Foreign nationals who come to the United States to study are often given a year of OPT – optional practical training- following graduation from university. During OPT, a foreign national is able to work in the United States. However, once a foreign national’s OPT expires, he or she must stop working and leave the United States within 60 days.
If a foreign national desires to remain employed in the United States, another immigration status must be obtained prior to the expiration of OPT status. For many foreign nationals, the H-1B visa offers a viable option for extending their work authorization in the United States. However, due to the H-1B visa cap, a foreign national’s OPT status will often expire prior to the beginning of H-1B availability on October 1 of each year. For example, many individuals’ OPT status expire in June – and have no status to hold them over until an H-1B kicks in on October 1.
Luckily, the immigration agency has acknowledged this inconvenience, and has developed what is called the “cap gap.” The H-1b cap gap allows for the extension of an individual’s F-1 (OPT) status through September 30 – if an H-1b application has been approved with a start date of October 1.
Please contact an H-1B visa lawyer to find out if you are eligible for the cap gap – not all individuals are eligible.
Here are some common questions about the Cap Gap.
What is the Cap Gap?
The Cap Gap refers to current regulations that allow certain students to remain in F-1 (student) status until the start date of an H-1B visa. Students must have a pending or approved H-1B petition.
Which Petitions and Beneficiaries Qualify for a Cap-Gap Extension?
To qualify, an H-1b petition must be timely filed on behalf of an eligible F-1 student and request a change of status to h-1B on October 1. Timely filed means an H-1B petition filed during the eligible time period (after April 1st), and during an applicant’s F-1 status, OPT status, or 60 day grace period following OPT status.
How Can A Cap Gap Recipient Show Evidence of Continuing Status?
A qualifying applicant can obtain proof of status through contacting their school’s Designated School Official.
Can a Person In Cap Gap Travel Overseas?
No. A person who is in cap gap status cannot travel overseas while in that status. To do so will have consequences.
To learn more about the Cap Gap, please visit the USCIS website. Additionally, to learn if you are eligible for the Cap Gap, please contact this NYC immigration lawyer for assistance.
As anyone following the H-1B cap knows, the 2013 season kicked off on April 2, 2012. The cap is required because each year the United States only allows 65,000 cap subject H-1B visa holders into the United States. Additionally, each year the United States only allows 20,000 advance degree, cap subject H-1B visa holders into the United States. Just ten days into the season, the two quotas are filling up quickly.
As of 4/9/12, nearly 17,400 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 8,200 H-1B petitions for aliens with advanced degrees. As the charts below illustrate, these available visas are likely to fill up quickly. If you are thinking of gaining H-1B status in the next year – start acting now. If you fail to get an H-1B visa that is subject to the cap, then you will not be able to get another H-1B cap-subject visa until October 1, 2013.
 
The Department of Homeland Security recently announced how many employment-based immigrants became lawful permanent residents in 2011. The chart below breaks down the immigrants into their priority classification (e.g. first through five priority). Additionally, the chart provides historical statistics for each of the five priority classifications for the last ten years.
Of note is the significant decrease in first priority workers (e.g. extraordinary abilities visa, outstanding professors and researchers, and multinational executives), and the relatively mild increase in the number of five priority applicants (investor visa applicants).
According to the Department of Homeland Security, a total of 694,193 individuals became U.S. citizens by choice (Naturalized) last year. This is a significantly higher number than the 619,913 individuals who naturalized in 2010, but less than the 743,715 individuals who naturalized in 2009. Of interest, is the sharp increase in the number of people who have naturalized in the last twenty years. Prior to 1994, it was rare for over 200,000 individuals to naturalize each year. Since 1994, there has not been less than 400,000 each year.
Effective April 13, 2012, the visa fees required by the State Department will change. The new fees represent both an increase and decrease in certain fees. Of note, marriage visa fees will decrease from $330 to $230. Additionally, the K-1 fiancee visa fee will decrease from $350 to $240. Most nonimmigrant visa fees will increase, while most immigrant visa fees will decrease. Please see the charts below for clarification.
Nonimmigrant Visa Processing Fees
|
Type of Visa
|
Previous Fee
|
New Fee
|
|
Tourist, Business, Transit, Crew Member, Student, Exchange Visitor, and Journalist visas
|
$140
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$160
|
|
Petition-Based visas (H, L, O, P, Q, and R)
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$150
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$190
|
|
Treaty Investor and Trader visas (E)
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$390
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$270
|
|
Fiancé(e) visas (K)
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$350
|
$240
|
|
Border Crossing Cards (age 15 and older)
|
$140
|
$160
|
|
Border Crossing Cards (under age 15)
|
$14
|
$15
|
Immigrant Visa Processing Fees
A great deal of buzz has occurred following the conviction of the defendant in the “bullying” case out of New Jersey that led to the “It Gets Better” campaign. Whether or not the punishment fits the crime, it appears that the defendant now faces the possibility of deportation.
It also appears that the defendant’s parents may have avoided their son’s added consequence of deportation due to his stupidity. You see, if your child is a lawful permanent resident, and you naturalize before your child becomes 18, then your child automatically gains citizenship. Although I do not know the defendant’s immigration case specifics, many other immigration attorneys have speculated about his parent’s naturalization eligibility.
If you are a permanent resident and are eligible for naturalization, please do not delay in naturalizing. It may make a world of difference to you and your children.
On Friday, March 23, 2012, the U.S. Government announced its intentions to grant Temporary Protected Status (TPS) to Syrians. TPS provides citizens from designated countries to remain in the United States while conditions in their country improve. TPS is often given to citizens after some sort of national calamity has befallen a country – such as the Haitian earthquake, or, in this case, the civil unrest in Syria.
TPS provides legal status to qualifying individuals and allows them to gain work authorization. Further, current immigration status is not required to obtain TPS. Unfortunately, it often occurs that many individuals who are eligible for the status do not sign up for it because they do not hear about it in time.
So if you have any Syrian friends, mention it to them. If they don’t need it, maybe their friend does.
The exact procedure for signing up for Syrian TPS has not yet been given, but stay tuned – there will be a limited time to sign up. If you think you may be eligible, please contact an immigration lawyer to review your eligibility.
Its that time of year again. On April 2, 2012 , the USCIS will begin adjudicating H-1B visa petitions for the 2013 Fiscal Year – which begins October 1, 2012. This means, that if you need or want an H-1b visa, you most likely will need to apply on or after April 2, 2012- and will not be able to begin working until October 2012. Of course, there are certain exceptions.
What is the H-1B Visa? And Why Is there a Cap?
The H-1B visa category allows certain specialty occupation workers to have work authorization through a petitioning employer for three years. The number of H-1B visa holders, however, is limited by a statutory quota. Each year, only 65,000 applicants can obtain H-1B status subject to the quota. An additional 20,000 applicants can obtain H-1B status if they have a master’s degree from a U.S. university. Also, individuals working at universities, non-profit research facilities, and other cap-exempt employers are excluded from the cap total.
Why Is April 2nd Important?
The H-1B visa can only be applied for six months prior to the visa’s intended use. Thus, if someone wants to begin work on the first day of the new fiscal year’s H-1B eligibility – they cannot apply before April 2 – which is six months prior to the first day of the government’s fiscal year (October 1, 2012).
This means, no H-1Bs subject to the cap can be applied for until April 2, 2012.
Do I Need to Apply April 2nd?
April 2nd is the first day when cap-subject H-1B petitions can be submitted for the upcoming fiscal year. However, it is not required that an applicant apply April 2nd. Before the economic downturn in 2008, the H-1B visa cap was often met within a few days of April 1st (Meaning that the USCIS received over 85,000 qualifying applications within just a few days). However, since 2008, the H-1B cap has taken many months to be reached. Last year, the cap was reached at the end of November.
If you are applying for an H-1B this year, I would suggest not waiting too long. Although it is unlikely that the cap will be reached in April, it will probably be reached faster than last year (November). Once the cap is reached, applicants are out of luck for another year – unless they find another suitable visa.
Conclusion
If you are seeking the H-1b visa during the next year – do not delay. Although the yearly quota has recently taken many months to be reached, it is important to not wait too long. There is no real way to determine when the cap will be met – and it is better to be early than to be late. Please contact Gafner Law Firm for assistant in obtaining H-1B visa status.
The “start up” visa – a visa that would provide immigration status to individuals creating American jobs – remains stalled in the Senate. The delay is reported to be due to Senator Grassley’s continued concerns with the immigration agency and its adjudication of immigration petitions.
According to sources, if the legislation does not come up for a vote before June – it is unlikely to succeed this year.
How long will the government twiddle its fingers?
In the last few months, the priority date for EB-2 Indian and Chinese nationals has advanced greatly. In fact, the current priority date for those two groups is May 2010.
However, according to the Chief of the Visa Control and Reporting Division at the Department of State, the advancement is not likely to last. In fact, it is expected that the priority date will regress to August 2007.
If this is true, then those individuals who are able to file for adjustment of status based on the current priority date should consult an immigration lawyer to discuss the possibility and – hopefully – quickly file for adjustment of status. It is likely that the regression will occur around May 2012.
The USCIS recently updated its guide to naturalization for individuals who seek to become citizens of the United States. The guide offers great guidance to those who think they are eligible and want to know what to expect. However, no guide can offer the same analysis as a naturalization lawyer.
Here is what is included in the guide:
- M-476, A Guide to Naturalization (entire guide) (1033KB PDF)
- M-476, Chapter 1, Welcome (361KB PDF)
- M-476, Chapter 2, What are the Benefits and Responsibilities of Citizenship? (212KB PDF)
- M-476, Chapter 3, Frequently Asked Questions (344KB PDF)
- M-476, Chapter 4, Who is Eligible for Naturalization? (390KB PDF)
- M-476, Chapter 5, What should I Expect from the Naturalization Process? (296KB PDF)
- M-476, Chapter 6, What Kind of Customer Service Can I Expect? (259KB PDF)
- M-476, Chapter 7, Where Do I Go for Help? (189KB PDF)
- M-476, Chapter 8, Glossary (211KB PDF)
- M-476, Attachments, Document Checklist, Current Fees, Naturalization Eligibility Worksheet ( PDF)
Marriage Visa applicants who obtain a green card within two years of their marriage are given conditional permanent residency for a period of two years. At the end of those two years, the conditional permanent resident must apply for the removal of the conditions through an I-751 petition. The process can be completed through an I-751 joint petition (with the U.S. citizen spouse), or through an I-751 waiver petition.
One common concern that I-751 applicants have is that the receipt number on their I-751 receipt notice does not appear on the USCIS’s online status application. This is normal. The solution: When USCIS sends the biometrics appointment notice, check that receipt number on the USCIS website. The biometrics appointment receipt number should appear.
Perhaps USCIS will fix its system in the future, but for right now, this solution will have to do.
Effective March 1, 2012, the U.S. Embassy in Lisbon, Portugal will no longer be processing immigrant visa applications to the United States. Instead, individuals will be directed to apply for immigrant processing through the U.S. Embassy in Paris. This change is due to the “relatively low demand” for immigrant visas in Portugal.
Not to be caught up in the confusion, nonimmigrant visa applications are still being processed in Lisbon. The U.S. Consulate’s webpage has more information.
The U.S. State Department has released the March 2012 Visa Bulletin. This month’s bulletin is highlighted by significant forward movement in EB-2 India and China.
Employment-Based (EB) Summary of the March 2012 Visa Bulletin
- EB-1 remains current.
- EB-2 India and EB-2 China both move forward to May 1, 2010.
- EB-3 Mexico and Philippines move forward to March 15 2006, China moves forward to January 1 2005, and India moves forward to August 22, 2002.
Family-Based (FB) Summary of the February 2012 Visa Bulletin
- FB-1 China and India all move forward to February 1, 2005. Mexico moves forward to May 1, 1993 and Philippines moves forward to July 1, 1997.
- FB-2A moves to July 22, 2009 for China, India, and Philippines. Mexico moves to July 1, 2009.
- FB-2B China and India move to November 15, 2003. Mexico remains at December 1, 1992. Philippines moves to December 8, 2001.
A copy of the visa bulletin is provided below:
2012 March Visa Bulletin
A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by February 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
| Family-Sponsored |
All Chargeability Areas Except Those Listed |
CHINA-mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| F1 |
01FEB05 |
01FEB05 |
01FEB05 |
01MAY93 |
22JUN97 |
| F2A |
22JUL09 |
22JUL09 |
22JUL09 |
01JUL09 |
22JUL09 |
| F2B |
15NOV03 |
15NOV03 |
15NOV03 |
01DEC92 |
08DEC01 |
| F3 |
01JAN02 |
01JAN02 |
01JAN02 |
08JAN93 |
22JUL92 |
| F4 |
08OCT00 |
08OCT00 |
08OCT00 |
22MAY96 |
22DEC88 |
*NOTE: For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUL09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUL09 and earlier than 22JUL09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
| Employment- Based |
All Chargeability Areas Except Those Listed |
CHINA- mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
01MAY10 |
01MAY10 |
C |
C |
| 3rd |
15MAR06 |
01JAN05 |
22AUG02 |
15MAR06 |
15MAR06 |
| Other Workers |
15MAR06 |
22APR03 |
22AUG02 |
15MAR06 |
15MAR06 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs |
C |
C |
C |
C |
C |
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
Recently the Board of Immigration Appeals (BIA) issued an unpublished report that examined the marriage visa’s availability for a postoperative transsexual individual who had married her husband after the operation. At issue before the court was the applicant’s inability to get her native country to change her birth certificate and passport to reflect her change in gender. Despite her inability to get the birth certificate changed, the BIA determined that the individual was eligible for the marriage visa and could become a green card holder.
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Immigration Insight is maintained by Immigration Attorney Chris Gafner and is meant to shed light on, and create talking points about, current immigration issues. If you would like a specific topic discussed, please contact the firm.
This blog, like the rest of this website, is not legal advice for any specific reader.
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