On January 9, 2012, USCIS is publishing in the Federal Register a proposal to revise the process for deciding the family unity waivers for spouses and children of adult U.S. citizens. This proposal to change the family waiver rules does not apply to spouses and children of U.S. lawful permanent residents though. Under the current rules, those family members who qualify for legal status have to first leave the U.S. in order to secure legal permanent resident status. However, once they leave, these family members are barred from re-entering the U.S. for either 3 or 10 years, if they have been unlawfully present in the U.S. for more than 180 days. While many of these family members are eligible for family unity waiver (note: in order to qualify, they have to show that their U.S. citizen or permanent resident spouse or parent would experience ‘extreme hardship’ if the waiver is not granted), the current rules require that the waiver be applied only from abroad. This waiver process can take months and often years because these waiver applications are actually forwarded by the U.S. consulate to the USCIS for formal adjudication. Not only does this mean prolonged separation between the family members, it also means that the spouses and children of U.S. citizens and lawful permanent residents can potentially face dangerous situations in the home country until their waiver application is granted and they can then return to the U.S. legally as lawful permanent residents.
USCIS is proposing the rule change to allow the spouses and children of U.S. citizens who apply for legal permanent residency and who need a family unity waiver to re-enter the U.S., that the waiver can be applied first before the family member leaves the U.S. There is no change in eligibility requirements for seeking a family unity waiver, and USCIS would simply grant a provisional waiver to the eligible departing family member. The granting of the provisional waiver, while it is not the same as a final approval of the actual immigrant petition, will at least provide the applicant with some level of assurance that a final approval of his or her immigrant petition is possible, and it will also encourage applicants who might not have considered applying before to come into the light and seek legalization.
Under the proposed new rule, the family member will depart the U.S. and apply for an immigrant visa at his or her nearest U.S. embassy or U.S. consulate. During the course of the visa interview, the consular officer will review the case and apply the provisional waiver to the immigrant visa application. There is no other change in the current requirements for immigrant visa approval at the U.S. embassy or consulate. However, by having a provisional waiver approval in place, it will cut down on the waiting period abroad for the immigrant visa application to be approved, and also shorten the separation of the applicant from his or her family in the U.S. by months or even years.
It should be emphasized once again that this USCIS announcement is only a notice of intent to issue a formal rule. No formal regulations have been outlined yet, and the proposed regulations for the new waiver process still have to undergo public comment. No implementation of the new waiver process will take place until there is a final rule with formal changes in place. So for now, interested applicants are urged not to file any applications for provisional waivers, as those applications will be rejected by USCIS. It will be interesting to see how and when the final regulations will be implemented by USCIS.
U.S. House of Representative’s Passage of H.R. 3012, the Fairness for High-Skilled Immigrants Act, May Spell Immigrant Visa Backlog Relief
On November 29, 2011, the U.S. House of Representative passed H.R. 3012, the Fairness for High-Skilled Immigrants Act (vote: 389-15). The proposed legislation would eliminate the employment-based per-country cap entirely by fiscal year 2015, and also raise the family-sponsored per-country quota from 7% to 15%.
This bill, which will have a three (3) year phase-in period, will mean that by fiscal year 2015, all employment-based permanent resident visas, with a current annual quota of 140,000 available visas worldwide and a 7% visa limit per country, will be issued on a first-come, first-serve basis, with no per-country limits. The bill will also double the per country limit for family-based immigrant visas from 7% per country to 15% per country out of the total 226,000 annual visa quota for family-based immigrant visas.
The impact of this bill would benefit the highly skilled workers from India and China, which constitute the 2 largest applicant countries for the employment-based immigrant visa pool. Currently, each country is slotted 7% of the employment-based immigrant visa pool. And due to per country visa slot limits, Indian and Chinese nationals, many of whom possess advanced technical and scientific skills, have to wait up at least 10 years and even more before an immigrant visa becomes available to them. By eliminating the per country visa limits, the aim is to cut down on the waiting times for Indian and Chinese visa applicants by redistributing the available visas, even as there will not be an actual increase in the annual visa quota. A downside to this bill is that by eliminating the per country visa limit, visa applicants from countries who currently either do not have a visa waiting period, or who enjoy a relatively shorter waiting period than Indian and Chinese nationals will see their visa waiting periods extended due to this visa re-distribution mechanism.
On the family-based immigrant visa end, by more than doubling the per country limit from the current 7% per country to 15% per country, the aim of this bill is to also reduce the visa waiting period for immigrant visa applicants of Mexico and Philippines, who currently have to wait as long as 20 years or more before visas become available to them.
This bill passed the House vote with relative ease, as it was offered by Representative Jason Chaffetz (R-Utah), and co-sponsored by various House Democrats. This bill has moved on to the Senate, and there are growing indications there that the U.S. Senate will also pass this bill as well. For now, this remains a bill under deliberation before Congress, and this legislation certainly warrants further monitoring before any conclusions can be made regarding the final version of the bill, which can still be subject to amendments by the U.S. Senate before final passage.
Update: On July 11, 2012, Senator Chuck Grassley (R-Iowa) lifted the hold that he had previously placed on H.R. 3012, after agreeing to include provisions in the bill that would authorize the U.S. Department of Labor to utilize additional investigative measures to root out fraud and misrepresentation by employers, as well as allowing the DOL to initiate annual compliance audits on selected H-1B employers. However, there are other concerns that have been raised by other U.S. Senators concerning this bill. So, at this point in time, we do not know what the final version of the bill may look like, nor do we know when a vote on this bill may take place. Any further developments on this piece of legislation is certainly worth noting.
With U.S. Citizenship and Immigration Services (USCIS) continuing to accept and process new H-1B petitions subject to the fiscal year 2012 cap that started on April 1, 2011, it is also time to consider how “cap-gap” relief helps F-1 students who have pending H-1B petitions with USCIS at the moment.
In the interim final rule published in the Federal Register in April 2008, F-1 students with pending or approved H-1B petitions may now remain in F-1 status up to the start of their approved H-1B employment start date on October 1, even if their F-1 status and work authorization expire before then. This is the benefit of cap gap extension/relief.
In order to qualify for cap gap extension/relief, the H-1B petition must be timely filed on behalf of an F-1 student. USCIS defines “timely filed” to mean that the H-1B petition – which would be a change of status, rather than a request for consular processing petition – was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still valid. This covers any period of time during the academic studies, and any authorized periods of post-completion Optional Practical Training (OPT), as well as the 60-day grace period after completion of OPT.
As soon as the H-1B petition is timely filed, the cap gap extension/relief automatically kicks in, and it will continue to be in effect until the H-1B process is completed. If the H-1B petition is selected by USCIS for processing, then that means the cap gap extension is valid through September 30, unless this H-1B petition is denied or revoked. However, if the H-1B petition is not accepted by USCIS, then the student will still have the usual 60-day grace period from the date of the rejection to prepare to leave the U.S. This also applies to those petitions that are denied, rejected, or revoked by USCIS.
If students have already completed their post-completion OPT and are within the 60-day grace period on April 1, they would still benefit from the automatic extension of their D/S under the cap gap provision. However, their employment authorization will not be extended automatically because it has already expired by that time, and cap gap does not extend any employment authorization, or even reinstate/retroactively grant employment authorization to the student. So, they can remain in the U.S. while they wait for the H-1B petition to be adjudicated by USCIS, but they may not work at all.
In order to obtain physical proof of continuation of status via cap gap extension/relief, students should make sure to bring with them to their Designated School Officer at their university, proof of timely filed H-1B petition (i.e. express mail receipt, or certified mail receipt of filing of H-1B petition) and the DSO will issue a preliminary cap gap I-20 granting extension until June 1. If the student actually has an I-797 filing receipt notice, then that means the student’s H-1B petition has been selected for further processing by USCIS, and the DSO will then issue a new cap gap I-20 with continued extension of status.
Cap gap extension does not grant travel authorization to the students. If the student still decides to travel abroad, he/she will have to apply for an H-1B visa at a U.S. consulate or embassy abroad and only after their H-1B petition has been approved, and during the period close to, or after October 1, because the new H-1B start date is invariably on October 1, and he/she cannot enter the U.S. on H-1B status until it is close to October 1.