Labor Immigration Law

United States Labor Immigration Law News and Analysis

EAD Articles

Final H-4 Spouse EAD Rule Announced – Becomes Effective May 26, 2015

After months of waiting and anticipation, USCIS has finally announced that effective May 26, 2015, USCIS will begin accepting applications for I-765 Employment Authorization Document (EAD) applications by certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Who is Eligible to Apply for EAD?

H-4 spouses who are eligible for the EAD under this rule are:

  • spouses of H–1B workers if the H-1B worker is a beneficiary of an approved Immigrant Petition for Alien Worker (Form I–140);  or
  • spouses of H–1B workers if the H-1B worker has been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B worker is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for EAD under this rule.

Mechanics of the H-4 Spouse EAD Application Process

The rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees ($380 as of the date of this article), photos and supporting documents to establish eligibility for this new class of EAD.

Earliest Filing Date.   The earliest date USCIS will accept EAD applications pursuant to this rule is May 26, 2015.    Applications filed before this date will be rejected.       However, applications can be prepared in advance and our office will be happy to do so for a timely filing as soon as the filing window opens on May 26, 2015.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The  rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Concurrent H-4 Status and H-4 EAD Applications Permitted.    The rule allows specifically for the concurrent filing of I-539 applications seeking to either change to H-4 status or to extend H-4 status together with the I-765 EAD application.   This is great news because it allows for the concurrent processing of an H-4 status with a work permit application.    Without the concurrent filing option, an H-4 applicant would have to wait for the H-4 status to be approved, and then file a separate EAD application and wait for another 2-3 months for the actual work authorization.     In cases where this is possible, we encourage concurrent filing of the I-539 H-4 status application and the I-765 EAD applications.

Documentation of Eligibility.   Since EADs under this rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    In addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Full Text of the Rule

For those of our clients and readers who want to dig into the rule, it can be accessed online.

More Information and Opportunity to Ask Questions

Our office will be holding a free webinar on this rule, its requirements and challenges.   The webinar is scheduled for Tuesday, March 3rd at 1 pm eastern time.   Please register early to claim your spot – registration and attendance are free but space is limited.

H-4 Spouse EAD Attorney Service Filing Quote

Our office has been monitoring closely this rule since it was announced in May 2014 and we are ready to start accepting applications for filing on or after May 26, 2015.     If you would like one of our attorneys to review your case and provide a free and no-obligation quote for our services, please complete this brief request H-4 Spouse EAD attorney quote form.

Conclusion

We welcome DHS’s publication of the new H-4 spouse EAD rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B

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 under the H-1B cap.

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 the current fiscal year starting on October 1st.

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 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B 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 H-1B 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 the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students.   For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).

How to Invoke the “Cap-Gap”?

Most importantly, an H-1B cap petition 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 cap 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 under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected under the H-1B lottery or not 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 October 1st.  Students whose approved period of OPT already extends beyond October 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.

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.

Conclusion

The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations.    Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap.    While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window.    In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.

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Is my Degree a STEM-designated Program? Updated STEM Degree List.

STEM Degree ListMany of our readers, and especially those foreign students on F-1 status who are in a technical field, are aware of the regulations which allow holders of Science, Technology, Engineering and Math (STEM) degrees to obtain an additional 17-month OPT work permit extension, in addition to the 12-month post-completion OPT work permit.    Understanding the eligibility rules and especially understanding if one’s degree is a STEM degree is critical in planning for subsequent immigration steps, including whether to file for an H-1B petition.

The Immigration and Customs Enforcement (ICE) is the agency tasked with maintaining the STEM degree list and the list has been revised on a few occasions to add additional degrees.   Most recently, on May 11, 2012, ICE announced the most recent expansion of the list STEM degree programs.  Previously, some degrees were added in May 2011.

Current STEM-designated Programs

Please see the list of STEM-designated programs as of January 2015, as published by the Immigration and Customs Enforcement agency (which has jurisdiction over the Student and Exchange Visitor Program, SEVP).   The list incorporates the 2011 and 2012 additions and is current as of the date of this article, according to ICE.    We caution our readers to double-check the most current STEM-designated program list by contacting SEVP to ensure that their degree is STEM-designated before applying for or relying on STEM-designation and benefits.   Our office can offer phone or in-person consultations to assist in this kind of analysis.

STEM-Designation Has Great Benefits

Why is a STEM designation so important?   On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) 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.    As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.

This is important for a number of reasons.   Most importantly for many folks — the OPT holder has the chance to apply for a cap H-1B petition two, sometimes even three, times.   In a time where the annual H-1B cap is oversubscribed and the available H-1B visas are distributed by lottery, having more chances to apply for an H-1B under the cap is certainly better.    Additionally, eligible OPT holders have more time to obtain better skills and this provides greater flexibility in job hunting — employers are more likely to consider a candidate with more experience and longer work authorization term.

Is My Degree a STEM-Designated Degree Program?

The first step is to find the classification number of your degree.  The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree.  Also, the degree and its CIP code are often listed on the top of page 3 (“Primary Major” line) of a student’s SEVIS Form I-20.

Once the CIP classification of the degree is determined, an F-1 or OPT holder should look at the list of STEM-designated programs as of January 2015 and see if the CIP code of the degree is listed as a STEM-designated program.    Finally, the F-1/OPT student should ensure that there are no STEM designation changes – perhaps by consulting SEVP, the university or an immigration attorney.

It should be noted, however, that in some situations the CIP code of the degree on the I-20 does not accurately reflect the degree which the F-1 student completed.    Sometimes, there are slight degree variations and changes which may not be reflected in the I-20 record.    If the student believes that there is a discrepancy between the actual degree obtained and the degree noted on the SEVIS I-20 form, the student should seek to correct any such discrepancy with the university’s designated school official (DSO) as soon as possible and definitely before filing a 17-month STEM OPT extension application.

Conclusion

The question whether a given degree is STEM-designated has a significant importance and our office handles many inquiries and consultations on this topic.     We are hopeful that this article and the current list (as of the date of this article) we are sharing will allow many F-1/OPT students to evaluate their options with respect to 17-month OPT extensions and/or possible H-1B cap filings.

Our office has developed as a leading practice in F-1/OPT/H-1B matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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USCIS Reverses OPT Extensions Denied Due to Volunteering or Unpaid Work

Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs.      After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.

The USCIS Announcement

USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error.     The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:

“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”

STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions.    As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.

Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?

USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground.   The student should contact the Service Center which issued the denial decision.   Specific instructions are below:

If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.

  • California Service Center: CSC.StudentEAD@uscis.dhs.gov
  • Vermont Service Center: VSC.Schools@uscis.dhs.gov
  • Texas Service Center: TSC.Schools@uscis.dhs.gov
  • Nebraska Service Center: NSC.Schools@uscis.dhs.gov

Conclusion

We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and  has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application.      Unfortunately,  for many affected individuals this kind of announcement and relief may come too late.   For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.

Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial.  Please contact us for an evaluation of your case.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Immigration Relief Options for Foreign Nationals Impacted by the Recent Hurricane Sandy

After the recent devastation throughout the U.S. east cost caused by Hurricane Sandy, our office is receiving a number of inquiries by foreign nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for foreign nationals who are impacted by the Hurricane Sandt.   The relief may be available to all foreign nationals if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Foreign nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.  Normally, an application to change or extend status filed after the period of authorized stay has expired would be denied.  In this case, the delay can be excused if it is caused by the disaster.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, foreign students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain foreign nationals who are impacted by Hurricane Sandy and the widespread destruction.  Our office stands ready to assist affected foreign nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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USCIS to Issue Redesigned Employment Authorization Document (EAD) Cards

USCIS has announced that effective October 30, 2011, it would issue redesigned Employment Authorization Document Cards (also known as “EAD” or “work permit” cards )   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Design

Samples of the front and back are shown below:

No Changes to Application Procedures

Even though the design is changing, the procedures for applying for and obtaining an EAD card remain the same.   We have written extensively in the past on the delays associated with obtaining EADs of  more than 90 days and we hope that the new design would, at least, not make these EAD production delays even worse.  As a result, we continue to urge our readers and clients to apply for their EADs 90-120 days in advance of either current EAD expiration or in advance of anticipated employment start date.

Our office can help you with the EAD filing application – please contact us.

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Immigration Relief Options for Japanese Nationals Impacted by the Recent Disaster

After the recent earthquakes and tsunami in Japan, our office is receiving a number of inquiries by Japanese nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Japanese nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Japanese nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Japanese students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Japanese nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Japanese nationals who are impacted by the earthquake and the tsunami.   Our office stands ready to assist affected Japanese nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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Delays in EAD/AP Processing – What To Do?

It is not a secret that USCIS’ processing times of I-765 work permit documents (“EAD”) and I-131 advance parole travel documents (“AP”)  have increased over the past few months.  Our office has experienced some of these delays and our office is increasingly approached by EAD/AP applicants who have either expiring EADs or need to travel urgently abroad and whose EAD/AP applications have been pending for substantial period of time.

As a preliminary matter, we always recommend that EAD/AP renewal applications be filed 90-120 days between the expiration of the document to be renewed.  Unfortunately, often this is not possible and the government has provided some options.  Also, it is important to note that unlike renewal of nonimmigrant work visas (such as H-1B), the filing of an EAD application does not permit employment until the EAD is actually approved.

Expediting I-765 EADs Pending for Extended Period of Time

By regulation, USCIS is required to produce the EAD cards within 90 days; however, current processing times are starting to approach that deadline (75 to 80 days is now frequent).  This can be especially difficult for foreign nationals who do not have an underlying nonimmigrant work status (such as H-1B) and who need to continue their employment pursuant to an expiring EAD.  The Nebraska Service Center (“NSC”)  recognizes that the processing times have increased substantially and that this is creating a hardship for many individuals who whose employment authorization is expiring.  NSC is working on improving the processing times of I-765 EAD applications; in the meantime, there are circumstances under which EAD processing can be expedited.

If the I-765 application has been pending more than seventy-five (75) days, applicants (or their attorney) can notify NSC through NCSCFollowup.Nsc@dhs.gov.   It is important to note that normally USCIS requires the applicant (or the attorney) to call the 1-800 number and make a case inquiry.  In this case (and only for this issue), however, the requirement to first call the 1-800 number for the National Customer Service Center (NCSC) is waived.   The email inquiry must include the following details: the name of the applicant, the receipt number, the date filed, and the date of the prior EAD expiration.

If the I-765 application has been pending for more than sixty (60) days, the current EAD will expire within the next two weeks, AND the individual will lose their job (a leave of absence is not considered a loss of the job), an inquiry can be made directly to NSC though NCSCFollowup.Nsc@dhs.gov, after sixty days.   In addition to including the information mentioned above, applicants (or their attorneys)  should provide appropriate evidence to demonstrate that the applicant meets these criteria.

Expediting I-131 APs Pending for Extended Period of Time

USCIS currently follows its regular expedited processing procedures with respect to APs.   Additionally, it should be noted that foreign nationals who depart the U.S. without an approved AP, or valid H-1B, H-4, L-1, L-2, K-3, K-4, or V status, may be subject to an abandonment of their I-485 Adjustment application under 8 C.F.R. 245.2(a)(4).

How Our Office Can Help You?

Initially, by strongly urging you to file your EAD/AP application as early as possible, and in the best case, at least 90 but not more than 120 days before the expiration of the underlying document.  If this is not an option, our office can help you expedite an already filed document or we can file the application and then, at a later time, help you seek expedited processing.  Please do not hesitate to contact us if our office can be of any help.

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F-1 OPT/H-1B Cap-Gap Guide for Employers

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.

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New Nebraska I-765 EAD Expedited Procedures

The Nebraska Service Center (NSC) announced updated I-765 expedite policy pursuant to which NSC will accept requests to expedite processing of Form I-765, Application for Employment Authorization,  if the application has been pending for 75 days or more.  NSC had previously announced that it would accept an expedite request for an I-765 that was pending more than 60 days, but has revised that threshold to 75 days.

The fax number for submitting these requests to NSC has changed – the new fax number is 402-219-6344.  The fax should include a cover sheet identifying the case and the filing date and requesting expedited processing; it will be helpful to attach a copy of the I-765 receipt notice.   NOTE: This fax number is limited to expedites for I-765 pending for 75 days or more, and should not be used for any other purpose. Other letters, requests or documentation sent to the NSC via this fax number are more likely to be discarded than routed to the proper file.

Please contact us if you would like our assistance in expediting your pending Form I-765 with the Nebraska Service Center.

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