Labor Immigration Law

USCIS today released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Thursday, April 9, USCIS has received approximately 42,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

The May 2009 Visa Bulletin has been released.  Unfortunately, and as expected, all EB-3 categories are now “unavailable.”  Also, there is no movement in all EB-2 categories.  Here is a summary of the May 2009 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories – EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India remains February 15, 2004.
• EB-3 applicants is unavailable for all categories.
• Other worker applicants are also unavailable.

The cut-off dates for the EB-3 and “Other Worker” categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits.   Despite these efforts, the amount of demand received from USCIS for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high.  As a result, these annual limits have been reached and both categories have become “unavailable.”    Visa availability in these categories will resume in October, the first month of the new fiscal year.

Please contact our office and we would be happy to evaluate your case and advise on the possibility of using or refiling your case in the EB-2 category.

The USCIS announced today (April 8, 2009) that within the first five business days, it received almost half the petitions needed to meet the FY2010 cap and has received just short of the 20,000 needed to reach the master’s cap.  This means that there will be no general H-1B lottery this year for both master’s and regular H-1B filings.

As a result, USCIS continues to accept H-1B nonimmigrant visa petitions subject to the FY2010 cap.  USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.  Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met.  The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

Since the H-1B filing window is still open (but may close at any time with no advance notice), we still accept FY2010 cap-subject H-1B petitions.  Please contact us if we can help you.

The USCIS Ombudsman has released a recommendation report which urges overhaul of the USCIS fee payment system.  USCIS is considered a “pay-for-service” government agency where petitioners pay for the provision of a particular service.  However, the current system which accepts checks or money orders for most, and credit cards for a few e-filing-enabled forms, has many flaws which in some cases result denial of benefits to petitioners who are otherwise eligible.

Numbers of Fee Rejections

The numbers of fee-based rejections of immigration petitions are  staggering.  Alhough most of the service centers do not keep track of rejections solely based on fees, the potential numbers are alarming.  In December 2008, there were up to 4,000+ possible fee rejections in the California Service Center, 5,000 in the Nebraska, 7,000 in Texas and slightly over 6,000 in Vermont.  The Chicago Lockbox Operations Division,  however, keeps track of the fee rejections and it estimates that 3.2 percent of the 10,000-12,000 filigs per day are rejected for fee-related reasons.  This adds up to 300-400 petitions rejected per day and this is only for the Chicago Lockbox.

Common Mistakes and Problems

There are  few common problems and mistakes which contribute to the majoriry of rejected petitions:

• No amount written – please make sure you write the exact amount of the fee, USCIS will not write the amount for you;
• Incorrect amount – verify that the fee is correct and that there are no additional fees, such as biometric, etc.
• Written and numerical amounts do not match and missing signature – this is most likely an oversight by the check drafter but, unfortunately, it is common;
• Stale-dated checks – in some cases USCIS would delay the receipting of a petition and will not deposit the check for a number of months and the check will become “stale” – to avoid this, make sure the check is dated as of the date the check is sent to USCIS or shortly in advance;
• Incorrect payee – most of the USCIS filing fees should be issued to Department of Homeland Security but this can vary and the instructions for each form should be consulted before writing the check;
• Check or money order not submitted through a U.S. bank or in U.S. dollars – the checks or money orders must be in U.S. dollars and drafted on U.S. bank.

Recommendations

The report has several recommendations for USCIS with which we, at the Capitol Immigration Law Group, agree fully:

1. Institute a batch filing system that would enable high volume filers to pay USCIS fees online;
2. Institute an online shopping cart mechanism that would simplify the process of identifying appropriate USCIS forms, calculating related fees, and submitting payments;
3. Expand the payment options within the e-Filing system to include all USCIS fees; and
4. Implement additional visual and written aids within current instructions to ensure that payments are submitted correctly.

Additionally, language barriers and complicated instructions sometimes contribute to one or more of the above mistakes.  The Ombundsman urges USCIS to revise its fee collection procedures to address not only the mechanics of the fee collection but also the complexity of the immigration filings system and the applicable fees.

The Optional Practical Training (OPT) program allows foreign students on F-1 visa to work for 12 (or up to 29 months, for holders of STEM degrees).  The 12 (or 29) month period allows many students to apply for an H-1B work visa.  Many employers (and OPT holders alike) are unaware of what happens when the OPT document expires while the H-1B application is pending.  This guide seeks to provide some answers.

The Cap Gap

If the employer employs an F-1 nonimmigrant student on post-completion (OPT) and that student is the beneficiary of a pending or approved H-1B petition, the student may be able to continue working beyond the expiration date on his or her employment authorization document (EAD).   In recent years, the number of H-1B petitions filed per year has exceeded the annual cap. Due to demand, the annual cap of 65,000 H-1B visas has been met during the initial filing period, beginning on April 1. All  cap-subject petitions filed during this initial filing period indicate a requested start date of October 1 (the start of the government fiscal year). In the past, F-1 students who were the beneficiaries of an H-1B petition often had their F-1 status expire before their H-1B status began on October 1 –- a period known as the cap gap. The most common situation occurred when a student’s OPT ended in the spring or early summer, and the student’s F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1.

The OPT Interim Final Rule

On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The changes made by this rule became effective upon publication of the rule.

One provision of the rule applies to F-1 students who are the beneficiaries of a pending or approved H-1B petition that is subject to the annual cap. The IFR automatically extends the F-1 status and, for students in a period of approved post-completion OPT when the H-1B petition is filed, the OPT employment authorization.

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization.  However, this automatic extension of an F-1 student’s duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student’s behalf.

Student’s Obligations

A student who is eligible for the cap-gap extension must work with a designated school official (DSO) at the student’s school to receive an updated Form I-20. If a student is eligible for the cap-gap extension of OPT, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

Employer’s Obligations

To assist a student in obtaining an updated Form I-20, the employer may need to provide the student with an I-797 receipt or approval notice issued by USCIS for the H-1B petition filed on the student’s behalf.  This receipt notice serves as proof of filing the H-1B petition and may need to be submitted to SEVP in order to update a student’s Form I-20 to show eligibility for the cap-gap extension.

We wrote last week about the new Employer Handbook which was released by USCIS in connection with the revised Form I-9.  The revised version of Form I-9 becomes mandatory on April 3, 2009 (barring any last-minute change by the Obama administration).  Employers will have to complete the new Form I-9 for all newly hired employees to verify their credentials and authorization to work in the United States.

Obtain the new version of Form I-9.