H1B Visa FY2010 Status Update – October 2009

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Even though we mentioned earlier that the last day for H1B visa filings was September 30 in our August update, things may have changed based on an ambiguously worded directive from the USCIS. This is also backed up by many law firms stating that they are still processing current H1B visa petitions fro FY2010.

Of course the dramatic job losses of the first half of the year slowed dramatically in the 2nd half of 2009 in the US and many laid off H1B workers, recent F1 student visa graduates and just general job seekers have had better chances finding work in recent times.

Although it should be said the overall national unemployment rate is still high at 9.8% and some sectors of the economy like finance are still reeling. However highly skilled workers and especially in industries like Online, Health, Education and New Energy are sought after and companies are certainly advertising in these areas.

So back to the H1B visa which like all US visas follow the US Immigration year which starts on October 1 and ends on September 30 the following year. So when H1B Visa FY2010 applications open on April 1, the general course of events is that the people who get these H1B visas are eligible to work from October 1, 2009. This is the beginning of FY2010.

However this year has been unusual due mainly to the economic events which have meant things like the H1B visa quota and H1B visa lottery, which have been major talking points in recent years were non-existent issues this year. Instead replaced by other issues like the anti H1B visa legislation introduced to Congress but yet to be debated formally.

So now we get to the recent unexpected announcement by the USCIS which states verbatim;

As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

What this seems to be saying is that the USCIS will continue to process H1B visa petitions beyond the September 30, 2009 end of the Immigration year. So if you are still searching for a job, don’t give up as the H1B visa opportunity seems to be still open and your dreams are still alive 🙂
The beauty of this is since October 1, 2009 has passed, as soon as the application is approved you will be able to begin work which is another selling point to a potential employer and sponsor.

Good Luck,
CJ

Foreigner Widows to US Citizen Spouses

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When an American Citizen dies before a foreign fiancee has a chance to adjust status, the law is very arbitrary as it can deny US Immigration benefits to the widow of an American Citizen.

American Immigration law is very complex because it is based largely upon Federal statutes. Some facets of United States Immigration are very complex and one area which is very complicated occurs at the convergence of two events that no multi-national couple wants to think about: untimely demise and loss of lawful status in the USA.

In situations where a visa is based upon marriage to an American Citizen, in order for a foreign fiancee to ultimately acquire lawful permanent residence without conditions; the foreign spouse must pass through a series of due diligence inquiries in order for the government to be certain that the underlying marriage is genuine. To a certain extent, the US government begins scrutinizing a couple the moment a United States Citizen files an application to sponsor a foreign fiancee for a K1 visa. Upon preliminary approval, the file will be sent to the US Embassy or Consulate with jurisdiction over the foreign fiancee’s residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The non-Citizen fiance will subsequently be required to pass through a port of entry in the United States of America. Agents of the Department of Homeland Security will make certain that the entrant is not inadmissible.

After being lawfully admitted to the USA, the foreign fiancee will have 90 days to marry the American Citizen and adjust status to permanent residence. In most cases, the marriage is executed and the foreign spouse is approved for adjustment, thereby making her a conditional lawful permanent resident. Once two years has elapsed the non-Citizen Spouse and the Citizen Spouse will need to file to have the non-Citizen’s conditionality of residence lifted and thereby make the non-Citizen an unconditional lawful permanent resident. The “Widow’s Penalty” can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. If the American Citizen spouse dies prior to the approval of either of these petitions, then it can create a difficult situation for the foreign spouse because the applicant no longer meets the requirement for a lifting of conditions or adjustment.

Therefore, the foreign widow could fall out of status because they are no longer married to an American. United States Federal Courts have tried to deal with this issue by interpreting the law in such a way that allows foreign widows to stay in America. The Department of Homeland Security has also taken measures to defer inspection of foreign widows and widowers in order to provide a sort of amnesty for those placed in such a difficult position.

This issue has not been fully dealt with as there are many conflicting interpretations of the current law. In general, the mood of the courts seems to be in favor of doing away with this so-called penalty because implementing the law in its current form leads to unfair outcomes for immigrants already present in the USA.


Guest Author

Ben Hart