New H-1B Work Visa Legislation
October 13, 2000
In the past couple weeks both houses of Congress have debated a wide range of immigration related issues, and to this point, have managed to come to agreement on just a few of them, most notably the expansion of the H-1B work visa program. Important legislative proposals which are now on the table, but yet to be agreed upon by Congress include: a) the reenactment of Section 245(i) – a provision which allows practically any out of status individual with an appropriate family based or employment based petitioner to undergo permanent resident processing without leaving the U.S., b) the reenactment of measures which grant immigration judges discretion in considering the deportation of long time permanent residents with certain criminal convictions and c) the enactment of an amnesty type program for individuals who have resided continuously in the U.S. in excess of 14 years (although the language of any future enactment could require more or less time in the U.S.)
The H-1B visa legislation, entitled the American Competitiveness in the 21st Century Act, is likely to be signed by the President in the coming days (on October 17, 2000 the measure was signed by the President) and its highlights include:
An Increase in Visas:
For the fiscal years 2001 through 2003, the annual allotment of H-1B visas available will expand to 195,000. Not subject to the visa cap are employees of higher education institutions as well as nonprofit or government research organizations.
“Portability” of H-1B Employees:
H-1B workers already in the U.S. who wish to change employers will no longer need to wait for the final processing of their paperwork by Department of Labor and INS before being authorized to work for their new employer. Instead, assuming their new H-1B filing is submitted prior to the expiration of their current status and is ultimately approved, the H-1B employee will be deemed authorized to start work with his or her new employer immediately upon the filing of the paperwork.
Greater Freedom to Change Employers While Permanent Residence Processing is Pending:
Previously, H-1B employees already in the U.S. pretty much had no choice but to stay with their petitioning employers while their permanent residence processing was underway. Those choosing to switch employers during this stage usually paid the price of having their cases delayed substantially by being forced to re-start a process that could take as long as 3 years. Under the language of the proposed legislation, employees whose Adjustment of Status applications have been pending more than 180 days will be allowed to change employers without being penalized (time and red tape-wise), as long as the new job is in a similar occupation and geographic location.
Increase in Filing Fee to $1,000.00:
The selling of this legislation so as to appeal to all political factions appears to have required the doubling of the filing fee. Funds collected will be allocated primarily for Department of Labor programs designed to train U.S. workers to fill high tech positions in the future.
The President is expected to sign the H-1B legislation any day now. However, whether or not the other immigration related provisions noted above will be addressed in any future legislation remains to be seen.
INS Processing Times in Chicago and Lincoln, Nebraska
For the most recent processing times, visit CIS ( INS ) Processing Times.
Nebraska Service Center, Lincoln, Nebraska
Form I-129 – Petition for a Non-Immigrant Worker (which includes professionals/specialty occupation workers (H), intracompany transferees, executives or managers (L), treaty traders/investors (E), artists/performers (O, P), religious workers (R): 45-60 days
Form I-539 – Application to Extend/Change Non-Immigrant Status (most often filed by tourists/visitors, B-1/B-2, and dependents of principal H, L, E, O, P and R visa holders seeking to extend their stays): 60-90 days, Dependents of non-immigrant workers will have shorter processing times: 45-60 days.
Form I-140 – Immigrant Petition for Alien Worker (most often, petitions for workers who have obtained labor certifications from the U.S. Department of Labor or precertified occupations): 60-75 days
Form I-130 – Petitions for out of country spouses or children (under 21) of U.S. citizens: 140 to170 days, Petitions for all other relatives of U.S. citizens or Lawful Permanent Residents: 570-600 days
Form I-129F – Petition for an out of country fiance of U.S. citzen: 60-75 days.
Form I-751 – Petition to Remove Conditions on Residence (for alien spouses and children with conditional resident status, including joint filers and individuals seeking waivers): 180-210 days
NOTE: Where interviews for I-751 filers are deemed necessary by the INS, interviews at INS Chicago for this purpose are scheduled approximately 7 to 9 months from the date of filing.
Form I-360 – Petition for Amerasian, Widow/Widowers of U.S. Citizens and Special Immigrants (including immigrant religious workers): 45-75 days
Form I-589 – Request for Asylum (for individuals not in deportation proceedings): interviews at INS Chicago Asylum Office are being scheduled approximately 15-30 days from the date of filing.
Form I-131 – Application for Travel Document (Re-entry Permit or Advance Parole for Employment Based Adjustment of Status Applicants): 30-60 days
Form I-765 – Application for Employment Authorization Document (mainly for employment based adjustment of status applicants) : 45-60 days
INS – Chicago District Office
Form I-485 – Application for Adjustment of Status (for various individuals already in the U.S., seeking permanent residence – including qualifying alien spouses or parents of U.S. citizens or permanent residents and certain beneficiaries of approved immigrant worker petitions): interviews are being scheduled approximately 22-24 months from date of filing. A reduction in this waiting time may be achieved in the near future, depending on the INS’ ability to hire additional examiners to handle a significantly increased caseload.
Form I-765 – Application for Employment Authorization Document (mainly for family based adjustment of status applicants) : 60-90 days
Form N-400 – Application for Naturalization (Citizenship): Interviews are being scheduled approximately 7 to 12 months from the date of filing with oath ceremonies scheduled for 1-3 months thereafter.
Form I-131 – Application for Advance Parole (to facilitate reentry into the U.S. if emergency circumstances require travel outside the U.S. while adjustment application is pending with INS Chicago): 1 day
As to petitions or applications filed with Lincoln, Nebraska, the above processing times do not include the additional time an individual may face if he/she must appear at a U.S. consulate outside the U.S. to have their visa processed. It is also important to note that in exceptional/emergency cases (such as those involving children soon turning 21 years of age), carefully prepared requests for expedited processing are sometimes granted.
Finally, if an inordinate amount of time has passed without your particular filing being attended to, it is imperative that follow up inquiries be made with the office in question.
PUBLISHED October 13, 2000 – “IMMIGRATION LAW FORUM”
Copyright © 2000-2008, By Law Offices of Richard Hanus, Chicago, Illinois