I am a Canadian citizen working in the U.S. on an H-1B. My wife is in H-4 status. She is a nurse with a valid nursing state license. She has a three year diploma in Nursing with over three years of experience. Which visa category gives her the best chance of seeking a nursing career in the U.S.? How long does it take to obtain that particular visa?
I assume that your wife is a Registered Nurse. She obviously cannot work with an H-4. There are only two choices available: (a) H-1B or (b) TN. The H-1A category no longer exists. Since the H-1B category requires a bachelor degree or the equivalent, your wife probably will not qualify. The only practical option appears to be a TN, assuming that she is also a Canadian citizen.
Please be aware that foreign health care workers are currently being given only single entry six month authorizations as a result of the 1996 amendment to the Immigration and Nationality Act. For additional information, please refer to our nurse article, available here.
I'm a French computer engineer and I will be seeking an H-1B once I have a job offer. I have heard there are no visas left for this year. When will my company be able to apply for a visa on my behalf? I have heard that it will be possible in October 1998. Is this true? I have also heard that the H-1B cap might be raised. Is this true?
The H-1B cap for fiscal year 1998 was reached in May of this year. Therefore, no new H-1B petitions are being approved until October 1, 1998, the start of the new fiscal year. At that time, 65,000 H-1B's will again be available. However, because of the backlog for H-1B's, it is predicted that the cap will be reached even earlier next year.
On May 18, the Senate debated and passed overwhelmingly S. 1723, the American Competitiveness Act introduced by Senator Spencer Abraham (R-MI). This pro-business and pro-immigration bill was passed by a vote of 78-20.
In contrast to the Senate’s strong vote in support of the H-1B program, the House Judiciary Committee on May 20, voted in favor of H.R. 3736, the H-1B measure introduced by Representative Lamar Smith (R-TX). While the House bill increases the number of H-1Bs visas available for the remainder of this year and the next two fiscal years, it also includes onerous layoff and recruitment attestations that render the program unusable for many employers. The House bill, which contains onerous layoff and recruitment attestation provisions along with increased DOL investigative authority for H-1B dependent employers, has not yet been scheduled for a floor vote.
Because the Senate and House bills are very different, it will be some time before H-1B legislation is be enacted by Congress. Until this occurs, you should assume that new H-1B's will not be available until October 1, 1998.
I heard that during the Reagan/Bush administration, an Executive Order was issued to deny H category visas to Iranian citizens. do you know if this executive order is still in effect?
As a result of Executive Order 12959 (May 6, 1995), the issuance of employment immigrant and nonimmigrant visas to Iranian citizens residing in Iran is prohibited.
On July 29, 1997, the Office of Foreign Assets Control ("OFAC") of the Department of Treasury confirmed that it was unlawful for a prospective U.S. employer to issue a binding offer of U.S. employment to an Iranian resident in Iran or to advance funds for him to enter for that purpose, as such actions would constitute an unlawful importation (or attempted importation) of Iranian- origin services into the United States. However, it is not a violation to offer employment to an Iranian national once that person is resident in the United States. By "resident," the OFAC means any Iranian national living in the United States, irrespective of whether the Iranian national is a U.S. permanent resident alien or a temporary resident.
As a result, the Immigration and Naturalization Service ("INS") advised on April 10, 1998 that there was no bar to Iranian citizens who were not residing in Iran from applying for extension of status, change of status or adjustment of status to an employment based nonimmigrant or immigrant category unless such employment violated prohibitions on the Technology Alert List published by the Department of Commerce.
However, the Department of State ("DOS") implemented a stricter (and probably incorrect) policy in determining visa eligibility. The DOS concluded that it is unlawful for a U.S. employer to offer employment to an Iranian national in valid nonimmigrant status in the United States, who, by definition of his or her nonimmigrant status, must have an unabandoned residence abroad (B, F, H-2, H-3, J, M). This did not include Iranians in the United States in a nonimmigrant category which does not require an unabandoned residence abroad by definition (H-1, L-1, C, D, E, G, R, S nonimmigrants statuses and parole).
In summary, if you are residing in Iran, you will not be entitled to receive an H-1B visa. However, if you are in the United States under another nonimmigrant category (even a nonimmigrant category that requires maintenance of an unabandoned foreign residence), you will be entitled to change your status to H-1B.
I am a Canadian Citizen, present in the US in the H-1B non-immigrant classification. My wife is in the US with the F-1 status. I have a pending I-140 application for immigrant worker in process. When the I-140 is approved, we intend to file for adjustment of status in the US. We will also file an application for an Employment Authorization Document ("EAD") at the same time. Will my wife be able to continue working 20 hours/week on campus (as allowed by her F-1 status), while the EAD application is in process?
The filing of an application for adjustment of status does not terminate an alien's existing nonimmigrant status. Although the immigrant intent evidenced by the filing of the adjustment application would preclude her from obtaining an extension of her current nonimmigrant status, she should be permitted to continue working under her existing F-1 EAD, until her adjustment EAD is approved. However, if your wife leaves the United States and returns pursuant to advance parole, she will lose any earlier nonimmigrant status which may have been the basis for her own work authorization or that of an accompanying spouse or child.
