Dear Daily Kos Community:
Last week, I started a super mini series on general points to consider regarding immigration law and the CIR debates. There was limited interest expressed for me to continue, and that's enough! So continue, I will. Today, I will briefly (in an ongoing effort to avoid causing people to pass out from boredom) touch on immigrant versus non-immigrant intent issues (huge topic, BTW) and a few comments on what this often-mentioned H-1B thing is. Disclaimer: Nothing in this diary shall constitute legal advice. This diary is comprised of my opinions, observations, and experiences only. More below . . . .
Immigrant Intent versus Non-Immigrant Intent.
Understanding how intent can affect a particular application is very, very important. I spend a lot of time advising clients on what intent means, how it is framed, when it can change, and how it is expressed/demonstrated/proven.
America's immigration policy is arguably very arrogant or honest, depending how you look at it. In law, presumptions are very powerful methods of shifting burdens of proof. Presumed innocence highlights a fundamental aspect of our criminal law system--one is presumed innocent until proven guilty beyond a reasonable doubt by a jury of his or her peers. That is one U.S. Constitutional right that I believe many Americans know. That is criminal law related, however, and the U.S. Constitution makes this high burden fall squarely on the government. This is one of those rights that really makes America great.
Immigration law, however, is administrative law and not criminal law. The laws place virtually all burdens of proof pertaining to immigration matters on the alien, the petitioner, the applicant--anything but the government. There are times when the government bears the burden, such as in cases of proving alleged fraud, but those are quite limited. For argument's sake, the burden is pretty much always falls on the alien's shoulders.
Back to the arrogant or honest part. U.S. immigration law states, in no uncertain terms, that arriving aliens are presumed to have immigrant intent. Repeat: Arriving aliens are presumed to have immigrant intent. The burden is on the alien to prove otherwise, if required (obviously, if one seeks to enter the U.S. with a green card, immigrant intent is permitted). That means our nation's immigration laws automatically assume that every, single alien who appears at a port of entry for admission to the U.S. is seeking to stay here forever. That is quite a legal presumption, IMO.
I often explain to folks that immigration law is basically divided into two camps: Those laws and regulations for intending immigrants, and those for intending non-immigrants. These laws rarely cross over into the other camp. Once immigrant intent is expressed to the government, the ramifications can be severe.
For example, Japanese Student ("JS") seeks a non-immigrant F-1 visa at the U.S. Embassy in Tokyo. JS has already received her endorsed Form I-20 from her U.S. based university. She has been processed and admitted, etc. When she visits the U.S. Embassy, she is asked about her intent regarding her prospective stay in the U.S. She duly explains that she is very excited about studying biology at State University. The adjudicator asks her about her plans when her studies are complete. She explains that she intends to apply for Optional Practical Training (often called an "OPT card") at the conclusion of her bachelor's degree studies. And after that? the adjudicator asks.
What JS intends at this point is now very important, critical in fact. If she intends to apply for a green card so she can have a permanent career in biology in the States, things could go very badly for her at the interview. If she intends to return home prior to the expiration of her authorized period of stay (OPT card holding F-1 status holders are entitled to a 60-day grace period upon the expiration of the one-year work authorization), within that 60-day period, and take the knowledge she gained in the U.S. back to Japan, she will likely be in good shape.
You see, F-1 is an absolutely non-immigrant-only status. There is no "dual intent" allowed, as there is in the H-1B context, for example (a little more on that, below). As such, in order to even quality for an F-1 visa and/or status, the alien is required to maintain an unreliquished domicile abroad. Side note: A person can have multiple residences, simultaneously, but only one domicile at a time. For JS, her domicile must be in Japan.
Getting clients to fully understand these issues to where they really comprehend the difference between intending to immigrate and intending to return home, years later, takes a lot of time.
So, JS is admitted to the U.S. to attend State University. After she is here two years, she meets Person A ("PA"). PA is a U.S. Citizen, and they fall in love, deciding to get married. Now JS is married to a U.S. Citizen. PA wants to petition for JS's marriage-based green card (official term: Lawful Permanent Resident status). He must then commence with filing at least the petition. By filing that (even though JS does not sign it), JS has now expressed her immigrant intent to the USCIS through her husband's petition.
Departing the U.S. and returning with the F-1 visa at this point is simply not advisable. If the adjudicator at the port of entry ascertains that, since the time of her last admission, JS has become married to a U.S.C. who has actually filed an immigrant petition on her behalf, things will likely go badly for her. Denying the existence of immigrant intent becomes, well, pretty much not possible at this point--even if JS has, literally, not yet completely made up her mind to file for her green card (this is called "adjusting" status--more on that some other time).
Assuming her initial non-immigrant intent actually did change to immigrant intent more than 60 days after her last admission (the 30/60 day fraud rule is yet another topic for yet another time), there will be no presumption of fraud regarding JS. As long as one's intent is bona fide at the time of admission, subsequent changes may be allowed because, well, stuff changes and shit happens, as they say.
So that was a brief and extremely general discussion on immigrant versus non-immigrant intent. Very important to understand as various issues are discussed in the coming months regarding CIR.
One final note--"Permanent Resident" and "Citizen" are not interchangeable. In most cases, one must be a permanent resident for at least five years before he or she is even eligible to apply for naturalization. Again--topics for a different post. I just get frustrated when I hear "path to citizenship" when actually the correct term should be "path to permanent residence" IMO.
H-1B time . . . .
H-1B status is often referred to as "specialty occupation" status. Avoiding as much legal jargon as possible, this essentially means that a) an offered H-1B position, itself, must require at least a 4-year college degree, in that specialty, for competent performance; b) industry standards and/or company standards confirm this degree requirement; c) the petitioning entity has, in fact, the financial ability to guarantee payment of the prevailing wage (as determined by the DOL); d) the petitioned for alien possesses an appropriate degree or the equivalent in experience (BIG side topic); and e) the petitioning entity is actually in need of such services. In other words, as with all cases, it must make sense in its entirely. It must be rational.
That is extremely general, but you get the point. H-1B status holders are meant to be professional workers, as is traditionally understood in many aspects.
The limit: H-1Bs are adjudicated according to two "caps." The U.S. master's cap of 20,000 H-1Bs per fiscal year, plus the general cap of a 65,000 H-1Bs per fiscal year.
A note about these limits--way back in the late 90s and early 2000s, when I first entered practice, the cap had been increased during a three year period, as I recall, to much higher limits. They were in the 120,000 per year range, but that number varied slightly each of those three years. The cap was not reached once in that time--this meant that H-1B petitions could be filed year round.
Now, a given non-immigrant petition, such as an H-1B, may be filed up to 180 days prior to the requested start date. As H-1B numbers become available on October 1 of every year, the earliest one may file for the upcoming numbers is April 1 of every year. This year, according to the USCIS, approximately 120,000 H-1B petition were filed during the first and only week of open H-1B acceptance.
In other words, about double the number of available H-1Bs were filed right away. So the cap was hit and no more H-1Bs are accepted. Of the approximate 120,000 petitions the USCIS received, they were allegedly placed in a random lottery. For more information, see here.
During the prior three years or so, the cap was reached slightly later, such as in August or June. This means demand for the H-1B is way more than supply, and thus the news. Employers want more, labor unions want less. Immigration attorneys probably are happy with as many as possible. So opinions on this are all over the place.
As eyes are probably becoming googly at this point due to boredom, I will conclude with the following points:
1. H-1Bs can be filed as full or part-time petitions (employment-based green card petitions never can be filed as part-time)
2. H-1Bs allow for the equivalent in experience in lieu of a degree (more on this later), and that is a big deal
3. H-1Bs allow dual intent (the filing of a permanent resident petition shall not constitute to sole basis of a denial of a request for admission in H-1B status, for example)
4. Although there are exceptions, in many cases H-1Bs will be available for up to three years per petition with a maximum limit of 6 years in the aggregate permitted before the alien must depart the U.S. for one full year before being able to be readmitted in H-1B status for up to another six. I.e. you have to leave for a year after you hit the six year mark (again, exceptions apply).
5. An alien may have more than one H-1B petitioners, simultaneously.
I hope you are not asleep.
More next week.
Thanks for your interest.