IMMIGRATION CORNER
By Michael J. Gurfinkel, Esq.

THE U.S. Citizenship and Immigration Services (USCIS) recently announced that all 65,000 H-1B visas allocated for fiscal year 2006 have already been used up. This means that anyone wishing to apply for an H-1B visa may not do so until April 1, 2006, and cannot start working until Oct. 1, 2006.

An H-1B visa is a temporary working visa for college graduates, who will be working in a “specialty occupation” (or college level job) in the U.S. The basic requirements are that the alien must have a college degree, and there must be an employer in the U.S. with a real job for the applicant, relating to (or requiring) that applicant’s college degree. H-1B visas are a great opportunity for Filipino college graduates to work in the U.S., as so many are college graduates and are very hardworking. Unfortunately, there is an annual cap (or allocation) of only 65,000 H-1B visas per year, and there are more applicants seeking H-1B visas than there are visas available.

I know that many Filipinos who came to the U.S. on visitor visas were able to find employers willing to hire and petition them for working visas. In the “good old days,” the alien could file for “change of status” from visitor to worker while in the U.S. and avoid having to return to the Philippines to obtain the H-1B visa. Now, with all the H-1B visas used up until Oct. 1, 2006, it would seem highly unlikely that a person who entered on visitor’s visa could apply for a change of status (to worker) and be processed without going out of status, in as much as a person is typically given only six months to visit. Since the start date for H-1B visa allocation is still more than a year away, a person who remains in the U.S., waiting for the Oct. 1, 2006 start date, could go “out of status,” then, he would not be eligible to “change” status from visitor to worker, since he is now a “TNT.”

However, this 65,000 cap does not affect aliens who are currently H-1B workers. The USCIS will continue to process applications filed by current H-1B visa holders to:

— extend their stay in the U.S.
— change the terms of employment for a current H-1B worker
— allow current H-1B workers to change employers; and
— allow a current H-1B worker to work concurrently (at the same time) in a second H-1B position

If you are interested in seeking an H-1B visa, you should submit your H-1B application at the earliest possible time for processing when the April 1, 2006 allocation opens. If you delay, you may again be shut out until fiscal year 2007!