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April 8, 2009  

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

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.


April 8, 2009  

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

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.

April 8, 2009  

USCIS Continues to Accept FY 2010 H-1B Petitions

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.

March 13, 2009  

USCIS List of Naturalization Publications and Study Materials

VIA USCIS.gov

On March 10, 2009, USCIS released a list of naturalization publications for applicants, as well as study materials for the naturalization exam.


  • M-476, A Guide to Naturalization (1227KB PDF)

  • M-599, Naturalization Information for Military Personnel (249KB PDF)











    • New Naturalization Test




    In the interest of creating a more standardized, fair, and meaningful naturalization process, U.S. Citizenship and Immigration Services (USCIS) recently completed a multi-year redesign of the naturalization test. The revised test, with an emphasis on the fundamental concepts of American democracy and the rights and responsibilities of citizenship, will help encourage citizenship applicants to learn and identify with the basic values we all share as Americans.


    Redesign Process
    The major aim of the redesign process was to ensure that naturalization applicants have uniform, consistent testing experiences nationwide, and that the civics test can effectively assess whether applicants have a meaningful understanding of U.S. government and history. Following a basic U.S. history and civics curriculum, the new test now serves as an important instrument to encourage civic learning and patriotism among prospective citizens.


    To accomplish these goals, USCIS initially piloted a new test–with an overhauled English reading and writing section, as well as new history and government questions–in ten sites across the country. The feedback from this pilot was then used to finalize testing procedures, English reading and writing prompts, and a list of 100 new history and government questions. To ensure the pilot accounted for a representative sample of candidates with a variety of education levels, the test was also piloted at adult education sites nationwide. 


    Which Test Do I Take?


    An applicant who:



    • Files* the Application for Naturalization, Form N-400, BEFORE October 1, 2008, and is scheduled for his or her naturalization interview ON or AFTER October 1, 2008 up until October 1, 2009, can choose to take the old test or the new test.

    • Files* the Application for Naturalization, Form N-400, ON or AFTER October 1, 2008, will take the new test.


    • Is scheduled for his or her naturalization interview ON or AFTER October 1, 2009, regardless of when he or she filed* the Application for Naturalization, Form N-400, will take the new test.

    *The Application for Naturalization, Form N-400, is properly filed with USCIS on the date it is received by the appropriate USCIS location with signature, correct fee, and the form is completed according to instructions.








    Last updated: 02/11/2009


    •  

    March 13, 2009  

    USCIS Announces New Edition for Form N-400 Posted to Website

    USCIS announced that a January 22, 2009, edition for Form N-400, Application for Naturalization, has been posted to the USCIS website. Certain previous editions are being accepted and are listed on the N-400 webpage.

    March 10, 2009  

    All Cap-Exempt Employer Petitions to be filed at CSC

    VIA AILA

    On January 30, 2008, USCIS announced the centralization of H-1B cap-exempt employer petitions at CSC. In a footnote, USCIS noted that this new policy does not necessarily apply, inter alia, to extensions, and that cap exempt employers requesting an extension or a change of status could continue to file based on jurisdiction.


    At the VSC liaison meeting on March 2, 2009, AILA was advised that the practice of accepting H-1B extensions of status based on 8 CFR 214.2(h)(8)(A) – petitioners who are exempt – was only to assist in the transition and would shortly be terminated. AILA has since learned that effective immediately, all cap-exempt employer cases, including extensions, should be filed at CSC. Petitions mistakenly filed with the VSC will be rejected. The instructions to the I-129 have been amended.

    February 27, 2009  

    USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility

    VIA USCIS.GOV

    WASHINGTON    —U.S. Citizenship and Immigration Services (USCIS) announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008.  The rule streamlines the Employment Eligibility Verification (Form I-9) process. 


    The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted today to the Federal Register.  In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009.


    Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States.  The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9.  Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. 


    The interim final rule and an informational copy of the revised Form I-9 will continue to be available for public comment at http://www.regulations.gov.

    February 19, 2009  

    Resources for New Immigrants

    VIA USCIS.gov

    Resources for New Immigrants



    "Welcome to the United States" collage

    The United States has a long history of welcoming immigrants from all over the world. We value the contributions of immigrants, who continue to enrich this country and preserve its legacy as a land of freedom and opportunity. Though we are a nation of diverse cultures and backgrounds, we are bound by our shared history, the common civic values set forth in our founding documents, and the English language.


    USCIS is committed to helping immigrants successfully integrate into American civic culture. Through the landmark publication Welcome to the United States: A Guide for New Immigrants, USCIS offers a comprehensive guide containing practical information to help immigrants settle into everyday life in the United States, as well as basic civics information that introduces new immigrants to the U.S. system of government. Welcome to the United States: A Guide for New Immigrants is available online in English, Spanish, Chinese, Arabic, French, Haitian Creole, Korean, Polish, Portuguese, Russian, Tagalog, Urdu, and Vietnamese. New permanent residents can request a free copy of the guide in English (Form M-618), Spanish (Form M-618-S), or Chinese (Form M-618-C) from the USCIS Forms Line by calling 1-800-870-3676.


    Welcome to the United States is also available for purchase in English, Spanish, and Chinese through the U.S. Government Printing Office (GPO). To order a print version of this publication, follow the GPO link to the right or call 1-866-512-1800 (toll-free) or 202-512-1800 if you live in the Washington, DC metro area.
     


    *This guide contains information on a variety of topics that are not within the jurisdiction of DHS/USCIS. If you have a question about a non DHS/USCIS issue, please refer directly to the responsible agency or organization for the most current information. The information in this guide is correct at the time of publication; however it may change in the future.


    This page can be found at <a href="http://www.uscis.gov/newimmigrants

    “>www.uscis.gov/newimmigrants




    January 5, 2009  

    Redesigned (New) Naturalization Test

    VIA USCIS.GOV

    In the interest of creating a more
    standardized, fair, and meaningful naturalization process, U.S.
    Citizenship and Immigration Services (USCIS) recently completed a
    multi-year redesign of the naturalization test. The revised test, with
    an emphasis on the fundamental concepts of American democracy and the
    rights and responsibilities of citizenship, will help encourage
    citizenship applicants to learn and identify with the basic values we
    all share as Americans.

    Redesign Process
    The
    major aim of the redesign process is to ensure that naturalization
    applicants have uniform, consistent testing experiences nationwide, and
    that the civics test can effectively assess whether applicants have a
    meaningful understanding of U.S. government and history. Following a
    basic U.S. history and civics curriculum, the redesigned test will
    serve as an important instrument to encourage civic learning and
    patriotism among prospective citizens.

    To accomplish these
    goals, USCIS initially piloted a new test–with an overhauled English
    reading and writing section, as well as new history and government
    questions–in ten sites across the country. The feedback from this pilot
    was then used to finalize testing procedures, English reading and
    writing prompts, and a list of 100 new history and government
    questions. To ensure the pilot accounted for a representative sample of
    candidates with a variety of education levels, the test was also
    piloted at adult education sites nationwide. 

    The resulting
    redesigned test was publicly introduced on September 27, 2007.
    Naturalization applicants will begin taking the revised test on October 1, 2008    .

    Which Test Do I Take?

    USCIS
    will begin administering the redesigned (new) naturalization test on
    October 1, 2008. Use the chart below to determine if you will take
    the old or redesigned (new) test.

    Date Form N-400 Filed*

    Date of Initial Exam

    Test to be Taken

    If Applicant Fails Initial Exam, Re-test to be Taken

    Before October 1, 2008

    Before October 1, 2008

    Old Test

    Old Test

    Before October 1, 2008

    On or After October 1, 2008 up until October 1, 2009

    Applicant’s Choice of
    -Old Test
    or
    -Redesigned (New) Test

    The same version of the test as the one taken during the initial examination

    On or After October 1, 2008

    On or After October 1, 2008

    Redesigned (New) Test

    Redesigned (New) Test

    At Any Time (i.e. Before, On or After October 1, 2008)

    On or After October 1, 2009

    Redesigned (New) Test

    Redesigned (New) Test

    *The Application for Naturalization, Form N-400,
    is properly filed with USCIS on the date it is received by the
    appropriate USCIS Office with signature, correct fee, and the form is
    completed according to instructions.

    This page can be found at http://www.uscis.gov/newtest

    January 2, 2009  

    USCIS Publishes Notice on Revision to Direct Mail Program for N-400s


    [Federal Register: December 23, 2008 (Volume 73, Number 247)]
    [Notices]
    [Page 78818-78820]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr23de08-104]


    =======================================


    ———————————————-


    DEPARTMENT OF HOMELAND SECURITY


    U.S. Citizenship and Immigration Services


    [CIS No. 2457-08; DHS Docket No. USCIS-2008-0036] RIN 1615-ZA74


    Revision to Direct Mail Program for Submitting Form N-400, Application for Naturalization, Implementation of Program


    AGENCY: U.S. Citizenship and Immigration Services, DHS.


    ACTION: Notice.


    —————————————–


    SUMMARY: U.S. Citizenship and Immigration Services (USCIS) is revising its Direct Mail Program so that certain filings of Form N-400, Application for Naturalization, will now be filed at a designated lockbox facility instead of a USCIS Service Center. Furthermore, if you are the spouse of a current member of the Armed Forces, this notice instructs you to now file your Form N-400 at the Nebraska Service Center (NSC), whether you are filing from within the U.S. or abroad. This notice does not change the filing location for Forms N-400 filed by members or certain veterans of the Armed Forces who are eligible to apply for naturalization under sections 328 or 329 of the Immigration and Nationality Act (the Act). All naturalization applicants filing under the military provisions, sections 328 or 329 of the Act, should file their application at the NSC regardless of geographic location.


    DATES: This notice becomes effective January 22, 2009.


    FOR FURTHER INFORMATION CONTACT: Kathleen Stanley, Chief, Lockbox Operations Division, Office of the Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 4th Floor, Washington, DC 20529-2130, Telephone (202) 233-2385.


    SUPPLEMENTARY INFORMATION:


    Background


    What Is the Direct Mail Program?


    The Direct Mail Program allows applicants for certain immigration benefits to send their application or petition directly to a USCIS service center or lockbox facility instead of submitting it to their local USCIS office.



    The Direct Mail Program allows USCIS to:



    Standardize and more efficiently process applications by eliminating duplicative work;


    [[Page 78819]]


    Increase staff productivity; and


    Introduce better information management tools.


    The purpose and strategy of the Direct Mail Program has been discussed in detail in previous rulemaking and notices. (See 59 FR 33903, 59 FR 33985, 60 FR 22408, 61 FR 2266, 61 FR 56060, 62 FR 16607, 63 FR 891, 63 FR 892, 63 FR 13434, 63 FR 13878, 63 FR 16828, 63 FR 50584, 63 FR 8688, 63 FR 8689, 64 FR 67323, 69 FR 3380, 69 FR 4210, 70 FR 30768, 72 FR 3402, 73 FR 50336 and 73 FR 53034.)


    Explanation of Changes


    Will this notice change my eligibility for naturalization?


    No. This notice will not affect your eligibility for naturalization. This notice only affects the filing instructions where certain Form N-400s must be mailed. Some Form N-400s that were previously filed at USCIS Service Centers must now be sent to a designated lockbox facility.


    Please note that applicants filing under the military provision, sections 328 or 329 of the Act, as well as spouses of current members of the Armed Forces, have separate filing instructions. Filing changes will be discussed in detail in the following charts.


    Where should I send my Form N-400 and all supporting documentation?


    Please refer to the following charts for the filing location to send your completed Form N-400 and supporting documentation.


    Armed Forces Applicants and Spouses of Current Members of the Armed Forces


    —————————————————


    see pdf for table


    —————————————————


    —————————————————


    Non-Armed Forces Applicants


    —————————————————


    see pdf for table


    ————————————————–


    [[Page 78820]]


    —————————————————


    What happens if I file a Form N-400 covered by this notice at the wrong location?


    During the first 30 days after this notice takes affect, USCIS will forward incorrectly addressed Form N-400s to the proper address, rather than reject it. USCIS will forward any improperly addressed Form N-400s covered by this notice as follows:


    Any Form N-400 from non-Armed Forces applicants will be forwarded to either the Dallas or Phoenix lockbox facilities.


    Any Form N-400 from Armed Forces applicants and the spouses of current members of the Armed Forces will be forwarded to the Nebraska Service Center.


    Any applications forwarded within this time period will be considered properly filed when received at either the Dallas or Phoenix lockbox facilities, or the Nebraska Service Center. After this 30-day transition period, any Form N-400 covered by this notice, which is received at a location other than the appropriate location as defined in the updated Form N-400 filing instructions provided in this notice, will be returned with an explanation directing the applicant to mail it to the appropriate processing facility.


    Is USCIS amending the Form N-400 Instructions?


    Yes. USCIS is currently amending the instructions to the Form N- 400. The revisions will include the new filing addresses, the requirement for passport style photos and the revision will provide clarification of the grounds for rejection of an application. When available, the new form will be posted on the USCIS Web site (http:// <a href="http://www.uscis.gov).

    “>www.uscis.gov).


    Where may I find information related to eligibility requirements for naturalization?


    You may find general eligibility requirements for naturalization at our Web site (http://www.uscis.gov). You may also download “A Guide to Naturalization (Form M-476),” which provides information on the benefits and responsibilities of citizenship, an overview of the naturalization process, and eligibility requirements.


    Paperwork Reduction Act


    We will be amending the instructions to the Form N-400 to reflect the new filing instructions. Accordingly, we will provide the Office of Management and Budget with a copy of the amended form through the automated Regulatory Office Combined Information System (ROCIS). Changing the filing instructions will not have any effect on the reporting burden hours. The OMB control number for this collection is 1615-0052.


    Dated: December 17, 2008.
    Michael Aytes,
    Acting Deputy Director, U.S. Citizenship and Immigration Services.
    [FR Doc. E8-30531 Filed 12-22-08; 8:45 am]


    BILLING CODE 9111-97-P

    January 2, 2009  

    USCIS burdens computer consulting companies

    Via IndiaPost.com


    “Recently, the USCIS started issuing a slew of Requests for Evidence (“RFEs”), specifically targeting computer consulting companies, even companies that are well established. RFEs are issued after an employer files an H-1B petition on behalf of a foreign employee.


    These lengthy and detailed RFEs, some 4 to 5 pages long, are issued where a new employer files either a new H-1B petition or an H-1B extension or where the same employer requests continuation of previously approved employment without change in employer.


    The RFEs have become a source of confusion and frustration for Petitioners and immigration practitioners alike who are unable to comprehend why the submitted documentation is not sufficiently persuasive on a particular issue. “

    Continue Reading

    January 2, 2009  

    USCIS H-1B Benefit Fraud & Compliance Assessment


    BACKGROUND: The Office of Fraud Detection and National Security (FDNS), a Division of the National Security and Records Verification (NSRV) Directorate, drafted this report, in collaboration with the other USCIS Directorates and the USCIS Office of Chief Counsel. All USCIS components reviewed the cases involving fraud or technical violations and the proposed enhancements to the H-1B program and concurred on the report.

    <A href="/files/4941-4844/uscis_h1b_audit_report.pdf”>View Report

    October 16, 2008  

    USCIS Publishes Final Rule on Period of Admission and Extension of Stay for TNs (Updated 10/16/08)

    VIA USCIS

    [Federal Register: October 16, 2008 (Volume 73, Number 201)]
    [Rules and Regulations]
    [Page 61332-61336]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr16oc08-2]

    —————————————–

    DEPARTMENT OF HOMELAND SECURITY

    U.S. Citizenship and Immigration Services

    8 CFR Parts 214 and 248

    [CIS No. 2429-07; DHS Docket No. USCIS-2007-0056]

    RIN 1615-AB64

    Period of Admission and Extension of Stay for Canadian and Mexican Citizens Engaged in Professional Business Activities–TN Nonimmigrants

    AGENCY: U.S. Citizenship and Immigration Services, DHS.

    ACTION: Final rule.

    —————————————–

    SUMMARY: The Department of Homeland Security (DHS) is amending its regulations to allow an increased period of admission and extension of stay for Canadian and Mexican citizens who seek temporary entry to the United States as professionals pursuant to the TN classification, as established by the North American Free Trade Agreement (NAFTA or Agreement). This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term “TC” (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with “TN.” This rule will reduce the administrative burden of the TN classification on USCIS, and will ease the entry of eligible professionals to the United States.

    DATES: This final rule is effective October 16, 2008.

    FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications Officer, Business and Trade Services, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone (202) 272-8410.

    SUPPLEMENTARY INFORMATION:

    I. Background

    A. NAFTA and the TN Classification

    NAFTA and the NAFTA Implementation Act, Public Law 103-182, redesignated section 214(e) of the Immigration and Nationality Act (INA) to create the “trade NAFTA” (TN) nonimmigrant classification and provide for the temporary entry of qualified business persons from each of the countries that signed the Agreement. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry as business persons to engage in professional business activities at a professional level in the United States. 8 CFR 214.6(a). DHS regulations currently require that TN nonimmigrants may be admitted to the United States for a period not to exceed one year. 8 CFR 214.6(e). The regulations further provide that TN professionals may apply for extensions of stay for a maximum period of one year. 8 CFR 214.6(h)(1).

    B. Proposed Rule

    On May 9, 2008, DHS published a notice of proposed rulemaking in the Federal Register at 73 FR 26340 proposing a change in the period of admission and extension of stay granted to TN nonimmigrants from Canada and Mexico engaged in professional business activities. The notice also proposed granting the same period of admission or extension of stay to TN dependents (TD nonimmigrants), removing outdated references to specific filing locations and prior requirements, and replacing the outdated term TC with the current TN term. Written comments to the proposed rule were due on or before June 9, 2008.

    In this final rule, DHS is adopting the proposed rule with no changes. The proposed rule was, and this final rule is, intended to improve the administration of the TN program and make it more flexible and attractive to Canadian and Mexican professionals and to employers in the United States. Currently, DHS regulations require TN nonimmigrants, to either seek readmission in TN status or apply for extensions of stay annually if they wish to remain in the United States beyond the period of their initial admission. 8 CFR 214.6(h). This requirement involves the annual submission of documentation and payment of filing fees. By removing these types of administrative requirements on TN employees and their U.S. employers, DHS will further the intent of NAFTA to facilitate the entry of eligible professionals into the United States.

    II. Comments Received in Response to the Proposed Rule

    DHS received 80 comments in response to the proposed rule. The majority of commenters (76) supported this rulemaking. Many of these 76 commenters suggested additional changes or enhancements to the TN classification regulations which were not part of the proposed rule. Two commenters opposed the proposed rule. One of these two commenters asked questions about lawful permanent residence and educational opportunities for aliens in the TN classification, but did not express an opinion on the proposed rule. The second of these two commenters simply complained about a perceived slight to U.S. workers contained in another public comment. Many of the received comments raised issues that are beyond the scope of this rulemaking but will be mentioned briefly as part of this disposition of the comments.

    A. Increase to Three Years for Admissions and Extensions of Stay

    Comments on period of admission: The overwhelming majority of the commenters supported increasing the period of admission and extensions of stay granted to TN nonimmigrants from one to three years. Only two commenters opposed this proposal because they thought that jobs should be offered to U.S. workers rather than to foreign nationals. One commenter stated that the U.S. economy is suffering and jobs should thus be reserved for U.S. workers. The other commenter stated that the United States is presently flooded with immigrants and the TN program should be shut down while the country sorts out the problems with illegal immigrants present in the United States, and also made additional comments about aliens, politicians and the U.S. government in general.

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    Response to comments on period of admission: DHS has not adopted these comments in opposition. This rule does not make it easier to hire TN nonimmigrants by altering eligibility requirements, changing existing filing fee requirements, or expanding the principle of “dual intent.” Rather, this rule simply increases the amount of time granted to a TN nonimmigrant once all eligibility requirements have been established. This rule has nothing to do with permanent immigration or illegal immigrants presently within the United States.

    B. Other Comments

    Comments on dual intent: Thirteen commenters requested that TN nonimmigrants be granted “dual intent” and thereby be allowed to pursue permanent resident status while present in the United States in nonimmigrant status similar to the H-1B and L-1 nonimmigrant programs.

    Response to comments on dual intent: The dual intent doctrine holds that even though a nonimmigrant visa applicant has previously expressed a desire to enter the United States as an immigrant, and may still have such a desire, that does not of itself preclude USCIS from issuing a nonimmigrant visa to him or her nor preclude his or her being a bona fide nonimmigrant. Matter of H-R-, 7 I&N Dec. 651, 654 (INS Reg. Comm’r 1958). See also INA section 214(h) (limiting dual intent to certain H, L, and V nonimmigrants); 8 U.S.C. 1184(h). Dual intent cannot be provided solely through regulation; it must be authorized by statute and it is not authorized in the TN nonimmigrant context. Furthermore, temporary entry, as defined in Chapter 16 of the NAFTA, Article 1608, is “entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.” Congressional approval of this Article in the NAFTA treaty indicates that Congress did not intend TNs to have dual intent. Therefore, the commenters’ suggestion will not be adopted because it is clearly inconsistent with Article 1608 and Congressional intent.

    Comment on inability of Mexican TN nonimmigrants to apply for admission at the border: One commenter requested that Mexican TN nonimmigrants be able to apply for admission at designated ports-of- entry similar to Canadian TN nonimmigrants. Currently, Mexican workers are required to obtain visas from the Department of State (DOS) before entering the United States.

    Response to comment on inability of Mexican TN nonimmigrants to apply for admission at the border: DHS appreciates the suggestion made by this commenter but the suggestion is outside the scope of this regulation. This rule deals with increasing the period of time granted to a TN nonimmigrant upon admission or pursuant to a timely filed request for extension of stay from a maximum of one year to a maximum of three years. Any additional regulatory changes, including a change to the place of admission, exceed the scope of this rule The commenter’s suggestion, therefore, is not adopted.

    Comment on advance approval of Canadian admission requests: One commenter requested that Canadian TN nonimmigrants be permitted to file petitions with USCIS Service Centers for admission as an alternative to requesting admission at U.S. ports-of-entry, so that applications for TN status can be approved in advance of entry dates rather than requiring intended employees to actually apply for status before knowing whether their applications will be approved.

    Response to comment on advance approval of Canadian admission requests: DHS appreciates the suggestion made by this commenter. However, such reform exceeds the scope of the changes in the proposed rule and is not adopted in this final rule. The suggestion may be considered for future rulemaking involving TN nonimmigrants.

    Comments on erroneous periods of admission: Several commenters suggested that some TN nonimmigrants have erroneously been admitted for three years instead of a validity period of one year. Thus, one commenter requested that this rule should have a retroactive effective date to correct this problem.

    Response to comments on erroneous periods of admission: DHS understands these commenters’ concerns. However, TN nonimmigrants who were admitted for a period of more than the one-year were granted that period of admission in violation of 8 CFR 214.6(e) as it existed prior to this rulemaking. Petitions must be processed in accordance with the regulations in effect when submitted, and this rule cannot deem those who were erroneously granted more than one year in the past to meet the requirements in this rule by making its provisions retroactive. Therefore, the commenter’s suggestion was not adopted. Each TN nonimmigrant erroneously admitted for periods of three years prior to the effective date of this rulemaking is encouraged to correct his or her Form I-94 at a port-of-entry or deferred inspection station to ensure compliance with existing regulations and to ensure that he or she does not remain in the U.S. for a period longer than is authorized by law.

    Miscellaneous comments: Several commenters requested a more comprehensive reform of the TN regulations to include the following: more extensive definitions for the positions of Management Consultant and Scientific Technician/Technologist; increased vigilance against TN fraud; the establishment of clear guidelines in determining a “closely related” degree; an increase in the fee for port-of-entry processing of each TN application; a 30-day period during which the TN worker could enter the U.S. before the employment start date and/or remain outside the country without having the TN status invalidated; and work authorization for the spouses of TN nonimmigrants.

    Response to miscellaneous comments: DHS appreciates the suggestions made by the commenters. However, such comprehensive reform of the TN program exceeds the scope of the proposed rule, which was simply focused on allowing TN nonimmigrants and their employers a more stable and predictable period of employment. Therefore, the commenters’ suggestions are not adopted in this rule.

    III. Regulatory Requirements

    A. Regulatory Flexibility Act

    1. Initial Regulatory Flexibility Analysis

    DHS reviewed this rule in accordance with the Regulatory Flexibility Act and determined that this rule will reduce compliance costs on the regulated industries. This rule will reduce information collection costs for the public, and will reduce USCIS legal costs and the amount of fees collected, because TN and TD status holders will not have to renew their statuses each year. There are no provisions in this rule that add compliance costs. Therefore, DHS certifies that this rule would not have a significant economic impact on a substantial number of small entities.

    2. Final Regulatory Flexibility Analysis (FRFA)

    In accordance with 5 U.S.C. 604, DHS performed a final regulatory flexibility analysis regarding the economic effects of this rule on small entities. DHS has not identified any duplication, overlap, or conflict of this rule with other Federal rules. Since DHS does not foresee the rule having an economic impact on small entities, this rule does not put forth significant alternatives to minimize impacts. The rule benefits the United States by reducing burden in the TN nonimmigrant status program. No

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    cost increases due to the revised requirements are expected. USCIS invited the public to comment on the extent of any potential economic impact of this rule on small entities, the scope of these costs, a more accurate means for defining these costs, and the estimated cost to petitioning firms to comply with the new requirements. In response to those requests, USCIS received no comments. Therefore, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, no further regulatory flexibility analysis is required.

    B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

    C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets.

    D. Executive Order 12866 (Regulatory Planning and Review)

    This rule has been designated as a “significant regulatory action” by the Office of Management and Budget (OMB) under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, an analysis of the economic impact of this rule has been prepared and submitted to the Office of Management and Budget (OMB) for review.

    DHS has determined that this rule decreases the costs imposed by the TN nonimmigrant program on the government as well as the public. The changes made by this rule will result in more satisfaction with the TN program among TN nonimmigrants and their U.S. employers by increasing program flexibility and reducing time and travel restrictions. The expected effect is an increase in the number of TN nonimmigrants in the United States. A small economic benefit may result from the increased availability of scarce workers for U.S. employers in particular fields and industries. This rule will result in cumulative TN application fees decreasing by approximately $2.4 million per year. In addition, the total paperwork burden costs on the public will decrease by about 12,225 hours and $340,000 as a result of fewer required filings. Eventually, DOS and U.S. Customs and Border Protection annual fee collections from TN nonimmigrants will also decrease as a result of this rule. A copy of DHS’ complete analysis is available in the rulemaking docket for this rule at www.regulations.gov, under Docket No. USCIS-2007-0056, or by calling the information contact listed above.

    E. Executive Order 13132 (Federalism)

    This rule will have no 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, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rulemaking does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. However, by requiring TN and TD status renewals every three years instead of every year, this rule will reduce the volume of Form I-129, Petition for Nonimmigrant Worker, filings, Form I-907, Request for Premium Processing Service, filings, and Form I-539, Application To Extend/Change Nonimmigrant Status, filings per year, and so will reduce the aggregate paperwork burden on the public accordingly. Accordingly, USCIS has submitted the OMB Correction Worksheets (OMB-83C) to the Office of Management and Budget, reducing the burden hours and costs associated with these forms.

    List of Subjects

    8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Reporting and recordkeeping requirements.

    8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

    PART 214–NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1258, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.

    Sec. 214.1 [Amended]

    2. Section 214.1 is amended by:

    a. Removing the designation “Cdn FTA, Professional” and “TC” from the list in paragraph (a)(2);

    b. Removing the term “TC” and adding “TN” in its place in the first sentence in paragraph (c)(1).

    3. Section 214.6 is amended by:

    a. Revising the section heading and revising paragraphs (e), (g), and (h);

    b. Redesignating paragraphs (j)(1), (j)(2) and (j)(3) as paragraphs (j)(2), (j)(3), and (j)(4), respectively;

    c. Adding a new paragraph (j)(1);

    d. Revising newly redesignated paragraphs (j)(2), (j)(3), and (j)(4); and by

    e. Revising paragraph (k);

    The addition and revisions read as follows:

    Sec. 214.6 Citizens of Canada or Mexico seeking temporary entry under NAFTA to engage in business activities at a professional level.

    * * * * *

    (e) Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend “multiple entry.” The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form.

    * * * * *

    (g) Readmission. (1) With a Form I-94. An alien may be readmitted to the

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    United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.

    (2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant’s original Form I-94 with the legend “multiple entry” and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:

    (i) For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).

    (ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.

    (h) Extension of stay. (1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:

    (i) An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the form instructions with USCIS.

    (ii) The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.

    (iii) An extension of stay in TN status may be approved by USCIS for a maximum period of three years.

    (iv) There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.

    (2) Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section.

    * * * * *

    (j) * * * (1) The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status, if otherwise admissible, may be admitted initially, readmitted, or granted a change of nonimmigrant status or an extension of his or her period of stay for the same period of time granted to the TN nonimmigrant. Such spouse or unmarried minor children shall, upon approval of an application for admission, readmission, change of status or extension of stay be classified as TD nonimmigrants. A request for a change of status to TD or an extension of stay of a TD nonimmigrant may be made on the appropriate form together with appropriate filing fees and evidence of the principal alien’s current TN status.

    (2) The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be required to present a valid, unexpired TD nonimmigrant visa unless otherwise exempt under 8 CFR 212.1.

    (3) The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be issued confirming documentation bearing the legend “multiple entry.” There shall be no fee required for admission of the spouse and unmarried minor children.

    (4) The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall not accept employment in the United States unless otherwise authorized under the Act.

    (k) Effect of a strike. (1) If the Secretary of Labor certifies or otherwise informs the Director of USCIS that a strike or other labor dispute involving a work stoppage of workers is in progress, and the temporary entry of a citizen of Mexico or Canada in TN nonimmigrant status may adversely affect the settlement of any labor dispute or the employment of any person who is involved in such dispute, the United States may refuse to issue an immigration document authorizing the entry or employment of such an alien.

    (2) If the alien has already commenced employment in the United States and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Department of Labor, or whether USCIS has been otherwise informed that such a strike or labor dispute is in progress, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:

    (i) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated in the same manner as all other TN nonimmigrants;

    (ii) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and

    (iii) Although participation by a TN nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for removal, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to removal.

    (3) If there is a strike or other labor dispute involving a work stoppage of workers in progress but such strike or other labor dispute is not certified under paragraph (k)(1) of this section, or USCIS has not otherwise been informed by the Secretary that such a strike or

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    labor dispute is in progress, Director of USCIS shall not deny a petition or deny entry to an applicant for TN status based upon such strike or other labor dispute.

    PART 248–CHANGE OF NONIMMIGRANT CLASSIFICATION

    4. The authority citation for part 248 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

    Sec. 248.3 [Amended]

    5. Section 248.3 is amended by removing the term “TC” and adding the term “TN” in its place in the first sentence of paragraph (a).

    Dated: September 15.
    Michael Chertoff,
    Secretary.
    [FR Doc. E8-24600 Filed 10-15-08; 8:45 am]

    BILLING CODE 9111-97-P

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