Department of State comments on Employment-Based Visa Number Cut-Off Dates

The Department of State (DOS) has noted that it has seen a decrease in the demand for employment-based visa numbers for adjustment of status cases. DOS believes that this has led to a rapid advancement of the established cut-off dates for these visas. DOS is concerned that there may been an exorbitant amount of numbers available late in the fiscal year, but not enough time for individuals to utilize these numbers.

DOS’s believes that there will be no need to impose a cut-off date for the First and Second preference categories, based on the current level of number use in those categories. DOS is a bit concerned about the Third preference category, based on the amount of 245(i) filings that were submitted in March and April of 2001; however, it has not yet led to any major concerns.

Department of State on Foreign Students and Extended Breaks from School

The Department of State (DOS) recently released a telegram clarifying regulations regarding breaks in studies for foreign nationals attending a school here in the U.S. under the F-1 or M-1 visa. According to DOS, there are two situations in which a student’s visa would automatically be invalidated after a break in studies that lasted more than five months:

1) Students who are not studying, but remain in theU.S.

Individuals admitted to the U.S. under F-1 or M-1 status who are transferring between schools/educational programs are NOT considered to be in student status if classes are not resumed within five months of either he date they transferred out of the previous educational program or the date of program completion. In order to remain in legal status, such students should apply for a reinstatement of the F-1 or M-1 visa with the USCIS. Please note that students may pursue studies during this reinstatement process.

If the USCIS approves and restores the student’s status, their F-1/M-1 visa will again be valid, as long as the visa has not expired. However, if the USCIS denies reinstatement of student status, the student will have immediately lost F-1/M-1 status and any visa that was valid would be considered invalid at that point. Such a student must then immediately depart the U.S.

Please note that students who were denied reinstatement of status are not barred from applying for and receiving a new student visa; however, consular officers are informed of the original denial and will most likely investigate the issues surrounding that denial of status.

2) Students who leave the U.S. while in valid student status

It is quite common for foreign nationals enrolled in schools in the U.S. to take breaks in their studies and return to their home country for a semester or longer. However, the F-1 and M-1 visas of students that have been out of the U.S. for more than five months are no longer valid. According to immigration regulations, students’ F-1 and M-1 visas are subject to cancellation after an absence of more than five months. Students who return to the U.S. prior to the five-month point, however, should be readmitted to the U.S. after presenting a valid I-20 card.

Students who wish to resume their studies in the U.S. will be required to obtain a new visa. These students should either obtain a new I-20 from the school or verify that their previous I-20 is valid and their SEVIS record is in active status prior to applying for a new F-1 or M-1 visa.

Students who received approval from their schools to take an extended break are required to have their SEVIS record terminated for Authorized Withdrawal. These students, when ready to return to their studies, will receive a new initial I-2 from their school with a new SEVIS number. These students will be required to pay the SEVIS I-901 fee.

In some instances, certain students will leave the U.S. for extended periods of time to conduct active school-related research, such as field research. Schools should maintain these students’ status and their SEVIS numbers will remain active. Even though they may be out of the U.S. for more than five months, these students’ visas will not be considered invalid after that five-month period.


20,000 Slots Reserved for Aliens with U.S.-Earned Master’s Degrees or Higher Exhausted

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations for foreign workers with a U.S.-earned master’s or higher degree (the number of aliens exempted from the H-1B cap on this basis may not exceed 20,000 per fiscal year). Consequently, USCIS has determined that the “final receipt date” for these 20,000 cap-exempt H-1B petitions is January 17, 2006. Petitions received on January 17th are subject to the random selection process described below. USCIS will reject petitions requesting a foreign worker with a U.S.-earned master’s or higher degree that are received after the “final receipt date” unless the petitioner or beneficiary is eligible for a separate cap exemption.

USCIS has implemented the following procedure for H-1B filings for FY 2006 in accordance with the procedures announced in 70 FR 23775 (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004):

Ÿ USCIS has closely monitored FY 2006 H-1B filings for foreign workers with a U.S.-earned master’s or higher degree and used projections to determine the number of petitions necessary to reach the congressionally mandated cap exemption of 20,000.

Ÿ Having determined that a sufficient number of petitions have been received, USCIS will identify all H-1B petitions seeking an FY 2006 number that were received on the day USCIS received the number of petitions necessary to meet the 20,000 cap exemption (“final receipt date”).

Ÿ For petitions received on the “final receipt date,” USCIS will apply a computer-generated random selection process. This process will randomly select the exact number of petitions from the day’s receipts needed to meet the congressionally mandated cap exemption of 20,000.

Ÿ After random selection, any remaining H-1B petitions for foreign workers with a U.S.-earned master’s or higher degree that do not receive an FY 2006 number and are not otherwise exempt will be rejected and returned along with the filing fee(s).

Ÿ Petitioners may re-submit their petitions when H-1B visas become available for FY 2007.

Ÿ The earliest date for which a petitioner may file a petition requesting FY 2007 H-1B employment with an employment start date of October 1, 2006, is April 1, 2006.

Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

Ÿ Extend the amount of time a current H-1B worker may remain in the United States.

Ÿ Change the terms of employment for current H-1B workers.

Ÿ Allow current H-1B workers to change employers.

Ÿ Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that petitions for new H-1B employment are exempt from the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

The H-1B visa program is utilized by some U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) requires U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the Department of Labor’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

USCIS received enough H-1B petitions to meet the general population H-1B cap of 58,200 (congressional cap of 65,000 less 6,800 set aside for workers from Singapore and Chile by the Free Trade Act) for fiscal year 2006 on August 10, 2005. Those cap numbers do not include the 20,000 exempt foreign workers with a U.S.-earned master’s or higher degree. More information about the H-1B program and about USCIS is available at

Vermont Service Center Mistakenly Rejects 100 I-140 Petitions

Workers at the Vermont Service Center (VSC) mistakenly rejected roughly 100 1-140 petitions for immigrant workers to become permanent residents of the U.S. These petitions were rejected because they were filed with PERM Labor Certification Approvals (LCA) printed on blue paper. The workers at the VSC, who did not recognize the blue paper, were apparently unaware of required change to blue paper for LCAs.

The Vermont Center has issued specific guidelines for resubmission of these I-140 petitions. Applicants should resubmit the petitions with a colored coversheet that includes the following text in large letters: “Attention: CRU Supervisor” and “Case Improperly Rejected”. It does not matter what color the coversheet is. These petitions should be sent to a separate P.O. Box.

Only I-140 petitions erroneously rejected may be resubmitted. Applicants should also submit a letter explaining why the case was rejected. Hopefully, the VSC will be able to judiciously adjudicate these cases, and this error by VSC workers will not drastically affect too many applicants. Please keep in mind that our firm is here to help all of our clients with this or any other legal issue.

Clarification of Home Residence Requirement for EU Nationals Under J Visa

The Visa Office has recently clarified information regarding the home residence requirement of the J visa. According to the Visa Office, European Union (EU) nationals in the U.S. under the J visa category are NOT allowed to fulfill their two-year home-country residence requirement in any EU country, as previously believed by some J visa holders. This residence requirement must be fulfilled in their country of nationality or legal residence.

According to the Visa Office: “Since the INA requires two years in the individual’s country of nationality or legal residence, and the EU is not a country, the option of returning to any of the EU countries is not acceptable. European nationals must fulfill the two year requirement in their country of nationality or legal residence.”

LCA Form for H-1B and H-1B1 Visas Must be Submitted Online

Last week, the Department of Labor (DOL) released an email reminder that, as of January 4, 2006, employers are required to file the electronic Labor Condition Application (LCA), Form ETA 9035E, online at for all H-1B and H-1B1 visas. Employers may mail-in this application only in limited circumstances.

DOL has also added the option of submitting the LCA for the E-3 visa at the same website. While employers may still mail-in the application for this visa, they now have the option of submitting it electronically.

USCIS Nearing Cap for Advanced Degree H-1B Visas

As of January 10, 19,622 visa applications have been received for the H-1B Advanced Degree Exemption for Fiscal Year 2006. The cap for this exemption is 20,000, leaving only 378 additional visas available under this category. The cap has already been reached for both traditional H-1B visas (FY 06) and H-2B visas (1st half of FY 06). Less than 500 visas are available for H-2B visas for the entire year.

Please see the table below for additional details.

(FY 06)
H-1B Advance Degree Exemption
(FY 06)
H-2B 1st Half
(FY 06)
2nd Half
(FY 06)
FY 06
Cap 58,200 20,000 33,000 33,000 66,000
Beneficiaries Approved —— 17,306 —— 2,304 50,309
Beneficiaries Pending —— 2,316 —— 6,310 9,199
Total Cap Reached 19,622 Cap Reached 8,614 59,508
Date of Last Count 8/10/2005 1/10/2006 12/15/2005 1/11/2006 1/11/2006

Rep. Sensenbrenner Introduces “Border Protection” Bill to Congress

Representative James F. Sensenbrenner (R-WI) has introduced an immigration bill to increase border protection and provide security against terrorism. H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, was introduced by Sensenbrenner today, would provide more direction to the Secretary of the Department of Homeland Security (DHS) and the Secretary of Defense in the following areas:

1. These Secretaries would be guided to develop a plan to increase the availability and accessibility of Department of Defense surveillance along all U.S. land and sea borders.

2. Border security vulnerabilities would be assessed at all Department of Interior land adjacent to the U.S. border.

3. Training exercises on border security information sharing would be conducted.

4. A Border Security Advisory Committee would be established.

5. A university-based center of Excellence for Border Security would be established.

Of special concern with this bill is the proposal to require the Secretary of DHS to place any alien (with the exception of those from Mexico or Canada or those who have not been admitted or paroled) into expedited removal if they are caught within 100 miles of the border and within 14 days of illegally entering the U.S.

We will keep you posted on all news related to the progress of this bill in the House of Representatives.