US consulate denies H1B visa curtailment for Indians
USCIS Updates Information on FY2010 H-1B Petition Filings
VIA USCIS.gov
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at http://www.uscis.gov/h-1b_count.
Legislation introduced to limit H-1B and L-1 visa programs
Owner of Mandarin restaurant to be deported after jail
VIA Jacksonville.com
“The co-owner of a popular Jacksonville restaurant received a three-month sentence Monday for harboring illegal aliens and faces certain deportation to his native India.
Sanjit Kumar Rajak, who was head chef and manager of Cilantro Indian Cuisine in Mandarin, will complete his prison sentence in about a week because he has been behind bars since his January arrest. He agreed to a $5,000 fine.
His lawyer, Shawn Arnold, said he expects deportation proceedings to begin immediately, a bitter end for a successful businessman who lived a rags-to-riches story. Arnold said Rajak won’t be allowed to re-enter the United States for five to 10 years.
Rajak admitted hiring four illegal workers and leasing their Sunbeam Road apartment. He has no other criminal record.”
Continue reading:
USCIS Updates Count of FY2010 H-1B Petition Filings
April 20, 2009 H-1B Cap Count
On April 20, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 20, 2009, approximately 44,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.
April 17, 2009 H-1B Cap Count
On April 17, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.
USCIS Updates Count of FY2010 H-1B Petition Filings
VIA USCIS.gov
WASHINGTON April 9, 2009 — USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS
has received approximately 42,000 H-1B petitions counting toward the
Congressionally-mandated 65,000 cap. The agency continues to accept
petitions subject to the general cap.
Additionally, the agency
has received approximately 20,000 petitions for aliens with advanced
degrees; however, we continue to accept advanced degree petitions since
experience has shown that not all petitions received are approvable.
Congress mandated that the first 20,000 of these types of petitions are
exempt from any fiscal year cap on available H-1B visas.
For
cases filed for premium processing during the initial five-day filing
window, the 15-day premium processing period began April 7. For cases
filed for premium processing after the filing window, the premium
processing period begins on the date USCIS takes physical possession of
the petition.
USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.
Related Files
USCIS Updates Count of FY2010 H-1B Petition Filings (26KB PDF)
Advance Copy of DOS Final Rule on Exchange Visitor Program for Au Pairs
[BILLING CODE: 4710-05]
DEPARTMENT OF STATE
22 CFR Part 62
RIN: 1400-AC48
[Public Notice: 6566]
Exchange Visitor Program – Au Pairs
AGENCY: Department of State.
ACTION: Final Rule.
SUMMARY: On June 19, 2008, the Department of State published an interim final rule
to revise existing regulations and thereby permit qualified au pairs to participate again in
the au pair program after completing a period of at least two years of residency outside
the United States following the end date of his or her initial exchange visitor program.
The regulations contained in the interim final rule are adopted without change.
DATES: The interim rule published at 73 FR 34861, June 19, 2008 is adopted as final
without change effective [INSERT DATE OF PUBLICATION IN THE FEDERAL
REGISTER].
FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary, Office of Private Sector Exchange, U.S. Department of State, SA-44, 301 4th
Street, SW, Room 734, Washington, DC 20547; or email at jexchanges@state.gov.
SUPPLEMENTARY INFORMATION: On June 19, 2008, the Department of State
published an interim final rule with request for comments whether to allow a foreign
national who previously participated in the au pair program to repeat the program. One
comment was received in response to the document that had no relevance to the rule.
The Department has determined that an au pair who has successfully completed the au
pair program may repeat program participation provided that he or she has resided
outside the United States for a period of at least two years after the completion of initial
participation in the au pair program (including the educational component requirement)
and is within the regulatory age range for eligibility. An au pair who has previously
participated is likely to be more familiar with the American culture (thereby quickly
overcoming cultural challenges), is a proven successful caretaker, and will be able to
build on the skills previously acquired.
For the foregoing reasons, the Department is promulgating the interim final rule as a
final rule.
REGULATORY ANALYSIS
Administrative Procedure Act
The Department has determined that this final rule involves a foreign affairs function
of the United States and is consequently exempt from the procedures required by 5
U.S.C. 553, pursuant to 5 U.S.C. 553(a)(1).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule has been found not to be a major rule within the meaning of the Small
Business Regulatory Enforcement Fairness Act of 1996.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this rulemaking is exempt from 5 U.S.C. 553, and no other law requires the
Department to give notice of proposed rulemaking, this rulemaking also is not subject to
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order 13272, section
3(b).
Executive Order 12866, as amended
The Department of State does not consider this final rule to be a “significant
regulatory action” under Executive Order 12866, as amended, § 3(f), Regulatory
Planning and Review. In addition, the Department is exempt from Executive Order
12866 except to the extent that it is promulgating regulations in conjunction with a
domestic agency that are significant regulatory actions. The Department has nevertheless
reviewed this rule to ensure its consistency with the regulatory philosophy and principles
set forth in that Executive order.
Executive Order 12988
The Department has reviewed this final rule in light of sections 3(a) and 3(b)(2) of
Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal
standards, and reduce burden.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may result in an annual
expenditure of $100 million or more by State, local, or tribal governments, or by the
private sector. This final rule will not result in any such expenditure, nor will it
significantly or uniquely affect small governments.
Executive Orders 12372 and 13132
This Final Rule will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the distribution of
power and responsibilities among the various levels of government. Therefore, in
accordance with § 6 of Executive Order 13132, it is determined that this rule does not
have sufficient federalism implications to require consultations or warrant the preparation
of a federalism summary impact statement. The regulations implementing Executive
Order 12372 regarding intergovernmental consultation on Federal programs and activities
do not apply to this regulation.
Paperwork Reduction Act
This Final Rule does not impose any new reporting or recordkeeping requirements
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs, reporting and recordkeeping requirements.
PART 62 — EXCHANGE VISITOR PROGRAM
Accordingly the interim rule amending 22 CFR part 62 which was published at 73 FR
34861 on June 19, 2008 is adopted as final without change.
March 30, 2009.
(Date) Stanley S. Colvin,
Deputy Assistant Secretary,
Office of Private Sector Exchange,
Bureau of Educational and Cultural Affairs,
Department of State.
Questions and Answers: Extension of Post Completion Practical Training and F-1 Status for Eligible Students under the Cap Gap Regulations
These Questions & Answers address the automatic extension of F-1
student status in the United States for certain students with pending
or approved H-1B petitions (indicating a request for change of status
from F-1 to H-1B) for an employment start date of October 1, 2009 under
the FY 2010 H-1B cap.
What is the H-1B cap?
The
cap is the congressionally-mandated limit on the number of individuals
who may be granted initial H-1B status or visas during each fiscal
year. For FY 2010, the cap is 65,000.
Not all H-1B beneficiaries
are subject to the cap. Congress has provided that the first 20,000
H-1B petitions filed on behalf of aliens who have earned a U.S.
masters’ degree or higher are exempt from the fiscal year cap. H-1B
petitions filed on behalf of beneficiaries who will work at
institutions of higher education or a related or affiliated nonprofit
entities, or at nonprofit research organizations or governmental
research organizations are exempt from the fiscal year cap. Generally,
H-1B beneficiaries seeking to extend status and/or add employers are
not subject to the cap.
What do Current F-1/H-1B Extension Regulations Allow?
Current
regulations allow certain students with pending or approved H-1B
petitions to remain in F-1 status during the period of time where an
F-1 student’s status and work authorization would otherwise expire, and
up to the start of their approved H-1B employment period. This is
referred to as filling the “cap gap”, meaning the regulations provide a
way of filling the “gap” between F-1 and H-1B status that might
otherwise occur if F-1 status was not extended for qualifying students.
An interim final rule published in the Federal Register last year
authorized a cap gap extension for eligible students. See 73 FR 18944
(April 8, 2008) “Extending Period of Optional Practical Training by 17
Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding
Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.”
How does “Cap-Gap” Occur?
An
employer may not file, and USCIS may not accept, an H-1B petition
submitted earlier than six months in advance of the date of actual need
for the beneficiary’s services or training. As a result, the earliest
date that an employer can file an H-1B petition is April 1, for the
following fiscal year, starting October 1. If USCIS approves the H-1B
petition and the accompanying change-of-status request, the earliest
date that the student may start the approved H-1B employment is October
1. Consequently, F-1 students who do not qualify for a cap gap
extension, and whose periods of authorized stay expires before October
1, are required to leave the United States, apply for an H-1B visa at a
consular post abroad, and then seek readmission to the United States in
H-1B status, for the dates reflected on the approved H-1B petition.
Which petitions and beneficiaries qualify for a cap gap extension?
H-1B
petitions must be timely filed on behalf of an eligible F-1 student.
“Timely filed” means that the H-1B petition (indicating change of
status rather than consular processing) was filed during the H-1B
acceptance period, while the student’s authorized duration of status
(D/S) admission was still in effect (including any period of time
during the academic course of study, any authorized periods of
post-completion OPT, and the 60-day departure preparation period,
commonly known as the “grace period.”)
Once a timely filing has
been made, the automatic cap gap extension will begin and will continue
until the H-1B process has been completed. If the student’s H-1B
petition is selected and approved, the student’s extension will
continue through September 30th unless the petition is denied or
revoked. If the student’s H-1B petition is not selected, the student
will have the standard 60-day grace period from the date of the
rejection notice to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with
their petitioning employer during the cap gap extension period for
status updates on the H-1B petition processing. A Form I-797, Notice of
Action, with a valid receipt number, is evidence that the petition was
filed and accepted.
How does a student covered under the cap gap extension obtain proof of continuing status?
The
student should go to their Designated School Officer (DSO) with
evidence of a timely filed H-1B petition (indicating a request for
change of status rather than for consular processing), such as a copy
of the petition and a FedEx, UPS, or USPS Express/certified mail
receipt. The student’s DSO will issue a preliminary cap gap I-20
showing an extension until June 1st. If the student’s petitioning
employer receives a notice of selection from USCIS, the student should
return to his or her DSO with a copy of the receipt notice, if
possible, for issuance of a new cap gap I-20 indicating the continued
extension of status.
Students can also check the Student and Exchange Visitor Program information from the Related Links section of this page.
What
if the post-completion OPT expired before April 1? It appears that F-1
status would be extended, but would OPT also be extended?
A
student who completed his or her post-completion OPT and who
subsequently was in a valid grace period on April 1, would benefit from
an automatic extension of his or her D/S admission under the cap gap,
if the H-1B petition is filed during the H-1B acceptance period, which
begins on April 1. The employment authorization, however, would not be
extended automatically, because it already expired and the cap gap does
not serve to reinstate or retroactively grant employment authorization.
Is
a student who becomes eligible for an automatic extension of status and
employment authorization, but whose H-1B petition is subsequently
rejected, denied or revoked, still allowed the 60-day grace period?
If
USCIS denies, rejects, or revokes an H-1B petition filed on behalf of
an F-1 student covered by the automatic cap gap extension, the student
will have the standard 60-day grace period (from notification of the
denial, rejection, or revocation of the petition) before he or she is
required to depart the United States..
For denied cases, it
should be noted that the 60-day grace period does not apply to an F-1
student whose accompanying change of status request is denied due to
discovery of a status violation. Such a student in any event is not
eligible for the automatic cap gap extension. Similarly, the 60-day
grace period and automatic cap gap extension would not apply to the
case of a student whose petition was revoked based on a finding of
fraud or misrepresentation discovered following approval. In both of
these instances, the student would be required to leave the United
States immediately.
May students travel outside the United States during a cap gap extension period and return in F-1 status?
The
regulations at 8 CFR 214.2(f)(13) state that a student who has an
unexpired EAD issued for post-completion OPT and who is otherwise
admissible may return to the United States to resume employment after a
temporary absence. By definition, however, the EAD of an F-1 student
covered under a cap gap extension is necessarily expired. As a result,
if the student elects to travel outside the United States during a cap
gap extension, he/she should be prepared to apply for an H-1B visa at a
consular post abroad prior to returning. As the H-1B petition is
presumably for an October 1 or later start date, the student should be
prepared to adjust his/her travel plans, accordingly.
Do the limits on unemployment time apply to students with a cap gap extension?
Yes.
The 90-day limitation on unemployment during the initial
post-completion OPT authorization continues during the cap gap
extension.
If a student was not in an authorized period of OPT
on the eligibility date for the cap gap extension, can the student work
during the cap gap extension?
No. In order for a student
to have employment authorization during the cap gap extension, the
student must be in an approved period of post-completion OPT on the
eligibility date.
May a student eligible for a cap-gap
extension of status and employment authorization apply for a STEM OPT
extension while he or she is in the cap-gap extension period?
Yes.
However, such application may not be made once the cap-gap extension
period is terminated (e.g., rejection, denial, or revocation of the
H-1B petition), and the student enters the 60-day departure preparation
period.
What is a STEM OPT extension?
F-1 students who
receive science, technology, engineering, and mathematics (STEM)
degrees included on the STEM Designated Degree Program List, are
employed by employers enrolled in E-Verify, and who have received an
initial grant of post-completion OPT related to such a degree, may
apply for a 17-month extension. F-1 students may obtain additional
information about STEM extensions on the Student and Exchange Visitor
Program website from the Related Links section of this page.
USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification
WASHINGTON, April 3, 2009 — U.S. Citizenship and Immigration
Services (USCIS) issued a reminder that the revised Form I-9,
Employment Eligibility Verification (Rev. 02/02/09), goes into effect
today for all U.S. employers. The revision date is printed on the lower
right-hand corner of the form.
The interim final rule, published
Dec.17, 2008 in the Federal Register, revised the list of documents
acceptable for the Employment Eligibility Verification (Form I-9)
process. Employers may no longer use previous versions of the Form I-9.
The
revised list improves the security and effectiveness of the Form I-9
process. The list specifies that expired documents are no longer
acceptable forms of identification or employment authorization.
Allowing for expired documents makes it more difficult for employers to
verify an employee’s identity and employment authorization and
compromises the Form I-9 process.
USCIS also updated the
Handbook for Employers – Instructions for Completing Form I-9 to
reflect the requirements of the revised Form I-9.
Employers who do not have computer access can order Forms I-9 by calling our toll-free forms line at 1-800-870-3676.
USCIS
forms and information on immigration laws, regulations, and procedures
can also be requested by calling the National Customer Service Center
toll-free at 1-800-375-5283.
USCIS Continues to Accept FY 2010 H-1B Petitions
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.
The U.S. Immigration Law Blog by Ashwin Sharma 
All Signs Point to Immigration Reform this Year: AILA Optimistic that the President and Congress will Push for CIR this Year
VIA AILA.org
Wednesday, April 30, 2009
CONTACT:
George Tzamaras
202-507-7649
gtzamaras@aila.org
WASHINGTON, DC – The American Immigration Lawyers Association (AILA) is encouraged by events of the past 24 hours as President Barak Obama renewed his Administration’s pledge to pursue comprehensive immigration reform, the Department of Homeland Security’s (DHS) announced its intention to recalibrate its worksite enforcement actions to focus more on criminal prosecutions of employers who knowingly hire unauthorized workers, and the Senate Judiciary Subcommittee on Immigration, Border Security and Citizenship led by Senator Charles Schumer (D-NY), commenced hearings to examine common sense solutions to fixing America’s broken immigration system.
AILA commends Chairman Schumer for sounding the starting gun with an outstanding first hearing. Two expert-laden panels of witnesses made a highly compelling case – covering the moral, economic, business, labor, security and law enforcement angles – for the need to advance immigration reform legislation this year. “The stars seem to be aligning for a major push toward comprehensive immigration reform this year,” said Charles H. Kuck, president of AILA. “Momentum continues to build as more and more of our elected leaders understand that tackling and solving our current immigration crisis will only help strengthen America’s economy and security. The events over the past two days signal that this Administration and Congress get it and will not let this opportunity to finally bring the nation’s legal immigration system into the 21st century pass them by.”
AILA is pleased that DHS is taking steps to restore balance and rationality in its enforcement priorities. Mr. Kuck expressed hopes that the new DHS statement of policy addresses pivotal due process concerns, saying “a retooling of enforcement activities must, first and foremost, ensure the right to counsel of any employees caught up in these actions, and limit or eliminate the abusive practice of transferring detainees away from their communities, families and attorneys. These are indispensable elements of a fair and just system.”
###
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.