H-1 CAP REACHED, APRIL 1, 2005 FILING

FOR FY 2006 , LIMITED SECTION 212(c) RELIEF

By: Roman P. Mosqueda, Esq.

            As expected, the United States Citizenship and Immigration Services (USCIS) has announced on October 1, 2004, that the 65,000 H-1B numerical cap for Fiscal Year 2005 has been reached.

            Filing of H-1B applications for Fiscal Year 2006, for employment starting October 1, 2005, shall start on April 1, 2005.

            Thus, the 65,000  (less 6,800 H-1B1 visas set aside for Chile, 1,400, and Singapore, 5,400) H-1B visa numbers for Fiscal Year 2005 were used up for H-1B applications filed from April 1, 2004 to October 1, 2004, in just six (6) months.

            After October 1, 2004, USCIS will not accept any new H-1B applications that are subject to Fiscal Year 2005 numeral cap.  But it will process all new H-1B applications for first-time employment received by the end of business on October 1, 2004.

            H-1B applications for first-time employment received after the end of business on October 1, 2004, shall be returned by USCIS, but may be resubmitted by April 1, 2005 for Fiscal Year 2006, for employment starting October 1, 2005.

Applications Not Included In H-1B Annual Cap:

            Applications or petitions for current H-1B status holders that do not count towards the 65,000 H-1B annual cap are:

1.      Extension of H-1B employment with the same employer;

2.      Change of terms of employment for current H-1B worker with the same employer;

3.      Change of employer of current H-1B worker; and

4.      Application by current H-1B worker to work concurrently in a second H-1B position.

Moreover, applications or petitions for new H-1B employment that are not subject to the H-1B  annual cap are employment at:

1.   an institution of higher education, which is defined under the Higher Education Act of 1965, as amended in 1998 (P.L. 105-244), as: 

a. admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; 

b. is legally authorized within such State to provide a program of education beyond secondary education; 

c. provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;

d. is a public or other nonprofit institution; and

c. is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time; or

e. any school that provides  not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the above-stated requirements (other than being a public or other nonprofit institution); or

f. a public or nonprofit private educational institution in any State that, in lieu of the requirements in subsection  (a) above, admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located; or 

2.      a related or affiliated nonprofit entity; or

3.   a nonprofit research organization; or

4.      governmental research organization. 

Thus, teachers in private or public elementary or secondary (high school) schools fall within the H-1B annual cap.  And employment in government does not automatically fall outside of the H-1B annual cap.  The employment must be in a government research organization. 

Final Rule On 212(c) Relief: 

            The Department of Justice published its final rule on 212(c)  relief on September 28, 2004, to be effective on October 28, 2004.  Grant of 212(c) relief in final deportation or removal proceedings allows an alien to regain his or her lawful permanent resident status.

            This final rule provides a special motion to seek Section 212(c) relief for aliens who pleaded guilty or nolo contendere  (no contest) to certain crimes before April 1, 1997.  It does not apply to any conviction entered after trial.

            More specifically, an eligible alien with a final administrative order of deportation or removal has up to April 26, 2005, to file a special motion to seek Section 212 (c) relief, with the Immigration Judge or Board of Immigration Appeals, whichever last held jurisdiction over the case. See revised 8 CFR 1003.44(h). 

            In order to obtain Section 212(c) relief under aforesaid final rule, the alien must: 

1.   be a former lawful permanent resident and is now subject to a final order of deportation or removal; 

2.      have agreed to plead guilty or nolo contendere to an offense rendering him or her deportable or removable, pursuant to a plea agreement made before April 1, 1997;

3.      have had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal; and

4.   be otherwise eligible to apply for Section 212(c) relief under the standards that were in effect at the time the alien’s plea was made, regardless of when the plea was entered by the court.  See revised 8 CFR 1003.44(b). 

Procedure For Filing Special Motion To Seek Section 212(c) Relief: 

            There is no filing fee for the filing of a special motion to seek Section 212(c) relief with the Immigration Court.  But once the special motion is granted, Form I-191 (Application for Advance Permission To Return To Unrelinquished Domicile) is filed for Section 212(c) relief. The current filing fee for Form I-191 is $250.00. 

            If the Board of Immigration Appeals has jurisdiction and grants the motion to apply for Section 212(c) relief, it shall remand the case to the Immigration Judge solely for filing (Form I-101) and adjudication of the Section 212(c) application, pursuant to revised 8 CFR 1003.44(j).

            Whether aliens convicted of certain deportable criminal offenses are eligible for the special motion to seek section 212(c) relief depends on the standards in effect at the time of the alien’s plea. 

            Section 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) barred Section 212(c) relief for virtually any deportable criminal offense:  aggravated felonies, drugs, firearms, two crimes involving moral turpitude, other miscellaneous crimes. Prior to AEDPA (Public Law No. 104-132, effective April 24, 1996), aggravated felons were allowed to apply for Section 212(c) relief.

            Section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 eliminated Section 212(c) relief, and replaced it with cancellation of removal for certain lawful permanent residents (Section 240A(a), Immigration and Nationality Act) as of April 1, 1997.

            In order to be granted such cancellation of removal (keep lawful permanent resident status), the alien must be admitted for lawful permanent residence for at least 5 years, be residing continuously in the United States for at least 7 years, after admission in any status, and not be convicted of any aggravated felony, as defined in Section 101(a)(43) of  the Immigration and Nationality Act.