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H-1B Opponents continue onslaught against Immigration of the Educated

This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated.  What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT).  OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.

Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates.  Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”.  Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages.  Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.

The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot.  The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself.  Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf.  (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner.  As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)

Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields.  Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.

Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes.  Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders).  The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.

Read Bill Snyder’s Article

Can I re-enter the U.S. with a valid I-94 and expired visa? – Automatic revalidation for certain temporary visitors

Canadian visa for single entry

Canadian visa for single entry (Photo credit: Wikipedia)

VIA CBP.GOV

Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by Customs and Border Protection (CBP), if they meet certain requirements, including, but not limited to the following:

A nonimmigrant who departed the U.S. for brief travel to Canada, Mexico, or an adjacent islands (for F and J nonimmigrant) for thirty days or less;

Nonimmigrant who have changed their nonimmigrant status (for F and J nonimmigrant) to another nonimmigrant status through U.S. Citizenship and Immigration Services (USCIS) and has a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS can travel to Canada, Mexico or an adjacent island for thirty days or less.
Nonimmigrant who is eligible to re-enter the U.S. pursuant to the authority of automatic revalidation is not able to benefit from the automatic revalidation process if the passport of the nonimmigrant reflects evidence that while in a contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied a new visa application.

For more information about automatic revalidation provisions and reentry to the U.S. visit the Automatic Revalidation Fact Sheet on page 18 of the Carrier Information Guide on CBP.gov. Note: Carrier Information Guide is currently being updated to accurately reflect the countries listed below.

Nationals of Cuba, Iran, Sudan and Syria are not eligible for automatic revalidation of an expired visa.

Overview of the the STEM Jobs Act

STEM Jobs Act of 2012 Press Conference

STEM Jobs Act of 2012 Press Conference (Photo credit: republicanconference)

Via The House Committee on the Judiciary

Graduates of American universities in science, technology, engineering, and math – or “STEM” fields – are behind many of the innovations and new businesses that are part of our present and future economic growth. Talented students from around the world contribute to the graduate STEM programs of our universities. Foreign students receive nearly four out of every 10 master’s degrees awarded in STEM fields and about the same percentage of all doctorates.

But our immigration system does not always put American interests first. We have the most generous level of legal immigration in the world but we select only 5% of our immigrants based on the skills and education they bring to America. Although these foreign graduates of U.S. universities in STEM fields are in great demand by American employers, many of them end up on years-long green card waiting lists. And as a result, many of them give up and go to work for one of our global competitors.

In an ever-competitive global economy, we must keep our country as the world’s greatest source of innovation and creativity. The STEM Jobs Act allows employers to fill their talent needs with foreign graduates of U.S. universities with advanced degrees in STEM so that they can continue creating jobs and growing our economy.”

Read More…

Smith: Senate Democrats Block Jobs Bill

Smith: Senate Democrats Block Jobs Bill

Washington, D.C. – Senate Republicans today asked that the STEM Jobs Act (H.R. 6429) be brought up and passed by Unanimous Consent but Senate Democrats blocked the bill’s consideration.  The STEM Jobs Act eliminates the diversity visa program and reallocates up to 55,000 new green cards to the most highly qualified foreign graduates of American universities with advanced degrees in science, technology, engineering, and math fields.  The bill also contains a provision to put families first, allowing the spouses and minor children of legal permanent residents to come to the U.S. after waiting one year for their green cards.  Last week, the House of Representatives today approved the STEM Jobs Act by a vote of 245-139.

Read More…

How to Apply to and Study in the United States

Pics from Hyderabad Education Fair-Nov. 7th

Pics from Hyderabad Education Fair-Nov. 7th (Photo credit: EducationUSA International Virtual College Fair)

Via studyinthestates.dhs.gov

The application process in the United States may be very different from applying to a school in your home country. Be sure to read about the process before you begin. To ensure that you properly complete all required application materials, follow the steps below:

1. Choose a schoolEducationUSA can help you with information on the process of selecting a school and a program of study in the United States. With over 400 advising centers in 170 countries, EducationUSA represents the largest group of advisers committed to promoting accredited United States higher education institutions to over 14 million students and parents with whom they have contact each year.

All schools that accept F and M students must be certified by the Student and Exchange Visitor Program (SEVP). With almost 10,000 SEVP-certified schools in the United States, you likely can find a college or university in the state and city of your choice.

2. Receive Acceptance and get a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status”: When you find a school you would like to attend, apply to the school as an international student. Contact school officials directly or visit the school’s website for more information on required application materials. When you have received acceptance into an SEVP-certified school, the designated school official will issue you a Form I-20, which is a paper record of your information stored in the Student and Exchange Visitor Information System (SEVIS).

Read More…

Controversial STEM Jobs Act Proposes to transfer 55,000 visas from Diversity Visa Lottery to Masters and Ph.D. Graduates in Science, Technology, Engineering, and Mathematics

Regions and eligible countries for the Diversi...

Eligible countries for the Diversity Visa Lottery (Credit: Wikipedia)

The controversial H.R. 6429, otherwise known as the “STEM Jobs Act” (Rep. Smith, R-TX & 68 cosponsors) proposes to create new “V” visa categories for families awaiting reunification as well as visas for Ph.D and Masters graduates in the science, technology, engineering, and mathematics (STEM) fields.  The Act would, however, eliminate the (poorly implementedDiversity Visa Lottery program that makes green cards available to certain individuals from countries with low rates of immigration to the United States.  The STEM Jobs Act has made it through the House, but will be almost certainly defeated in the Senate, where Democrats hold both a majority and a soft spot for the Lottery.

The White House, despite having repeatedly highlighted the substantial deficiency the nation faces in the STEM fields,  has quickly declared its opposition to the STEM Jobs Act, indicating that it “does not support narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform.”  In other words, the Administration wants immigration reform on an ‘all or nothing’ basis.  This is more than a little puzzling given that during the latest election cycle, President Obama repeatedly raised the issue of the many difficult decisions necessitated in the short-term so as to invigorate the U.S. economy.  This is not one of those difficult decisions.

Basic Facts about In-State Tuition for Undocumented Immigrant Students

Via The National Immigration Law Center

Twelve states currently have laws permitting certain undocumented students who have attended and graduated from their primary and secondary schools to pay the same tuition as their classmates at public institutions of higher education. The states are California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, and Washington. In addition, Rhode Island’s Board of Governors for Higher Education voted unanimously to provide access to in-state tuition at the state’s public colleges and universities to certain students, regardless of their immigration status, beginning in 2012.

 Continue reading article

CBP Discontinues Stamping Form I-20 At Ports of Entry

NAFSA has issued an alert that Customs and Border Protection will no longer stamp I-20s at ports of entry (POEs). USCIS is reaching out to other agencies, such as the DMV, to inform them of the change, since many agencies require the I-20 stamp prior to granting benefits.

CBP Discontinues Stamping Form I-20 At Ports of Entry

NAFSA has issued an alert that Customs and Border Protection will no longer stamp I-20s at ports of entry (POEs). USCIS is reaching out to other agencies, such as the DMV, to inform them of the change, since many agencies require the I-20 stamp prior to granting benefits.

Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.

DOS indicates no changes in student visa policy or adjudication with regards to Indian students

Despite some educational initiatives carried out recently between India and the U.S., State Department spokesperson Victoria Nuland indicated this week that there will be no changes in student visa policy or adjudication with regards to Indian students.

Q & A: Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

VIA USCIS

Introduction

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, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?

A1. 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 through the start date 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 end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does “Cap-Gap” Occur?

A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more 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 FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012.  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, 2012.  Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, 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. 

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?  

A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension. 

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student’s authorized F-1 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 Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30, 2012 unless the petition is denied, withdrawn, 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 or their program 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. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? 

A4. The student should go to their Designated School Official (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 1, 2012. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. 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
of status, the student will have the standard 60-day grace period (from the date of the 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 the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status 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.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status? 

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period 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 for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended? 

A7. F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).   

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension? 

A9. 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 employment authorization related to such a degree, may apply for a 17-month extension of this authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period? 

A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?

A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

§  the student finds employment appropriate to his or her OPT;

§  the period of OPT is unexpired; and

§  the DSO has requested a data fix in SEVIS. 

Note: If the student had to file Form I-539 to request rei
nstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.  

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

A13.Yes.  The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect.  The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date.  This will prevent the student from changing to H-1B status.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE:  This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective da te, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States. 

 

 



Last updated:03/29/2012

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