22 C.F.R. 41.112(d)-An alien can re-enter the U.S. with an expired visa in her passport if:
In essence, Automatic Revalidation may allow you to reenter the U.S. after a brief trip to Canada or Mexico without going to the Consulate for a new visa. How do you qualify for Automatic Revalidation?
If your nonimmigrant visa is expired and you must travel to Canada or Mexico for less than 30 days, automatic revalidation may apply to you.
Automatic Revalidation applies when:
Automatic Revalidation may also apply when you have changed status in the U.S. and never had the new visa stamped in your passport or the visa is now expired.
For example: An Indian citizen on L-1B visa is working in the United States. He applies for and is approved for an Extension of Stay and receives an Approval Notice which includes a new I-94 at the bottom. The L-1B employee is asked to go to Canada for business meetings for a two week period. There is no Consular appointment available to have the extended visa stamped in his passport. He returns through the Border (or Airport preinspection station), shows his unexpired passport, expired visa and Approval Notice and requests Automatic Revalidation to return to the U.S. Under Automatic Revalidation, the Officer can allow the L-1B employee to enter without a new stamped visa in the passport. CAUTION: While Automatic Revalidation is authorized, several Ports of Entry will not admit a nonimmigrant based on Automatic Revalidation. Therefore, it is best to contact the Port of Entry to confirm local policy before you attempt to enter via Automatic Revalidation.
Cite as “AILA InfoNet Doc. No. 09042065 (posted Apr. 27, 2009)”
April 27, 2009 H-1B Cap Count
On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 27, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.
I love to travel and particularly love to travel to areas of the U.S. with diverse populations. I am completing a trip to St. Pete Beach and Orlando, Florida. Both areas are diversely populated which gave me the opportunity to meet and hear some great stories. Muhamar is a U.S. citizen who migrated to the U.S. from Albania. In Albania he was a successful man and a Major on the police force. When he arrived in the U.S. his first job was that of a housekeeper in a hotel. Today, he is a U.S. citizen and a Sergeant in the security force of a major resort. His courage to leave his land and start a fresh life is inspiring.
April 9, 2009 - USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
USCIS is reporting that they have received only half of the petitions needed to fulfill the H-1B Cap of 65,000. USCIS has received nearly all of the 20,000 Cap exempt packets for individuals with a U.S. Master’s Degree. USCIS will continue to accept petitions until the Cap is reached.
Note to employers of H-1B employees. H-1B Compliance is on the rise.
2009-Cognizant recently agreed to pay $509,000 in back wages as a result of a Department of Labor (DOL) investigation into its prevailing wage practices. Cognizant bellieves that it complied with prevailing wage requirements but agreed to pay the wages due to pressure from DOL. See the Silicon India article at:
2008-Eleven managers of affiliated companies were arrested on serious charges of mail fraud and conspiracy based on fraudulently prepared and submitted Labor Conditions Applications. In this case, the managers completed all LCAs for the lower prevailing wage work location of Iowa while workers were placed at positions throughout the United States. As an example, the prevailing wage for a Level I Software Engineer (Applications) in Des Moines, IA is $54,538 while the same position in Orange County, CA requires a prevailing wage of $61,776. Therefore, the employee was being paid $7238 below the required wage. Multiply this number by hundreds (or thousands) of employees and you’ll see the company’s motivation.
http://www.itbusinessedge.com/cm/community/news/sou/blog/11-arrested-in-h-1b-fraud-sweep/?cs=30493
2007-Patni paid $2.4 million in back wages for shortages to H-1B employees.
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9023964
Fines, indictments and debarrment from filing future H-1Bs is at stake. How does a company become and remain compliant?
1. Do a complete audit of all of company LCAs. Make certain the work location reported on the LCA is the work location where the beneficiary is assigned. Make certain the wage reported is the proper prevailing wage required of the position. (compare with the job description) In some cases, you could be under reporting the prevailing wage by selecting a Level I wage for a position which requires a much more experienced individual. LCA compliance assistance is available at http://www.dol.gov/compliance/
2. Prepare new H-1B petitions to correct any LCA deficiencies for material changes in job duties, salary or corrections in geographical wok locations.
3. Expect an audit.
4. Pray that you can complete all of this before you are audited.
5. Set up internal systems for tracking geographical and job duty changes so that you remain compliant.
6. Call an attorney experienced in compliance and H-1B issues for advice. This is a potentially costly area for companies and the managers who participate in the immigration program. Is your company next? You should not try to navigate this alone.
April 8, 2009 USCIS has announced that it will continue to accept H-1B Cap subject cases for the FY2010 H-1B Cap. They will continue to monitor the number of petitions submitted under the Cap and will announce the final receipt date once the 65,000 Cap is reached.
Q: I have an approved immigrant petition for an employment based case and have an Immigrant Visa in my passport. I have not made my first entry to the United States as an immigrant. I am pregnant and will have a child in France. After the baby is born, my husband will accompany me to the U.S. Will our child also be a Lawful Permanent Resident? What paperwork will I have to complete?
In this case, you obtained your Immigrant status based on your employment. Your husband obtained his status as your derivative. Your baby is considered an NA3 “child of a marriage which existed prior to the principal alient’s admission to the United States.” As a result, your baby is considered to be “previously acquired” and will be entitled to the same status and priority date as your husband. Therefore, when you enter the U.S., the port of entry will process your baby as an NA3 immigrant and will admit you, your husband and baby as Lawful Permanent Residents (LPR).
9 FAM 42.53 N6.2 Child of Marriage Existing Prior to Principal’s Admission
The child of a marriage which existed prior to the principal alien’s admission into the United States is considered to have been previously acquired and thus is entitled to the same status and priority date as the “accompanying” or “follow to join” parent.
9 FAM 42.53 6.3 Spouse/Child Acquired After Principal’s Admission
A spouse or child acquired after the principal alien’s admission to the United States, except a child of a marriage existing at the time of the principal alien’s admission into the United States, is not accorded derivative status, and thus is not entitled to the priority date of the principal alient. The principal alient must file a second preference petition for such spouse or child.
Don’t get excited too quickly if you receive an H-1B receipt notice this week. USCIS has announced that they accidentally issued some receipt notices for H-1B Cap counted cases. The receipt notice would normally be the indicator of acceptance under the H-1B Cap. In this case, however, the receipt notices will be recinded and those cases which received receipts in error will be placed in the H-1B Cap lottery.
Now that the H-1Bs are filed, we are receiving questions asking what happens next and how long it will take for a beneficiary to find out if they’ve been accepted under the H-1B Cap.
The California and Vermont Service Centers will collect and sort all petitions submitted under the H-1B Cap from April 1st through April 7th. Those with U.S. Master’s Cap cases will be reviewed and will be included in the Master’s Cap. If the Master’s Cap of 20,000 is met, those cases above the 20,000 will be included in the 65,000 Regular H-1B Cap.
The H-1B Regular Cap cases will be reviewed and assigned random numbers. The selection process will occur for those cases which were properly filed and notifications will begin to arrive in May 2009. The notification process is simple. If you receive a receipt notice, you’ve been accepted under the Cap. If your packet is returned, you have not been accepted under the Cap. The receipts will arrive first with the returned (unaccepted) packets arriving sometime in June. If USCIS processes the cases as they did last year, most receipt notices will be send by the first week of June. It is safe to assume that, if you haven’t received your receipt notice by the end of June, you likely haven’t been accepted under the Cap.
Last night I dropped off 224 H-1B packets at the courier for filing at the Vermont and California Service Center. Today, all of the packets have been delivered and the wait begins for the H-1B Cap “Lottery.” My guess is that 127,000 petitions were submitted this year. Let’s see how close I come to the actual number submitted.
The next several postings will include updates on how many petitions are submitted to USCIS under the H-1B Cap and how many of our petitions were accepted under the Cap so please check back for updates.