H-1B Visa Reform Act of 2004 (Questions & Answers)

In a recent teleconference between the United States Immigration and Citizenship Service (USCIS) and representatives of the American Immigration Lawyers Association (AILA), several operational issues affecting the filing of H-1B cases and conversion of FY2006 cases to FY2005 cases under the recently implemented H-1B Visa Reform Act of 2004 were discussed. Please see our May 3, 2005 posting for more information of the H-1B Visa Reform Act of 2004. The following is a summary of the discussion between the USCIS and AILA on this matter.

Approved H-1B Cases With FY2006 Start Dates That Were Not Granted A Change Of Status
The USCIS stated to AILA that H-1B cases that have already been approved for FY2006 (with a start date on or after October 1, 2005) without change of status (because the prior nonimmigrant status of the H-1B beneficiary expired or will expire between 03/08/2005 and 09/30/2005) will now be approved for a change of status to H-1B provided that the beneficiary is in valid nonimmigrant status as of the requested FY2005 start date. The USCIS will address this issue on its own motion meaning that a petitioner will not have to file a separate motion to reopen (MTR) to have the change of status approved. The USCIS suggests that when petitioners file their request to convert the FY2006 case to a FY2005 case pursuant to the H-1B Visa Reform Act of 2004, they should bring the fact that change of status needs to be revisited to their attention. In addition, petitioners should also explain how the beneficiary of the H-1B visa will be in valid nonimmigrant status at the time of the new FY2005 requested start date.

What Steps Need To Be Taken To Upgrade an FY2005 Petition To A FY2006 Petition ?
The USCIS reiterated that if a new LCA with a current validity date is obtained and filed with the USCIS with the request for an upgrade to a FY2005 filing date, the upgrade may be approved. For upgrade requests it is sufficient for the employer or their attorney to submit the H-1B approval notice or a receipt notice along with a letter requesting the upgrade. The employer or their attorney should also include a new approved LCA with a FY2004 start date as mentioned above. It is not necessary for the employer/petitioner to submit a new, original signature on a petition or in a letter directly from the petitioner.

Premium Processing Cases For FY2005 Qualifying Under The Provisions Of The H-1B Visa Reform Act of 2004 Should Be File With The 1A Lemnah Drive Address
The 1A Lemnah Drive address trumps all other addresses, including for all Premium Processing purposes, for new FY2005 20,000 H-1B cases. All Premium Processing cases for the new 20,000 H01Bs must be filed at the Lemnah address. PLEASE NOTE: USCIS will not accept an I-907 Premium Processing request to upgrade an already-approved FY2006 H-1B petition. USCIS expects to adjudicate promptly all requests to upgrade an already approved FY2006 case, thereby moderating any adjudication time differential.

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