FILING FOR USCIS H1B FISCAL YEAR 2010 (10/01/09-09/30/10) BEGINS 04/01/09
THE NEW H1B FILING PERIOD WILL BEGIN 04/01/2008 FOR H1B EMPLOYMENT BEGINNING 10/01/2008. IT IS ANTICIPATED THAT THE DEMAND FOR H1BS IN THE NEXT H1B FILING PERIOD WILL BE AS HIGH AS THE PREVIOUS H1B PERIOD. AS SUCH, H1B APPLICATIONS SHOULD BE RECEIVED BY THE USCIS ON 4/1/08 TO MAXIMIZE CHANCES OF SUCCESS. PLEASE CONTACT OUR OFFICE IMMEDIATELY IF YOU ARE INTERESTED IN HAVING US HANDLE YOUR CASE.
ALSO, STAY TUNED TO OUR WEBSITE FOR ANY NEW INFORMATION REGARDING THE H1B VISA SITUATION & TO TRACK THE H1B QUOTA WHEN THE NEW FILING PERIOD BEGINS.
4/9/08—ANALYSIS & COMMENTARY ON THE OPT EXTENSION RULE
by Charlotte A. Danielsson, Attorney at Law (JD Stanford Law; BA UC Berkeley)
The rule extending OPT time was officially published in the Federal Register on 4/8/08 and, thus, has now become law and is effective immediately.This rule deals with two different types of OPT extensions:(1) extension of OPT time for individuals with pending H1b applications; and (2) 17 month extension of OPT time for graduates in science, technology, engineering, or mathematics (STEM) who accept employment with employers enrolled in the USCIS’ E-Verify program.The rules and requirements under both of these extensions are very different:
EXTENSION OF OPT TIME THROUGH 10/1 FOR INDIVIDUALS WITH PENDING H1B APPLICATIONS
Under prior law, the CIS already had authorization to extend the status of F1/OPT holders until the October 1st H1b start date (although notably they have chosen not to exercise this power in the last few years!).The extension available upon exercise of this power by the CIS, however, only extended status but did not extend work authorization.The extension that is now available under the new regulation just published, extends not only status but also work authorization through 10/1.This extension is automatic and no separate application is required.
This regulation will work as anticipated by the CIS in subsequent years, however, there is a fatal flaw in the drafting as it pertains to this year’s H1b filings.As drafted, to be eligible for the automatic extension, the H1b application has to have been filed as an H1b change of status case.When filing an H1b petition, the form allows you to choose whether you want consular processing or a change of status with the USCIS.A change of status with the USCIS requires that you submit evidence that you have lawful status through the requested start date of 10/1/08.Most applicants who filed H1b applications under the 2009FY quota whose OPT grace period ends prior to 10/1/08, did not file their H1b applications with a change of status request because they were not eligible.Consequently, they are not eligible now for the new automatic extension. Currently, the only way to rectify this situation is through an amendment (and, the H1b cannot be amended until it is approved). Thus, the only people who will benefit from this extension are those whose OPT grace period already reached through 10/1 and now their work authorization has been extended to match, and those who filed their H1b applications incorrectly as a change of status application when they were not eligible.This issue has been raised with the USCIS by the American Immigration Lawyers Association and the USCIS is looking into the matter and has promised to address it.We will provide any updates on the situation as soon as it is available.
ADDITIONAL 17 MONTH EXTENSION OF OPT TIME FOR STEM (SCIENCE, TECHNOLOGY, ENGINEERING, & MATH) GRADUATES
The 17 month extension of OPT time is available (regardless of whether there is an H1b filing) to any F1/OPT who has completed a bachelor’s, master’s, or doctorate degree with a degree code that is on the current STEM Designated Degree Program List (the degree that is the basis of the current OPT is the one at issue for qualification for the extension) whose employer or prospective employer is enrolled in the USCIS’ E-Verify employment verification program at the time the student applies for the 17-month extension.A student wishing to file for this extension must contact their DSO & have their DSO recommend the 17 month extension through SEVIS.After that, the student must submit the EAD application (Form I-765) to the USCIS and include a copy of their degree and the employer’s E-verify company identification number on the application.
Note, per the regulation, the approved list of majors (STEM) is available on SEVP’s website at www.ice.gov/sevis.As of the date of this posting, however, the list was not yet on the website---but presumably it will be posted within the next week or so.
4-3-08 POSSIBLE H1B PROCEDURAL CHANGES FOR NEXT YEAR
The USCIS is considering making possible procedural changes to the H1b lottery system next year. The USCIS is considering a pre-registration program for purposes of conducting the lottery selections for prospective H1b employers in advance of the April 1st filing date. No concrete plan is in place yet and the CIS is still considering multiple ways in which this type of system could be implemented.
4-2-08 POSSIBLE EXTENSION OF OPT TIME
An interim final rule titled 'Extending Period of Optional Practical Training for 17 Months for Qualified F-1 Students' has been submitted to OMB for review. OMB has up to 90 days to review this and either approve it for publication in the Federal Register (thereby making it effective law), send it back for revision, or reject it. The text of the rule has not been released but the title looks promising! Clearly this rule would provide relief to many students experiencing gaps between their OPT time and H1b visa start dates. We will provide further updates on our website on the H1b News page as they become available.
3-19-08 FURTHER CLARIFICATION BY THE CIS REGARDING INTERIM H1B RULE
3-19-08: FURTHER CLARIFICATION BY CIS IF H1B US MASTERS DEGREE QUOTA CAP OUTLASTS THE REGULAR H1B QUOTA CAP:
Under the new H1b lottery procedure, the US Masters degree H1b filings will be totaled first & an H1b lottery will be run for the US H1b masters cases first if the H1b cap is exceeded and any excess US Masters degree H1b cases will then be put in the general h1b quota lottery. So, if you file in the H1b US Masters quota you will automatically be entered in both H1b lotteries if necessary. However, what about people who don't yet qualify for the US Masters degree H1b quota (but will within the next month or so) who file under the general H1b quota during the first week of the H1b filing period? If they are not chosen in the general H1b lottery and the US Masters degree H1b quota is not reached yet (& thus is still open)---can they file again in the US masters degree H1b quota or will this be considered a duplicate H1b filing??? The CIS has clarified that in this scenario, the second H1b filing will not be considered a duplicate H1b filing as long as the masters degree H1b filing is done after the general h1b lottery has been run.
3-19-08 INTERIM RULE REGARDING H1B ANNOUNCED BY USCIS!!!
The CIS announced an interim rule on H1b visas today which modifies the H1b selection process and prohibits multiple H1b filings.Highlights of the new H1b rule are:
--The CIS will deny or revoke multiple H1b petitions filed by an H1b employer for the same H1b worker and will not refund the H1b filing fees submitted with the multiple or duplicative H1b petitions.The one exception to this is in the case of related employers (for example, parent & subsidiary) who would be allowed to file separate H1b petitions for the same employee.
--If the CIS receives enough H1b applications to fill the H1b quota on any day within the first five days of the H1b filing period, the CIS will include H1b petitions filed in the first five business days in the H1b lottery (previously only the H1b applications received on the first two days were included in the H1b lottery if the H1b quota was reached on the first day of the filing period and only H1b applications received on day the H1b quota was reached were subject to the H1b lottery if the H1b quota was reached on any day after the first day of the H1b filing period).
--The H1b lottery system will be changed so that the 20,000 US advanced degree H1b cap cases (i.e. US Masters degree H1b quota cases) are selected first.If any advanced degree H1b cases are left after that process, they would go into the overall 65,000 general H1b quota pool.
--If an H1b application incorrectly indicates that it is exempt for the H1b quota, the H1b petition will be denied if no H1b visa numbers are available and the H1b filing fees will not be returned.
REGULATORY CHANGE REGARDING DUPLICATE H1B FILINGS ANTICIPATED PRIOR TO 4/1/08
3-17-08: The CIS was expected to release a regulation prohibiting duplicate H1b filings in January that would govern H1b filings for the 2009FY H1b filings that begin on 4/2/08.While clearly multiple H1b filings for the same H1b beneficiary by the same H1b employer for the same H1b position would be considered duplicates, it is unclear how broad the CIS’ definition of what a ‘duplicate’ H1b filing is will be.The CIS missed their expected January 2008 release date.Today, the Office of Management and Budget (OMB) cleared for publication an interim H1b regulation relating to duplicate H1b filings for the upcoming H1b filing period.Once a regulation is cleared by OMB, it goes back to the agency for signature, and then it is forwarded to the Federal Register for publication (this process typically takes a few days or weeks).It is anticipated that this H1b regulation will be published prior to 4/1/08 but no information is currently available regarding the contents of the new H1b regulation.
12-2007: The CIS anctipates that a reuglatory change related to duplicate H1b filings will be in place prior to 4/1/08. It is uncertain as of yet what will be considered a 'duplicate' H1b filing.
USCIS announces that filing location for H1bs will change beginning 4/1/07. Previously all petitions were filed at the Vermont Service Center. Beginning 4/1/07, petitions are to be filed at either the Vermont Service Center or the California Service Center depending on the jurisdiction under which the petition falls.
ISSUES REGARDING 4/1/07 BEING A SUNDAY:
USCIS has announced that they will not take possession of mail scheduled for delivery on Saturday March 31 or Sunday April 1 until Monday April 2. Applications received on Friday 3/30 will be rejected.
Time Spent in H4 or L2 Status Doesn’t Count Toward H1b & L1 Maximum Periods of Stay
The CIS clarified in a recent CIS interoffice memorandum that time spent as an H-4 or L-2 dependent does not count against the maximum allowable periods of stay to principals in H1b status.
Alien Not Required to be in H1b Status to Apply for Extensions beyond 6 yr H1b Maximum
The CIS clarified in a recent CIS interoffice memorandum that H1b aliens who qualify under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) Sections 106(a) & 106(c) need not be in H1b status when requesting an additional period of stay beyond the 6 year maximum H1b period.AC21 Sect 106(a0 is the provision which allows an alien to apply for one year extensions beyond the 6 year H1b maximum when a labor certification application or I-140 application have been pending for at least 365 days.AC21 Sect 106(c) allows for 3 year H1b extensions beyond the 6 year H1b maximum period when the alien is the beneficiary of an approved I-140 petition but cannot adjust their status due to quota limitations (i.e. not having a priority date that is current according to the Department of State’s Visa Bulletin).
H1b “Remainder” Option Now Available
CIS will now allow an alien who has been absent from the US for more than 1 year who has previously been admitted to the US in H1b status but did not exhaust his/her entire 6 year H1b maximum period while in the US to seek readmission to the US in H1b status for either (1) a new 6 year period of admission (note:this type of filing is subject to the H1b cap) OR (2) apply for an H1b for the “remainder” of his/her initial 6 year maximum H1b period (note: this type of filing is exempt from the H1b cap).
EMPLOYER COMPLIANCE: CIS MUST BE NOTIFIED OF H1B EMPLOYEE TERMINATION!
The Department of Labor awarded the prevailing wage to a fired H1b employee for the period of H1b authorized stay due to a lack of bona fide termination. The Department of Labor made the determination because there was no evidence that the company had notified the INS that it had terminated the H1b employee and that the company had provided the employee with payment for her transportation home.