Immigration Brief
Updated May 14, 2008
USCIS Reaches FY 2009 H-1B Cap
April 8, 2008
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. This unfortunately means that no additional, general, cap-subject H-1B petitions for temporary professional workers can be filed until April 1, 2009 (with a start date of October 1, 2009), absent a legislative fix. (However, H-1B petitions for cap-exempt visas still remain available.)
USCIS Announces a Proposal to Increase Periods of Stay for TN Professional Workers From Canada or Mexico
May 6, 2008
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade-NAFTA (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 maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.
The proposed rule will further allow eligible TN nonimmigrant’s 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. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.
Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.
USCIS To Extend F-1 Status for H-1B Beneficiaries (H-1B CAP Gap Regulation)
April 8, 2008
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) implemented an interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.
USCIS Announces New Rule Allowing Extension of Optional Training Program for Qualified Students
April 4, 2008
WASHINGTON
PRIOR F-1 REGULATIONS RELATING TO PRACTICAL TRAINING:
What is optional practical training?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under existing rules, an F-1 student may be authorized to receive up to 12 months of practical training either pre- and/or post- completion of studies.
Pre-completion OPT: An F-1 student may be authorized to participate in pre-completion OPT after he/she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s course of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.
Post-completion OPT: An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student’s course of study.
What is the application process to participate in pre- or post-completion OPT?
Students must initiate a request by having their Designated School Official (DSO) recommend the OPT by endorsing Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1 academic students.
Students then file Form I-765, Application for Employment Authorization Document (EAD), with USCIS. If approved, the student will be issued an EAD. The student may begin engaging in pre- or post-completion OPT once an application has been approved and an EAD has been issued.
How many students stand to benefit from today’s announcement?
There are approximately 26,000 students on OPT that have earned a bachelor's, master's, or doctorate in a STEM field. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM extension. Some of these students will be selected for an H-1B to start October 2009. Others may choose to continue their education, while some will depart the United States. We estimate another 10,000 students will benefit from the automatic "cap gap" extension.
What is the maximum duration of post-completion OPT?
Under the new rule, certain students will be eligible to receive a 17 month STEM extension of post-completion OPT.
Do the periods of pre-completion OPT count against the available periods of post-completion OPT?
Yes. All periods of pre-completion OPT are deducted from the available periods of post-completion OPT.
Are there fees associated with filing for extended OPT?
Yes. USCIS charges $380.00 when an applicant files an I-765 for optional practical training.
Is there additional post-completion OPT available to students in the high-tech industry?
F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a maximum of 29 months of post-completion OPT. This gives U.S. businesses two chances recruit these highly desirable graduates through the H-1B process.
What are the eligible STEM degrees?
To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields:
- Computer Science Applications
- Actuarial Science
- Engineering
- Engineering Technologies
- Life Sciences
- Mathematics
- Military Technologies
- Physical Sciences
The STEM degree list is posted on http://www.ice.gov/sevis.
What are the eligibility requirements for the 17-month extension of post-completion OPT?
The student must have a bachelor’s, master’s or doctorate degree in a STEM field. The employer must be enrolled in E-Verify. The student must apply on time (at least 90 days before the current post-completion OPT expires).
What is the E-Verify program?
The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social Security Administration (SSA). The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers. E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees. NOTE: EMPLOYERS SHOULD SEEK LEGAL COUNSEL PRIOR TO ENROLLING IN THE E-VERIFY PROGRAM SINCE THE USCIS DATABASE DOES NOT APPEAR TO BE RELIABLE FOR ACCURATE VERIFICATION.
Is there a cost associated with employers participating in the E-Verify program?
No, E-Verify is a free, easy to use web-based system available to employers and in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
What is the application process for the 17-month STEM extension?
The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee. Form I-765 is being amended to require the student to indicate the degree and provide the employer’s E-Verify information. Students who timely file their STEM extension applications with USCIS may continue working while their applications are pending for 180 days or the date of the decision, whichever date is earlier. This interim extension minimizes disruption in the student’s employment and also ensures that employers will conduct the necessary employment eligibility re-verification.
What must a student do after being granted the 17-month STEM extension?
- The student must report to his or her DSO (by email, within 10 days) any change in: Legal name; Residential and mailing address; E-mail address; Employer name; Employer address; Job title or position; Supervisor name and contact information; Employment start-date; and Employment end-date.
- The student must also report to his or her DSO every six months (by email), confirming the information listed above; even if there have been no changes.
- The requirement to report continues if the student’s 17-month STEM extension is extended further by the automatic cap-gap extension.
Updated February 20, 2008
H-1B Cap-Subject Applications Should Be Started Now
On April 1, 2008, employers will be able to file new H-1B petitions for their specialty workers who will commence work on October 1, 2008. All employers who have not already done so should immediately identify those employees and new hires who require cap-subject H-1B status so that a petition can be filed on April 1, 2008. Employers who are filing for H-1B status for those who have earned a Masters degree or higher from a U.S. university are also urged to file on April 1st since it is expected that these visas too will be exhausted on April 1st or shortly thereafter. (20,000 additional H-1B visas are set aside for these individuals, making the total number of cap-subject H-1B visas 85,000.)
Online AR-11 Address Changes; Alternatives Suggested Since USCIA is Backlogged
Foreign nationals in the United States are obligated to notify the USCIS of a change in address within ten days of that change, and failure to do so can have serious consequences. While USCIS has indicated that it prefers address changes submitted online, the surge of applications this past summer has resulted in a three month backlog in updating address changes submitted online. For those who need to update their address records with USCIS (on Form AR-11), we recommend that after you submit the address change online (https://egov.uscis.gov/crisgwi/go?action=coa), you also call (800) 375-5283 to speak with a USCIS representative to update the records for pending applications and petitions. This will ensure that USCIS notices, receipts, and other communications are sent to the correct address. You will need information from your receipt notice, if applicable, when speaking with a representative.