Recent Updates
H-1B’s Subject to Fiscal Year 2009 Quota
As posted on the American Immigration Lawyers Association (AILA) InfoNet Doc. No. 08061261 (posted Jun. 12, 2008):
USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:
1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The USCIS California and Vermont Service Centers completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.
2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.
3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.
What the above means to our clients: LMAC did not submit duplicate filings, so at this point if we have not received a receipt notice for a cap-subject H-1B petition, it is fairly certain that the case has not been selected in the H-1B lottery this year. We are beginning to receive rejected petitions from USCIS and will advise clients if/when a rejection is received for one of their employees.
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Extensions of F-1 Optional Practical Training (OPT)
“Cap-Gap” Extensions
USCIS published a new rule which “automatically” extends OPT time for students whose H-1B was selected in the FY09 lottery, but whose OPT will expire prior to 10/1/08. This special extension provides the student with continued work authorization and lawful student status in the U.S. through 9/30/08. The H-1B will then take effect on 10/1/08, so the OPT extension serves to avoid any gap in status or employment authorization.
USCIS issued additional guidance indicating that for I-9 (employment verification) purposes, students who are benefiting from the automatic OPT extension must obtain a "cap-gap I-20" from the Designated School Official (DSO) at their university. That is, while the extension of OPT status itself is automatic, there is still this requirement of a new I-20 for work authorization purposes. LMAC recommends that impacted students contact their DSO now to receive this new I-20, as the DSO may be unavailable during the summer break. Note that the DSO will request a copy of the H-1B receipt or approval notice. We forward these documents to the student (in care of the employer) upon receipt. If the DSO requests H-1B documentation which the student doesn’t possess, please contact our office and we will be happy to assist.
17-month OPT Extensions for Science, Technology, Engineering, Mathematics (STEM) Students
USCIS has clarified that in order for STEM students whose petitions were not selected in the H-1B lottery to obtain a 17-month extension to the usual 12-month OPT maximum, the employer must be enrolled in e-Verify at the worksite at which the student will be employed. Previously it was thought that if an employer with multiple worksites enrolled in e-Verify for one worksite, that would be sufficient to cover the student in another worksite; not so.
NAFTA- The Period of Admission for Canadians and Mexicans Eligible for TN Status May Increase from One Year to Three Years
Certain Canadian and Mexican citizens seeking temporary entry to the United States as professionals may obtain TN status under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens who are offered a professional position in the U.S. (generally this means the position must require at least a Bachelor’s degree), and who hold a Bachelor’s degree or certain credentials qualifying them for the position. The TN nonimmigrant category is similar to the H-1B, although the list of qualifying positions under the NAFTA is much narrower than the positions for which an H-1B may be obtained.
USCIS has proposed an amendment to the current Trade-NAFTA (TN) regulations that would increase the maximum amount of time a TN professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the period of admission for TN workers from one year to three years. Please note that Mexican citizens are currently eligible to obtain a three-year visa stamp, however, their admission to the U.S. is currently limited to one year at a time. This proposed rule would change that.
The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year.
TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. However, note that TN status remains a strictly nonimmigrant status, so those with an intention to immigrate to the U.S. may be denied readmission to the U.S. or denied an extension of status; the proposed rule does not change that aspect of TN status.
The proposed changes would also apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents (TD).
The rule should become effective by the end of this year.
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Availability of Immigrant Visas – EB-3 Unavailable effective July 1, 2008
In order for an individual to file an I-485 Adjustment of Status Application (the last stage of the green card process) or for U.S. Citizenship and Immigration Services (USCIS) to complete adjudication of an I-485, there must be an immigrant visa available in the applicant’s category.
Immigrant visa availability also impacts employees who have reached the standard six-year maximum in H-1B status: Those who are at least one year into the green card process may obtain extensions of H-1B status beyond the six years in one-year increments. However, those with an approved I-140 Immigrant Visa Petition who cannot complete the green card process due to immigrant visa quota backlogs are eligible for extensions in three-year increments.
Availability of immigrant visas is monitored by the U.S. Department of State. The Department of State has released the July 2008 Visa Bulletin. In the EB-1 and EB-2 categories, there was no change from the June Bulletin. However, all EB-3 categories will be unavailable as of July 1, 2008.
The Department of State stated that the demand for numbers, primarily by USCIS for adjustment of status cases, will exhaust the numerical limit for the entire EB-3 category by the end of this month. The EB-3 category is expected to remain unavailable for the remainder of FY 2008, which ends on September 30, 2008. We should see availability again in the EB-3 category when the October 2008 Visa Bulletin is issued.
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Employment Authorization Documents – Validity Period Extended to Two Years in Some Cases, Effective June 30, 2008
On June 12, 2008, USCIS announced that effective June 30, 2008, it will begin issuing Employment Authorization Documents (EAD cards) valid for two years, rather than one year as is currently the procedure.
Eligibility criteria for the 2-year EAD:
1) USCIS will grant a 2-year EAD only to adjustment applicants who cannot move forward in the green card process due to immigrant visa quota backlogs.
2) The 2-year validity period is generally only available for EAD extensions; in most cases, first-time EAD applicants will still receive only the 1-year validity period.
Please note that there is no process for applicants and/or their counsel to affirmatively request a 2-year EAD. Rather, USCIS will decide whether to renew an EAD for 2 years instead of 1 year based on the current State Department Visa Bulletin and whether or not an immigrant visa is available for that applicant
It is currently unclear whether immigrant visa availability will be determined at the time of filing of the EAD application, or the time of adjudication of the EAD application.
USCIS will consider issuance of a 2-year EAD for an I-765 EAD application which is pending with USCIS on or after 6/30/08.
The likely reasons for the change in validity period are to reduce the workload for USCIS which the annual EAD renewals cause, and to reduce interruption of employment due to EAD’s which expire annually. For security and fraud prevention reasons, USCIS is also concerned that the cards not carry an unnecessarily long validity period; in the event the underlying I-140 or I-485 is denied the EAD ceases to be valid for employment purposes, although it is facially valid.
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USCIS to Resume Premium Processing for Certain I-140 Petitions on June 16, 2008
USCIS has announced that Premium Processing will be available for selected I-140 Immigrant Visa Petitions. To be eligible to file an I-140 premium processing request, the employee must meet the following criteria:
1) The employee must currently be in the U.S. in valid H-1B nonimmigrant status;
2) The employee must reach the 6th year of his/her H-1B nonimmigrant stay within the next 60 days;
3) The employee has no other means to extend his/her H-1B status without the approval of the I-140 petition. For example, if the employee is eligible for an H-1B extension beyond the 6 years due to the fact that their green card has been in process for more than one year, then they do not need to obtain an H-1B extension under the provision reserved for those who have an I-140 approval but cannot complete the green card process due to immigrant visa quota backlogs.
Premium processing guarantees a response from USCIS (approval, denial, or request for additional evidence) to the I-140 filing within 15 calendar days of receiving the premium processing request. USCIS charges a filing fee of $1,000 for premium processing; LMAC’s legal fee for the premium processing submission is $250.
At this time premium processing for I-140 petitions is not available to foreign workers who have already exhausted their H-1B time and are either in another nonimmigrant status or are outside the US. However, the immigration bar has asked USCIS to reconsider the exclusion of these individuals since they are also in need of immediate relief. We will advise impacted clients if USCIS should change their position to allow I-140 premium processing requests for individuals who are not currently in H-1B status.
We will be contacting clients who have foreign workers that meet the above criteria and who may benefit from I-140 premium processing. We also ask that you also contact our office if you know of foreign workers who may be able be eligible for I-140 premium processing based on the criteria listed above.
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USCIS May Cease Acceptance of Concurrent I-140 Immigrant Visa Petitions with I-485 Adjustment of Status Applications
The Department of Homeland Security will be proposing a change in the near future regarding the procedure for filing employment-based adjustment of status applications.
In the past, the I-140 Immigrant Visa Petition had to be approved before the I-485 Adjustment of Status Application could be filed. Then USCIS switched to the current procedure, which permits an individual to file an I-485 concurrently with the I-140 Immigrant Visa Petition (as long as an immigrant visa number is available under the quota). If/ when the proposed rule takes effect, the concurrent filing option will cease and individuals must once again wait for the I-140 to be approved before they can file the I-485 with USCIS.
Concurrent filing carries certain benefits which would no longer be available should it cease.
1) Reduction of total processing time.
With concurrent filing, the I-140 and I-485 process in tandem, reducing the total processing time. If concurrent filing ceases to be an option, the total time for the green card process will increase for many applicants.
2) Ancillary benefits provided by I-485 filing
The filing of the I-485 carries ancillary benefits, such as (a) the ability to obtain an Employment Authorization Document and Advance Parole (travel) document which are independent from their nonimmigrant visa status; (b) when certain pre-conditions are met, it allows for the green card process to be transferred to a new employer; and (c) it allows children who will soon turn 21 to immigrate with the rest of the family, despite their age.
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