Labor Immigration Law

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.

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.

By statute (8 CFR § 274a.13), USCIS is required to adjudicate all EAD applications within 90 days from the date of USCIS receipt of the application.  However, the spike in employment-based green card applications during the summer of 2007 has brought a somewhat expected wave of backlogs – in the EAD processing.

USCIS allows an EAD application to be filed 120 days before expiration, unfortunately, given current EAD processing delays of 90-120 days, many green card applicants who have used their EADs to switch employers and have their EADs expire are now forced to either reapply for a new H-1B visas and incur a substantial expense or stay out of work until their EAD is renewed.

Here’s what a person whose EAD application has been pending for more than 90 days can do:

Step One.  Call USCIS National Customer Service Center (NCSC) at (800) 375-5283 and record the time/date of he call and the name/number of the customer service representative:

• Explain to the customer service representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.
  OR
• Ask the customer service representative to request an interim card for you. You should receive an EAD or response within a week.

Step 2.  If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office on www.infopass.uscis.gov. At the appointment, ask to apply for an interim EAD. Note that USCIS local offices no longer issue interim EADs. The local office can review your case and determine eligibility. The local office will forward your request to the USCIS service centers. You should receive an EAD or response within a week.

Step 3.  If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, please email the USCIS ombudsman at cisombudsman.publicaffairs@dhs.gov with the details of your efforts.  Please include the date and time of your call to the NCSC and the name of the customer service representative. If you visited a USCIS office, please provide that information. The Ombudsman Office has committed to look into such cases and review how they may be of assistance.

Please do not hesitate to contact our office if you need assistance with EAD renewals or you need any additional information.

The first step which must be taken by an F-1 student who wishes to apply for OPT renewal pursuant to the 17-month extension rule is to ensure that his or her school is on the list of SEVP schools which are authorized to issue 17-month OPT extensions.

The Immigration and Customs Enforcement (ICE) has released an updated list of SEVP schools.

USCIS has released a new version of the Form I-9, Employment Eligibility Verification.  Employers should start using the revised form (it has Rev. 06/16/08 in the bottom right corner) effective immediately because USCIS will no longer accept older versions.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

• The Certificate of United States Citizenship (Form N-560 or N-561);
• The Certificate of Naturalization (Form N-550 or N-570);
• The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card’”);
• The Unexpired Reentry Permit (Form I-327); and
• The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

USCIS has released more information about the scope of the new rule which allows USCIS to issue 2-year EADs.

The rule becomes effective on June 30, 2008 and after this date, USCIS will issue 2-year EADs only to individuals who have filed petitions to become a lawful permanent resident (LPR) using Form I-485 and have requested an EAD but are unable to become LPR because a visa number is not currently available.  Upon renewal of EAD, USCIS will look at the visa bulletin and issue a 2-year replacement EAD only if a visa number is not currently available for the petitioner.

On the other hand, applicants who have filed I-485 and EAD applications and for whom there is a visa number immediately available would get only 1-year EAD document.  Applicants whose visa numbers have retrogressed since their I-485 was filed would get 2-year EADs.

Many of our clients are complaining of the need to renew their employment authorization documents (EADS) every year while their green card adjustment of status application is pending. Given the long backlogs, the need to extend EADs every year becomes a hassle and, especially for those applicants who have to pay for each application, a financial burden.

DHS Secretary Chertoff, in remarks at the “State of Immigration” address, noted that beginning June 2008, DHS will start issuing 2-year EADs for applicants whose adjustment of status petitions if such petitions are expected to be pending for more than one year. His precise remarks are:

“Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

..

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It’s going to cut the paperwork there.“

Full text.

The speech does not address details such as the exact date of when this change would take effect and whether advance parole (AP) extensions would also be extended in 2-year terms. We will continue monitoring developments in connection with Secy. Chertoff’s statement and update our clients and readers as we know more. Readers can subscribe to our newsletter to obtain email notification of recent developments.

Update: USCIS has released more details on the new rule.

USCIS is proposing to amend the regulations concerning the concurrent filing of employment-based I-140 and I-485 petitions as long as visa number is available to the alien beneficiary. The proposed rule seeks to amend the rule so that a worker applying for I-485 adjustment of status must be the beneficiary of an approved immigrant petition prior to the filing of the adjustment application.

The proposed rule is scheduled for publication in June with a 60-day comment period.

Reasons
We do not have reliable information at this point as to the rationale of this proposed rule change. It seems that USCIS may be trying to eliminate the backlog of I-140/I-485 applications which were filed in the summer of 2007 when there was a substantial forward visa movement. It has been suggested that USCIS may be trying to control the volume of filings should a dramatic forward movement, similar to the summer of 2007, occur in the future.

About the I-140/I-485 Concurrent Filing Procedure
The concurrent filing procedure was implemented in 2002 and it has become a very useful for aliens who qualify. The concurrent filing procedure permits an alien who has an I-140 filed to file a I-485 adjustment of status application and, as a result, take advantage of a number of benefits associated with pending I-485. A properly filed and pending I-485 opens eligibility for employment authorization documents (EAD) and advanced parole (AP) for the beneficiary and his or her immediate family. Also, having I-485 pending for certain period of time may open other benefits, such as job portability to similar job opportunities.

Consequences
As a result of the new rule, foreign employees would be impacted negatively in several important ways. First, they would be restricted in switching employers. Additionally, families of foreign employees would not be entitled to work authorization until later in the process, thus putting financial strain on some of the immigrant families. Finally, international travel may be impacted as fewer families would be entitled to AP earlier in the process.

It should be noted that it is not expected that the proposed rule will impact currently filed concurrent I-140/I-485. We will continue to monitor the situation and update our clients as we learn more.

We wrote earlier today about the improvements to the E-Verify program.  In the past weeks we have been approached by some of our corporate clients and asked whether we would provide E-Verify services.  In addition to advising employers on immigration, E-Verify, and employment authorization compliance, we are now registered with USCIS as E-Verify Third Party Agent.

This E-Verify Third Party Agent status allows our employer clients to outsource the E-Verify processing to us while they remain focused on their core business processes.  If you are an employer who wishes to register under the E-Verify program and take advantage of the electronic employment authorization verification please contact us.  We provide full service E-Verify solutions to our employer clients and we would be happy to discuss your needs.

The USCIS has released an updated version of Form I-765, Application for Employment Authorization. The form now includes additional eligibility codes in connection with the recent interim rule regarding Optional Practical Training (OPT) extension.

Practice Tip. It is important to note that the current version of the form will be accepted until July 8, 2008. As of July 9, 2008, the USCIS will accept only the revised form which is dated April 8, 2008, and USCIS will reject all other versions of the form.

The new Form I-765 can be downloaded here. The form’s instructions are here.

Update: there are newer versions of the I-765 form, the most recent being dated 5/27/2008.  It is best to use the most recent form I-765 to avoid any risk in having the filing returned by USCIS.