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.

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.

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.

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 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.

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

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.

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.

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.

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.

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.

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.

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 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.

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.