News from the Alliance of Business Immigration Lawyers Vol. 6, No. 4B • April 15, 2010
Headlines:
1. Few H-1 Petitions Filed So Far – USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap.
2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations – The Q&A explains the cap-gap and other details.
3. Dept. of State Discusses Visa Number Availability – The Mexico employment third and “Other Worker” categories have become “unavailable,” and a cut-off date may need to be established for the employment fourth preference category as early as June.
4. Publications and Items of Interest – Publications and Items of Interest
5. Government Agency Links – Government Agency Links
Details:
1. Few H-1 Petitions Filed So Far
U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2010, that it continues to accept H-1B nonimmigrant petitions subject to the fiscal year (FY) 2011 cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.
USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees. This is lower than the number of H-1B petitions USCIS had received by the same date in 2009. If this trend continues, H-1B numbers may be available for some time.
When USCIS receives the necessary number of petitions to meet the cap, it will issue a public update that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.
USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.
For cases filed for premium processing during the initial five-day filing window of April 1-7, 2010, 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 that the petition is physically received at the correct USCIS Service Center.
Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.
USCIS’s notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=49d412db62fd7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations
U.S. Citizenship and Immigration Services (USCIS) released a Q&A (questions and answers) document on April 2, 2010, that addresses 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, 2010, under the fiscal year (FY) 2011 H-1B cap.
The Q&A notes that 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 for the following fiscal year is April 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 the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the U.S., apply for an H-1B visa at a consular post abroad, and then seek readmission to the U.S. in H-1B status for the dates reflected on the approved H-1B petition.
H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. 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 Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to prepare for and depart the U.S.
USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”
The Q&A, which includes details about how to obtain proof of continuing status under the cap-gap extension, limitations on travel and unemployment, and other information, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
3. Dept. of State Discusses Visa Number Availability
Due to continued heavy applicant demand, primarily by U.S. Citizenship and Immigration Service offices for adjustment of status cases, the annual limits for the Mexico employment third and “Other Worker” categories have been reached. As a result, both categories have become “unavailable,” the Department of State Visa Bulletin for May 2010 notes. Visa numbers will become available once again in October with the start of the new fiscal year.
The Visa Bulletin for May 2010 also notes that applicant demand for employment fourth preference numbers remains very heavy. It is likely that a cut-off date will need to be established in an effort to keep number use within the annual limits. Depending upon number use, this action could occur as early as June, the Visa Bulletin warns.
The May Visa Bulletin also notes that during the past 15 months, the demand for numbers in the family-sponsored preference categories has been very low. As a result, cut-off dates for most family preference categories have been advancing at a very rapid pace in an attempt to generate demand so that the annual numerical limits may be fully used. The Visa Office warns that if demand for family-sponsored green cards begins to materialize, cut-off date movements may begin to slow or stop.
The May Visa Bulletin includes a reminder that any changes of address for applicants processing their case overseas should be reported to the National Visa Center so that information regarding the processing of the case at an overseas post may be sent to the applicant. The May Visa Bulletin notes:
When contacting the National Visa Center (NVC) directly about an immigrant visa application case, always include the following information:
- The NVC case number
- Name of the principal applicant
- Principal applicant’s date of birth
- Name of the petitioner
- Petitioner’s date of birth
The public may submit inquiries to the NVC via e-mail at: [email protected].
[T]o ensure a prompt response:
- Provide the relevant NVC Case Number on the subject line of the e-mail.
- Provide the applicant’s name and date of birth, and the petitioner’s name and date of birth.
- Provide the name of the law office requesting information.
- Provide the name of the employer if the petition is employment based.
- Refer to only one case per e-mail message.
Customer Service
Telephone operators are available to respond to inquiries Monday through Friday from 7:30 am until 12:00 am (EST). Please call (603) 334-0700
Postal Mail
National Visa Center
Attn: WC
31 Rochester Avenue, Suite 200
Portsmouth, NH 03801-2915
The May 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4805.html.
4. Publications and Items of Interest
Labor certification planning guidance for SWAs. The Department of Labor’s Employment and Training Administration released a guidance letter on April 6, 2010, to State Workforce Agencies (SWAs). The letter defines the roles SWAs play in programs administered by the Office of Foreign Labor Certification (OFLC), among other things. The letter notes that labor certification programs are undergoing a number of changes in fiscal year 2010, such as the inclusion of the Commonwealth of the Northern Mariana Islands under U.S. immigration laws; centralization of prevailing wage determinations in the National Prevailing Wage and Helpdesk Center; and the effects of the amended H-2A regulations on SWA responsibilities.
The letter is available at http://wdr.doleta.gov/directives/attach/TEGL/TEGL20-09.pdf.
Evaluation of limited English proficient and Hispanic Worker Initiative. This report by the Department of Labor’s Employment and Training Administration discusses the design of the five Limited English Proficient and Hispanic Workforce Initiative (LEPHWI) projects; describes implementation activities to recruit participants and employers and to develop and deliver training; and describes partnerships to address the needs of LEP individuals during training and placement. The report presents the outcomes for each project, draws comparisons across all five projects in key program areas, and identifies promising practices. The LEPHWI was a strategic effort to improve access to employment and training services for LEP persons and to better serve Hispanic workers through workforce investment programs that address their specific employment challenges, including language and occupational skills.
The report is available at http://wdr.doleta.gov/research/FullText_Documents/Evaluation%20of%20the%20Limited%20English%20Proficiency%20and%20Hispanic%20Worker%20Initiative%20Final%20Report.pdf.
International education and immigration reform. There is near-universal agreement that the U.S. immigration system is broken, but much less agreement on how to fix it. NAFSA: Association of International Educators argues that Congress must recognize the pivotal role of international education and include reforms that expand the United States’ ability to attract foreign students and scholars from around the world. NAFSA urges Congress to adopt the following reforms:
- Address the visa and immigration challenges foreign students and scholars continue to face in coming to study in the United States.
- Provide short- and long-term options for foreign students to work after they graduate from U.S. colleges and universities, including a direct path to green card status for sought-after graduates.
- Increase the number of employment-based green cards available annually so that talented foreign faculty, researchers, and scientists no longer face long delays and unnecessary wait periods while trapped in short-term immigration status.
NAFSA’s statement is available at http://www.nafsa.org/PressRoom/PressRelease.aspx?id=19137. A recent report, A Visa and Immigration Policy for the Brain-Circulation Era: Adjusting to What Happened in the World While We Were Making Other Plans, is available at http://www.nafsa.org/_/File/_/visa_immigration_for_brain_circulation.pdf.
GAO report on American Samoa and CNMI minimum wage increases and effects. The Government Accountability Office (GAO) issued a report in April 2010, entitled American Samoa and Commonwealth of the Northern Mariana Islands: Wages, Employment, Employer Actions, Earnings, and Worker Views Since Minimum Wage Increases Began. The report discusses employers’ cost-cutting measures and worker reactions.
The full report, GAO-10-333, is available at http://www.gao.gov/new.items/d10333.pdf.
5. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html