Visas

On October 5, 2011, the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement held a hearing  to discuss whether the U.S. should reform its immigration policies to retain more foreign graduates of American universities’ advanced degree programs in the “STEM” fields of science, technology, engineering and math.    

Inside Higher Ed’s article, “Reverse Brain Drain,” provides coverage of the hearing:  
...foreign students are dramatically outpacing their American counterparts in the STEM fields.  In 2009, half to two-thirds of all Ph.D.s in related fields and almost half of all engineering and computer science master’s degrees awarded by American colleges were earned by foreign students...
Because only 140,000 total employment-based immigrant visas are available each year, with only 7% of that number available to each country, the United States is not absorbing these foreign graduates into its workforce.  Backlogs have grown to the point that some green card seekers could spend a lifetime waiting for permanent residency.  According to the article:

UPDATE:  F, M, J Visa Issuance Has Resumed!

"Effective immediately, in order to ensure maximum data integrity and consistency, DoS has temporarily halted the issuance of ALL F, M and J visas at all U.S. Embassies and Consulates."

"SEVP plans to circulate additional broadcast messages upon receipt of any updates or changes regarding this issue."

This message impacts anyone seeking an F-1 (academic student); M-1 (vocational student); or J-1 (exchange visitor) temporary visa from a U.S. Consulate or Embassy located outside of the United States.

Question: I have 4 Yr Bach Deg in Comp Sci Engg and close to 10 yrs Exp in the same company out of which 4.3 Yrs was in India. I was transferred to the US (now on L-1 'A' visa) in Aug '06 to the US through the same Employer and have been here since then. My company is skeptical to file my GC in EB2 stating that 5 yrs experience has to be gained before I was transferred to the US (which is considered my petitioning employer branch).

I want to understand how I can file under EB2? Should I wait until 10 yrs exp since I see this as one of the clauses?? OR
Should I file now and PORT into EB2 after 10 yrs Exp in the same company (counting India + US exp in the company) OR
USE any of MY Client accolades or awards since I manage a very CRITICAL portfolio)

Overstay and Unlawful Presence provisions

In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which imposed penalties on those who stay in the United States beyond the period authorized by the Attorney General. Two new sections of the Immigration and Nationality Act were created to define these penalties:

• INA § 222(g) "Visa Overstays" and
• INA § 212(a)(9)(B) "Aliens Unlawfully Present"

Interpreting when and how these two provisions apply to a specific individual is complicated, but critically important. Regulations have not yet been written to fully define the applicability of the statutory provisions; however, the penalties that could apply are significant. DHS has not yet issued any guidance that supersedes prior INS guidance. Individuals needing legal advice should be referred to an immigration attorney.

The challenge of interpreting the law

Advising individuals on the applicability of INA § 222(g) and § 212(a)(9)(B) is particularly challenging because regulations have not yet published to comprehensively define when those two statutory provisions should apply. In the meantime, INS and DOS issued internal memoranda and cables to their field offices, to provide central office guidance on how field offices should interpret and apply the law. The explanations and interpretations of INA § 222(g) and § 212(a)(9)(B) found here are based principally on these internal agency communications. One should note, however, that although an agency's interpretation of a law that it is charged with enforcing or administering does carry great weight, these memoranda and cables are not considered law.

In August 2011, we posted a link and some background related to the current administration’s efforts to attract and retain high-skill entrepreneurs. Specifically, a USCIS press release dated 8/2/2011 confirmed an intention to use current immigration law [including H-1B visas and National Interest Waivers] to fuel the nation’s economy and stimulate investment, by attracting foreign entrepreneurial talent who can create jobs, form start-up companies, and invest in areas of high unemployment.

Back on April 27, 2011, shortly after the FY 2012 H-1B Cap opened, Iposted that H-1B visa usage statistics going back to 2007 demonstrated that U.S. employers were not hiring as much as some reports would like us to believe. 

Looking at the numbers going back to 2007, it was clear that H-1B usage was WAY down, and we estimated - based on usage for the first two weeks - H visas would be available until March 2012. 
  

Many of our readers are working in the United States pursuant to H-1B status, and have established their place in the green card line, by having an approved labor certification (PERM) application, and I-140 petition for immigrant worker.

Question: I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year. I now want to return to work for a different employer in H-1B status. Am I subject to H-1B Quota Limitations? Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140?

Courtesy of AILA:

DHS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. E-Verify is currently unavailable due to a government shutdown. Please see their notice for policies implemented due to E-Verify’s unavailability.

DOL: The Administration is working very hard to avoid a government shutdown and believes there is sufficient time to avoid such an occurrence; however, prudent management requires the Department to plan for the possibility that it may need to suspend operations should Congress be unable to pass a funding bill by midnight on Monday, September 30, 2013.

OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC's web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

DOL's Office of Administrative Law Judges will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

The Hells Angels Motorcycle Club has a history of clashing with law enforcement, but the group is hoping a Washington federal judge will take its side in a new fight over federal immigration law.

In a lawsuit filed last week, Hells Angels challenged policies that bar foreign members from traveling to the United States.

Hells Angels describes itself as a club for motorcycle enthusiasts, but it's classified as a criminal organization by the U.S. Department of State and U.S. Department of Homeland Security. In a lawsuit filed August 16 in U.S. District Court for the District of Columbia, Hells Angels claims that the "known criminal organization" designation isn't warranted and that federal officials have a blanket policy of denying visas to foreign members that conflicts with federal immigration laws.

Hells Angels, according to the complaint, has charters in 35 countries, including theUnited States, and clubs in at least four more countries are seeking to join.

Question: My girlfriend is from Brazil and has a B-2 visa stamp. Over the last year, she has spent more than half the time visiting me in the US. The last time she left was about three months, and now she wants to return. Does she run any risk of being denied entry, and how to minimize such risks? Can she alternatively apply for an F-1 VISA to study English?