As you may know, the Senate recently introduced their Comprehensive Immigration Reform Bill.  The Senate’s CIR Bill contains various changes and additions to the existing immigration regulations and I will be bringing you information on specific parts in these postings:

Dual- Intent for F-1 students

The Senate’s CIR bill proposes to eliminate the immigrant intent requirement for certain F-1 Student visas.  Specifically, all F-1 students who are coming to the US to receive a bachelor’s degree or a graduate degree do not have to show that they intend to return to their home country upon the completion of their program.

In the past, if a student showed any type of intent to continue to work or reside in the United States after their student status expired, they were denied a visa.  Similarly, we have recently seen numerous F-2 denials where spouses of F-1 holders were told that they could not show that they intend to return to their home country once their spouse has completed his/her studies which led F-1 OPT holders to choose between their spouse and their career.

Thankfully, with this outdated requirement removed from the equation, the United States will be able to retain more of these students who were running into these issues. They have also removed the one-year limit for elementary and high school students from the regulations.

H-1B Portability Redefined

The AC21 statute which was never turned into a regulation and was signed by President Clinton, contained the only guidance we had on H-1B portability.  Specifically, it stated that:

If the non-immigrant alien was previously issued a visa or other provided H-1B status, they were authorized to begin working for a new employer upon the filing of a new H-1B petition with the USCIS.   While the AC21 statute clearly referred to the person as a non-immigrant and not someone who is currently in H-1B status, the USCIS declared that Congress’ intention was not to include anyone who previously held H-1B status, but rather only those currently in H-1B status.  

Coincidentally, this interpretation came out when E-verify came on-line and would issue non-matches for those who were not in H-1B status, but were going back into H-1B status.

In the CIR bill, the Senate has revisited H-1B portability and has added O-1 portability to the language. Further and more importantly, they have re-stated the same language and defined a non-immigrant as someone “who has been lawfully admitted into the US, on whose behalf a non-frivolous petition for new employment has been filed before the expiration of their current status and who had not worked without authorization since their last lawful admission into the US. 

 It appears that the Senate is sending a message to the USCIS that their intention was to allow anyone who previously held H-1B status to begin working upon the filing of an H-1B as this would avoid any delays in that person starting to work.  Further, the idea, I feel, is that if you already went through the scrutiny of the USCIS once for an H-1B, you are given the benefit of the doubt by the USCIS.

Especially, since you more than likely qualify for the position based on your education since you were already approved once and to force someone to wait or pay for premium processing would be unfair since the circumstances surrounding the filing are similar to those of a transfer from H-1B to H-1B.

 This is a Guest Post by Attorney Jim Gotcher, Global Immigration Partners. H1B Wiki would like to thank Jim for providing valuable information to H1BWiki visitors.