On October 23, 2006, the USCIS clarified how it would be handling the “returning worker” exemption to the H-2B numerical limitation which was extended for Fiscal Year 2007 by H.R. 5122, section 1074. President Bush signed that legislation on Oct. 17, 2006. The USCIS noted that the one year exemption will remain in effect until September 30, 2007.

Advance Parole is permission to re-enter the United States after traveling abroad in order to continue processing for adjustment of status or other benefits.  This section discusses various issues regarding Advance Parole.

In signing the Secure Fence Act of 2006 (H.R. 6061), legislation, President Bush stressed that the fence with Mexico is at most only part of the solution to the illegal immigration problem, and that a temporary worker plan is needed to "reduce pressure on our border". President Bush stated:

The Department of Homeland Security (DHS) announced on October 26, 2006 that 24 of the 27 Visa Waiver Program (VWP) countries have met the October 26, 2006 deadline by satisfying the requirement for issuing e-Passports. These requirements mandate that passports contain a contactless chip with the passport holder's biographic information and a biometric identifier (e.g., a digital photograph of the holder). DHS announced in July 2005, that passports issued by VWP countries on or after October 26, 2006, must comply with these requirements in order to be valid for entry into the United States without a visa, i.e., under the visa waiver program.

President Signs Secure Fence Act of 2006

On 10/26/06, President Bush signed into law the Secure Fence Act of 2006 (H.R. 6061), legislation which authorizes 700 miles of fencing along the Southwest border with Mexico. This event raises a number of issues. Will this fence work? Does this fence get to the heart of the problem? Will the fence even be built?

The general rule, commonly known, is that E-1’s, E-2’s, H-1’s, and L’s, who file for Adjustment of Status can continue to work under their previous status prior to obtaining their EAD card under the Adjustment of Status procedure, PROVIDED that they are otherwise maintaining their non-immigrant status (e.g., E-1, E-2, H-1, or L). What is less commonly known is that the position of the USCIS (as stated in an INS Memorandum from 1997) is that this general rule applies to “all nonimmigrants”.

Adjustment of Status is the process of applying for U.S. Permanent Residency ("green card" status) from within the U.S., as opposed to traveling to a U.S. Consulate outside of the U.S. to obtain U.S. Permanent Residency, known as "Consular Processing." Adjustment of Status and its counterpart, Consular Processing, are usually the final step in obtaining U.S. Permanent Residency, i.e., after one's immigrant petition (e.g., I-140, I-130, etc.) has been approved. However, under current procedure,s it may be possible to file an immigrant petition together with an Adjustment of Status application.

The USCIS issued a Press Release, on October 4, 2006, reminding Applicants for Adjustment of Status, and other benefits, to obtain ADVANCE PAROLE Before Holiday Travel Abroad.

Under the general U.S. immigration rule, you must file an EXTENSION OF STAY application for a non-immigrant status (e.g., H-1B, O, L, etc.) BEFORE your original status expires. For example, if your H-1B status expires on November 29, 2006, then you must file your extension of stay application before November 29, 2006. What happens, however, if you fail to file your extension before your original status expires, or you otherwise fail to maintain the previously accorded status? Normally, this means that your extension of stay application will be DENIED. There is an exception however.

"Extension of Stay" refers to the process of extending a non-immigrant status, e.g., H-1B, L, O, etc. It really refers to the extension of the Form I-94, which states a foreign national's STATUS in the U.S. It should not be confused with extending a "visa".

PHYSICIANS applying for U.S. visas, and U.S. Permanent Residency (green cards), have special requirements and issues that must be addressed, which apply exclusively to physicians. This section is dedicated to addressing the special needs of physicians in U.S. Immigration matters.

It is important that physicians who are considering applying for a green card remember that there are certain circumstances under which they may not have to first pass USMLE. There are certain exempt categories. For example, if a physician qualifies as an alien of extraordinary ability or as an outstanding professor or researcher, passage of the USMLE exam is not necessary. Of course, whether the USCIS requires that the physician have passed USMLE is a separate requirement from the requirements imposed by State licensing authorities.

Second, the USMLE requirement only applies if the physician will be involved in patient care. "Researchers, teachers, etc. are not subject to this requirement." Third, the USMLE requirement does not apply if the physician was fully and permanently licensed to practice medicine in a State of the U.S. on January 9, 1978, and was practicing medicine in a State of the U.S. on that date.

The U.S. is offering to permanently resettle up to 10,000 refugees from a 12-year civil war in the African country of Burundi, the State Department said Tuesday.

Under a new government proposal, U.S. citizens who frequently go back and forth between the U.S. and Mexico or Canada would pay $20 for a new credit card-sized travel document they could use instead of a passport.

On 10/17/06, President Bush signed a law (Section 1074 of H.R. 5122) which exempts individuals from the H-2B QUOTA for the 2007 fiscal year (October 1, 2006 to September 30, 2007) who obtained H-2B's in certain past years. Specifically, to be exempt, individuals must have obtained an H-2B in one of the following fiscal years: 2004, 2005, or 2006. Those individuals who are exempt under this provision may be able to obtain an H-2B extension which takes effect beginning October 1, 2006.

The Congressional Research Service (CRS), issued a report on Foreign Students in the United States: Policies and Legislation . Read the full PDF here (212KB).

On 10/17/06, the U.S. Department of Labor's Board of Alien Labor Certification Appeals (BALCA) issued a ruling in a case, Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06), in which it addressed the circumstances under which an employer can claim that it actually had MULTIPLE OPENINGS.

Antao & Chuang, Attorneys at Law, has been representing clients in U.S. immigration cases since 1991. We represent clients who are located throughout the world. We try to set our fees at a reasonable level. Our attorneys pride themselves on working directly with each client in a personable manner. Talk to us.

The E-3 is a visa category for Australians only who are going to the U.S. to work temporarily in a "specialty occupation". A key advantage is that it allows Austrialians to avoid the H-1B quota which often runs out quickly.