NSC Update : H1B Issues
Posted Feb 11, 2005
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The Nebraska Service Center (NSC) answered a series of questions in a teleconference with representatives of the American Immigration Lawyers Association (AILA) at the end of January 2005. The NSC provided insight into a number of important issues. Here, we focus on those relating to H1B/H-4 concerns for the benefit of our MurthyDotCom and MurthyBulletin readers.
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H1B/H-4 Concurrent Filing Recommended
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The NSC indicated that, if an H1B case is filed at the same time as an H-4 derivative spouse / child case, the decision on both should be issued at the same time. On the other hand, if the H1B and H-4 cases are filed separately, they will be adjudicated separately, in date order.
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We take this opportunity to remind MurthyDotCom and MurthyBulletin readers that the H-4 spouse needs to maintain status separately, independent from the status maintained by the primary who is being sponsored by a U.S. employer. If the primary spouse is in the U.S., the dependent spouse must file his/her own request for extensions of status. Status is not automatically extended for the H-4 dependents when the H1B primary spouse extends status. It is generally simplest to file the H-4 extension request with the H1B petition.
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Some people think that it is necessary to wait for the H1B approval to file the H-4 extension. This is not so. The two cases can be filed together. There is often not enough time remaining on the H-4 status to wait for the H1B petition approval since most H1B petitions could take up to six months or longer for adjudication if not being premium processed. Moreover, in most situations there is nothing to gain by waiting.
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Standards for H-4 Nunc Pro Tunc Cases
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Due to the all-too-frequent occurrence of the misunderstanding described above with respect to H-4s, it is quite common for H-4s to omit filing for extensions and to fall out of status. This issue has been covered in previous MurthyBulletin articles, including our January 7, 2005 article entitled, Start the New Year Right - Immigration Style, available on MurthyDotCom. As mentioned in that article, one solution to this situation is the nunc pro tunc request for an H-4 extension of status. This is, essentially, a request to the USCIS to excuse a late filing and grant a backdated H-4 approval.
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The NSC was asked about denials of such requests for discretionary relief, some apparent misunderstanding about time limitations for filing such requests, and the unfair impact upon the individuals who fall victim to this common error. The NSC indicated that they are in the process of developing an internal policy on this issue. They said that they want consistency, but still want to examine each case on its own merits.
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We urge the NSC to set a policy that allows for relief in those cases where the individual clearly just makes a mistake, without intending to violate immigration law. While each person is responsible for his/her own status, these are dependent spouses who tend to rely upon their primary spouses to handle these issues. The primary spouses, in turn, are often dependant upon their H1B employers, who may or may not obtain proper legal advice or even consider what needs to be done in order to maintain status for the spouses of their employees.
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Processing for 20,000 Cap-Exempt H1Bs at VSC
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NSC was asked whether they were preparing for large volumes of H1B filings around March 8, 2005, as that is the effective date for the new law permitting 20,000 cap exemptions for people with U.S. masters' degrees or above. They stated that these cases will all be processed at the Vermont Service Center (VSC). We note that the NSC had previously issued a press release indicating that it was likely that the cases requesting these new exemptions would be filed with the VSC, but that there has not been an official notice of a final decision in this matter.
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Processing Times
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It was noted that the progress made in case processing by NSC on H1Bs had slowed a bit recently. Therefore, the NSC was asked whether they had moved personnel away from H1B work to some other area. The NSC advised that they had not shifted personnel from H1B adjudications. Any slowdown was simply due to normal holiday and vacation schedules in late December and early January. They report that they are making efforts to reduce the processing time of H1Bs to 45-60 days by the end of March 2005. Thereafter, they plan to keep enough personnel in place to maintain the processing at that pace.
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This is quite an ambitious goal, given the volume of H1B cases that likely will be filed starting April 1, 2005, in order to qualify for the 2006 fiscal year cap numbers. Any improvement in H1B processing times would be greatly appreciated, particularly for those who are changing from student / Optional Practical Training (OPT) to H1B. While premium processing is always available, it carries a $1,000 price tag that may be difficult for many students to afford.
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Miscellaneous
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One important item of note is that NSC reports getting some extra money to pay for overtime for their staff. They plan to use the overtime funds to help with backlog elimination efforts. NSC did not indicate if there were any specific types of cases that would be the primary focus of these additional backlog reduction efforts.
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We at The Law Office of Sheela Murthy, P.C. would like to thank the NSC for this helpful information and hope that they can improve processing times and develop a humane standard for nunc pro tunc H-4 adjudications.