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Why do I have to wait so long to be with my U.S. Spouse?

Posted on July 8, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I just married my U.S. Citizen husband in my home country. I thought I could just go to the United States and live with him. However, I found out it is actually is going to take over one year to get back together with my husband. I am heartbroken. Is there anything I can do to speed up this process?

Answer: Yes. There is what is known as a K-Nonimmigrant as the Spouse or Child of a U.S. Citizen? The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to have permission for employment while they await processing of their case to permanent resident status.

Question: Who is Eligible?

A person may receive a K-3 visa if that person: has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse for the person; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status, and, has an approved Form I-129F, Petition for Alien Fiancé, forwarded to the American consulate abroad where the alien wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is the one with jurisdiction over the current residence of the alien spouse.

Question: Will I Get a Work Permit?

Answer: Persons in K-3 or K-4 status and applicants for adjustment to permanent resident status from K-3 or K-4 are eligible to apply for a work permit while their cases are pending.

Question: Can I Travel Outside the United States?

Answer: If you are in K-3 or K-4 status, you may travel using your unexpired K-3/K-4 nonimmigrant visa to travel outside of the United States and return, even if you are applying for adjustment of status simultaneously.

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PERM: Am I an ‘Arriving Alien’?

Posted on July 6, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am married to a U.S. Citizen and just entered the U.S. Unfortunately, I have a crime in my past. The Immigration Judge denied my case and stated that because I was an arriving alien that I do not qualify to adjust my status in the U.S. Is this true?

Answer: Actually, in a majority of the U.S. you would not be eligible to adjust status to that of a Lawful Permanent Resident because you are considered to be an arriving alien. This is when a person basically enters the U.S. and is immediately put into deportation or removal proceedings. However, there was issued just recently a decision in the First Circuit Court of appeal a case that deals with this very issue. This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c) (8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status (permitted to enter the U.S.) but have been placed in removal proceedings.

Question: What was the reasoning of the court?

Answer: First, 8 U.S.C. Section 1255 specifically states who is eligible to adjust status. Previously, in 1997, the Attorney General carved out an exception to this (through implementing new regulations) that arriving aliens are not eligible to apply. First, the actual code 8 U.S.C. Section 1255 (made by Congress and signed by the President) specifically permits persons whom are paroled into the U.S. (and therefore an arriving alien) to adjust status in the U.S. Therefore, the actual Immigration and Nationality Act is not silent on the issue to which the Attorney General made the regulation.

Next, the Court ruled that Congress has specifically stated where the Attorney General had the authority to issue discretionary decisions as to eligibility for adjustment of status. Here, there was no authority given to the Attorney General (John Ashcroft at the time) to issue such a decision to bar people from adjusting status when the Immigration and Nationality Act specifically permitted those people to adjust. Basically, Congressional intent in making the policies of who can adjust status takes precedence over what the Attorney General thought that he could do.

Question: So, what was the final outcome?

Answer: The First Circuit Court of Appeals sent the case back down to the Immigration Court for Adjustment of Status proceedings after ruling that the regulation promulgated by the Attorney General making arriving aliens (or those paroled into the U.S.) ineligible for adjustment proceedings unconstitutional.

Question: Does this rule apply all over the U.S.?

Answer: Unfortunately, it does not. It only applies if you happen to be living in the 1st Circuit. This would be in the Northeastern part of the U.S. Thus, in all other areas of the U.S. an arriving alien cannot adjust status in removal proceedings. However, this ruling from the First Circuit is very powerful and can be used to convince the Immigration Judge to permit such an adjustment. If he/she does not, you can take it up on appeal to the Board of Immigration Appeals. After, if you lose, you can appeal this up to the Circuit Courts of Appeal in your jurisdiction. Finally, if you lose there, take it all the way up to the U.S. Supreme Court.

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H-2B’s: There back!

Posted on July 3, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I had petitioned for temporary workers earlier, but was told all H-2B’s were used up. Is there anything that can be done? I really need these workers.

Answer: Yes, beginning May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) will begin to accept additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005.

Question: Who will benefit from this Act?

Answer: The Act allows USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately: 1. For fiscal year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as returning workers, seeking work start dates before October 1, 2005.

2. For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means: In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004. In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005. If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What is needed to file for the H-2B’s under this Act?

Answer: Petition forms and processing will follow current rules, with these additional requirements for “returning workers:” The petition must include a certification from the petitioner (employer) signed by the same person who signed the Form I-129 stating, “As a supplement to the certification made on the attached Form I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker. If the petition seeks change of status of the worker within the United States, it must include evidence of previous H-2B admissions, such as a visa or a copy of I-94 admission document.

A single petition may benefit more than one worker, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed.

A petition approval notice will list any returning workers, who must be prepared to show to the U.S. consulate (when requesting an H-2B visa) or CBP port inspector (if visa exempt) proof of the worker’s previous H-2B admissions, such as a visa or a copy of I-94 admission document. The State Department will confirm prior visas through its electronic system, and that alone may be sufficient, but failure to show these documents may result in denial of visa or admission.

Thus, because of the limited number of H-2B’s, you should file right away.

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New L1-B Provisions

Posted on July 2, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My employer has a business in my home country and wants to send me to the United States to work in a branch office he is opening up. However, it would require that I work at different locations in the U.S. Is there a problem with doing this?

Answer: Since you will not actually be running the company, but rather, worker as a person who has specialized knowledge of the products of your company, you would fall under the L-1B category. Previously, there might not have been a problem. However, a new law regarding L-1B’s has just come into effect. The USCIS has just implemented the L-1 Visa Reform Act of 2004. The changes were mandated by L-1 Visa Reform Act of 2004 which became law last December as part of the Omnibus Appropriations Act for FY 2005. The L-1 Visa Reform Act amends previous legislation to address the “outsourcing” of L-1B temporary workers. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

Question: What are the changes mandated by this law?

Answer: L-1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer. USCIS will interpret the “control and supervision” provisions of the new law to require an L-1B petitioning employer to retain ultimate authority over the worker. The determination as to whether an alien is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L-1B temporary worker must have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests, as defined under current USCIS regulations. General skills or duties that relate to ordinary business or work activities would not meet the test of whether specialized knowledge is required for the work.

Question: Therefore, what exactly is meant by this outsourcing provision?

Answer: The “outsourcing” provisions described above apply to all L-1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving individuals currently in L-1 status. The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected by this new provision.

Question: Are the filing fees the same?

Answer: No. As with other applications, there is now a fraud related fee. There is the base filing fee of $185.00 plus the new $500.00 Fraud Prevention and Detection Fee as applicable. [Employers seeking a worker’s initial grant of H-1B or L nonimmigrant classification and employers seeking to hire an existing H-1B or L worker currently employed by another employer must pay the $500 Fraud Prevention and Detection Fee. The $500 fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Therefore, while there are changes, the L-1B still exists and you should go forward with the application assuming you qualify.

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Retrogression: What it really means.

Posted on June 30, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Perm Labor Certification that only took 3 months to get. However, now I am being told it will take years to actually get the Green Card. I am being told there is a “Quota Backlog” or “Retrogression“. What does this mean?

Answer: The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.” The priority date is the single, most important, factor in any immigration case.

Question: What are the EB categories of employment based visas?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

Other Workers includes positions that require less than two years of experience.

Question: What is the “Priority Date”?

Answer: If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin.

Question: Is there anyway I can expedite the process?

Answer: There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

Question: What does it mean to be “current”?

Answer: If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

Question: my spouse was born in a different country than I as. Since the I-485 is based on my employment, does my spouse’s country of birth help me?

Answer: Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

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I can get a temporary work permit?

Posted on June 23, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: An employer wants to petition me for the next 6 months because of my knowledge in his industry. I do not seem to qualify for any types of visas that I know about. Do you have any ideas?

Answer: Yes. You may qualify for the H-2B. The U.S. Citizenship and Immigration Services (USCIS) has just announced that, as required under the recently-enacted Save Our Small and Seasonal Businesses Act of 2005 (“the Act”), the agency will begin to accept additional petitions for H-2B workers as of May 25, 2005. Under the Act, the USCIS has been granted a waiver of the normal requirement to issue regulations implementing the new law. Therefore, in order to implement these new provisions expeditiously, the USCIS has issued a Public Notice detailing filing requirements and procedures, and does not intend to supplement it with any further notice or regulation.

Question: Who Can Benefit From The Act?

Answer: Beginning on Wednesday, May 25, 2005, the USCIS started accepting filings for two types of H-2B workers: 1) For Fiscal Year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as “returning workers” (as explained further below) seeking start dates before October 1, 2005. 2) For Fiscal Year 2005 and 2006: All “returning [H-2B] workers,” meaning workers who were counted against the annual H-2B cap of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. In other words: (a) in a petition for a start date before October 1, 2005 (i.e., for FY 2005), the worker must have been previously approved for a start date in H-2B status between October 1, 2001 and September 30, 2004; (b) in a petition for a start date on or after October 1, 2005 (i.e., for FY 2006), the worker must have been previously approved for a start date in H-2B status between October 1, 2002 and September 30, 2005.

Question: What Is A Returning Worker?

Answer: If a previous petition for an H-2B worker was approved for an extension of stay, change in the terms of employment, or change or addition of employers, the worker was not counted against the annual cap at that time; therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” for purposes of filing a new petition now. As a general rule, only previous petitions for a change of status or new employment that were filed during the requisite three-year period before the requested start date will qualify a worker as a “returning worker.” Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What Are The Filing Requirements?

Employers wishing to file petitions for H-2B workers who qualify under the Act should follow all current requirements, as well as the following additional requirements for returning workers: The petition must include a certification from the employer, signed by the same person who signs the I-129 form, stating, “As a supplement to the certification made on the attached I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker(s). If the petition seeks a change of status, it must include evidence of previous H-2B admissions (i.e., a copy of each worker’s visa and I-94 admission record).

A single petition may be filed on behalf of multiple workers, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple-named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed. This is a supplement to the new I-129 form on which the names and other biographic information of multiple workers must be listed.

As usual, each petition must include a labor certification from the U.S. Department of Labor (DOL). The USCIS will accept a copy of the labor certification in those cases where the original labor certification has previously been filed with the USCIS. (Note that the USCIS and DOL both published proposed regulations in January 2005 that would substantially revamp the labor certification application process for H-2B workers and would replace the current procedure with a one-step, electronically-filed, attestation-based petition that would bypass the DOL and be filed directly with the USCIS.

Approval notices issued under the Act will include the names of all returning workers listed on the petition. Each worker must be prepared to show to the U.S. consulate abroad (when applying for an H-2B visa) or to the inspector at the port of entry (if the worker is exempt from the visa requirement) proof of his or her previous H-2B admissions (e.g., a previous H-2B visa in the worker’s passport, and a copy of a prior I-94 admission document). Although the Department of State will seek to confirm prior visas through its electronic system, an applicant for an H-2B visa under the returning worker provision who does not show these documents may be denied a visa and/or be denied admission when traveling to the United States.

Premium processing is available by including a Form I-907 and an additional $1,000 fee. Petitions for start dates of October 1, 2005, or later must include a new anti-fraud fee in the amount of $150.

Question: What New Sanctions Does the Act Include?

Answer: The Act contains new provisions including sanctions and civil monetary penalties (up to $10,000 per violation) for failure to meet any of the H-2B petition conditions for willful misrepresentation of a material fact. These new provisions become effective on October 1, 2005.

Question: What Happens When the Annual Cap is Reached?

Answer: Whenever the annual H-2B numerical limitation has been reached, the USCIS will reject any additional filings that are subject to the cap (i.e., other than for returning workers, extension of stay, change of employers, or change in terms of employment). For FY 2006 filings, the Act provides that the numerical limit for the first six months of the fiscal year shall be no more than 33,000, with the remaining 33,000 to be allocated on or after April 1, 2006. Employers may file H-2B petitions no more than six months in advance of the requested start date.

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Can I get a new visa in Mexico?

Posted on June 16, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on an F1 Visa and later applied for a change of status to H-1B. However, I have been told that if I go back to the Philippines, that I must have an interview at the U.S. Embassy in the Philippines which could be denied (even though I was approved for the change of status.) Is there any way to get a visa in Mexico without having to go through the interview process in the Philippines?

Answer: There are several qualifications to be able to go to Mexico. Applicants seeking to renew their C1/D, D, F, H, I, J, L, M, O, P and R visas, if the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.

Applicants for visas that reflect a change of status (e.g., F1 to H1B or F1 to J), provided the applicant originally entered the US in other than B status and possesses an original change of status notice (I-797) from the Department of Homeland Security.

Applicants possessing B visas issued in their home country with annotations showing intent to change visa status, such as “Prospective Student.”

Question: Who Cannot Apply in Mexico?

Answer: Applicants who entered the U.S. with a B visa issued in their home country that changed status to another visa category, e.g., F, J, H1B, but the visa did not have an annotation indicating intent to change status.

Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

A, B, E, G and Q visa applications, including renewals are not accepted from Third Country Nationals (TCN) that are not resident in the appropriate consular district.

Citizens of Iran, Sudan, Libya, Iraq, North Korea, Cuba and Syria.

Question: How can I go about making an interview appointment.

Answer: You can actually make it online at the website available 24 hours a day, 7 days a week at http://www.visa-usa.com.mx. In order to use the service the applicant must purchase a PIN for US$10.00 payable by Visa or Mastercard. Please note that the PIN will expire 10 days after the appointment date. If an appointment is not scheduled, the PIN will expire 90 days after purchase. The PIN provides for 3 scheduling opportunities so that an applicant can schedule an appointment and reschedule it up to 2 additional times if necessary. Appointments cannot be changed or cancelled within 5 business days of the appointment date.

For further information the US Embassy Mexico Customer Service Center is available Monday through Friday from 7am to 9pm Central and Saturday and Sunday from 9am – 3pm Central. There are several payment options for accessing the Customer Service Center, including a new option to pay by Visa or MasterCard via a toll-free number from the United States which is 1-900-476-1212 with a cost of US$1.25 per minute.

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I AM A PERMANENT RESIDENT… HOW DO I…GET A RE-ENTRY PERMIT?

Posted on June 15, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I need to leave the U.S. and am wondering if there is anything I need to do. Can you help?

Answer: As the Holiday Season approaches, it is important for Permanent Residents to review the rules and regulations regarding travel outside of the United States and proper procedures for obtaining a Reentry Permit. A re-entry permit can help prevent two types of problems: (1) Your Permanent Resident Card becoming technically invalid for re-entry into the United States (U.S.), if you are absent from the U.S. for 1 year or more. (2) Your U.S. permanent residence being considered as abandoned for absences shorter than 1 year, if you take up residence in another country.

A re-entry permit establishes a presumption that you did not abandon status, and it allows you to apply for admission to the U.S. after traveling abroad for up to 2 years, without having to obtain a returning resident visa. Re-entry permits are normally valid for 2 years from the date of issuance.

You may also want to get a re-entry permit if you plan on traveling outside the U.S. and cannot, or do not wish to get a passport from your home country. Many countries throughout the world may allow you to use a re-entry permit much like you would use a passport–placing necessary visas, and entry and exit stamps in the permit–so you may use it as your main travel document. Be sure to check with the country(ies) you plan on visiting about their requirements before you travel.

Question: What will happen if I do not apply for a re-entry permit before I travel outside of the U.S.?

Answer: If you are a permanent resident who plans to travel outside of the U.S. for one year or more, it is important that you apply for a re-entry permit before you depart the U.S. If you stay outside of the U.S. for one year or more and did not apply for a re-entry permit before you left, then you may be considered to have abandoned your permanent resident status and may be refused entry into the U.S. if you try to return. If you are in this situation, you should try to apply for a returning resident visa.

Question: Can I apply for the re-entry permit and then leave, even though I don’t have the re-entry permit in my possession yet?

Answer: U.S. immigration law does not require that you have the re-entry document in your possession when you depart, but it does require that you apply for the permit before you leave the U.S. It is possible to send your re-entry permit to the U.S. Consulate or Embassy in the country you plan on visiting, but you’ll need to specifically request this when you file your I-131. If you choose this option, you should contact the U.S. Consulate or Embassy in the country you plan on visiting when you arrive, to let them know how to contact you while you are in that country. The U.S. Consulate or Embassy may then contact you if your application is approved and your permit has arrived there.

If you are planning to use the re-entry permit as a passport, then you will need to wait for it before leaving the U.S. If you cannot wait, you may want to contact the consulate of the country you are planning to visit to find out if you can use other documents to enter.

Question: How do I get a re-entry permit?

Application: If you want to get a re-entry permit, file Form I-131, Application for Travel Document. You should file this application well in advance of your planned trip.

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Are H-1B’s and H-2B’s used up yet?

Posted on June 12, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

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Why can’t I file My Adjustment?

Posted on June 10, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have just filed under the PERM program and it was very fast. In fact, it only took two weeks after filing. Now I was prepared to file for my Adjustment of Status application, but am told I cannot. What is going on?

Answer: The U.S. Department of State (DOS) has released its monthly Visa Bulletin for July 2005. This is a document which tells us which categories of employment based visas are current and which are not current. It basically lets us know what the processing priority date is. As of July 1, 2005, the third employment-based immigrant visa categories for professional workers, skilled workers, and unskilled workers will have reached their annual limits, and no further allocations of visas in these categories will be possible for citizens of any country through the end of 2005 fiscal year (FY 2005), which ends on September 30, 2005. With the start of the new fiscal year on October 1, 2005, immigrant visas will once again become available in these categories, but it is not possible to predict at this time what cut-off dates the DOS will impose. When retrogression occurs, the adjustment can no longer be filed.

Question: So what is the priority date that is being processed?

Answer: Note that through June 30, 2005, the cut-off date for professional and skilled workers is June 1, 2002; the cut-off date for unskilled workers from all countries is January 1, 1999. This means that you would have needed a Labor Certification priority date before that time. As of now, those categories are ‘U’ or unavailable.

Basically, individuals approved I-140 petitions in the third employment-based preference category for professional and skilled workers may apply for adjustment of status to permanent residence or for immigrant visas through June 30, 2005 only if their priority dates were before June 1, 2002. Adjustment applications received at a U.S. Citizenship and Immigration Services (USCIS) service center on or before June 30, 2005 with the above met criteria are fine. Concurrent filings of the I-140 and adjustment applications were also permissible through June 30, 2005, provided the individual has a current EB-3 priority date for which an I-140 petition has not yet been filed. Again, such cases must have been received at the service center by June 30, 2005.

Question: What happened after June 30, 2005?

Answer: After June 30, 2005, the USCIS will reject all I-485 adjustment applications for third preference workers unless they are for occupations on the Department of Labor’s Schedule A. Individuals who are applying for immigrant visas abroad must have obtained their visas by June 30, 2005.

Recent legislation provided for the recapture of 50,000 employment-based immigrant visa numbers that were unused in FY 2001 through FY 2004. Such numbers are to be made available to employment-based immigrants described in the Department of Labor’s Schedule A and their accompanying spouses and children. Schedule A applies only to professional nurses, physical therapists, and certain aliens of exceptional ability in the sciences or arts. The Schedule A category is now current, meaning that immigrant visa numbers are available to Schedule A workers. The DOS estimates that immigrant visa numbers for Schedule A beneficiaries should be unaffected by the lack of professional and skilled worker EB-3 numbers for the foreseeable future.

With regard to properly filed adjustment applications (whether filed alone based on an approved I-140 petition or concurrently filed with an unapproved I-140 petition), such applications will be held in abeyance for the foreseeable future once EB-3 numbers retrogress on July 1. However, applicants will be entitled to employment authorization documents (EADs) and advance parole while their adjustment applications remain pending.

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