H-1B Cap Count – as of April 5, 2012 – Double the cases filed as compared to last year about this time
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
The Impact of Counting Changes on Nonimmigrant Admissions: Preliminary Findings
A new H-1B Beneficiary attestation in use by the U.S. Consulate, Hyderabad. H-1B workers attest the document only if they are to be engaged by a Consulting Firm.
- I have read and understand the Wilberforce pamphlet.
- The petitioner is _____________
- The petitioner supervisor is _____________ with a principle location of _____________
- The number of petitioner employees at the work site is_____________
- My primary work location is _____________
- The end-client for my work is _____________
- The end-client supervisor is _____________
- The _____________ supervisor is located ‘offsite’ and is not regularly employed for the predominant part of the workday/work week/work month at the site where I work.
- Contact with the _____________ supervisor is limited to weekly visits to the _____________ office and occasional Petitioner supervisor visits to end-client work sites.
- The principle day-to-day management is conducted by the client, _____________
- The client, _____________, provides the tools and equipment (including any software and operating environment) needed for the job.
- The petitioner, _____________, makes primary hiring firing and promotional decisions.
- Petitioner supervisor sits down at end-client location and reviews code, does not rely on on-site Petitioner supervisor for evaluation purposes.
- The petitioner, _____________ claims Beneficiary for tax purposes
- The petitioner, _____________ provides primary benefits, such as life/medial insurance etc.
- The petitioner _____________ does not provide any primary/key proprietary tools or applications for the work.
- I produce a product related to Petitioner’s line of business.
- The client, _____________ makes the main development and product decisions for the end product I produce.
IMMIGRATION ATTORNEY APPLAUDS NEWLY ANNOUNCED DHS REFORMS IN FURTHERANCE OF ATTRACTING AND RETAINING HIGHLY SKILLED IMMIGRANTS/INVESTORS AND CALLS FOR PARALLEL CHANGES IN THE U.S. CONSULAR PROCESSING SYSTEM
The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:
1. The Creation of a “Startup Visa,”
2. Strengthening the H-1B nonimmigrant professional program,
and
3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.
The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.
Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors. It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy. Our various immigration departments and agencies are interpreting the same laws differently. The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates. Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”
Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection. However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad. These employee(s) may be held abroad for months or years, away from their family, home and of course, job. U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”
“A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B. Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS. Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context. This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010. Unfortunately, no one seems to have issued the revisions to the Consulates. Further, it appears that a substantial percentage of such H-1B visa denials may be improper. This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication. For example, 9 FAM 41.53(d) states that,”
“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”
Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,
“…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”
Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own. This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”
“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”
Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”. Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”
“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”
Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”
“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “
Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”
“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration. Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”
Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently. Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system. These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level. This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system. I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”
HR 3012, the Fairness for High-Skilled Immigrants Act Update
Transcript: Press Conference on Initiatives to Promote Startup Enterprised and Spur Job Creation, Aug. 2, 2011
Georgia Legislature passes HB 87
On 4/14/11, the Georgia Legislature passed HB 87, an immigration enforcement bill that
ICE and CBP officials return artifacts to the People’s Republic of China
WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) Deputy Director Kumar Kibble and U.S. Customs and Border Protection (CBP) Deputy Commissioner David V. Aguilar repatriated a number of ancient Chinese artifacts seized as a result of operations by ICE’s Homeland Security Investigations (HSI) and CBP offices in New York and Anchorage and ICE HSI in Albuquerque.
Most of the objects being repatriated today were part of Operation Great Wall, an initiative targeting illicit importations originating from the People’s Republic of China. Following the signing of a bi-lateral agreement between the United States and the People’s Republic of China in 2009, both countries have been working together closely to prevent the illicit trafficking of archaeological objects.
“The items we are returning to the People’s Republic of China today are delicate, but tangible, ancient works of art that are an important part of China’s heritage,” said Kibble. “While seizing, forfeiting and repatriating these treasures is indeed reason for celebration, our long-term goal is to reduce the incentive for further destruction of ancient tombs and temples, where so many of these objects are dug up or chiseled off and pilfered.”
“CBP is pleased to help return these precious antiquities of Chinese cultural history to the citizens of the People’s Republic of China,” said Aguilar. “CBP remains committed to working alongside our ICE HSI partners to intercept and repatriate priceless artifacts.”
The artifacts being returned include:
- 2 Northern Wei Dynasty terracotta horses – A.D. 386-535
- Northern Qi Dynasty limestone Buddha – A.D. 550-577
- 7 Sui Dynasty Pottery Horses with Riders – A.D. 581-618
- Tang Dynasty Horse Sculpture – A.D. 618-907
- Song Dynasty Bodhisattva head – A.D. 960-1279
- Ming Dynasty Stone Frieze – A.D. 1368-1644
- Qing Dynasty Ceramic Vase – A.D. 1616-1840
These pottery sculptures of horses and riders from the Sui and Tang Dynasties were likely buried in tombs. Having a horse was a sign of wealth, and only those of a certain rank were allowed to use them. The tombs these likely came from were therefore those of aristocrats.
While the Northern Qi Dynasty is usually considered a period of political unrest, it is known to art historians as a time when the arts flourished through interaction between Chinese and non-Chinese artisans. This particular sculpture may belong to some now-destroyed temple.
ICE HSI plays a leading role in investigating crimes involving the illicit importation and distribution of cultural property. ICE HSI uses its investigative authority to seize cultural property items if they were illegally imported into the United States. It also investigates the illegal trafficking of artwork, especially works that have been reported lost or stolen. ICE’s Office of International Affairs, through its 67 attaché offices worldwide, works closely with foreign governments to conduct joint investigations, when possible.
CBP is the nation’s lead border security agency and is charged with enforcing hundreds of laws at and between our nation’s 327 international ports of entry. As part of that mission, CBP enforces bi-lateral agreements and import restrictions on certain foreign cultural property and archaeological materials. CBP works closely with ICE and other federal, state and local law enforcement agencies to prevent the illegal trade and trafficking of cultural antiquities. CBP partners with ICE to ensure that illegally traded and trafficked antiquities are returned to their rightful owners.
ICE HSI agents undergo special training sessions funded by the State Department and held at the Smithsonian museums and research facilities before they begin working cultural property cases. Smithsonian staff provided behind-the-scenes introduction to objects from regions that are at greatest risk of looting and trafficking, as well as practical skills training in handling, photographing, recording and packing objects.
More than 2,300 artifacts have been returned to 18 countries since 2007 including paintings from France, Germany and Austria, an 18th century manuscript from Italy, and a bookmark belonging to Hitler as well as cultural artifacts from Iraq including Babylonian, Sumerian, and neo-Assyrian items.
Agencies involved in the seizure and investigation of the items being repatriated today include ICE HSI and CBP in New York and Anchorage and U.S. Fish and Wildlife in Albuquerque.
H-1B Cap Exemptions Based on Relation or Affiliation
Update as of March 18, 2011
WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.
Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.
Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.
USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.
The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. Unless determined to be exempt, H-1B petitions are subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption. By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.
Evidence of previous determinations of cap exemption, as discussed in this Update, will be considered on a case by case basis only when submitted with a Form I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. Petitioners are accordingly advised not to send separate correspondence containing their cap-exemption evidence to USCIS on this issue.
Last updated:03/18/2011
USCIS Reminds Japanese Nationals Impacted by Recent Disaster
|
Released: March 17, 2011 WASHINGTON—In light of the recent earthquakes and tsunami in Japan, U.S. Citizenship and Immigration Services (USCIS) reminds Japanese nationals of certain U.S. immigration benefits available upon request. USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status. Temporary relief measures available to eligible nationals of Japan may include:
Visitors traveling under the Visa Waiver Program may visit a USCIS local office for assistance. Japanese nationals who are at a U.S. airport may contact the U.S. Customs and Border Protection office there.
Last updated:03/17/2011 |
USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.
The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.
USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap.
Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:
-
Institutions of higher education or related or affiliated nonprofit entities;
-
Nonprofit research organizations; or
-
Governmental research organizations.
Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. 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; and
-
Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition.
For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.
Last updated:03/18/2011
The U.S. Immigration Law Blog by Ashwin Sharma 
A National Foundation for American Policy report finds Indian applicants for L-1 and H-1Bs are most likely to be denied or issued an RFE query; L-1 cases for Indian Professionals have been denied up to five times as often as someone from a different count
First page of the US Chinese Exclusion Act (Photo credit: Wikipedia)
A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.
Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new “H-1B Beneficiary attestation” evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].
By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.
Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”
Contrast these words with the following excerpts from the NFAP report:
Read the NFAP findings (.pdf)