Labor Immigration Law

USCIS had released a preliminary count of the H-1B applications filed during the period between April 1 and April 7, 2008.  There are 163,000 H-1B petitions and more than 31,200 of those were for the advanced degree category.

The computer-generated lottery is expected to be conducted next week, with the 20,000 advanced degree holders going first.  The11,200 advanced degree petitions not included in the lottery will be counted first towards the 65,000 overall cap.

The Department of Labor (DOL) has released the PERM statistics for the first two quarters of its Fiscal Year (FY) 2008, covering the period between October 1, 2007, and March 31, 2008 (the “Period”).

During the Period, there were 44,090 PERM applications received, there were 12,600 cases certified and, as of March 23, 2008, there were 28,000 cases pending.

Among the highlights provided by DOL are that 66% of the certified PERM cases were H-1B workers.  The top five states of intended employment were California, New York, New Jersey, Texas, and Florida.  Among the countries, India was top, followed by China, South Korea, Philippines, Mexico, Canada, and the U.K.

As expected, USCIS announced earlier today that it has received enough H-1B petitions to meet the cap for fiscal year 2009.  The 20,000 H-1B cap for holders of advanced degrees has also been reached.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008.   Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

The agency will conduct the selection process for “advanced degree” exemption petitions first.    All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

We have received many inquiries in connection with the OPT extension to 29 months for holders of STEM degrees (non-STEM degrees also get some relief under the new OPT rule).  One of the questions asked most often is, “How do I know if my degree is a STEM degree?”

The first step is to find the classification number of your degree.  We are providing a link to the Classification of Educational Programs, provided by the Department of Education.

Once the degree classification is determined, an F-1 or OPT holder should look at the list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.  We are reprinting the DHS list below:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 27.xxxx
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 40.xxxx
• Science Technologies: NCES CIP Codes 41.xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

If your degree’s classification is listed above, then your degree is STEM.

We wrote earlier about the F-1 Visa OPT extension proposal.  We are happy to report that the OMB review has been complete and that the rule is expected to be published in the Federal Register during the week of April 7, 2008, at which time of publication the rule becomes effective. The new OPT rule brings great relief to many students or OPT holders who are in a difficult position because of the timing of the H-1B filing season and the expiration of their OPT.

We have obtained an advance copy of the DHS rule and we are providing a PDF of the rule as well as detailed analysis below.

Summary and Analysis of the New OPT Rule

29 Month OPT for STEM Students.  The 12 month limit on F-1 OPT is extended by 17 months for a total of 29 months  for holders of degrees in certain Science, Technology, Engineering and Mathematics (STEM) areas.  Eligible degrees are:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 1 1 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 2 7 . m
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 4 0 . m
• Science Technologies: NCES CIP Codes 41 .xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

Additional Requirements.

• Student must be currently participating in a 12-month OPT and must be working for a U.S. employer in a job directly related to the student’s major area of study (which, of course, must be one of the areas listed above)
• Student must have successfully completed a bachelor’s, masters, or doctoral degree from a SEVIS-certified educational institution.
• The student has not previously received a 17-month OPT extension.
• The Designated School Official (DSO) must recommend the 17-month OPT extension after verifying that the student otherwise qualifies for the extension.
• Employer must be E-Verify registered.
• Employer must agree to report the termination/departure of the student to the DSO.

Application.  Students who qualify and wish to extend their OPT by 17 months must file form I-765 and attach the applicable fee.  Students who timely file their OPT extension application will be allowed to continue employment until the final decision of the I-765 form or 180 days, whichever comes first.  Under the new rule, students can file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after the program’s end date.

Non-STEM Students

There is substantial relief for non-STEM degree students whose OPT are set to expire.  Under the new rule, duration of status and work authorization will be extended for a student on OPT who is the beneficiary of a timely-filed H-1B petition requesting an employment with starting date of October 1.  This applies to all students, not just STEM students.  This renewal terminates automatically upon the rejection, denial, or revocation of the H-1B petition.

We wrote recently about the new biometric requirements for I-131 re-entry permits which are required for all green card holders who plan to be outside the U.S. for more than six months and up to two years.

The new procedure went into effect on March 5 and requires all applicants for re-entry permit to submit to biometric (usually fingerprinting) appointment with the USCIS before departing. This new requirement has created some confusion and uncertainty as to how long the biometric processing will take.

We do not have any hard evidence on the timing of the processing, but we recommend that green card holders who plan to leave the U.S. in less than 6 months to use the expedited processing procedure outlined by the USCIS.

Expedited Processing

According to the USCIS, applicants may request an expedited processing of their fingerprinting appointment. To do so, applicants must indicated on the outside of the envelope “EXPEDITE.” Also, it is recommended that two pre-paid express mailers be included so that USCIS can mail the appointment notice and the approved re-entry permit to you via express mail.

Note that failure to submit for fingerprinting appointment will result in the re-entry permit application to be denied.

Although following this procedure does not guarantee priority processing by USCIS, we recommend it to our clients who have plans to travel abroad for extended period and whose travel plans are difficult to change.

In a Memorandum of Understanding, the Department of Homeland Security (DHS) is one step closer to adding Slovakia, Hungary and Lithuania as Visa Waiver Program (VWP) countries.  This comes after DHS signed similar agreements with Estonia and Latvia earlier in March 2008.

Although nationals of these countries cannot yet come to the U.S. without visas, based on these agreements, it is possible that final arrangements will be finalized later in 2008.

The VWP allows a national from one of the current 27 VWP nations to travel to the U.S. for 90 days or less without having to obtain a B-1/B-2 visitor visa. The VWP is limited to nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants.  Currently these countries are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

The USCIS and the FBI announced yesterday, April 2nd, a joint plan to eliminate the backlog of name checks pending with the FBI. The plan will look at the age of the pending name check and prioritize accordingly.

Many foreign nationals have had their USCIS petitions pending for very long periods of time due to the backlog in FBI name checks and this plan should come as good news to many of them.  Even in light of the Yates Memorandum of February 4, 2008, which announced changes in policy permitting the approval of I-485, I-601, I-687, and I-698 applications where the FBI name checks have been pending for more than 180 days, this joint USCIS/FBI plan is a positive development in prompt immigration petition processing.

The goal of the plan is to complete 98% of all name checks within 30 days, with the remaining two percent, which usually require more stringent review, to be completed within 90 days. These processing timeline goals and the elimination of all backlogged checks should be in place by June 2009.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.

On March 31, 2008, the U.S. Immigration and Customs Enforcement submitted to the Office of Management and Budget (OMB) for review an interim final rule entitled “Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students.”

Details on the proposed rule are scarce at this point and we will provide updates as we receive them, but the important point is that the government is listening to the concerns of U.S. businesses and foreign students who find themselves in a difficult position when they are unable to apply for H-1B visa post-graduation in May (because the H-1B visas are already used by May) and out of OPT status during the following year and before being able to transfer to H-1B visa.

As a matter of procedure, OMB has up to 90 days to review the proposed rule and either approve it for publication in the Federal Register, at which point it becomes active, or send the rule back for revision.

Please stay tuned on more details on this important rule.

Update 1 (Apr 3; 4:50 pm): Some readers have inquired about the conflicting reports of 29-month time period for OPT instead of 17. In our opinion, this is due to accumulating the possible time on OPT. Currently, OPT can be used once, for 12 months, after obtaining a Bachelor’s degree and subsequently one more time, for 12 months, after obtaining a Master’s degree. We think that the proposed rule will extend only one of these OPT windows to 17 months while the second OPT will be limited to 12. This rationale would explain the 29-month OPT reports. Note that this is not an official rule or interpretation of it, it is just a speculation at this point.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.

We have received some inquiries from clients regarding the FedEx service disruption and how it may affect the H-1B filings. We wanted to address the issue and hopefully allow concerned H-1B petitioners that the disruption should not affect their petition.

As many readers already know, the FedEx Memphis hub and flight operations experienced substantial disruptions on the night of March 31 and the morning of April 1 due to heavy rain and thunderstorms. As a result, FedEx suspends the delivery guarantee for packages intended to be delivered on April 1. FedEx news release.

There are many rumors indicating that H-1B packages which were routed through Memphis will not make it on time for the H-1B filing window. This is not true. While it is true that H-1B application packages routed through Memphis may not be delivered on April 1st, FedEx’s operations are back to normal and they should be delivered on April 2nd. In addition, USCIS has expanded its initial H-1B filing window to 5 business days, so that any H-1B applications received within the first five business days are treated as received on the same day.

Due to the restored FedEx service and the 5-day filing window, we are confident that all of our clients’ H-1B filings will be received on time for consideration by the USCIS.