How to Use Your H-1B to Qualify Under Section 245K

For the past few months, there have been no green cards available for persons in the employment-based third preference category (EB-3) and long backlogs in the EB-2 category for persons born in India and China.

So, with few green cards to grant, why has the USCIS been scheduling interviews for persons in these categories?

The short answer is that just because the USCIS cannot grant most EB-3 and EB-2 applicants green cards, the agency can take advantage of the lull in applications for adjustment of status to deny persons with pending applications.

How can they do that? Easy!

Let's say that a person was out-of-status for more than 180 days since their most recent admission to the U.S. Denied! Not qualified for adjustment of status under section 245K of the immigration law.

The irony is that section 245K was added to the law by Congress in order to make the requirements for adjustment of status less onerous for employment-based applicants. It allows persons to adjust their status to permanent residence as long as they were not engaged in unauthorized employment or were out-of-status for 180 days or more since their most recent admission to the U.S.

By way of contrast, persons in the family-based preference categories (who are not immediate relatives of U.S. citizens) can not adjust their status if they have engaged in unauthorized employment or been out-of-status AT ANY TIME.

Let's say that one time during the many years that you were in H-1B status, you lost your job and were out of work for over 180 days. Adjustment of status denied!

Or maybe you moonlighted at another job without INS's (This was in 2003!) permission. Adjustment of status denied!

There are endless variations to this sad scenario. But not only will your application for adjustment of status be denied, but the USCIS will be only too eager to issue a notice for you to appear before an Immigration Judge in removal proceedings!

All those years of working in the U.S. and paying your taxes, all for naught?

Not so fast!

If you are still qualified for an H-1B or an L-1 status, there is a solution. Simply leave the U.S. and return using your visa or obtain a new visa Poof! Upon returning to the U.S., you are once again qualified to adjust status under section 245K.

Why?

Because the time that you were out-of-status or engaged in unauthorized employment occurred before your last admission to the U.S., so this does not bar you from immediately re-applying for adjustment of status under section 245K.

Not bad, am I right?

A couple of weeks ago, one of our physician clients was denied adjustment of status because he had moonlighted without authorization many years ago, and had never informed us. At the beginning of July, he approached us with apologies and tears in his eyes. Was the future that he had planned in the United States suddenly over?

Not at all.

Two weeks later, we obtained an approved H-1B petition for him. He was granted a visa in his country last week, and returned to the U.S. yesterday. Next week, we will resubmit an application for adjustment of status for him under section 245K.

No harm, no foul.

Read USCIS' memorandum regarding adjustment of status under section 245K from our "Adjustment of Status" page at

http://shusterman.com/aos.html

H-1Bs for Health Care Workers: Advanced Degree Not Required

All too often, it seems that some examiners at USCIS Service Centers are just looking for a way to deny petitions.

Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified applicants for immigration benefits.

A few months ago, a few examiners decided on their own that M.B.B.S. degrees which are issued to physicians from British Commonwealth countries were not equivalent to M.D. degrees issued by medical schools in the U.S. As a result, many petitions and applications were denied on this basis. After much protest from the medical community, the USCIS in Washington got involved, and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.

The latest government boondoggle involves state-licensed physical and occupational therapists. Though these professionals have always been held to be eligible for H-1B status, some examiner(s) noticed that the latest edition of the Labor Department’s Occupational Outlook Handbook (OOH) now says that M.S. degrees are preferred.

Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to PTs and OTs with B.S. degrees even though they were in possession of state licenses.

The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations, there are three agencies designated to determine whether the credentials of foreign-born health care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the NBCOT.

On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on USCIS’ “confusion” about this matter. Then, on March 19, the National Board for Certification in Occupational Therapy (NBCOT) wrote to the USCIS that “immigration officials are misinterpreting the academic/educational requirements for an occupational therapist”. Finally, on March 26, CGFNS International wrote to the USCIS and explained why the OOH’s statement that a Master’s degree was a precondition for a foreign PT to be admitted to the U.S. was “incorrect”.

The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous interpretation of the law and regulations prior to start of the H-1B filing season on April 1st.

Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000 H-1B numbers are still available, and “cap-subject” workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.

In its memorandum, the USCIS recognizes that H-1B health care workers must possess an “unrestricted (state) license”, and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our “Allied Health Professionals” page at

http://shusterman.com/toc-ahp.html#5
We hope that, in the future, USCIS will adhere to policies which are consistent with the law and the regulations, and will provide an avenue for practitioners and employers to bring clearly erroneous decisions to the attention of Headquarters before they develop into trends. Given the 15-month wait at the agency’s Administrative Appeals Office to issue a decision on the appeal of an H-1B petition denial, this is not an adequate remedy.

It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses, not only health care professionals.

The Importance of Maintaining Your H-1B Status

“You don’t need to extend your H-1B status, you’ve got an EAD!”

If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him. However, when someone who is seeking my advice tells me that his former attorney told him this, I cringe.

Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status?

Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in H-1B status since December 2001. His employer had obtained the approval of a PERM application on his behalf. In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).

The I-140 was approved, but due to the lack of visa numbers, the family’s I-485s remain pending. Although the USCIS can not approve their I-485s, they are not barred from denying them. His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.

The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child. When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.

Their question was “How could their son respond to the RFE?” My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident. However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars. Only when a child turns 18 can he accumulate “unlawful presence” in the U.S. which, in turn, subjects him to the bars when he departs the U.S. See

http://shusterman.com/toc-nwlw.html
Once the son obtained an H-4 visa abroad, he could return to the U.S. to complete his education, and eventually adjust his status using section 245(k) of the law which provides that one can adjust status under the EB-1, EB-2 and EB-3 categories as long as one has not been out-of-status for over 180 days since his most recent admission to the U.S.

Problem solved?

I asked the father when his H-1B status was due to expire. He replied that it had expired at the end of 2007. I asked him why he had let it expire, and he replied that his attorney had told him, “You have an EAD, why bother extending your H-1B status?”

Not a very thoughtful answer coming from someone practicing immigration law. As a result, his son will be separated from the rest of the family, perhaps for many years. This is tragic because it would have been so easy to avoid this outcome had the father simply extended his H-1B status.

Another reason to continue to renew one’s H-1B status is USCIS’ questionable interpretation of section 245(k). If a person’s application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful “nonimmigrant” status while their application for adjustment of status is pending. In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.

For these and many other reasons, it is always wise to maintain H-1B status until one’s application for adjustment of status is approved.

For more information regarding H-1B status, see our “H-1B Page” at

http://shusterman.com/toc-h1b.html

Physicians To Benefit From H-1B Slowdown

Do you have the mistaken assumption that H-1B visas are strictly the province of computer professionals? In reality, almost half of H-1B visas are utilized by health care and education professionals.

This year's minimal H-1B usage is a boon to physicians finishing their medical residencies and fellowships. Why? Because, unlike last year when the H-1B cap was reached in the first week of the program, this year only 42,000 H-1B petitions were submitted toward the 65,000 cap. What's more, employers submitted a mere 1,000 petitions in the second week and another 1,000 during the third week. At this rate, the 65,000 cap won't be reached until sometime in September.

So, how does this help foreign-born physicians?

A little historical perspective is helpful. Prior to 1991, the only temporary visa category available to physicians who wanted to pursue medical residencies and fellowships in the U.S. was the J-1 exchange visitor visa. That year, Congress passed the Miscellaneous and Technical Immigration and Naturalization Amendments which, for the first time, permitted physicians who had successfully completed all three parts of the United States Medical Licensing Examination (USMLE) to obtain H-1B visas to pursue their residencies and fellowships.

In general, most physicians prefer to do their training on H-1B rather than J-1 visas since the latter category comes at a steep price. J residents and fellows are compelled to return to their home countries for a minimum of two years before they can return to the U.S. on H-1B visas or as permanent residents. Alternately, they can obtain a "waiver" of this requirement, usually by being sponsored by a government agency and practicing for three years in a medically-underserved area.

H-1B residents and fellows have no such requirement. However, most residents and fellows complete their training for H-1B "cap-exempt" employers, usually universities or hospitals which are affiliated with universities. This subjects them to another requirement.

Although these physicians are not subject to the home residency requirement, they are restricted in the type of employers that they can work for after they complete their training. This is because their training usually ends on June 30th. Since "cap-subject" H-1Bs were not available beyond the first week of April for the past couple of years, these physicians have been restricted working at "cap-exempt" jobs. That is, they must practice medicine at a university, at an institution which is related or affiliated with a university, at a nonprofit research institute or at a government research institute. Such jobs are hard to come by.

However, this year is different. Since it is all but certain that the H-1B cap will not be reached by June 30, H-1B medical residents and fellows will be able to transition from "cap-exempt" training programs to "cap-subject" jobs which begin on October 1st.

A word to the wise. Physicians who accept jobs in affluent areas can qualify for H-1B status, but it is doubtful that they will qualify for permanent residency through employer sponsorship. Therefore, savvy physicians will look for jobs in areas where the number of physicians are few and where American physicians are reluctant to practice, mainly in inner city and remote rural areas. This way, they will be able to qualify for permanent residence either through PERM or National Interest Waivers.

For additional information about temporary visas and permanent residence for physicians, job opportunities and "how to" immigration videos, see our "Physicians" web page at

http://shusterman.com/toc-phys.html