Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for April, 2010

Extension of Post-Completion OPT and F-1 Status for Eligible Students under H-1B Cap-Gap Regulations

Late spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

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Immigration Reform – On Hold This Year?

We have written and reacted previously on developments related to immigration reform here in Washington, DC (March 12, 2010 and March 18, 2010).   Our articles developed a fair amount of comments, excitement and hope.  However, the uncertainty and the current political climate here in Washington may make comprehensive immigration reform a rollercoaster ride.

In comments from late yesterday, President Obama has said that “there may not be an appetite” to overhaul the nation’s immigration laws this year, even though he believes there is a pressing need to do so.  According to the Washington Post,  even though Mr. Obama considers immigration a top issue for his administration, he recognizes that it may not happen soon due to the  political climate in Washington.  According to the Washington Post,

“It’s a matter of political will,” Obama said [and] added, “This is a difficult issue. It generates a lot of emotions. . . . I need some help on the Republican side.”

Even though there has been increase in talk about immigration reform, especially after the recent passage of a strict anti-immigrant law in Arizona, Mr. Obama’s comments seem to put a cold shower on top of the recent talk and immigration reform proposals.    Despite Mr. Obama’s comments, many in Washington are still hopeful that a compromise and Republican help will arrive this year.  We will continue monitoring developments here in Washington relating to immigration proposals.

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FY2011 H-1B Numbers Update – 16,000 Regular and 6,700 Masters Cap Visas Used (April 22, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.  As of April 22, 2010, USCIS has received approximately 16,025 H-1B petitions counting toward the 65,000 cap (a weekly increase of 2,425). Similarly, as of April 22, there were 6,739 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 939).

H-1B Quota Trends

The numbers, as reported over the past three weeks – indicate that after there was a very small weekly increase in the number of H-1B filings two weeks ago, last week the number of H-1B filings have increased.   As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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Brief Guide to USCIS National Customer Service Center

Many foreign nationals, employers or their attorneys have had to deal with the USCIS’ National Customer Service Center (NCSC) at one point or another – possibly for a simple status check, to request expedite processing of an application, to inquire about a missing document or on another matter.   We hope that this brief guide to the NCSC will be helpful to our clients and readers:

What Can the NCSC Do for Me?

The NCSC operates on a two-tier model.

Tier 1 Customer Service Representatives (CSRs):

Can

  • Relay basic immigration information to customers through scripts provided by USCIS
  • Answer questions about USCIS forms
  • Transfer calls to Tier 2 in certain circumstances

Cannot

  • Answer specific questions about a case with the exception of information available through Case Status Online
  • Transfer calls to local offices or service centers where cases are pending
  • Provide legal advice

Tier 2 Customer Service Representatives (CSRs):

Can

  • Review USCIS systems on your case
  • Request that notices be re-issued
  • Provide information that you may receive at an Infopass appointment
  • Provide specialized assistance to dependents or active members of the U.S. Armed Forces
  • Provide information on pending and adjudicated cases.

Cannot

  • Review already issued Requests for Evidence (RFEs)
  • Directly issue duplicate notices, receipt notices, RFE notices
  • Transfer calls to local offices or service centers
  • Provide legal advice
How Should I Prepare for My NCSC Call?
USCIS has advised that a caller should prepare a number of documents and information in advance in order for the call to be productive and efficient:
  • Gather as much information on your case as possible
  • Check the status of your case online
  • Determine what, if any, processing times apply to your case type
  • Check your priority date, if applicable
  • Have available all applicable receipt numbers
  • Have your Alien Registration number (“A” number), if applicable
  • Have all relevant correspondence with USCIS
What to Do During the Call?
  • Record the date and time of the call
  • Request the name and/or ID number of NCSC staff
  • Note the service request referral number, if applicable

Service Requests

Both Tiers 1 and 2 can create a “service request” which is sent to service centers and local offices on matters such as expedite requests, change of address, appointment rescheduling, case processing delays which exceed the posted times, and other matters that may be unique to a specific case.

Inquiries for Field Office Matters

If USCIS has not responded to your initial service request within 30 days, call the NCSC. Please have the initial service request referral number with you when you call.

Inquiries for Service Center Matters

If USCIS has not responded to your initial service request within 30 days, please email the service center that has jurisdiction over your case. Your follow-up should be addressed only to the service center which issued your receipt and is identified on the Form I-797 (Notice of Action).

If you do not receive a response within 21 days of contacting the service center, you may email the USCIS Headquarters Office of Service Center Operations at: SCOPSSCATA@dhs.gov and should receive a response in 10 days.

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Volcano Travel Disruptions and I-94 Departure Compliance

Our office has fielded numerous calls from a number of foreign nationals who are in the U.S. temporarily and whose departure plans have been disrupted by the infamous Icelandic volcano ash.  For many in the U.S. whose departure travel arrangements were closely related to their I-94 expiration date, the disruption and delay in departure travel plans has caused overstay of the authorized period of stay in the U.S. on the I-94 or I-94W cards.  It is important to note that future admissibility can be permanently impacted due to an overstay of a period of authorized admission to the U.S.

Visa Waiver Program (VWP) Travelers

Overstay of the period noted on the I-94W card may make one a VWP traveler ineligible for future travel to the U.S. under VWP and require visa application for future travel.   For those in the U.S. under the VWP, contact the CBP airport office or the nearest U.S. Citizenship and Immigration Services (USCIS) office. There will be a few travelers with no I-94W under the pilot paperless I-94W project.   There is a passenger service manager list for international airports.

Per relevant regulations, 8 CFR § 217.3:

Satisfactory departure: If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Travelers on Nonimmigrant Visas

For those in the U.S. under a nonimmigrant visa, CBP directs them to apply for an extension of nonimmigrant status. Even though an I-539 extension is normally recommended to be filed 45 days before expiration, CBP notes that some arrangement regarding this point has been made. Of course, the I-539 extension filing fee is $300. At present, it is not clear whether the satisfactory departure option is available for VWP or nonimmigrant visa holders unable to depart the U.S. due to the effects of the volcano.

In a USCIS alert regarding the situation, travelers on nonimmigrant visas are advised to to either (1) visit the local USCIS office and bring passport, cancelled flight itinerary and I-94 card or (2) apply for an extension of status as soon as possible by filing Form I-539.

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AAO Processing Times Report (April 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of April 1, 2010.  Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

  • H-1B appeal takes 14 months (increase by one month compared to March 1, 2010);
  • I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 5 months (increase by one month);
  • I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 5 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 24 months (no change) while EB3 Other Worker takes 22 months on appeal (no change).

Read the full AAO Processing Times report.

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FY2011 H-1B Numbers Update – 13,600 Regular and 5,800 Masters Cap Visas Used (April 15, 2010)

USCIS released the second “official” FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.  As of April 15, 2010, USCIS has received approximately 13,600 H-1B petitions counting toward the 65,000 cap (a weekly increase of only 100). Similarly, as of April 15, there were 5,800 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (a weekly increase of only 200).

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of April 8th and as of April 15th, indicate that there was a very small increase in the number of H-1B filings over the past week.  As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open for a considerable time.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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Video on Naturalization Interview and Test

USCIS has released a 16-minute video on the naturalization process including the eligibility requirements, application process, preliminary steps, interview, English tests and U.S. history and government test (civics).   The video also includes two simulated interviews.

USCIS Naturalization Interview and Test Video

This video should  be very helpful to naturalization applicants  to become familiar with the interview and test process and to get a better sense of what they should expect.

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Updates from Department of Labor

On March 25, 2010, the Department of Labor (“DOL”) held a stakeholders telephone conference to discuss DOL operations generally, and address PERM, iCERT prevailing wage and other specific areas.  We are happy to share some interesting pieces of information from DOL.

PERM Processing.  With respect to PERM processing, DOL has made efforts to decrease its PERM backlogs and try to reduce processing times to 8-9 months.  DOL is temporarily assigning PERM applications to adjudicators in Washington, DC, Chicago and to additional staff in Atlanta.  As a result, significant PERM processing time improvements are expected.  Our office has received recent PERM applications certified 7 months after filing.

PERM Recruiting.  DOL indicated that they do not expect a change in the pre-filing PERM requirement of advertising in a newspaper of general circulation in the area of intended employment.   The concern is that few employees seek employment in newspapers as the Internet has almost entirely replaced newspapers in this regard and also that some geographic areas simply do not have a Sunday newspaper of general circulation.  Despite these concerns, DOL has no plans to eliminate the Sunday recruitment requirement.

iCert Prevailing Wage.  Starting January 1, 2010, the iCert system is the exclusive system for requesting prevailing wage determinations which were previously handled by the State Workforce Agencies.  We have reported previously on the long iCert prevailing wage processing times.  In response to concerns about the long prevailing wage processing times, DOL has reiterated that it has previously warned employers that a 60-day processing window should be expected and planned for.  Although DOL indicated that they will try to add more resources to the prevailing wage review process, they expect that the prevailing wage determinations will take up to 60 days.  Requests pending for more than 60 days should be reported to DOL.

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May 2010 Visa Bulletin – Gradual Forward Movement

The May 2010 Visa Bulletin was just released by the State Department.  The eighth visa bulletin for the fiscal year 2010 brings gradual forward across most employment-based categories except EB-2 India (no change this month, for the second month in a row).   A notable movement can be seen in the EB-3 India category where the priority date moved forward by three weeks.

Here is a summary of the May 2010 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 ROW remains current, EB-2 China moves forward by one (1) month to September 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the second month in a row when EB-2 India has remained unchanged.
  • EB-3 ROW moves forward by almost three (3) months to April 22, 2003, EB-3 China moves forward also by almost (3) months to April 22,  2003, while EB-3 India moves forward by three (3) weeks to October 1, 2001.
  • Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.
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