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PUPA Law Square * You are welcome to contribute any useful knowledge in legal issues. [Topics] An Inside View of the Port-of-Entry Inspection Process H1B "Seventh-Year" Extensions, and else H1B Quota Reduced 2/3 from Oct. 2003 An Inside View of the Port-of-Entry Inspection Process 1, Steps in the Inspection Process : Primary and Secondary Inspection All arriving passengers go through the primary inspection process. The goal of primary inspection is to process travelers as quickly as possible, so Inspectors have a very short period of time to check that a person's papers are in order. However, if the Inspector has reason to believe that more thorough questioning of the person, or examination of documents, is needed to make a determination as to whether the person can be admitted, the Inspector refers the person to secondary inspection. The Inspectors in secondary inspection can take the time to conduct a detailed interview, without keeping a whole line of exhausted international passengers waiting. If space and facilities permit, some large airports, have two separate secondary inspection areas, often termed as "hard secondary" and "soft secondary." Persons who may have serious problems, such as those whose names appear on a computerized "lookout list" because of national security or law enforcement concerns, or those who do not carry appropriate documents, would be questioned in hard secondary. People who are probably legitimate travelers but who have to be referred to secondary because their cases take a longer time to process would go to soft secondary. An example of someone in the latter group, for soft secondary, would be a new immigrant family, arriving with an immigrant visa from a consulate. In such a case, there are documents to check and additional forms to complete. 2, Traveling with Prior Visa Stamp and New H1B Approval Notice As you are aware, it is not necessary to obtain a new visa stamp when changing H1B employers, unless the prior H1B visa is about to expire anyway. Rather, it is possible to use the old H1B visa stamp to travel and also take along the latest H1B approval notice. Persons who travel based on the old visa stamp and new H1B approval should be issued a new I-94 card upon returning to the U.S., and the expiration date on the I- 94 card should match the expiration of the H1B approval notice, not the expiration date of the visa stamp in the passport, which is likely to be much earlier. Unfortunately, sometimes people in this situation are mistakenly given an I-94 card that matches the visa expiration date. You should check the date on the I-94 card. If it has the wrong date, please point that out to the Inspector. If the Inspector is not helpful, then one can always ask to speak with a Supervisor. 3, Correcting Mistakes on I-94 Cards On occasion an Inspector might mistakenly put the visa expiration date on the I-94 card. While it is always best to look at the I-94 before leaving the airport, sometimes people do forget to check. It may be possible to call the Inspections section at a particular POE and discuss the problem with an officer there, or to go to the POE and obtain assistance in-person. It may even be possible if a person entered the U.S. through one POE and then traveled onward to a different part of the country, for that second location to issue a correction to avoid the person having to fly a distance to correct the INS error. Some POEs may be more willing than others to issue corrected cards in this latter situation. Some local INS offices are willing to correct the problem too. Sometimes we find that the correction procedure can be quite expensive and time consuming, even though it may have occurred because of INS error. If you think you may have a mistake on your I-94 card, it is best to consult with an attorney. Sometimes there is a simpler or quicker solution to the problem, such as having the date corrected the next time you travel. In other cases, it is a larger problem because one might only notice the mistake after the date has expired and there could be severe legal consequences in some situations. 4, Portability: Traveling with Prior H1B Approval and New Receipt When an H1B employee travels abroad and reenters the U.S. with a prior H1B approval but with an INS receipt for a pending H1B petition with a new employer, under the American Competitiveness in the Twenty First Century Act (AC21), you are allowed to reenter the U.S. but the INS Inspector will only mention the date of the prior approval on the I-94 card. 5, Services Provided to Persons who are Denied Entry to the U.S. When a person, for whatever reason, is not allowed to enter the U.S., the Inspectors try to help to whatever extent possible; by notifying persons who may be waiting to meet the traveler, for example. At some POEs, the Inspector actually goes out to the waiting area to find the people, while at other POEs, they do not have enough staff for that, and instead send an airline representative out. When possible, the person who is denied admission will be allowed to make a telephone call. If space permits and if the person denied entry is deemed not to adversely affect the interests of the U.S., some POEs may have a place where the traveler can speak privately with the people who came to meet him or her. 6, Complaint Procedures All POEs have posters that instruct travelers on how to file a complaint. The poster displays a toll free number and also states that the first step should be to speak to the Inspector on duty. Generally the supervisor is available and if needed, the Port Director or Assistant Port Director is also available to speak with people. If the complaint is detailed, the Inspector may suggest that the person complete a written complaint form, which is then sent to INS Headquarters. The complaint forms are available at every POE. Please note: The above information is provided only for public benefits. Neither The Law Firm David Oh, P.C., nor the provider takes any legal responsibilty of it. Should you have any questions you can contact me at (215) 732-3244 ext. 209 Thank you. Jian Liu The Law Firm David Oh, P.C. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Jian Liu Immigration Department The Law Firm David Oh, P.C. Avenue of the Arts 121 S. Broad Street, 14th Floor, Philadelphia, PA 19107 Phone: (215)732-3244 Ext. 209 Fax: (215)732-2779 1, Issues Surrounding H1B "Seventh-Year" Extensions There is an issue regarding individuals eligible for extensions of H1B status beyond the six-year limitation. As previously reported, individuals who are the beneficiaries of labor certifications or I-140s that were filed at least 365 days earlier are eligible for extensions of H1B status beyond the six-year limitation. The question then arises whether it is necessary to use all of the six years prior to requesting the "7th-year" extension. That is, if an individual has used 5 years of H-1 time, and is the beneficiary of a labor certification filed a year ago, is the individual able to ask for an H1B extension for one year or two? Can s/he request the time to the end of the standard six years, plus the one additional year, or does it need to be done in two separate requests? The INS has taken the position that, in order to request a "7th-year" extension, the full six years must be utilized. ISD responded that they have been "leaning toward" keeping the time periods separate but will discuss the issue further. It would seem advantageous to allow individuals to request much time as possible with each request for extension. Otherwise, an individual may be in the unfortunate position of having very little time left in the six-year maximum, possibly only a few weeks, and the employer would be forced to file two H1B petitions. This situation is not uncommon, given the numbers of job changes that individuals have gone through in the current economy. People do not always work the full three years allowed and then ask for another three years, complete that time, and ask for one more. The time periods are far more "chopped up." Given the enormous backlogs in petition processing, it does not make sense to require extra filings since it is time consuming, expensive, and leads to uncertainty for the employers and employees while the H1B petition is pending with the BCIS. 2. PERM Delayed to Fall 2003 The most recent information provided by the Department of Labor (DOL) reveals that PERM will not come into effect before Fall 2003. In an earlier announcement, April 2003 was given as the date for publication of the final PERM regulation, with an effective date and starting time in July 2003. According to the DOL, the process of writing the regulation is going slower than anticipated. It is expected that the regulation may be finalized in the previously announced April to July 2003 timeframe. However, the implementation of the regulation requires an automated system for processing the labor certification applications. The DOL states that this system may not be ready until Fall 2003. The regulation will be effective as of the date the automated system is working. Essentially, some of the uncertainty in the effective date arises from the fact that the technical personnel are working from what the final rule is expected to be at this point. However, if changes are made in the rule, then changes will have to be made in the technical aspects of the process. 3, Restrictive B-2 Visitor Regulation Withdrawn The proposed regulation that would have limited most visitors / tourists to a one-month stay in the U.S. has been withdrawn. It is not yet clear if the proposal will be resurrected in the future. The initial proposed regulation, published April 12, 2002, would have changed the standard period of admission on a B-2 visitor's status in the U.S. from six months to one month. The proposed regulation met with strong opposition from a wide range of interested organizations and individuals. The (then) INS received over 10,000 comments voicing opposition. These comments were taken seriously enough to withdraw the proposed regulation. It is still possible that withdrawal of the regulation is only temporary. It could be reintroduced once all references to "INS" are changed to the "BCIS." Note: The above information is only for public benefits. Neither The Law Firm David Oh, P.C., nor the provider takes any legal responsiblity. However, if you have any questions you can call me at (215) 732-3244 ext. 209. Thank you. Jian Liu The Law Firm David Oh, P.C. 3. H1B from 195,000 to 65,000 from Oct.2003, is that true? H-1 Usage for FY2002 You are right. The cap for FY2003 is 195,000. However, the cap will return to the pre- 1999 level of 65,000 in FY2004, which begins on October 1, 2003. The fact that the number of filings exceeded the current cap by 15,000 case filings, in a year in which the total filings was low, indicates that the lack of available H1B numbers will be a significant problem in the future, unless the cap is increased or other means are found to eliminate additional cases from the cap. The cap was a problem in prior years, during which it was impossible for new H1B cases to be approved for months on end. This creates enormous problems for U.S. businesses seeking to hire new H1B workers, not to mention those endured by immigrants trying to maintain legal status in the U.S. in an era when there are heightened penalties for failure to maintain status. Students are particularly hard hit, as the timing of graduation and one year of F-1 Optional Practical Training usually means that they need to change status to H1B sometime in June or July. In past years, the H1B cap has been reached before June or July and no new H1B numbers are available until the next fiscal year. We note that the number of H1B cases has reduced currently, presumably reflecting the current downturn in the economy. With layoffs and hiring freezes, there simply are not as many companies hiring workers of all types, including H1B workers. When the economy improves, this will change. Please note that the above information is only posted for public benefits. Neither the Law Firm David Oh, P.C., nor the provider takes any legal responsibilities of its accuracy. Neither does this create any client-attorney relationship. Should you have any questions, you can contact me at (215) 732-3244 ext. 209. Thank you. For members of US FPC: I will frequently post free updating immigration information to the email list. Sorry I did not collect all your school CSSA email accounts. If you think it is proper, please forward them to your school CSSA members. Thank you very much. Jian ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Jian Liu Immigration Department The Law Firm David Oh, P.C. Avenue of the Arts 121 S. Broad Street, 14th Floor, Philadelphia, PA 19107 Phone: (215)732-3244 Ext. 209 Fax: (215)732-2779