Immigration Law Blog

DHS Proposes Three Year TN (NAFTA) Visas

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States as business persons to engage in business activities at a professional level. The specific occupations which qualify for the TN classification include accountants, engineers, lawyers, pharmacists, scientists, and teachers. Spouses and unmarried minor children of TN nonimmigrants may be granted TD nonimmigrant classification to accompany their family member.

USCIS regulations currently provide that TN nonimmigrants may be admitted to the United States for a period not to exceed one year. The proposed rule would ease the burden to TN employees and their employers by increasing the maximum allowable period of admission for from one year to three years, and allow extensions of stay in increments of up to three years instead of the current maximum of one year.

USCIS Addresses F-1/H-1B "Cap Gap"

What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000, with certain statutory cap exemptions.

What is the F-1/H-1B “cap-gap”?

Cap gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year, before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would in most cases have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year. Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months.

How does cap gap occur?

• Under the prior regulation (and unchanged by this rule), an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training.

• As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start the approved H-1B employment is October 1.

• Consequently, F-1 students who are the beneficiaries of approved H-1B petitions with October 1 employment start dates, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, are in many cases required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

H-2A Program to be Improved

The U.S. Department of Homeland Security announced on February 6, 2008, a series of proposed rule modifications to provide employers with a streamlined hiring process for temporary and seasonal agricultural workers under the H-2A program.

“These proposed changes are designed to provide an efficient and secure program for farmers to legally fulfill their need for agricultural workers within the law rather than outside the law,” said Homeland Security Secretary Michael Chertoff. “This common-sense simplification of H-2A will provide farm employers with a more orderly and timely flow of legal workers, while continuing to protect the rights of laborers and promoting legal and secure methods for determining who is coming into the country.”

The proposed modifications to the rule reduce current limitations and certain delays faced by U.S.employers and relax the current limitations on their ability to petition for multiple, unnamed agricultural workers. It extends from 10 to 30 days the time a temporary agricultural worker may remain in the U.S. after the end of employment. The rule also reduces from six to three months the time a temporary agricultural worker must wait outside the U.S. before he or she is eligible reenter the country under H-2A status. Additionally, under the proposed rule H-2A workers who are changing from one H-2A employer to another may begin work with the new petitioning employer before the change is approved by USCIS, provided the new employer participates in USCIS’ E-Verify program.

Update on H-2B Visas

On January 3, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of cap-subject H-2B petitions to reach the congressionally mandated cap of 33,000 for the second half of Fiscal Year (FY) 2008.

With a "final receipt date" of January 2, 2008 for new H-2B petitions requesting employment start dates prior to October 1, 2008, seasonal employers throughout the country found themselves unable to proceed with visa applications for countless foreign workers.

The H-2B visa allows US employers to hire overseas workers for temporary or seasonal, non-agricultural labor. These visas are heavily relied upon by companies with a seasonal business nature, such as the Colorado ski resorts and companies relying on summer tourism, seeking temporary laborers to meet staffing demands created by the seasonal increase in business.  While 66,000 H-2B visas are available each year, the first half of these visas are available for start dates on or after October 1st and the second half are available for start dates on or after April 1st. 

USCIS Announces H-2B Cap Reached for Second Half of FY2008

On January 3, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap of 33,000 workers for the second half of Fiscal Year 2008.  January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008.  USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008 and will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008.  Those not selected will be return with the filing fees.

USCIS Advises of Expected Processing Delays

U.S. Citizenship and Immigration Services has issued an advisory warning that processing times for certain application types may become significantly longer.  In particular, it advises that naturalization applications filed after June 1, 2007 may take approximately 16 - 18 months to process. 

The significant increase in the number of applications filed in July and August 2007 is to blame for the expected delays.  During those two months, nearly 2.5 million applications and petitions of all types were received, over double the number received in the same time period of 2006.

For fiscal 2007, USCIS received 1.4 million applications for naturalization; nearly double the volume received in 2006. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload.

Travel Documentation Requirements Changed for H and L Adjustment Applicants

U.S. Citizenship and Immigration Services removes the I-485 receipt requirement for H and L adjustment applicants returning from a trip outside the United States.

Generally, applicants for adjustment of status must obtain permission from USCIS to travel prior to the trip, a process referred to as “advance parole.”  Obtaining advance parole currently takes 90-120 days.  Failure to obtain advance parole may result in automatic abandonment of the adjustment application.  Previously, adjustment of status applicants maintaining H or L nonimmigrant status who traveled abroad were not deemed to have abandoned their applications even if they did not obtain advance parole prior to departure, as long as they remained eligible for their status, were resuming work with the same employer and, most importantly, were in possession of the original receipt notice for their application for adjustment of status application.