H-1B Visa Cap; Immigration Law, Criminal Law and Driving Under the Influence
February 27, 2004

Allotment of H-1B Visas Has Been Exhausted for This Fiscal Year

For the fiscal year of 2004, which starts October 1, 2003 and ends on September 30, 2004, the annual cap on the issuance of H-1B visas (for professional nonimmigrants) has been reached. Therefore, the earliest validity date on any new H-1B petition will be October 1, 2004. Among the types of H-1B filings that are EXEMPT from the cap are petitions filed by non-profit institutions or institutions of higher learning, as are filings to extend an individual’s current H-1B status, or change their H-1B employer.

Immigration Law, Criminal Law and Driving Under the Influence

For those seeking to become permanent residents of the U.S., there is a long list of legal grounds that may serve to get in the way of their efforts. One such ground may be the applicant’s criminal history, although not all types of criminal behavior will serve as the basis for ineligibility. With some exceptions, a single misdemeanor conviction in the applicant’s background will usually not be of any consequence in their efforts to become a U.S. permanent resident. More than one such conviction, or a felony conviction, may indeed have a significant impact on the individual’s current or future immigration status in the U.S.

Therefore it is always advisable for the following classes of individuals to consult an immigration attorney before taking action:

• intending immigrants who are currently in criminal proceedings and are contemplating accepting a guilty plea (impact on future efforts to become permanent resident),
• those who are already permanent residents, but are facing criminal charges (important to keep in mind possible deportation consequences) and
• applicants for permanent residence in the U.S. (with or without status) with some sort of criminal conviction (to assess how CIS, formerly INS, will view this criminal background when deciding the application).

One of the more common “criminal” activities clients inquire about is the significance of a conviction for Driving Under the Influence of Alcohol. Although many jurisdictions do not consider such an offense to be criminal, U.S. immigration authorities will always want to be provided with certified court dispositions detailing the outcome of court proceedings since such proceedings typically arise out of an arrest, and all arrests are revealed in the applicant’s pre-interview fingerprint check.

Firstly, cases that are dismissed following an arrest are generally not of concern, although sometimes an individual may end up accepting a plea deal that sounds like a dismissal, but is in reality a conviction for immigration purposes. HOWEVER, even if an applicant for residence has 1 conviction for DUI, there is no reason to be concerned as such a conviction will generally not have an adverse impact on the intending immigrant’s case.

On the other hand, more than 1 conviction for DUI, or even repeated arrests, may indeed pose some problems for prospective applicants, and not only due to a criminal ground of inadmissibility, but also a health related ground.

According to a memo recently released by CIS (formerly INS) headquarters and directed to local CIS offices, “a significant record of alcohol related driving incidents” could adversely impact a prospective immigrant’s application, since it may very well reveal that the applicant suffers from alcoholism – a ground for denying an application for U.S. permanent residence.

If such a record exists, an applicant may be subjected to a new medical examination where the physician will thoroughly scrutinize the applicant’s physical and mental health, as well as their history of alcohol consumption.