ONLINE CHAT TRANSCRIPTS
ILW.COM -
03/03/2000
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MODERATOR:
Welcome to ILW chat with immigration attorney Gregory Siskind.
He has just joined us. Our
topic today is the H-1-B cap. You
can start sending in your questions now by typing and hitting the <send
question> button.
Greg Siskind, Esq.:
Hi folks. My name is Greg Siskind. I
am an immigration lawyer and focus my practice on employment-related
immigration. Today we are going to talk about the H-1B visa cap. First, I
thought I would give a little background on the subject.
As many of you know, there is currently an annual limit of 115,000 H-1B
visas issued per year. That number drops to 107,500 next year and then back to
65,000 thereafter. The H-1B visa cap has just been announced for the current
year. Cases not filed by the 21st of this month will not be given start dates
before October 1, 2000. Congress is
currently considering raising the cap substantially and exempting certain
categories from the cap all together. That
legislation has already advanced in the Senate and has been introduced in the
House of Representatives. It is possible that the bill could become law within a
month or so, but it is still early to say what happens if I apply for a H-1B
now, and it gets approved with an October 1 date, and THEN Congress passes the
H1 bill raising the quota. It is
very difficult to say yet what will happen. The last time this was an issue,
Congress ended up not getting the cap raised until after October 1st so it was
not an issue. The House bill right now does not even provide for raising the cap
for this year though it is expected to be changed later to provide for this.
My guess is that the INS will contact employers that asked for earlier
start dates to see if they wish to get an earlier date, but I cannot be certain
on this.
Q:
I entered this country on an F-1 visa. I attended the designated school
for 3 years and then got pregnant and moved out of state with my boyfriend who
was then a permanent resident. I then attended another college without INS
authorization and graduated. Also, I worked without INS authorization and paid
taxes. My then boyfriend and I are married now.
It will be two years in May. He
is a citizen now. With all my
violations can I still adjust my status?
A:
You should be eligible to adjust status since a) you entered with
inspection and b) you are married to a US citizen.
Past violations will normally not be a problem. You would adjust under
Section 245a of the Immigration and Nationality Act, which pretty much will
allow you to excuse past violations.
Q:
I’m 31 single from Saskatchewan seeking employment in the USA.
Doing that from here isn’t easy. What
could I tell them at the border in order to look for work in the USA and what
would be the best and costly efficient way to migrate?
A:
The question is hard to answer without more information. Generally
speaking, as a Canadian, one of the best ways to come in would be under a TN
visa. This is a visa provided for by NAFTA that allows certain types of
professionals to come work in the US with relatively little processing. An
application at the border and on the spot adjudication are key advantages as
well as no minimum salary requirement. As
a general rule, you would probably want to consult with an immigration lawyer to
look at all of the facts of your background to advise on the most viable
immigration strategies.
Q:
I understand the H1-B cap has been met for 2000. Is that true for the
H1-C also?
A:
H-1Cs are a new visa category created for certain nurses working in
health professional shortage visas. They are subject to a limit of only 500 per
year. However, the visas are not yet being issued since required implementing
regulations have yet to be published.
Q:
My H1 6 years expired in Feb 2000. I filed for AOS, EAD & AP soon
after. Then I lost my job. May I work with another employer, and legally how?
My LC was filed Aug. 97.
Please help me. Thanks.
A:
That is a tricky question. I believe that you can probably work on your
existing EAD, but you'll want to get a new I-140 approved as quickly as possible
and substitute that one in for the current one. You can possibly keep your
priority date as long as the prior employer does not withdraw the I-140
approval.
Q:
It’s been over 90 days and INS still won’t give me my EAD. What can I do?
A:
I assume the application is pending at a service center. At many INS
local offices, you can bring your EAD filing receipt and get them to process on
the spot. For example, we did this
last week for a client who went in person to the Newark INS office. If you are still having problems, your Congressman may be
able to help or certainly an immigration lawyer could look into the matter.
Q:
What is Congress doing on the H-1B bills?
How much influence does Lamar Smith have on Congress? Will the administration again threaten a veto like two years
ago? How are Senator Abraham's
prospects in Michigan? Will he get
re-elected?
A:
With respect to what is happening in Congress, there are three bills
actively being considered. Two are in the House.
One is the Lamar Smith bill. It
would raise the cap moderately for just a year.
It would also have so many new and onerous requirements, that many
believe the H-1B program would be rendered unusable.
The better bill is the Lofgren bill which would raise the cap to 200,000
for three years and exempt many categories from the cap.
A bill similar to the Lofgren bill has been introduced in the Senate.
That bill has already easily passed the first hurdle-a 16 to 2 vote in
the Judiciary Committee. A floor vote is expected in 3 weeks. The House has yet
to vote and there is a big push currently by Lamar Smith to get his bill voted
on. The Smith Bill has basically no
chance of passing, but Smith could try and prevent the other bill from getting a
vote. Many feel that the best strategy is to get as many cosponsors on the
Lofgren bill from each party in order to pressure Smith to allow a vote.
Q:
I'm a registered nurse (non 4-year degree) from Norway waiting to take
the NCLEX. Is my only work visa option the H-1C?
A:
Most nurses are coming in on Schedule A labor certification-based green
cards. This means finding an employer willing to wait the one+ years necessary
to complete processing. The H-1C
visa is not really going to be a great option since only a few hospitals will
qualify as employers and only 500 visas are available each year.
H-1B visas are basically out for most nurses since the INS is taking a
tough line on the bachelor’s degree requirement.
Q:
I'm working for a company for 2 years.
Last year I have filed my green card, got the labor and now my case is in
I-140 for last three months. Now I
would have to switch my company. Tell me is it possible that my new company will
file the new I-140 on my labor cert or how would I switch.
My current status is H1-B.
A:
Your labor certification is specific to the employer filing it. You cannot transfer a labor certification except in very
unusual circumstances when one company is taking over another. You will have to
start the labor certification process again.
Q:
Is true that if you create a corporation with a resident as a partner,
you can obtain an H-1B visa?
A:
Unlike labor certification-based green card cases, there is no rule
prohibiting a company from applying for an H-1B visa for an employer with an
equity interest in the company.
Q:
I am in a tight situation. After filing for EAD, and then losing my job,
my prior employer withdrew the I-140. I
have no H-1B time. I heard since my
labor was filed before Jan15, 1998, I could ask another employer to do a RIR,
get a new I-140 (as you confirmed) and redo AOS. Should I go for it?
Or do I HAVE to leave the country? Thank
you.
A:
Well, you are basically starting from scratch.
I believe the INS is taking the position that you can use the pre-January
15, 1998, labor cert filing to qualify under 245(i) and pay the penalty even if
the eventual labor cert used is new. To
be honest, I would probably need to do some further checking to be certain on
this one.
Q:
Where can I get additional information on schedule A labor-certification
green cards? I hope I'm not being charged by the keystroke.
A: Here is an article I wrote about 5 years ago, but it is still helpful. It is at http://www.visalaw.com/95jun/5jun.html. A key new requirement is to get a VisaScreen certificate from CGFNS, however.
Q:
How are Senator Abraham's prospects in Michigan?
Will he get re-elected? How
does the AFL-CIO statement on amnesty affect the H-1B bills?
A:
I suspect Senator Abraham will get re-elected and that anti-immigrant
zealots will not sink him. He is pretty popular, the economy is good and people
feel relatively positive about immigrants.
I would be HIGHLY surprised if he lost.
As far as the AFL-CIO statement, as background for everyone else, the
AFL-CIO recently issued a statement calling on the government to grant amnesty
to up to five million illegal aliens here.
The union has not, however, changed its position in opposing the H-1B cap
increase. Nevertheless, they do not
seem to be nearly as active this year in opposing the cap lifting bills.
I suspect that the union is deliberately downplaying the opposition and
starting to realize that immigrants are the future of the union.
Q:
I’m not a professional that can go in with the TN.
Do you have any other suggestions for me? Thanks.
A:
Perhaps a student visa would be better. If you can get a bachelor’s
degree, you will dramatically improve your prospects for a work visa.
Q:
I've heard it is usual to get immigration status after working with an
H-1B. Is it in this way?
Thanks a lot.
A:
It is certainly not unusual for people to get green cards after they come
in H-1B status, but there is no automatic conversion method that allows someone
to get a green card by virtue of having an H-1B visa.
Q:
How does the fact that this is an election year affect the H-1B bills?
A:
The election year means that all bills have to be put on a faster track
if they are to pass. Congress will adjourn early and there is a need to keep
every bill moving. As far as the politics go, both parties are actively courting
Silicon Valley and there is widespread support for the bills to raise the cap.
Both Al Gore and George W. Bush are on record supporting the lifting of
the cap and Bradley and McQuain had also supported the lifting of the cap.
Q:
Can one company ask for an H-1B even if it is new?
Thanks.
A:
A company can apply now, but will have to indicate a start date after
October 1st.
Q:
You said that if Congress raises the cap for this year, the INS will
contact employers who got approvals with October 1 priority dates to see if they
want earlier dates. Would this not be expecting too much from an agency which
cannot even count the H-1Bs properly?
A:
Actually, there is a little precedence for something like this. In the past, the INS has Faxed and personally called lawyers
and employers to see if they wanted October start dates when they were affected
by the cap.
Q:
Is there any way I can find more information about people who are
specifically in the same kind of problem like me? I have looked all over. Is it a unique situation?
A: Well, I certainly can suggest our own web site at www.visalaw.com for more general information. And you are always welcome to schedule a telephone consultation with me by going to http://www.visalaw.com/intake.html.
Greg Siskind, Esq.
Well, it looks like we're out of time. I want to thank ILW.com for
inviting me to speak. I've enjoyed our time and hope that I've been able to
answer your questions. Good night.
MODERATOR: We have run out of time. We would like to thank Mr. Siskind for chatting with us today at http://www.ilw.com. He is a nationally known immigration attorney, and we were fortunate that he shared his time. Please visit Mr. Siskind's website, http://www.visalaw.com. Also, please tell your friends. We have frequent chats scheduled at http://www.ilw.com/chat/calendar/. Please feel free to browse our site for other useful information. We are now offering free immigration forms as well. Good night and thank you for attending!
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