US Immigration Law Blog - by Ashwin Sharma, Esq.

USCIS MEMO RE: Revisions to Adjudicator’s Field Manual (AFM) Regarding Certain Alien Physicians

2009-06-22T21:20:00Z

This memorandum amends the Adjudicator’s Field Manual by providing guidance on the adjudication of Form I-140, Petition for Alien Worker filed for certain physicians. In particular, this memo provides guidance to Immigration Services Officers (ISOs), formerly known as Information Immigration Officers (IIOs) or Adjudications Officers (AOs), on how to determine if a foreign Medical Degree (MD) is the equivalent of a U.S. MD degree, and thus an advanced degree, for EB2 purposes. This memorandum also addresses how to determine whether an alien physician has met the education, training and experience requirements of the labor certification and licensure in the area of intended employment, and it clarifies that all EB2 and EB3 alien physicians must overcome the “unqualified physician” inadmissible alien provisions of INA §212(a)(5)(B) at the time of the permanent job offer.

USCIS Announces Resumption of Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker

2009-06-22T21:05:00Z

VIA USCIS

WASHINGTON—USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2).

After an evaluation of its I-140 backlog reduction efforts and increased I-140 adjudicative efficiencies, USCIS has concluded that it is now able to provide Premium Process Service for this benefit. USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check

on the status of their petition or ask any other questions they may have concerning their petition. Premium Processing Service continues to be available for previously designated classifications within Form I-140 and Form I-129, Petition for Nonimmigrant Worker.

Information about the expanded Premium Processing Service, including what classifications are eligible to request such processing, is available on the USCIS website at www.uscis.gov or by calling the USCIS National Customer Service Center toll free at 1-800-375-5283.

Work Visa Bill Threatens Indian Outsourcers

2009-06-03T19:21:00Z

Via BusinessWeek

A controversial "50/50" provision in the Durbin-Grassley visa reform bill could hurt Indian outsourcing firms. Advocates say it will save American jobs

USCIS Updates FY 2010 H-1B Count (Updated 6/3/09)

2009-06-03T19:14:00Z

VIA AILA

As of May 29, 2009, approximately 45,800 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

AILA Praises Decision by Attorney General to Withdraw Matter of Compean

2009-06-03T19:12:00Z

VIA AILA

FOR IMMEDIATE RELEASE:

Wednesday, June 3, 2009

CONTACT:

George Tzamaras
202-507-7649
gtzamaras@aila.org

ATTORNEY GENERAL HOLDER RESTORES DUE PROCESS FOR IMMIGRANTS INJURED BY INEFFECTIVE REPRESENTATION:

AILA praises decision by Attorney General to withdraw Matter of Compean.

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) welcomes the restoration of due process in the Immigration Court system. Attorney General Eric Holder today withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning. AILA is grateful for this restoration of a basic constitutional process—Due Process, in the immigration court system.

AILA commends Attorney General Holder for living up to his word, and for his clarity of understanding of not only the constitutional principle of due process, but also for the boldness with which he acted today. “The restoration of the prior standard for claiming ineffective representation in immigration court proceedings is a welcome sign that the Obama administration understands that the rights that apply to the least of us, apply to all of us,” said Charles H. Kuck, president of AILA. “By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures. Today’s action, along with the other positive signs from the Administration signal that a restoration of our most sacred principles of justice has begun.”

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

USCIS Reminds Applicants for Adjustment of Status, Asylum, Legalization, and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad

2009-06-03T19:11:00Z

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) reminds individuals that they must obtain Advance Parole from USCIS before traveling abroad if they have:

been granted Temporary Protected Status (TPS);
a pending application for adjustment of status to lawful permanent resident;
a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
a pending asylum application; or
a pending application for legalization.

To obtain Advance Parole, individuals must file Form I-131, Application for Travel Document, which is available in the Related Links section of this page.

Advance Parole is permission to reenter the United States after traveling abroad. Advance Parole is an extraordinary measure used sparingly to allow an otherwise inadmissible individual to enter the United States due to compelling circumstances. By law, certain individuals must apply for a travel document and have Advance Parole approved before leaving the United States. Attempts to reenter the United States without prior authorization may have severe consequences since individuals requiring advance parole may be unable to return to the United States and their pending applications may be denied or administratively closed.

Applicants planning travel abroad should plan ahead since applicants can anticipate processing times of about 90 days, depending on the USCIS office location. Instructions for filing Form I-131 provide details on where to mail travel document applications and should be followed carefully to avoid delay. For more information on Advance Parole see How Do I Get a Travel Document? (also in the Related Links) and instructions for Form I-131.

Note:
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole. Aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for three years; those who have been unlawfully present for one year or more are inadmissible for 10 years. Aliens who are unlawfully present, then depart the United States and subsequently reenter under a grant of parole, may still be ineligible to adjust their status.

Individuals who have been admitted as refugees or granted asylum, including those who are applying for adjustment of status, do not need to obtain Advance Parole. Instead, these individuals should apply for a Refugee Travel Document using Form I-131 and comply with applicable application requirements, such as biometric processing, prior to leaving the United States.

Lawful permanent residents who obtained such status as a result of being a refugee or asylee in the United States may also apply for a Refugee Travel Document. For more information on Refugee Travel Documents please see How Do I Get a Refugee Travel Document?

Asylum applicants, asylees and lawful permanent residents who obtained such status based on their asylum status are subject to special rules with regard to traveling outside the United States. Such individuals are encouraged to review USCIS’ Fact Sheet Traveling Outside the United States as an Asylum Applicant, an Asylee, or a Lawful Permanent Resident Who Obtained Such Status Based on Asylum Status.

Before making any plans to travel abroad, all individuals with pending applications for adjustment of status, relief under NACARA 203, or asylum are urged to consult an immigration attorney or immigration assistance organization accredited by the Board of Immigration Appeals, or by calling USCIS’ Customer Service Center at 1-800-375-5283.

US consulate denies H1B visa curtailment for Indians

2009-06-02T19:28:00Z

VIA Press Trust of India / Hyderabad May 13, 2009, 15:45 IST

"US Consulate General, Hyderabad, Cornelis M Keur addressing media persons at the 'meet the press' programme organised by Press Club Hyderabad said that due to economic slowdown the world over, the US government has taken a decision to tie up its unemployment problem which is nine per cent. But, there was no significant change in visa policy. "We continue to issue H1B visas with little more scrutiny," Keur said.

He said that, at the same time, the US government has framed a policy for the companies to give preference to native Americans in employment.

Obama administration has taken up a practical approach in establishing relations with the countries while there were efforts in strengthening relations with India because of the "Brain Borrowing", he said.

Keur said there are 3 million Indians in the US who are contributing to its prosperity specially mentioning about the Andhraites who marked their presence in various fields in the US including IT.

Keur said the Hyderabad Consulate, the fourth in the country was established due to the growing trade and development in the state in the IT, biotechnology and pharma sectors."

USCIS Updates Information on FY2010 H-1B Petition Filings

2009-05-19T19:10:00Z

VIA USCIS.gov

05/18/2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

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

USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at www.uscis.gov/h-1b_count.

All Signs Point to Immigration Reform this Year: AILA Optimistic that the President and Congress will Push for CIR this Year

2009-05-01T16:47:00Z

VIA AILA.org

FOR IMMEDIATE RELEASE:
Wednesday, April 30, 2009
CONTACT:
George Tzamaras
202-507-7649
gtzamaras@aila.org

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) is encouraged by events of the past 24 hours as President Barak Obama renewed his Administration’s pledge to pursue comprehensive immigration reform, the Department of Homeland Security's (DHS) announced its intention to recalibrate its worksite enforcement actions to focus more on criminal prosecutions of employers who knowingly hire unauthorized workers, and the Senate Judiciary Subcommittee on Immigration, Border Security and Citizenship led by Senator Charles Schumer (D-NY), commenced hearings to examine common sense solutions to fixing America’s broken immigration system.

AILA commends Chairman Schumer for sounding the starting gun with an outstanding first hearing. Two expert-laden panels of witnesses made a highly compelling case – covering the moral, economic, business, labor, security and law enforcement angles - for the need to advance immigration reform legislation this year. “The stars seem to be aligning for a major push toward comprehensive immigration reform this year,” said Charles H. Kuck, president of AILA. “Momentum continues to build as more and more of our elected leaders understand that tackling and solving our current immigration crisis will only help strengthen America’s economy and security. The events over the past two days signal that this Administration and Congress get it and will not let this opportunity to finally bring the nation’s legal immigration system into the 21st century pass them by.”

AILA is pleased that DHS is taking steps to restore balance and rationality in its enforcement priorities. Mr. Kuck expressed hopes that the new DHS statement of policy addresses pivotal due process concerns, saying “a retooling of enforcement activities must, first and foremost, ensure the right to counsel of any employees caught up in these actions, and limit or eliminate the abusive practice of transferring detainees away from their communities, families and attorneys. These are indispensable elements of a fair and just system.”

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Legislation introduced to limit H-1B and L-1 visa programs

2009-05-01T16:46:00Z

Via BusinessWeek

BusinessWeek reports, "Two U.S. senators are reintroducing legislation aimed at revamping the H-1B visa program for guest workers in the U.S., at a time of rising unemployment and growing evidence that the program has been marred by fraud. Senators Dick Durbin (D-Ill.) and Charles Grassley (R-Iowa) hope that the bill, "The H-1B and L-1 Visa Fraud & Prevention Act of 2009," has a better chance of passing now than when they originally introduced it in 2007."

Read Article

Swine Flu Fear Prompts Changes in Mexican Law Firm Procedures

2009-05-01T16:34:00Z

AbaJournal reports that Mexican lawyers are wearing masks and bypassing handshakes.

Owner of Mandarin restaurant to be deported after jail

2009-04-22T21:02:00Z

VIA Jacksonville.com

"The co-owner of a popular Jacksonville restaurant received a three-month sentence Monday for harboring illegal aliens and faces certain deportation to his native India.

Sanjit Kumar Rajak, who was head chef and manager of Cilantro Indian Cuisine in Mandarin, will complete his prison sentence in about a week because he has been behind bars since his January arrest. He agreed to a $5,000 fine.

His lawyer, Shawn Arnold, said he expects deportation proceedings to begin immediately, a bitter end for a successful businessman who lived a rags-to-riches story. Arnold said Rajak won't be allowed to re-enter the United States for five to 10 years.

Rajak admitted hiring four illegal workers and leasing their Sunbeam Road apartment. He has no other criminal record."

Continue reading:

USCIS Updates Count of FY2010 H-1B Petition Filings

2009-04-21T19:33:17Z

April 20, 2009 H-1B Cap Count

On April 20, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 20, 2009, approximately 44,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

April 17, 2009 H-1B Cap Count

On April 17, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

USCIS Updates Count of FY2010 H-1B Petition Filings

2009-04-09T19:31:00Z

VIA USCIS.gov

WASHINGTON April 9, 2009 — USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.

Advance Copy of DOS Final Rule on Exchange Visitor Program for Au Pairs

2009-04-08T16:15:00Z

[BILLING CODE: 4710-05]
DEPARTMENT OF STATE
22 CFR Part 62
RIN: 1400-AC48
[Public Notice: 6566]
Exchange Visitor Program – Au Pairs
AGENCY: Department of State.
ACTION: Final Rule.
SUMMARY: On June 19, 2008, the Department of State published an interim final rule
to revise existing regulations and thereby permit qualified au pairs to participate again in
the au pair program after completing a period of at least two years of residency outside
the United States following the end date of his or her initial exchange visitor program.
The regulations contained in the interim final rule are adopted without change.
DATES: The interim rule published at 73 FR 34861, June 19, 2008 is adopted as final
without change effective [INSERT DATE OF PUBLICATION IN THE FEDERAL
REGISTER].

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary, Office of Private Sector Exchange, U.S. Department of State, SA-44, 301 4th
Street, SW, Room 734, Washington, DC 20547; or email at jexchanges@state.gov.
SUPPLEMENTARY INFORMATION: On June 19, 2008, the Department of State
published an interim final rule with request for comments whether to allow a foreign
national who previously participated in the au pair program to repeat the program. One
comment was received in response to the document that had no relevance to the rule.
The Department has determined that an au pair who has successfully completed the au
pair program may repeat program participation provided that he or she has resided
outside the United States for a period of at least two years after the completion of initial
participation in the au pair program (including the educational component requirement)
and is within the regulatory age range for eligibility. An au pair who has previously
participated is likely to be more familiar with the American culture (thereby quickly
overcoming cultural challenges), is a proven successful caretaker, and will be able to
build on the skills previously acquired.

For the foregoing reasons, the Department is promulgating the interim final rule as a
final rule.

REGULATORY ANALYSIS

Administrative Procedure Act

The Department has determined that this final rule involves a foreign affairs function
of the United States and is consequently exempt from the procedures required by 5
U.S.C. 553, pursuant to 5 U.S.C. 553(a)(1).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule has been found not to be a major rule within the meaning of the Small
Business Regulatory Enforcement Fairness Act of 1996.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this rulemaking is exempt from 5 U.S.C. 553, and no other law requires the
Department to give notice of proposed rulemaking, this rulemaking also is not subject to
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order 13272, section
3(b).
Executive Order 12866, as amended
The Department of State does not consider this final rule to be a “significant
regulatory action” under Executive Order 12866, as amended, § 3(f), Regulatory
Planning and Review. In addition, the Department is exempt from Executive Order
12866 except to the extent that it is promulgating regulations in conjunction with a
domestic agency that are significant regulatory actions. The Department has nevertheless
reviewed this rule to ensure its consistency with the regulatory philosophy and principles
set forth in that Executive order.
Executive Order 12988
The Department has reviewed this final rule in light of sections 3(a) and 3(b)(2) of
Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal
standards, and reduce burden.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may result in an annual
expenditure of $100 million or more by State, local, or tribal governments, or by the
private sector. This final rule will not result in any such expenditure, nor will it
significantly or uniquely affect small governments.
Executive Orders 12372 and 13132
This Final Rule will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the distribution of
power and responsibilities among the various levels of government. Therefore, in
accordance with § 6 of Executive Order 13132, it is determined that this rule does not
have sufficient federalism implications to require consultations or warrant the preparation
of a federalism summary impact statement. The regulations implementing Executive
Order 12372 regarding intergovernmental consultation on Federal programs and activities
do not apply to this regulation.
Paperwork Reduction Act
This Final Rule does not impose any new reporting or recordkeeping requirements
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs, reporting and recordkeeping requirements.
PART 62 -- EXCHANGE VISITOR PROGRAM
Accordingly the interim rule amending 22 CFR part 62 which was published at 73 FR
34861 on June 19, 2008 is adopted as final without change.

March 30, 2009.
(Date) Stanley S. Colvin,
Deputy Assistant Secretary,
Office of Private Sector Exchange,
Bureau of Educational and Cultural Affairs,
Department of State.

Cap Count for H-1B and H-2B Workers for Fiscal Year 2009

2009-04-08T16:14:00Z

Updated cap counts for H-1B and H-2B work visas.

Questions and Answers: Extension of Post Completion Practical Training and F-1 Status for Eligible Students under the Cap Gap Regulations

2009-04-08T16:12:00Z

VIA USCIS

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2009 under the FY 2010 H-1B cap.

What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted initial H-1B status or visas during each fiscal year. For FY 2010, the cap is 65,000.
Not all H-1B beneficiaries are subject to the cap. Congress has provided that the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters’ degree or higher are exempt from the fiscal year cap. H-1B petitions filed on behalf of beneficiaries who will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from the fiscal year cap. Generally, H-1B beneficiaries seeking to extend status and/or add employers are not subject to the cap.

What do Current F-1/H-1B Extension Regulations Allow?

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time where 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. An interim final rule published in the Federal Register last year authorized a cap gap extension for eligible students. See 73 FR 18944 (April 8, 2008) “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.”

How does “Cap-Gap” Occur?

An employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change-of-status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap gap extension, and whose periods of authorized stay expires before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Which petitions and beneficiaries qualify for a cap gap extension?

H-1B petitions must be timely filed on behalf of an eligible F-1 student. “Timely filed” 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 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 or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice 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. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.

How does a student covered under the cap gap extension obtain proof of continuing status?

The student should go to their Designated School Officer (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 a preliminary cap gap I-20 showing an extension until June 1st. If the student’s petitioning employer receives a notice of selection from USCIS, the student should return to his or her DSO with a copy of the receipt notice, if possible, for issuance of a new cap gap I-20 indicating the continued extension of status.

Students can also check the Student and Exchange Visitor Program information from the Related Links section of this page.

What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?

A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission under the cap gap, if the H-1B petition is filed during the H-1B acceptance period, which begins on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States..

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period and automatic cap gap extension would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

May students travel outside the United States during a cap gap extension period and return in F-1 status?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared 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/her travel plans, accordingly.

Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.

If a student was not in an authorized period of OPT on the eligibility date for the cap gap extension, can the student work during the cap gap extension?

No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of post-completion OPT on the eligibility date.

May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?

Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period.

What is a STEM OPT extension?

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a 17-month extension. F-1 students may obtain additional information about STEM extensions on the Student and Exchange Visitor Program website from the Related Links section of this page.

USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

2009-04-08T16:11:00Z

VIA USCIS

WASHINGTON, April 3, 2009 — U.S. Citizenship and Immigration Services (USCIS) issued a reminder that the revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

The interim final rule, published Dec.17, 2008 in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process. Employers may no longer use previous versions of the Form I-9.

The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

USCIS also updated the Handbook for Employers – Instructions for Completing Form I-9 to reflect the requirements of the revised Form I-9.

Employers who do not have computer access can order Forms I-9 by calling our toll-free forms line at 1-800-870-3676.

USCIS forms and information on immigration laws, regulations, and procedures can also be requested by calling the National Customer Service Center toll-free at 1-800-375-5283.

USCIS Continues to Accept FY 2010 H-1B Petitions

2009-04-08T16:09:00Z

VIA USCIS

WASHINGTON – April 8, 2009, USCIS announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.

Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

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

Petitions filed on behalf of current H-1B workers, who have been counted previously against the cap, will not count toward the congressionally mandated FY 2010 H-1B cap.

Therefore, USCIS will continue to process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States.
Change the terms of employment for current H-1B workers.
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B in General - U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

DHS Office of Immigration Statistics Report on LPRs for 2008

2009-03-27T16:38:00Z

DHS Office of Immigration Statistics Report on LPRs for 2008

US Immigration Law Blog - by Ashwin Sharma, Esq.

USCIS MEMO RE: Revisions to Adjudicator’s Field Manual (AFM) Regarding Certain Alien Physicians

USCIS Announces Resumption of Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker

Work Visa Bill Threatens Indian Outsourcers

USCIS Updates FY 2010 H-1B Count (Updated 6/3/09)

AILA Praises Decision by Attorney General to Withdraw Matter of Compean

USCIS Reminds Applicants for Adjustment of Status, Asylum, Legalization, and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad

US consulate denies H1B visa curtailment for Indians

USCIS Updates Information on FY2010 H-1B Petition Filings

All Signs Point to Immigration Reform this Year: AILA Optimistic that the President and Congress will Push for CIR this Year

Legislation introduced to limit H-1B and L-1 visa programs

Swine Flu Fear Prompts Changes in Mexican Law Firm Procedures

Owner of Mandarin restaurant to be deported after jail

USCIS Updates Count of FY2010 H-1B Petition Filings

USCIS Updates Count of FY2010 H-1B Petition Filings

Related Files

Advance Copy of DOS Final Rule on Exchange Visitor Program for Au Pairs

Cap Count for H-1B and H-2B Workers for Fiscal Year 2009

Questions and Answers: Extension of Post Completion Practical Training and F-1 Status for Eligible Students under the Cap Gap Regulations

What is the H-1B cap?

What do Current F-1/H-1B Extension Regulations Allow?

How does “Cap-Gap” Occur?

Which petitions and beneficiaries qualify for a cap gap extension?

How does a student covered under the cap gap extension obtain proof of continuing status?

What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?

Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

May students travel outside the United States during a cap gap extension period and return in F-1 status?

Do the limits on unemployment time apply to students with a cap gap extension?

If a student was not in an authorized period of OPT on the eligibility date for the cap gap extension, can the student work during the cap gap extension?

May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?

What is a STEM OPT extension?

USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

USCIS Continues to Accept FY 2010 H-1B Petitions

DHS Office of Immigration Statistics Report on LPRs for 2008