Publications

MARCH 2005

H-1BS: ADDITIONAL VISAS AVAILABLE

Contrary to the original proposal that required a master’s degree or higher for the additional 20,000 H-1B visas, they will be available to any qualified H-1B, as soon as the USCIS publishes a notice in the Federal Register, which is expected shortly.

Employees must now pay 100% of the prevailing wage determined by the U.S. Department of Labor or by a competent wage survey. Before March 8, 2005, payment of 90% of the prevailing wage was sufficient.

ADJUSTMENT OF STATUS, ADVANCE PAROLE

If an applicant has a pending adjustment of status application pending, or relief under NACARA, or asylum, if foreign travel is desired, permission to re-enter the U.S. is necessary under the Advance Parole program. If applicants leave the U.S. without such parole, they may not be readmitted or their applications may be denied. Normally Advance Paroles can take from 60 to 150 days to process.

LABOR CERTIFICATION APPLICATION, NEW SYSTEM ENTITLED “PERM”

The procedure for Labor Certifications required for eligibility to qualify an applicant for permanent residence has been revised to allow expedited processing. The method required is a demonstration that the employer was unable to employ an American who was qualified and available, and that the proposed employment of an alien would not adversely affect the wages and working conditions of Americans. This procedure over the past 3 years has been extremely slow. As a result, many employers are unwilling or unable to wait. Now the Labor Department has advised that new procedures should be “do-able” within 45 to 60 days. If an applicant is in lawful status, he/she, after receiving a Labor Certification, may file an application for a preference and permanent residence with the United States Citizenship and Immigration Services (USCIS).

MARRIAGE TO U.S. CITIZENS BY ILLEGAL ALIENS, EXCLUDABILITY EFFECT

Illegal aliens who have entered the U.S. without visas or who have entered with false documentation or who have been ordered deported or excluded are unable to adjust status in the U.S. since the expiration of Section 245(i) of the Immigration and Nationality Act. Aliens who have entered with visas, even though their authorization may have expired, are entitled to adjust status as well as those who have entered under visas waiver status, provided they are married in good faith to a U.S. citizen.

Although aliens who entered without visas or overstayed may be barred for 3 years or 10 years because they overstayed 6 months or 12 months, they may be able to apply for permanent residence, provided they apply outside the U.S. and receive a grant of a Waiver of Excludability from a U.S. Consulate abroad. This waiver may be granted by a showing of extreme and unusual hardship to a U.S. citizen or a permanent resident.

VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT

Aliens may apply for temporary legal status by proving physical or metal harm as a result of a crime. Hence victims of the World Trade Center disaster or domestic violence may be eligible for this relief. Potential applicants may be granted work authorization as well.

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New York Immigration Lawyers > Immigration Publications > January 2005