered legal advice. The
materials on this or associated pages, documents, comments,
answers, e-mail, articles or other communications related
to this article should not be taken as legal advice for any
individual case or situation. The materials and /or transmission
of the information are not intended to create and receipt
does not constitute, an attorney client relationship
Sixty-five
thousand (65,000) H-1B visas become available April 1, 2007
for an employment start date on or after October 1,
2007. In recent years, the supply has run out within just
a few months. We remind employers and foreign nationals that
they may strengthen their chances of timely approval by preparing
their H-1B cases now. In addition, as a service to our
readers we present a short discussion of some recent USCIS
policy changes, as they may affect an H-1B individual’s
present or planned immigration status.
New USCIS Memo Expands Options for H-1B Visa Holders
A USCIS internal memo released to the immigration legal community
last month has expanded options for foreign nationals who
hold or have ever held H-1B status, as well as for those in
H-4 or L-2 status. The memo gives regional and service center
directors guidance on determining periods of admission for
these aliens. All sections of the memo establish new policy
in favor of beneficiaries and applicants; however, in some
sections, due to ambiguities in the underlying law, the extent
of the change is unclear.
The first
section clearly confirms that time spent in H-4 or L-2 status
is in no way coupled to time spent in H-1B or L-1status. The
time spent in dependent status does not count against the
period of admission available to a principal alien. Therefore,
for example, an H-4 spouse may change status to H-1B, and
hold the new status for a full six years, no matter how much
time he or she previously spent in H-4 status. To effect such
a change of status, however, the dependent spouse must meet
all the requirements for the H-1B. In addition, an H-4 foreign
national seeking H-1B status is subject to the cap (unless
the employer is cap-exempt.)
The second section of the USCIS memo addresses periods of
stay in H-1B status beyond the six-year maximum. The American
Competitiveness in the Twenty –First Century Act (AC21)
provides for exemptions to the six year maximum period of
stay for certain H-1B holders who are being sponsored by their
employers for permanent residence, and whose cases have been
subject to lengthy delays. The memo clarifies that those eligible
for the 7th year extension may be granted the extension regardless
of whether they are currently in the U.S. and even if they
don’t currently hold H-1B status. However, the service
will ultimately make the determination in each individual’s
case as to whether the alien is eligible for an additional
period of admission in H-1B status.
A third
section of the memo confirms that when an alien in unexpired
H-1B status departs the U.S. for longer than one year, he
or she has a choice of either being not subject to the cap
and re-admitted for the remainder of the original period of
admissibility; or seeking admission as a new H-1B alien subject
to the cap.
Although
the memo offers no specific comment on the subject of previous
H-1B status holders out of status in the U.S., all sections
emphasize the importance of maintaining legal status to gaining
the immigration benefit. Moreover, the burden of proof rests
with the alien to establish eligibility including admissibility
and maintenance of status; and USCIS retains the power to
deny or revoke status. Nonetheless, USCIS does approve visa
applications and petitions when circumstances are not ideal.
Therefore, an individual out of status or confronting any
other immigration problem may have much to gain from consulting
a qualified immigration attorney.
Immigration
Law Associates, P.C. has seventeen years experience in the
practice of a wide range of immigration matters, including
H-1B petitions. To find how the new USCIS policy memo may
benefit you or your employees, or for a consultation tailored
to your individual situation, call (847) 763-8500, or visit
our web site at www.immig-chicago.com
Contributed by the staff of Immigration law Associates,P.C.
Disclaimer:
The materials contained herein have been
prepared by Immigration law Associates, P.C. for informational
purposes only and are not to be considered legal advice. The
materials on this or associated pages, documents, comments,
answers, e-mail, articles or other communications related
to this article should not be taken as legal advice for any
individual case or situation. The materials and /or transmission
of the information are not intended to create and receipt
does not constitute, an attorney client relationship
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