Supplemental Questions & Answers: Extension of Optional Training Program for Qualified Students

The U.S. Department of Homeland Security released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.

The rule also addresses situations in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

U.S. Citizenship and Immigration Services published an initial set of questions and answers related to the rule on April 4; below are a supplemental group of questions and answers that will provide essential guidance and more specific details on the program.

Supplemental Qs and As

Cap Gap Provision

On April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for FY 09 to request change of status in lieu of consular processing, as originally indicated on the petition. Since some FY09 H-1B petitions for these students may have already been approved for consular processing when USCIS published this e-mail notification process, can the petitioner still request change of status?

• Yes. The petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address. Such requests must include the H-1B receipt number, as well as the petitioner’s and the beneficiary’s name.
• If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice. In addition to including the receipt number and the name of the petitioner and beneficiary, the request should also include the beneficiary’s date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.
• Please note that separate e-mail addresses have been established for Premium and Non-Premium Processing Cases. These e-mail addresses are as follows:
  

  Vermont Service Center

  Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
  Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
  California Service Center

  Premium Processing cases: CSC.ppcapgap@dhs.gov
  Non-Premium cases: CSC.nonppcapgap@dhs.gov

What does “timely filed” mean? Does this include a petition submitted to USCIS on April 1, but not yet selected under the random selection process for an H-1B visa number?

• “Timely filed” means that the H-1B petition was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect. The interim final rule states that the D/S admission includes 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.”
• The interim final rule further states that once a timely filing has been made, the automatic cap gap extension will continue until September 30, if the petition is selected and approved, unless it is subsequently rejected, denied, or revoked. Students are strongly encouraged to stay in close communication with their employer during the cap gap extension. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.

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, if the H-1B petition was filed during the H-1B acceptance period, which began 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?

• The applicability of the 60-day grace period following rejection, denial or revocation of an H-1B petition is discussed in the Supplemental Section of the interim final rule. 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. 73 FR 18944, 18949 (April 8, 2008).
• 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 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. Because the H-1B petition is for an October 1 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, 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.

STEM Degrees

Would a student with an undergraduate STEM degree but a master’s degree in a non-STEM field be eligible for an extension of OPT based on the master’s degree?

• The interim final rule states that the “[t]he degree that was the basis for the student’s current period of OPT is a bachelor’s, master’s or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List.” This list is published on the SEVP website, located in the Related Links section of this page. This provision is found at 8 CFR 214.2(f)(10)(ii)(C)(2).
• Under the interim final rule at 8 CFR 214.2(f)(10)(ii)(C)(2), a student who received an undergraduate STEM degree, but whose graduate degree is in a non-STEM field and whose current post-completion OPT is based on that graduate degree, would not be eligible for the 17-month STEM extension.

Would a student in post-completion OPT based on a non-STEM master’s degree be eligible for an OPT extension if the job offered to the student directly relates to the student’s undergraduate STEM degree and the non-STEM master’s degree?

• The student would not be eligible for an extension of OPT in such circumstances. The degree that was the basis of the current period of OPT must be a STEM degree.

Will ICE be adding new degrees to the STEM Designated Degree Program List during the comment period?

• New degrees will not be added to the list during the comment period. DHS, however, will consider all comments received regarding the possible inclusion of additional degrees and will be consulting with other interested government agencies regarding such possible additions. As stated in the interim final rule, however, the Department must also continue to ensure that the OPT extension remains limited to students with degrees in major areas of study falling within a technical field where there is a shortage of qualified, highly-skilled U.S. workers and that is essential to this country’s technological innovative competitiveness.

Can a student with a dual major qualify for the STEM OPT extension based on one of the degree programs?

• If a student has a dual major, and one of the degrees is on the STEM Designated Degree Program List, and the job is directly related to the student’s STEM degree, the student would be eligible to apply for the STEM OPT extension.

Can a student qualify for the STEM OPT extension based on the student’s minor?

• No.

Timing and Reporting

By what means must a student report a change in the student’s circumstances to the DSO?

• Students pursuing STEM extension OPT must report to their DSO, within 10 days, loss of employment or change to any of the following:
  • The student’s legal name
  • The student’s residential or mailing address
  • The student’s email address
  • Employer name
  • Employer address
• Additionally, these students must send a validation report to their DSO every six months starting from the date the STEM extension OPT starts and ending when the student’s F-1 status ends or the STEM extension OPT ends, whichever is first. The validation report must include the student’s:
  • Full legal name
  • SEVIS identification number (if requested by the school)
  • Current mailing and residential address
  • Name and address of the current employer
  • Employment start date for the current employer
• Students should consult with their DSO as to the preferred method of reporting changes. SEVP recommends using e-mail as it provides both evidence of reporting and the date reported. Some schools may provide other electronic means (such as a web page) to accept reports from students.
• Students should keep a record of all reports made to the DSO and the method by which the report is made.

By what means must an employer report a student’s termination of employment to the student’s school? Must an employer’s report be received by the school within 48 hours of a student’s termination?

• The school may provide the student with instructions on how to report the end of the student’s employment. The student must provide this information to the employer. If the school does not provide such instructions, the employer may send the report to the school address listed on the student’s Form I-20.
• The employer should provide the student’s name, SEVIS ID number (if available), and the date the student’s employment ended.
• The employer has complied with the reporting requirement on the day the report is timely sent (i.e., sent within 48 hours of a student’s termination). The school does not have to receive the employer’s report within 48 hours of the student’s termination for the employer to be in compliance with the requirement.

I-9 Employer Verification Compliance

What document can an F-1 student applying for a 17-month STEM extension show his or her employer when completing the Form I-9?

• According to the employment authorization regulations at 8 CFR 274a.12(b)(6)(iv), which were part of the April 8 interim final rule, an F-1 student who has timely filed an application on Form I-765 for a 17-month STEM extension of his or her post completion OPT, and whose employment authorization document (Form I-766) has expired, is authorized to continue working while that application is pending, for a period not to exceed 180 days.
• The expired Form I-766 EAD (issued under category (c)(3)(i)(B)), the USCIS receipt notice showing a timely filing of the STEM extension application (Form I-797, Notice of Action), combined with an I-20 updated to show that the DSO recommended the STEM extension for a work authorization period beginning on the date after the expiration of the EAD is the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 requirements for 180 days (or less if the application is denied beforehand). If the 17-month STEM extension is approved, the student should receive a new Form I-766 EAD reflecting the 17-month STEM extension within the 180-day period.

What documents can an F-1 student with automatic employment authorization under the cap-gap provision show his or her employer when completing the Form I-9?

• The DSO will issue a “cap gap” I-20 which will show on page 3 that the student’s employment authorization has been extended and the effective dates. The student may need to provide the DSO with evidence of a timely filed H-1B petition during the H-1B acceptance period if the student’s record has not been updated via an interface with USCIS.
• The expired Form I-766 EAD (issued under category (c)(3)(i)(B) or (c)(3)(i)(C)) combined with a “cap gap” Form I-20, endorsed to show that the student’s employment authorization is still valid, and the USCIS receipt notice (Form I-797, Notice of Action), showing receipt of the H-1B petition are the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 document presentation requirements until September 30, or on the date of rejection, denial, or revocation of the petition. If the receipt notice has not yet been issued, the expired EAD and cap gap Form I-20 are sufficient. This combination of documents satisfies the Form I-9 until the expiration date noted on the cap gap Form I-20, but not later than September 30. If the student presents a “cap gap” Form I-20 without a receipt notice, the employer must re-verify upon the expiration date noted on the Form I-20. The student may present another cap gap Form I-20 indicating continued employment authorization to satisfy the re-verification requirement.

How is the cap gap Form I-20 endorsed to indicate employment authorization?

• SEVIS will generate a cap gap Form I-20 that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap gap Form I-20 will contain the following endorsement:
  

  “F-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted, as noted below]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944)”.

  Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Web site, located in the related links section of this page.

• The DSO will note an expiration date on the cap gap Form I-20 as follows:

If the student’s post-completion OPT EAD expires before June 2 and the student can only show the DSO evidence of a properly filed H-1B petition that also includes a change of status request, then the DSO will note an expiration date of June 2 and August 2, respectively.

• If the student’s post-completion OPT EAD expires before July 28 and the student can show the DSO evidence of being on the wait list for an H-1B slot, the DSO will note an expiration date of July 28 and September 27, respectively.
• If the student can show the DSO a filing receipt (Form I-797, Notice of Action), or approved the H-1B petition and change of status request, the DSO will note an expiration date of October 1.

Limits on Periods of Unemployment

What are the limits on periods of unemployment?

• Students on post-completion OPT may have up to 90 days of unemployment.
• Students who have OPT extended due to the cap gap provisions continue to be subject to the 90-day limitation on unemployment.
• Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

Do the limits on unemployment apply to any periods of unemployment prior to April 8, 2008?

• No, the limits on unemployment do not apply retroactively.

Do the limits apply to students who had post-completion OPT approved before April 8, 2008?

• For students who started post-completion OPT prior to April 8, 2008, unemployment time will accrue only for time spent unemployed after April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted.

Is a student who splits OPT between two degrees at the same level limited to a total of 90 days of unemployment?

• No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

What counts as time unemployed?

• Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.

How does travel outside the United States impact the period of unemployment?

• If the student whose approved period of OPT has started travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90/120-day limits.
• If a student travels while employed (either during a period of leave authorized by an employer or as part of their employment), the time spent outside the United States will not count as unemployment.

What types of employment are allowed for students during an OPT STEM extension?

• Students granted an OPT STEM extension must work at least 20 hours per week for an E-Verify-enrolled employer in a position directly related to the student’s STEM degree.
• STEM students may work multiple jobs related to their STEM degree, but all the employers must be enrolled in E-Verify.
• Students on an OPT STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status.

How do students show employment is directly related to their degree program?

• SEVP recommends that students maintain evidence that they held a particular position, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work.
• If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the employer’s hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

E-Verify

What E-Verify information is required for an F-1 STEM student to extend his or her OPT?

• The student must provide his or her employer’s name and its E-Verify company ID, or Client Company ID if it uses a third party designated agent to perform its verification queries, in item #17 of the Form I-765 (revised 04/08/08).

Where does an employer find its E-Verify company ID #?

• The employer’s Company Identification Number is located on the upper left-hand corner of the Memorandum of Understanding (MOU) which was printed or saved upon registration with E-Verify. Employers who are unable to locate their company identification number on the MOU can find their identification number in the system by logging into their E-Verify account and running a report. To do this, select “View Reports” from the Reports Menu and then select one of the three reports available. Enter the report parameters and then select Excel as the format. The company ID will be located in the upper left hand corner of the report.

If an employer has concerns about providing an employee with their E-Verify Company ID, are they still required to provide it?

• The E-Verify Company ID number may be disclosed to an employee or a prospective employee for this purpose. An employer is not required to disclose the number, but if it does not, the Form I-765 cannot be completed and the application for extension of OPT cannot be approved.

If a company enrolls in E-Verify in order to retain or hire an F-1 OPT STEM student for a 17-month extension, does that company only have to verify the employment eligibility for that F-1 OPT STEM student and/or future F-1 OPT STEM students, or for all new hires?

• Once an employer has enrolled in E-Verify, the employer is responsible for verifying employment eligibility for all new hires, including newly hired F-1 OPT STEM students with 17-month extensions. The verification of all new hires must be done at all the hiring sites identified in the MOU. The E-Verify system is designed only for verifying the employment eligibility of new hires. If an employer enrolls in E-Verify to retain the employment of an F-1 OPT STEM student, the employer may not verify the employment eligibility of that F-1 OPT STEM student employee as he or she is already an existing employee and not a new one. However, the student’s I-9 will need to be updated when the STEM extension is approved in order to document the continuity of the work authorization.

Does the Designated School Official (DSO) need to confirm that the F-1 STEM student’s prospective employer is enrolled in E-Verify?

• No. DSOs are not required to check the employer’s E-Verify enrollment; however, they are strongly encouraged to advise the student that the STEM extension will be denied if their employer is not enrolled.

If an F-1 OPT STEM student currently works for two employers and wishes to apply for the 17-month extension, would both employers have to be enrolled in E-Verify?

• Yes, if a student wishes to continue with both employers, each employer would need to be enrolled in E-Verify. Additionally, each job must be directly related to the student’s STEM degree.

What if my company is enrolled in E-Verify at some locations, but the hiring site where the student will be employed is not enrolled – is this sufficient?

• If the hiring site where the student will be employed has not been identified in the MOU that the company signed during enrollment, that hiring site is not considered to be enrolled in E-Verify and therefore cannot employ an F-1 OPT STEM student under a 17-month extension.
• Employers seeking to employ an F-1 OPT student under a 17-month extension may enroll in E-Verify in one of two ways: register the hiring site individually by signing its own MOU or registering the intended job location as an additional hiring site under the employer’s existing MOU.

This interim final rule allows an F-1 OPT STEM student to extend his or her employment authorization provided that the student has accepted employment with an employer who “…is a participant in good standing in the E-Verify program, as determined by USCIS.” How is “in good standing” defined?

• To be considered in good standing, an employer must be enrolled in E-Verify either individually by signing its own MOU or as a hiring site under another MOU for another location. Once enrolled, the employer must adhere to the terms and conditions set forth in the MOU. This requires that the employer verify the employment eligibility of all new hires, not just the F-1 OPT students.
• The regulatory reference to good standing is intended to emphasize and clarify that E-Verify participation for purposes of this rule means more than simply the one-time execution of the MOU; rather, it means continuing use of the system as provided under the MOU and in compliance with program requirements. Failure to be a participant in good standing could include (but is not necessarily limited to) these circumstances: The employer terminates the MOU; USCIS terminates the MOU, or suspends the employer’s system access, because of an employer’s substantial failure to follow its terms and conditions; the employer uses the system for a discriminatory or otherwise illegal or unauthorized purpose; or the employer has executed the MOU but substantially fails to use the system to verify newly hired employees at participating hiring sites.

A copy of the MOU and more information on E-Verify can be in the related links section of this page.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has revised Form I-765, Application for Employment Authorization. The form now includes additional eligibility codes.

These changes have been made in accordance with the Department of Homeland Security’s recent interim final rule regarding Optional Practical Training (OPT), published on April 8, 2008 in the Federal Register. The rule modifies the conditions and duration of OPT for qualified F-1 non-immigrant students.

USCIS will accept the July 30, 2007 edition of the form through July 8, 2008. As of July 9, 2008, USCIS will only accept the revised Form I-765, dated April 8, 2008, and will reject all requests using previous editions of the form.

The main purpose of Form I-765 is to allow certain aliens in the United States to request employment authorization and an Employment Authorization Document (EAD).

USCIS To Allow F-1 Students Opportunity To Request Change of Status

Short-term, Immediate Measure for Beneficiaries of Selected H-1B Petitions

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.

This short-term measure follows an April 8, 2008 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.

Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.

USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. Please do not contact the service center about requesting a change of status until after receiving the receipt notice.

E-mail addresses for requesting change of status are:

• Vermont Service Center
  • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
  • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
• California Service Center
  • Premium Processing cases: CSC.ppcapgap@dhs.gov
  • Non-Premium cases: CSC.nonppcapgap@dhs.gov

NOTE: If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.

– USCIS –

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

– USCIS –

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption.

USCIS expects next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree exemption will join the random selection process for the regular 65,000 cap.

USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

USCIS will provide regular updates as the processing of FY 2009 H-1B cap cases continues.

OFLC announced that effective June 1, 2008 it will centralize the filings of it applications. 73 FR 11954 (March 5, 2008). As of that date, permanent labor certification applications (PERM) will be handled by the Atlanta National Processing Center (NPC), and temporary applications (H-2A, H-2B, etc.) by the Chicago NPC. The following “Specialization FAQs” deal with issues arising as a result of this transition.

PERM Notices of Filing

Q: Part of the PERM process requires a Notice of Filing be placed, containing information enabling persons wishing to provide evidence bearing on the application to the Department. Given the transition of cases from the Chicago NPC to Atlanta NPC, what should employers list for the address of the Department on the Notice?

A: Pursuant to 20 CFR 656.10(d), an employer seeking to file an Application for Permanent Labor Certification must provide notice of the filing, either to the bargaining representative or, if there is no such bargaining representative, by posted notice to the employer’ employees at the location of the employment. The notice must contain certain information, including the address of the “appropriate Certifying Officer.” 20 CFR 656.10(d)(3)(iii). Because cases filed after June 1, 2008 will be filed with the Atlanta NPC, but may have been prepared under the jurisdiction of the Chicago NPC, notices prepared in connection with an application may list an NPC that does not actually receive the case. However, as long as an address for the Certifying Officer in either the Chicago or Atlanta NPC is identified on the Notice, this will be sufficient to ensure notice of the filing has been provided and an appropriate office can receive information. OFLC recommends that any application in which a “transfer” of jurisdiction is expected to take place (ie, the case might be filed before or after June 1) should list both the Chicago and Atlanta addresses.

Applications in which the posting of the Notice of Filing commences after June 1, 2008 must list the Atlanta address. Listing the Chicago NPC in addition to the Atlanta NPC, however, will not result in a denial.

Q. How does USDOL plan to transition PERM cases pending at the Chicago NPC to the Atlanta NPC?

A: As outlined in the Federal Register Notice (Vol. 73, No. 44) of March 5, 2008, effective June 1, 2008, employers who do not wish to file online at http://www.plc.doleta.gov must mail their PERM applications directly to the Atlanta NPC. All employers who file their PERM applications online on or after June 1, 2008, will receive case numbers with the prefix “A” and be automatically routed to the Atlanta NPC for processing. Except as outlined below, all PERM applications pending with the Chicago NPC on May 31st will be transferred to the Atlanta NPC on June 1st.

Requests for Reconsideration/Appeals

Beginning April 15th, all denial determination letters generated by the Chicago NPC will contain instructions requiring the employer to submit a request for reconsideration directly to the Atlanta NPC. In other words, denial letters generated on or after April 15th will no longer direct employers to submit requests for reconsideration to the Chicago NPC, but rather to the Atlanta NPC. The employer or the employer’s authorized representative must adhere to the instructions contained in the denial letter.

The Chicago NPC will continue to receive and process all requests for reconsideration where the denial determination letter instructs the employer to submit such a request directly to the Chicago NPC. However, requests for reconsideration incorrectly submitted by the employer or the employer’s authorized representative to the Chicago NPC, where the letter specified the response be submitted to the Atlanta NPC, will be date stamped as received and then forwarded by the Chicago NPC to the Atlanta NPC for processing.

The Chicago NPC will continue to process all BALCA cases through May 31st. On June 1st, the responsibility for processing all BALCA cases will be transferred to the Atlanta NPC.

Responses to Audit Letters

Beginning April 15th, all audit examination letters generated by the Chicago NPC will contain instructions requiring the employer to submit all required documentation directly to the Atlanta NPC. In other words, audit letters generated on or after April 15th will no longer direct employers to submit required documentation to the Chicago NPC, but rather to the Atlanta NPC. The employer or the employer’s authorized representative must adhere to the instructions contained in the audit letter.

The Chicago NPC will continue to receive and process all audit review cases where the audit examination letter instructs the employer to submit required documentation directly to the Chicago NPC. However, requests for reconsideration incorrectly submitted by the employer or the employer’s authorized representative to the Chicago NPC, where the letter specified the response be submitted to the Atlanta NPC, will be date stamped as received and then forwarded by the Chicago NPC to the Atlanta NPC for processing.

Q. How does USDOL plan to transition H-2B cases pending at the State Workforce Agency (SWA) to the Chicago NPC?

A: As outlined in the Federal Register Notice (Vol. 73, No. 44) of March 5, 2008, and except for emergency boilermakers, entertainers, and professional athletes, employers must continue to file applications for H–2B temporary labor certification with the SWA serving the area of intended employment. For all applications filed with the SWA on or after June 1, 2008, the SWA must send completed applications to the Chicago NPC.

For H-2B applications currently under review by the SWA, the Department will implement the following transition policies:

1. If the H-2B application was filed with a SWA under the jurisdiction of the Atlanta NPC prior to June 1, 2008, and the completed application is ready for submission to the NPC prior to June 1, 2008, the SWA shall continue to send the completed application to the Atlanta NPC.

2. If the H-2B application was filed with a SWA under the jurisdiction of the Atlanta NPC prior to June 1, 2008, and the completed application is ready for submission to the NPC on or after June 1, 2008, the SWA shall continue to send the completed application to the Chicago NPC.

The Atlanta NPC will review and process all completed H-2B applications it receives from the SWA based on the transition policies outlined above.

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 the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies.

• Pre-completion OPT:

  An F-1 student may be authorized to participate in pre-completion OPT after he or she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s major area 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 major area of study.

What is the application process to participate in pre- or post-completion OPT?

• Students must initiate the process by requesting the Designated School Official (DSO) at their academic institution to recommend the OPT. The DSO makes such recommendation by endorsing the student’s Form I-20 and by making appropriate notation in SEVIS, the system used to track F-1 students.
• Students then file Form I-765, Application for Employment Authorization Document (EAD), with U.S. Citizenship and Immigration Services (USCIS). If approved, USCIS will issue an EAD to the student.
• The student may begin engaging in pre- or post-completion OPT only after an application has been approved and an EAD has been issued.

How many students stand to benefit from this interim final rule?

• ICE records indicate that there are approximately 70,000 students currently in OPT and, of those, about 23,000 are studying in Science, Technology, Engineering, or Mathematics (STEM) fields. Some of these students will be selected for an H-1B to start in October 2008. Others may choose to continue their education, while some will depart the United States. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM extension.

What is the maximum duration of post-completion OPT under this interim final rule?

• Under the new rule, certain students will be eligible to receive a 17-month 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 $340 when an applicant files a Form I-765 for optional practical training.

When must a student apply for an OPT extension?

• Under the prior regulations, F-1 students had to apply for post-completion OPT prior to graduation.
• This rule allows F-1 students seeking initial post-completion OPT to apply during their 60-day departure preparation periods in the same way that they are allowed to apply for a change to H-1B status during their departure preparation periods.
• Students may apply for an OPT extension at any time prior to the expiration date of their current OPT period.

Is there additional post-completion OPT available to students working in the high-tech industry?

• 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.
• This extension of the OPT period for STEM degree holders gives U.S. employers two chances to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years.

What are the eligible STEM degrees?

• To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list sets forth eligible courses of study according to Classification of Instructional Programs (CIP) codes developed by the U.S. Department of Education’s National Center for Education Statistics (NCES).
• The STEM Designated Degree Program List includes the following courses of study:
  • Computer Science Applications
  • Biological and Biomedical Sciences
  • Actuarial Science
  • Mathematics and Statistics
  • Engineering
  • Military Technologies
  • Engineering Technologies
  • Physical Sciences
  • Science Technologies
  • Medical Scientist
• The STEM degree list is included in the preamble to the interim final rule and will be posted on the ICE website.
• Note that to be eligible for an OPT extension the student must currently be in an approved post-completion OPT period based on a designated STEM degree. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.

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 included in the STEM Designated Degree Program List.
• The student must currently be in an approved post-completion OPT period based on a designated STEM degree.
• The student’s employer must be enrolled in E-Verify.
• The student must apply on time (i.e., before the current post-completion OPT expires).

What is the E-Verify program?

• The E-Verify program is an Internet-based system operated by the Department of Homeland Security (DHS) 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.

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.
• If their post-completion OPT expires while the 17-month extension application is pending, students who timely filed their STEM extension applications with USCIS will receive an extension of employment authorization after their current employment authorization expires, but for no more than 180 days.

What must a student do after being granted the 17-month STEM extension?

• The student must report to his or her DSO (within 10 days) any change in:
  • Legal name;
  • Residential or mailing address;
  • E-mail address;
  • Employer name;
  • Employer address;

Regulations Relating to F-1/H-1B Cap-Gap:

What is the H-1B cap?

• The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000, with certain statutory cap exemptions.

What is the F-1/H-1B “cap-gap”?

• Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would, in most cases, have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year. Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months.

How does cap-gap occur?

• Under the prior regulation (and unchanged by this rule), 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 consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change-of-status request are approved, the earliest date that the student may start the approved H-1B employment is October 1.
• Consequently, F-1 students who are the beneficiaries of approved H-1B petitions with October 1 employment start dates, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, are in many cases 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.

What were the prior cap-gap regulations for F-1 students?

• The prior regulations addressed the cap-gap problem by authorizing an extension of an F-1 student’s authorized stay, but they did not extend the student’s employment authorization. This extension was not automatic; a notice had to be published in the Federal Register announcing the extension.
• Under the prior regulations, when this Federal Register notice was published, the student’s authorized stay was extended, but not the employment authorization. This meant the student could remain in the United States until October 1, when the approved H-1B employment began, but could not work until then.
• If a Federal Register notice authorizing an extension was not published, affected students would in many cases be required to leave the United States, apply for an H-1B visa, and seek readmission to the United States in H-1B status.

How is the cap-gap situation changed under the interim final rule?

• F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure.
• Under this rule, the F-1 status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf during the period in which H-1B petitions are accepted for that fiscal year.
• The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition.
• If the H-1B petition filed on behalf of the student is selected, the student may remain in the United States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition.
• The student may benefit from this provision only if he or she has not violated his or her status.

• USCIS Announces Interim Rule on H-1B Visas Rule
• Fact Sheet: Changes to the FY2009 H-1B Program
• Interim Final Rule on Duplicate H-1B Petitions
  1. A. Final Receipt Date When Cap Numbers Are Used Up Quickly.
  2. B. Elimination of Multiple Filings.
  3. C. Denial of Petitions After Cap Numbers Are Used.

USCIS Announces Interim Rule on H-1B Visas Rule Modifies Selection Process and Prohibits Multiple Filings

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register.

Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms. The changes to the H-1B filing process under this rule are an important part of that initiative.

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers. Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned.
Return to Top ↑.

Fact Sheet: Changes to the FY2009 H-1B Program

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule today that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year. The change is intended to promote a fair and systematic process for H-1B petitioners. This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.

The interim final rule will become effective upon publication in the Federal Register and may be accessed via the related links section of this page.

Background

U.S. businesses utilize the H-1B program to employ foreign workers in fields that require theoretical and practical expertise in specialized occupations requiring a bachelor’s degree or higher (or its equivalent), such as scientists, engineers, or computer programmers. By law, USCIS cannot grant more than 65,000 new H-1B visas per fiscal year, subject to certain limited exceptions. The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from the H-1B numerical limitation of 65,000. USCIS administers a separate “20,000 cap” for such exempt petitions.

USCIS will use a random selection process for all the master’s degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary. In the event that the U.S. master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap. Petitions eligible for the U.S. master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days.

Cap-Exempt Petition

USCIS also notes that petitions for new H-1B employment are exempt from the cap if the aliens will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.
Cap Procedures

USCIS will use the following process for handling H-1B petitions subject to the FY 2009 cap:

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the “final receipt date.” If the “final receipt date” falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.
• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.
• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which their H-1B petition was mailed.

Premium Processing

Cap-subject petitions requesting premium processing that are received on the “final receipt date,” or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed. The premium processing 15-day adjudication period (processing deadline) will not begin until such time as USCIS has completed the random selection process.

The number of master’s exemption cases received cannot be determined until all the petitions have been sorted and counted. The same holds true for the master’s exemption premium processing cases. In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines. Even if USCIS issues a refund of the premium processing fee, it will continue to provide premium processing for these filings until completion.
Current H-1B Workers

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, this rule does not affect USCIS processing of 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 from one cap-subject position to a different cap-subject position with a different employer; or
• Allow current H-1B workers to work concurrently in a second H-1B position.

Return to Top ↑.

Interim Final Rule on Duplicate H-1B Petitions

Full Rule in PDF Format (Summary Below)

A. Final Receipt Date When Cap Numbers Are Used Up Quickly.

This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. This will eliminate filing problems resulting from a rush of filings made on the first day on which employers may file petitions for the upcoming fiscal year. See revised 8 CFR 214.2(h)(8)(ii)(B). USCIS has determined that a filing period of five business days is sufficient to account for a wider range of mail delivery times offered by the various mail delivery providers available to the public.

This rule also provides that, if both the 65,000 and 20,000 caps are reached within the first five business days available for filing H-1B petitions for a given fiscal year, USCIS must first conduct the random selection process for petitions subject to the 20,000 cap on master’s degree exemptions before it may begin the random selection process of petitions to be counted towards the 65,000 cap. See revised 8 CFR 214.2(h)(8)(ii)(B). After conducting the random selection for petitions subject to the 20,000 cap, USCIS then must add any non-selected petitions to the pool of petitions subject to the 65,000 cap and conduct the random selection process for this combined group of petitions. Therefore, those petitions that otherwise would be eligible for the master’s degree exemption that are not selected in the first random selection will have another opportunity to be selected for an H-1B number in the second random selection process. This rule also clarifies that those petitions not selected in either random selection will be rejected. See id.

B. Elimination of Multiple Filings.

To ensure the fair and equitable distribution of cap numbers, this rule precludes a petitioner (or its authorized representative) from filing, during the course of any fiscal year, more than one H-1B petition on behalf of the same alien beneficiary if such alien is subject to the 65,000 cap or qualifies for the master’s degree exemption. See new 8 CFR 214.2(h)(2)(i)(G). This preclusion applies even if the petitions are not duplicative.

USCIS recognizes that, by statute, multiple filings of H-1B petitions are contemplated. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7). Nevertheless, USCIS finds that this rule’s preclusion of duplicative H-1B filings is consistent with the statute. Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), states that “[w]here multiple petitions are approved for 1 alien, that alien shall be counted only once.” USCIS interprets this statutory language as applying to an alien who has multiple petitions filed on his or her behalf by more than one employer. Therefore, an alien who will be performing H-1B duties on behalf of two separate petitioners will be counted only once against the cap. USCIS does not believe that the statutory language at section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), was intended to allow a single employer to file multiple H-1B petitions on behalf of the same alien. Such a broad interpretation would undermine the purpose of the H-1B numerical cap since multiple filings can result in the misallocation of the total available cap numbers.

USCIS recognizes that, on occasion, an employer may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien. This rule precludes this practice if the alien beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption. First, allowing multiple filings by one employer on behalf of the same alien could create a loophole for employers that seek to exploit the random selection process to the competitive disadvantage of other petitioners. Such employers could file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the employment positions are in fact the same or only very slightly different.

Second, requiring USCIS adjudicators to distinguish between multiple petitions filed by one employer for one alien based on different job offers and duplicative petitions for one alien for the same, single position would require a significant expenditure of limited USCIS adjudicative resources. USCIS could not make such determinations on the face of the petition, but would need to substantively examine and compare the merits of the petition and any other petition filed by the same employer on behalf of the alien. This would defeat the purpose of the random selection process, which is not intended to be a decision on the merits, but instead, an expeditious way for USCIS to determine which petitions are eligible for consideration on the merits.

Finally, prohibiting employers from filing multiple petitions on behalf of the same alien should have no impact on the unusual situation where an employer may have the same alien in mind for materially distinct employment positions. Once an alien is allocated an H-1B number based on one petition, the employer is able to file an amended petition or a petition for concurrent employment to reflect the different nature of the duties that are associated with the beneficiary’s second employment position. Since the alien would have already been counted against the cap, such amended or additional petition would not be affected by the prohibition on multiple petition filings. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7).

For these reasons, USCIS believes that it must curtail both duplicative and multiple petition filings by the same employer in order to prevent future fairness problems similar to those USCIS experienced with its administration of the FY 2008 random selection process for the 65,000 cap. Accordingly, this rule provides that USCIS will deny all the petitions filed by an employer (or authorized representative) for the same fiscal year with respect to the same alien subject to the 65,000 or 20,000 caps. See new 8 CFR 214.2(h)(2)(i)(G). In cases where USCIS does not discover that duplicative or multiple petitions were filed until after approving them, this rule also provides that USCIS may revoke all such petitions if they were approved after this rule becomes effective. Id.

This rule does not, however, preclude related employers from filing petitions on behalf of the same alien. USCIS recognizes that an employer and one or more related entities (such as a parent, subsidiary or affiliate) may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien.

For example, a Fortune 500 company may be the parent company of numerous U.S.-based subsidiaries whose business is to engage in either the food, beverage or snack industries. Each line of business may, in turn, be divided into several business units and operate distinct companies (restaurant, bottled beverage plant, cereal manufacturer, etc) with different EIN numbers, addresses, etc. Although all the subsidiaries are ultimately related to the parent company through corporate ownership, this rule does not prohibit different subsidiaries from filing one H-1B petition each on behalf of the same alien so long as each employer/subsidiary has a legitimate business need to hire such alien for a position within that subsidiaries’ corporate structure. Thus, in this example, if the bottled beverage plant owned by the Fortune 500 company and the cereal manufacturing company owned by the same Fortune 500 company are each in need of the services of a Chief Financial Officer, both may file one petition each on behalf of the same alien. A subsidiary should not file an H-1B petition for an alien just to increase the alien’s chances of being selected for an H-1B number where that subsidiary has no legitimate need to employ the alien and is, instead, only filing a petition to facilitate the alien’s hiring by a different, although related, subsidiary.

USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke for any or each petition if it determines that the employer and related entity(ies) filed a duplicate petition as defined in this regulation. See 8 CFR parts 103 and 214.2(h)(11). The burden rests with the employer to establish that it has alegitimate business need to file more than one H-1B petition on behalf of the same alien. If the employer does not meet its burden, USCIS may deny or revoke each petition, as appropriate. Without such authority, a loophole would exist for related employers to file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the true purpose of filing the petitions is to secure employment for the alien with a single employer seeking his or her services. As an example, one target of this provision is the unscrupulous employer that establishes or uses shell subsidiaries or affiliates to file additional petitions on behalf of the same alien in order to increase the alien’s chances of being allotted an H-1B number. USCIS believes that these consequences are warranted in order to deter unfair filing practices and further ensure the integrity of the H-1B cap counting process.

To date, USCIS has identified the problems resulting from multiple filings only in the context of H-1B petitions. For this reason, this rule limits the bar on multiple petition filings to H-1B petitions.

C. Denial of Petitions After Cap Numbers Are Used.

Over the past few years, USCIS has received a significant number of petitions that claim to be exempt from the 65,000 cap, but are determined after the final receipt date or after all cap numbers have been used to be subject to the cap. The current regulations do not specifically address treatment of such petitions. This rule amends the regulations to clarify that such petitions will be denied rather than rejected. See revised 8 CFR 214.2(h)(8)(ii)(B) and (D). USCIS has determined that denial of these petitions is appropriate because USCIS must adjudicate them in order to make a determination on whether the alien beneficiary is subject to the numerical cap. USCIS only rejects filings before an adjudication takes place. See 8 CFR 103.2(a)(7). Because USCIS must adjudicate these petitions, it will not return the petition and refund the filing fee.
Return to Top ↑.

From the memorandum:

Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance.

Full memorandum: Revised National Security Adjudication and Reporting Requirements (pdf), February 4, 2008.

USCIS has now issued a revised “Questions & Answers” on the background check policy update. Those questions and answers are pastd below.

BACKGROUND CHECK POLICY UPDATE

Q1. What applications are affected by this policy change?
A1. Applications included in this policy are:
• I-485, Application to Register Permanent Residence or Adjust Status;
• I-601, Application for Waiver of Ground of Inadmissibility;
• I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; and
• I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).

Q2. How has USCIS changed its national security requirements?
A2. USCIS has not changed its background check policies for naturalization applications. Recently, the agency did modify its existing guidance for certain applications (see above) where the immigration laws allow for the detention and removal of individuals if actionable information from a FBI name check response is received after approval.

No application for lawful permanent residence will be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. (Please refer to the USCIS Immigration Security Checks fact sheet on the USCIS website for more information.)

Q3. How has USCIS changed its adjudications requirements?
A3. For these forms, including applications for lawful permanent residence, USCIS will adjudicate the application based on all required evidence outlined in applicable law and regulation if the application is otherwise approvable, outside of normal processing times, and the FBI name check request has been pending for more than 180 days.

Q4. What happens if USCIS later receives adverse information from an FBI name check?
A4. In the unlikely event that Department of Homeland Security, (DHS) receives actionable adverse information from the FBI name check after the application is adjudicated, DHS may detain the applicant and initiate removal proceedings.

Q5. Why is this policy being implemented?
A5. This policy change responds to a 2005 DHS Inspector General recommendation that USCIS better align its background check screening policies with those of U.S. Immigration and Customs Enforcement.

Q6. Is this policy consistent with the national security priorities of USCIS and the Department of Homeland Security?
A6. Yes. Applications for lawful permanent residence will not be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. In addition, in the unlikely event that DHS receives actionable adverse information after the application is approved, removal proceedings may be initiated.

Q7. How many applications for lawful permanent residence are immediately affected by this policy change?
A7. USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending. A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days. These cases will be subject to processing under the new policy. USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.

Q8. Does this policy change affect naturalization applications?
A8. No. There is no change in the requirement that FBI name check, FBI fingerprint and Interagency Border Inspection Services (IBIS) check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).

Q9. How long will it take for USCIS to work through the cases affected by the policy change?
A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid- March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q10. The memorandum identifies I-485, I-601, I-687 and I-698 forms. Is there a plan to include other forms, specifically nonimmigrant and naturalization, in this policy?
A10. No.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?
A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Q12. Will USCIS automatically notify an applicant to appear at an Application Support Center, (ASC) if his or her fingerprints have expired?
A12. Applicants will be notified through an appointment notice if new or updated fingerprint checks are needed.

Source: USCIS.gov

We organized the BALCA decisions by topic and listed them below. Click on any topic in the list below to jump to that section.

• Lack of Experience
• Rejection of Qualified Applicants
• Permanent, Full-time Employment
• SWA Job Order
• Minor Omissions
• FEIN
• Actual Minimum Requirements
• Good-faith Recruitment
• Insufficient Wage

Each decision includes a blurb and a link to the full decision in pdf format.

Lack of Experience

Matter of Professional Staffing Services of America, 2007-INA-00058 (1/23/08).

Even if this new argument and evidence was in the record properly before us, it does not establish that the Alien had any experience as a Financial Analyst prior to being hired by the Employer. The fact that the Alien performed some finance related duties in prior employment, and that this experience was considered adequate when the Alien was hired only reinforces the conclusion that one year of experience as a Financial Analyst was not the Employer’s actual minimum requirement for the job.

Rejection of Qualified Applicants

Matter of Houston Music Institute, 2007-INA-00271 (1/16/08).

The Employer’s later statements about its reasons for rejecting the applicants are ambiguous, and even contradictory. … it is clear that the applicants were rejected for lacking qualifications not listed in the ETA Form 750A. The Employer’s list of its required teaching methods and standards bear a remarkable consistency with the Alien’s qualifications.

Permanent, Full-time Employment

Matter of Rankin Landscaping, 2007-INA-00057 (1/16/08).

…the record clearly establishes that the Alien had been working less than twelve months of the year in full-time employment. Therefore, we must find that the position at issue constitutes seasonal and temporary employment under 20 C.F.R. Part 655. Because the Employer failed to provide compelling justification that the position involves permanent, full-time employment and that these activities could be performed on a year-round basis, the position cannot be certified as a permanent position.

Matter of Twin Industries, 2007-INA-00270 (1/16/08).

…the Employer took a minimalist approach to its rebuttal documentation. In so doing, it failed to provide the CO adequate proof that the landscape gardener position was indeed one that would keep the incumbent engaged in full-time employment for the entire year. Labor certification was properly denied.

Matter of South Valley Drywall, 2007-INA-00272 (1/16/08).

Since the Employer did not submit this documentation we draw the inference that such documentation would not support a finding that the Employer was actually offering permanent, full-time employment for drywall finishers.

Matter of PR Consultants, 2007-INA-00066 (1/16/08).

Based upon Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that the CO properly found that the Employer failed to establish that it was offering a bona fide job opportunity.

Matter of Factor’s Row, 2007-INA-00034 (1/16/08).

Based upon the Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that certification was properly denied.

SWA Job Order

Matter of Beck AG Operations, 2008-PER-00005 (12/18/07).

The Employer clearly violated 20 C.F.R. § 656.17(e)(2)(i) by failing to place a job order of 30 days duration. The Employer’s lack of awareness that a job order was required is an insufficient justification to overcome the deficiency in the application. Thus, we affirm the CO’s denial of labor certification.

Matter of Dr. Afshin Abdollahi DMD, 2008-PER-00009 (12/17/07).

The start and end dates of the job order must be entered on the ETA Form 9089 to document the timing of the SWA job order. Thus, the CO properly denied certification based on the Employer’s failure to enter the dates of a SWA job order on its application.

Matter of Best Manufacturing, 2007-PER-00080 (12/19/07).

Despite the Employer’s attorney’s argument that his records showed that all selections on the application were properly made, the application contained in the Appeal File supports the CO’s finding that the Employer in the instant case marked “Yes” for H-6, but did not make a subsequent entry for H-6A. (See AF 11, 21). Failing to specify the months of experience caused the application to be incomplete, and subject to denial pursuant to 20 C.F.R. § 656.17(a)(1). Thus, we affirm the CO’s denial of labor certification.

Matter of Syncsort, 2007-PER-00067 (12/18/07).

The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. The fact that once the 30 day period expired, it appeared that no harm was occasioned by the Employer violation is insufficient to excuse the violation. Thus, we affirm the CO’s denial of labor certification.

Matter of Oyassan, 2007-PER-00069 (12/18/07).

…the Employer believed that it could file the application 30 days after the SWA job order started. However, the applicable time is 30 days after the SWA job order ended. The Employer’s application showed an end date for the SWA job order that was actually several weeks after the date the application was filed.3 The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. Thus, we affirm the CO’s denial of labor certification.

Matter of Constructions Pros Corp., 2007-PER-00077 (12/18/07).

The Employer’s application showed an end date for the SWA job order that was only seven days prior to the date it filed the Form 9089….The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. This was not a mere clerical error. Thus, we affirm the CO’s denial of labor certification.

Matter of Texas Storm of Houston, 2007-PER-00089 (12/18/07).

The fact that the job order ran for 31 days was irrelevant to the issue raised by the CO. The deficiency with the application was that the Employer only waited 25 days before filing its application. The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early, and we affirm the CO’s denial of labor certification.

Matter of Lam Garden Chinese Restaurant, 2008-PER-00014 (12/17/07).

…it was an error by the SWA in neglecting to take into account the short length of February that caused the job order to be a day short. Although it is possible that the one day shortfall in the SWA job order may have resulted in a U.S. applicant or applicants being overlooked, the possibility that the deficiency materially affected the recruitment is not great. … Under these precise circumstances, we find that the CO abused his discretion in refusing to grant certification upon reconsideration. We limit the ruling in this case to the precise circumstances presented.

Matter of Golden Bridge Restaurant, 2007-PER-00099 (12/18/07).

The Employer clearly violated 20 C.F.R. § 656.17(e)(1)(i) by submitting the application too early. The fact that once the 30 day period expired, it appeared that no harm was occasioned by the Employer violation is insufficient to excuse the violation. Thus, we affirm the CO’s denial of labor certification.

Minor Omissions

Matter of Subhashini Software Solutions, 2007-PER-00043-46 (12/18/07).

…the CO’s refusal to process applications not bearing a DOL logo is not grounded in any explicit regulatory or interpretative requirement of which we are aware. … the denial of reconsideration would be an injustice and would not satisfy the requirements of due process. The consequences to the Employer were out of proportion to the mistake. To deny labor certification for such an error would be to elevate form over substance, to lose perspective of the relative weight of the offense compared to the consequences to the petitioning Employer, and to offend the concept of fundamental fairness.

Matter of Subhashini Software Solutions, 2007-PER-00039-53 (12/10/07).

…the failure to answer Section H-10A, as in all five of the above-captioned matters, also constitutes grounds for denial of certification. …These were not just “slight omissions.” Moreover, although the Employer argues that the omissions could have been corrected by a simple request for evidence by the CO, as we held in Alpine Store Inc., “the burden is clearly on employers to ensure that they are submitting complete applications to the CO. … We find that the Employer’s applications were incomplete on a material issue, and thus properly denied under 20 C.F.R § 656.17(a).

FEIN

Matter of Discolo, 2007-PER-00108 (12/17/07).

…pursuant to 20 C.F.R. §656.3, “an employer must possess a valid Federal Employer Identification Number (FEIN).” … Thus, the CO correctly denied certification in this matter. The Employer‟s remedy is to obtain a FEIN and reapply.

Matter of Alpert, 2007-PER-00109 (12/17/07).

…although a household may not be a business in the commercial sense, it nonetheless must obtain an EIN in order to legally employ a domestic worker. … we find that in the context of a household supplying a FEIN in Section C-7 of Form 9089, the policy of verifying whether an employer is a “bona fide business entity” is served by ensuring that the Employer has applied for and received an EIN in order to legally employ a domestic worker.

Matter Bugajski-Lang, 2007-PER-00079 (12/17/07).

…we find that the CO did not abuse his discretion in declining to permit the Employer to remedy the deficiency in her application by obtaining a FEIN after being notified of the deficiency. The CO correctly denied certification, and the Employer’s remedy is to re-file the application now that she has obtained a FEIN.

Actual Minimum Requirements

Matter of Century Wilshire Hotel, 2007-INA-00022 (10/15/07).

…the Employer attempted in rebuttal to establish that the Alien gained qualifying experience for its Hotel Manager position while working as a Clerk. Although we might be willing to accept that some hotels may promote clerks to manager, the position taken by the Employer fails to establish that the requirements stated on the application were its actual minimum requirements for the job.

Good-faith Recruitment

Matter of El Jalisco Mexican Restaurant, 2007-INA-00010 (12/10/07).

We concur with the CO that the evidence of one minute or less for telephone contact with the applicants is inadequate to establish good faith efforts to recruit. If the Employer actually spoke to the applicants, it is not credible to believe that one minute was enough time to introduce the reason for the call, determine that the applicants did not have the requisite experience, and receive a statement from the applicants that they were not interested in the position. If the Employer’s attorney misunderstood the facts of the case in the appellate brief, and the Employer never actually talked to the applicants, then the absence of any attempt to follow up the phone calls with a letter exhibits a lack of good faith effort by the Employer to contact and consider these potentially qualified U.S. applicants.

Matter of Bistany’s Oriental Rug Dealers, 2007-INA-00009 (12/10/07).

…the Employer’s delay and interviewing process demonstrated less than a good faith effort to follow-up with this qualified U.S. applicant. … The Employer has failed to prove that there are not sufficient U.S. workers who are “able, willing, qualified and available” to perform the work.

Insufficient Wage

Matter of Plaza Express Car & Limo Service, 2007-INA-00008 (12/10/07).

…even if we found that the CO improperly reclassified the position as an “Office, Manager,” we nonetheless agree with the CO that the job is a Level 2 rather than Level 1 position, and therefore should have, at the minimum, used the Level 2 wage determination for a “First-Line Supervisor/Manager” job offer ($43,992). The Employer’s $24,000 wage offer was well below that amount. Accordingly, we find that labor certification was properly denied.

Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud.

The higher fines were announced in a new rule. To view the compete rule, see “Inflation Adjustment for Civil Monetary Penalties Under Sections 274A, 274B, and 274C of the Immigration and Nationality Act” (pdf).

Petitions filed with the Chicago Lockbox will be routed to, and adjudicated at, the appropriate USCIS Service Center. This routing will be based on the petitioner’s place of residence in the United States.

Two separate post office box addresses (see below) have been established that correspond to the appropriate USCIS Service Center (either Vermont or California) that will process and adjudicate the petition. Although Form I-130 must be filed with the Chicago Lockbox, petitioners will receive receipt notices from either the Vermont or California Service Center.

Petitioners who reside in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804625
Chicago, IL 60680-1029

Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia or District of Columbia must file their stand-alone Form I-130 with the Lockbox using the following address:

USCIS
P.O. Box 804616
Chicago, IL 60680-1029

And the street address for direct I-130 filings (thanks to AILA):

U.S. Citizenship and Immigration Services
Attn: FBASI
427 S. LaSalle - 3rd Floor
Chicago, IL 60605-1098

Source: USCIS I-130 Update // Chicago Lockbox (pdf)

Applicants who concurrently file Form I-485 (Application to Register Permanent Status or Adjust Status) based upon the approval of an employment based petition and Form I-765 (Application for Employment Authorization) will receive one biometrics appointment letter to appear at a designated Application Support Center (ASC).
Applicants who filed concurrently before this notice and have received two notices from the ASC are still required to attend both appointments. (Emphasis added). Further, this change will not affect applicants who do not file the I-765 concurrently with the I-485.

USCIS will collect biometrics for both forms in one visit to the ASC, ensuring that each application is processed in a timely manner. Also, customers will only need to submit one biometrics fee ($80) with the I-485.

The biometrics collection for the Form I-485 and a concurrent Form I-765 is being consolidated in order to improve customer service and make the most of agency resources. Previously, customers received a biometrics appointment from the ASC for the I-485, but were required to submit any necessary biometrics for an I-765 directly to the service center with jurisdiction over their case. Collecting two sets of biometrics not only resulted in the loss of time and efficiency in sorting and processing the forms, but also triggered unnecessary delays in responding to the request.

Source: USCIS.gov (pdf)

U.S. Citizenship and Immigration Services (USCIS), anticipating that April 1, 2008 will see a repeat of the mass filings from last year, wishes to offer this list of measures the petitioner can take to ensure that their petition is correctly filed.
For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. Cap subject petitions received before that date will be rejected. Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions. Both the forms and the instructions can be downloaded from this website. Click on this page’s related link, “Download form I-129: Petition for a Nonimmigrant Worker” or visit the “Immigration Forms” section of our homepage.

Here are some general tips on what to do to make sure that your petition is completed and filed properly.

1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following codes:

• Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
• C/S Cap (Chile/Singapore H-1B1s)
• U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
• Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)

2. Fill out Form I-129 and supplements correctly, consistently and completely.

• Form I-129 petition
• H classification supplement (page 7)
• H-1B Data Collection and Filing Fee Exemption Supplement (pages 10 and 11)

Original signatures are required. Tip: blue ink makes it easy for us to confirm an original.

3. Employer must submit the correct fees as seen on form instructions (separate checks for each are best).

Base filing fee

• $320

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA fee)

• $750 For employers with 1 to 25 full time equivalent employees unless exempt

• $1,500 For employers with 26 or more full time equivalent employees unless exempt
• (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)

Fraud fee

• $500 To be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner. (Not for Chile/Singapore H-1B1 cases)

Premium Processing fee

• $1,000 For employers seeking Premium Processing Service
• See Fee Exemption and/or Determination (Page 10 and 11) for detailed instructions on fees.

4. Please send only one petition per envelope. (These may then be mailed together in one mailing package.)

• Regular Cap
• U.S. Master’s Cap
• Regular Cap Premium Processing
• U.S. Master’s Cap Premium Processing
• H-1B1 Chile/Singapore

Please note that incorrectly completed or filed petitions may result in rejection or denial of the petition.

Source: USCIS.gov 

H-1B “cap exempt” petitions, as referenced here, include petitions filed by:

• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Such institutions and organizations can indicate that their H-1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (page 10).

H-1B petitioners are now encouraged to use the following special mailing address for qualifying H-1B cap exempt petitions. To determine if your petition qualifies, please make sure your institution or organization fits one of the categories listed above.
For Direct Mail:

U. S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
P.O. BOX 30040
Laguna Niguel, CA 92607-300

For non-United States Postal Service (USPS) deliveries (e.g. private couriers):

U. S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B Processing Unit
24000 Avila Road, Room 2312
Laguna Niguel, CA 92677

Each H-1B petitioner is encouraged to mark the outside of the envelope and the top margin of the I-129 form, with “EXEMPT.” This will ensure quick identification of the H-1B filing throughout the petition’s processing at CSC.

If a cap exempt H-1B petition is received at a different Service Center, that Service Center will expeditiously forward the petition to the CSC for processing. In the near future, USCIS will post special filing instructions to Form I-129 requiring all1 qualifying H-1B cap exempt petitions to be filed at the CSC.

Please note, the highest volume of H-1B filings occurs during the month of April (Six months before the new fiscal year). This may result in longer than average receipting times or other interruptions in processing times. The public is reminded that petitioners may file a qualifying H-1B cap exempt petition at any time of the year dependent on the petitioner’s need, and no earlier than six months ahead of the intended start date.

Source: USCIS Update

Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.

The cut-off date in EB-2 category for nationals of India had previously moved from “April 1, 2004″ in the November Bulletin to “January 1, 2002″ in the December Bulletin to “January 1, 2000″ in the January Bulletin. The retrogression continued in the February Bulletin and the category has become “unavailable”altogether.

We recently posted the January 2008 Visa Bulletin from the State Department. An important development was the continued retrogression of the cut-off date for Indian nationals in the Second Preference for employment visas. The cut-off date in this category has moved from “April 1, 2004″ in the November Bulletin to “January 1, 2002″ in the December Bulletin to “January 1, 2000″ in the January Bulletin.

The State Department commented in the notes of the most recent bulletin:

It has been necessary to once again retrogress the India Employment Second preference cut-off date. This is a direct result of continued heavy applicant demand for numbers by CIS for adjustment of status cases despite the retrogression which occurred for December. It is likely that the annual limit for this category will be reached within the next few months, at which time the category would become “unavailable” for the remainder of fiscal year 2008.

See http://www.foreignlaborcert.doleta.gov/ for prior DOL Backlog Elimination FAQs.

Backlog Elimination
Frequently Asked Questions Round 8
December 2007

1. Question: When is the official date that the Dallas and Philadelphia BECs will close?
Answer: Both BECs will close on 12/21/07.

2. Question: When will the BECs stop taking case inquiries from the public?
Answer: At this time the BECs’ capability to answer case questionsis limited due to the process of forwarding completed cases to the Federal Retention Centers for archiving purposes. All communication will cease on 12/21/07.

3. Question: After the BECs close on 12/21/07, whom do I contact with questions regarding the disposition of my application?
Answer: Direct all disposition questions to the Chicago National Processing Center (NPC). However, the Chicago NPC will not have direct access to case files and will only be able to provide limited information.

Contact the Chicago NPC via email at: bec.chicago@dol.gov (the subject line should be marked: Attn: Backlog) or via U.S. mail at:

U.S. Department of Labor
Employment and Training Administration
ATTN: BEC Inquiries
844 N. Rush Street, 12th Floor
Chicago, IL 60611

All mail the BECs receive just prior to closing will be forwarded to Chicago. All correspondence mailed to the BEC, but not received prior to closing, will be forwarded by the U.S. Postal Service to the Chicago NPC.

4. Question: If my case is denied, who will handle appeal requests after the BECs close?
Answer: Send all appeal requests for cases denied by either BEC to the Chicago National Processing Center:

U.S. Department of Labor
Employment and Training Administration
ATTN: BEC Appeals
844 N. Rush Street
12th Floor
Chicago, IL 60611

5. Question: My case was denied and I have filed an appeal, but I have not received a decision. What will happen to my case?
Answer: For cases that are currently in the appeal process, in the event that a BALCA decision is not reached prior to the closing of the BECs, the Chicago NPC will track the appeal and take any further actions required by a BALCA decision. The employer will be contacted at the appropriate time regarding new contact information.

6. Question: My case is listed as “In Process” on PDS. If my case is not completed prior to the BECs’ closing on 12/21/07 will final action still be taken?
Answer: In the unlikely event a case is not completed prior to the BECs’ closing, the case will be completed by Office of Foreign Labor Certification (OFLC) personnel. The application will be processed and the employer will be contacted as appropriate regarding final disposition.

7. Question: How long will the Public Disclosure System (PDS) remain active?
Answer: The system will remain active until all cases are completed. Cases in the appeal process will remain on PDS until BALCA reaches a decision.

8. Question: My case was closed at the State or Regional Office. Will the BEC be contacting me about my case?
Answer: No. Cases that received a final disposition at either the State or regional level, including being denied, closed, or withdrawn, would not have been sent to a BEC. Since the appeal period has expired on all such cases, there is no additional action that can be taken.

9. Question: An application was sent to the State years ago, but I have not heard anything from the BEC. What is the status of such a case?
Answer:As previously stated inBacklog FAQs, Round 7, question #7, there are several reasons why an application may have received a disposition at the state level and was never sent to a BEC.

For all applications sent to a BEC, several notification actions were taken to: 1) ask employers if they wanted to continue the application, 2) notify employers of any issues through clarification letters or Notices of Findings, 3) notify employers when recruitment actions had commenced and to provide recruitment instructions, and 4) provide recruitment report instructions.

In addition to the normal procedures, OFLC published on its website two special procedures for backlog cases. OFLC published a procedure in July 2006 for employers or their representatives to follow if they had not been contacted by a BEC with a 45-day Center Receipt Notification Letter.

OFLC then published a procedure in September of 2006 for employers or their representatives to follow if they had not been contacted in any way by a BEC.

OFLC published both of these procedures on its website, transmitted the information to stakeholder groups for dissemination on their websites, and publicly explained the procedures at several national forums. The procedures had specific timeframes in which to contact the BECs. All of these timeframes have expired.

The procedures remain substantially unchanged. If an employer has not received any communication from the BEC regarding a case, then the BEC does not have a record of having received the application.

In many cases, employers can file a new application using the PERM program. Instructions for establishing an account and filing an application online can be found athttp://www.plc.doleta.gov.

10.Question: After the BECs close, where do I send Freedom of Information Act (FOIA) requests?
Answer: Information on how to make a FOIA request can be found at http://www.doleta.gov/foia/. FOIA requests should be sent to the ETA National Office at:

U.S. Department of Labor - ETA
200 Constitution Avenue, NW
Washington, D.C. 20210-0002

11.Question: Will BEC personnel still be available to discuss backlog applications after the BECs close?
Answer: No. All BEC federal personnel will be reassigned to positions not related to Foreign Labor Certification.

12.Question: I do not have my original certified ETA 750 to submit to USCIS. How do I obtain a duplicate from DOL?
Answer: For applications processed at the BECs, Employment and Training Administration regulations at 20 CFR 656.30(e) require that requests for duplicate labor certification can be initiated only by the U.S. Citizenship and Immigration Services.

13.Question: I have contacted the BEC for an update on the status of my case, but I have not heard anything back. Can I expect a response from the BEC or OFLC?
Answer: The volume of cases processed made it unfeasible for the BECs to provide status updates regarding where specific cases were in the process. To provide such information to the public, OFLC created the Public Disclosure System (PDS)http://pds.pbls.doleta.gov/. Using the case number, the public can obtain the status of their case as to whether it is In Process, Certified, Denied, Closed, Withdrawn, or actively On Appeal.

Due to the closing of the BECs, and the transmittal of the cases to archiving centers, the BECs remain unable to answer individual case status requests. However, the PDS system will continue to be active and can be used to obtain the most current information regarding the status of a case.

14.Question: I recently sent a message to the BEC’s “No BEC Contact” address regarding a case filed with a State because I have not heard anything at all from the BEC about the case I believed to be pending. Can I expect to hear back about the case from the BEC or OFLC?
Answer: No. FLC published on its website two special procedures for backlog cases. OFLC published a procedure in July 2006 for employers or their representatives to follow if they had not been contacted by a BEC with a 45-day Center Receipt Notification Letter. OFLC then published a procedure in September 2006 for employers or their representatives to follow if they had not been contacted in any way by a BEC. OFLC published both of these procedures on its website, transmitted the information to stakeholder groups for dissemination on their websites, and publicly explained the procedures at several national forums. The procedures had specific timeframes in which to contact the BECs. All of deadlines set forth in those procedures have expired.

The closing of the BECs makes it unfeasible to provide responses to those who have sent inquiries regarding “no BEC contact” after the expiration of the deadlines. Therefore, the BECs will not be respondingto individual “no BEC contact” requests filed after the expiration dates for these opportunities.

If an employer has not received any communication from the BEC regarding a case, then the BEC does not have a record of having received the application. In many cases, employers can file a new application using the PERM program. Instructions for establishing an account and filing an application online can be found at http://www.plc.doleta.gov.

“Safe-Harbor Procedures for Employers Who Receive a No-Match Letter”, 77 Fed. Reg. 45611 (Aug. 15, 2007)

That rule would have amended part 274a.1(l) of chapter I of title 8 of the Code of Federal Regulations.

But labor groups filed a lawsuit August 29th in the District Court of Northern California challenging the No-Match Rule and asked for a temporary restraining order and preliminary injunction.

Complaint for Declaratory and Injunctive Relief

On August 31st, the temporary restraining order was granted and a hearing was ordered for October 1st to determine whether a preliminary injunction - preventing the government from sending the No-Match letters - should be granted.

Temporary Restraining Order

[UPDATE :: October 10, 2007] The Court granted the preliminary injunction preventing the government from enforcing the “No-Match” Rule.

Order Granting Motion for Preliminary Injunction

[UPDATE :: November 24, 2007] The Department of Homeland Security filed a motion to stay proceedings until March 2008 while the agency rewrites the “No Match / Safe Harbor Rule” to comply with the law (and avoid the current litigation).

DHS Motion to Stay Proceedings
Proposed Order Granting Motion to Stay Proceedings

Additional materials are posted below:

Sample No-Match Letter
No-Match Letter FAQ for employers

The revision seeks to achieve full compliance with the document reduction requirements of the illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The revised Form I-9 is a further step in USCIS’ ongoing work toward reducing the number of documents used to confirm identity and work eligibility.

Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I- 571). The forms were removed because they lack features to help deter counterfeiting, tampering, and fraud.

Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.

Employers are encouraged to start using the revised Form I-9 immediately. The form will become effective once the notice is published in the Federal Register.

USCIS Fact Sheet on Revised Form I-9

Revised Form I-9 :: Employment Eligibility Verification

Instructions for Completing Form I-9

[UPDATE :: November 24, 2007] USCIS published a notice regarding the new Form I-9 in the Federal Register and it stated the new Form I-9 must be used beginning December 26, 2007. USCIS also published a reminder about the rule on its own website. Both documents are posted below.

Federal Register Notice :: Revised Form I-9

USCIS Reminder :: Revised Form I-9

Backlog Elimination
Frequently Asked Questions
October, 2007

(1) Are the Backlog Elimination Centers (BECs) still open, or did they close?
As of September 30, 2007, the Backlog in the Permanent Labor Certification program has been eliminated, with nearly 99% of cases completed and the remainder awaiting responses from employers. Both of the BECs have started a transition and shutdown phase that will continue into December.

The BECs will continue to use the general information email boxes as the communication source for a limited period. These addresses are: info@dal.dflc.us (Dallas BEC) or info@phi.dflc.us (Philadelphia BEC).

(2) My case is not yet completed; can I still find out the status of the case?
The online Backlog Public Disclosure System (PDS) will continue to be active. Case status can be checked at http://pds.pbls.doleta.gov.

(3) My case is still listed as “In Process” on PDS. Will the BEC complete my case?
Both of the BECs have started a transition and shutdown phase that will continue through December. During this time, they will complete any remaining cases. Employers or their designated attorneys or agents are strongly encouraged to respond to any dated (time sensitive) correspondence as soon as possible – and prior to specified deadlines to the extent possible – regarding remaining cases to facilitate a final disposition.

(4) My case is listed as Certified on PDS, but I have not yet received my certification in the mail.
It may take up to three weeks to receive the certification by mail. The certification will be sent to the attorney of record, or to the employer if there is no attorney of record. If the certification is not received after three weeks from the time it is listed on PDS as certified, email the appropriate BEC at the information email box as listed above. On the subject line, please use the identifier “Post-Certification Issue.”

(5) My case was closed at the State or Regional Office; will the BEC be contacting me about my case?
No. Cases that received a final disposition at either the State or regional level, including being denied, closed, or withdrawn, would not have been sent to a BEC. Since the appeal period has expired on all such cases, there is no additional action that can be taken.

(6) The applicant, attorney, or representative for the case did not respond in a timely manner to correspondence and the case was closed. Will the BEC consider re-opening the case?
No. When OFLC (i.e., the BEC) corresponds with employers, their attorneys, or agents, specific dates (deadlines) are given for required actions by the applicant to continue the case. If the appropriate, complete response is not received by OFLC postmarked by the required date, the decision regarding the case remains final. Likewise, if a timely response had not been received to a Notice of Findings, the decision to deny the case is final.

(7) An application was sent to the State years ago, but I have not heard anything from the BEC. What is the status of such a case?
As stated in the answer to question #5, there are several reasons why an application may have received a disposition at the state level and was never sent to a BEC.

For all applications sent to a BEC, several notification actions were taken to: 1) ask employers if they wanted to continue the application, 2) notify employers of any issues through clarification letters or Notices of Findings, 3) notify employers when recruitment actions had commenced and to provide recruitment instructions, and 4) provide recruitment report instructions.

In addition to the normal procedures, OFLC published on its website two special procedures for backlog cases. OFLC published a procedure in July of 2006 for employers or their representatives to follow if they had not been contacted by a BEC with a 45-day Center Receipt Notification Letter.

OFLC then published a procedure in September of 2006 for employers or their representatives to follow if they had not been contacted in any way by a BEC.

OFLC published both of these procedures on its website, transmitted the information to stakeholder groups for dissemination on their websites, and publicly explained the procedures at several national forums. The procedures had specific timeframes in which to contact the BECs. All of these timeframes have expired.

The procedures remain substantially unchanged. If an employer has not received any communication from the BEC regarding a case, then the BEC does not have a record of having received the application.

In many cases, employers can file a new application using the PERM program. Instructions for establishing an account and filing an application online can be found at http://www.plc.doleta.gov.

(8) My case was denied by the Certifying Officer at the BEC, but the employer or their attorney has appealed this decision to BALCA. Who will handle the case if further action is required by the BALCA decision?
In the event that a BALCA decision is not reached prior to the closing of the BECs in December 2007, OFLC will track the appeal and take any further actions required by a BALCA decision. The employer will be contacted at the appropriate time regarding new contact information.

USCIS Reminder to Apply for Travel Documents

“USCIS urges applicants needing a travel document (Reentry Permit, Refugee Travel Document or Advance Parole) to file Form I -131, Application for Travel Document (available online at www. uscis.gov ), before the end of October 2007.”

U.S. Citizenship and Immigration Services (USCIS) advises customers that, due to a tremendous increase in the number of applications filed, processing of fee payments and entry of cases into our tracking system is behind schedule. As a result, applicants can expect notices of receipt to be delayed. USCIS is working hard to deal with the increased volume and has published the following frequently asked questions in order to provide additional information to applicants.

What is the cause of the receipt delay?
The receipt delay was caused by a significant workload increase, in part based upon filings by individuals attempting to beat a planned fee increase and a significant influx of applications associated with visa availablility [sic] in the Department of State’s July 2007 Visa bulletin. This resulted in an influx of applications and fees that exceeded USCIS’ capacity to timely issue receipts and deposit application fees.

How does a receipt delay affect my case?
If your case is subject to a receipt delay, this means that USCIS has received your case in its mailroom, but has not yet processed your case. This means that your case information has not been entered into the USCIS case management system and the fee you sent with your application has not yet been deposited. These delays affect USCIS’ ability to issue a receipt notice to you. It may also affect the overall time it will take us to make a decision on your application.

Is this why I haven’t received my receipt notice?
Yes, it could be. Typically, customers should recieve receipt notices within 2 weeks of USCIS receiving their applications. The receipt delay may cause this to take up to 15 weeks for customers to receive receipt notices. USCIS continues to monitor the current intake of applications and will identify application processing dates on its website. To find the latest information, please see the USCIS Application and Receipting Update at http://www.uscis.gov/receiptingtimes.

Is USCIS prioritizing certain application(s) during the receipting process?
Yes. The Application to Adjust Status (I-485) will have first priority because USCIS needs to ensure that these applications are receipted in a timeframe that would allow processing of an application for an Employment Authorization Document (EAD) within 90 days of filing as mandated by law [8 CFR 247a.13(d)]. Our second priority will be to receipt the Application for Naturalization (N-400) so that we can minimize any delays in obtaining citizenship.

What will USCIS do to ensure employment authorization documents are processed within 90 days?
USCIS is working to ensure all Applications for Adjustment of Status (I-485) are receipted and any accompanying applications for employment authorization documents (EADs) are processed within 90 days. USCIS is realigning its resources to meet this deadline.

How is USCIS planning to address this receipting delay?
USCIS is realigning its resources to eliminate the receipt delay as quickly as possible. This effort includes increasing the number of contract employees, as well as requiring significant mandatory overtime and shift work. USCIS also has temporarily detailed Government staff to centers that have been affected the most by the large influx of cases.

If I filed before the new fee change and my application is rejected, do I need to pay the new higher fee?
Yes, unless USCIS rejected your application in orror [sic]. if [sic] you think that your application was rejected in error, you should resubmit your original application, your original check or money order, the cover letter that was included with your returned application and an explanation of the reason why you believe the rejection was in error.

How do I find out if my application is a part of the receipting delay?
USCIS has developed a web page at http://www.uscis.gov/receiptingtimes specifically to address any receipt delay concerns. This page provides general information about your application type. In addition, USCIS representatives are available at the National Customer Service Center (1-800-375-5283) to assist callers with general information about the process.

Will this affect my ability to travel? (Revised 10/12)
Possibly, if you leave the country prior to the completion of the receipting process and do not have the appropriate travel documents, you may have difficulty returning to the United States. For more information, please visit the Emergency Travel page of our site.

Q : How do I change my address while I am waiting for my receipt number? (New)
The two easiest ways to notify USCIS that you have changed your address are to use the Change of Address Online web page or to call our National Customer Service Center (1-800-375-5283). For the Change of Address Online web page, you will need to know your receipt number. If you paid your application fee by check, your receipt number will usually be printed on the back of the check when it is cashed by USCIS.

Q : What if I need advance parole? (New)
We anticipate completing the receipting of the I-131 documents by the end of October 2007. Due to the heavy volume of cases, we are encouraging customers to wait until the end of October before inquiring about their case. If special circumstances exist and advance parole is needed quickly, please make an InfoPass appointment to visit your local USCIS office or call the National Customer Service Center (NCSC) at 1-800-375-5283. When you visit the local district office, be prepared to explain the need for urgent travel, provide the U.S. Postal Service tracking number associated with the original application filed, and the date the application was received at the Service Center where you filed.

Q : Will my application be rejected if my check expires? (New)
No. When USCIS receives notice that your check has expired, we will notify you and suspend processing on your case. You will be given an opportunity to send a new check at the original filing rate and filing date to resume processing of your application. USCIS will contact you if your check has been returned to us because it is beyond the expiration date.

Q : I have received my receipt notice, but when I check my case online it does not appear. How do I get my case added to the system, so I can check on the progress of my case? (New)
We have had an unprecedented number of applications filed in the last few months. Our efforts to enter these applications into our systems have caused a delay in the transfer of information from our case control system to the Case Status Online system. We are seeing delays of up to three to four weeks between receipting of your application and its status being available online. We are reviewing solutions to resolve the situation as soon as possible.

Q : If I filed before July 30 and there is a problem with the check I used to pay my application fees, will I have to pay the new higher fees when I reapply? (New)
If USCIS is notified that your check for an application fee has been returned due to insufficient funds, your case will be placed in suspense. You will be notified by mail and asked to submit a new payment along with a $30 administrative fee. If you do so within 14 days, USCIS will honor the original filing date and processing of your case will continue.

Q : What do I do if the information on my receipt is incorrect? (New)
The information you provided on your application is entered into our system; however, sometimes an error occurs. If you find that we misspelled your name or made any other error, you should call the National Customer Service Center at 1-800-375-5283 to request a correction. A USCIS representative will take the information needed to correct the error(s).

FAQ for New Naturalization Test
Civics Questions for the Redesigned Test

Earlier this year, more than 6,000 citizenship applicants volunteered to take a pilot version of the test at 10 USCIS sites across the country during a four-month period. The 100 new civics items on the new naturalization test were selected after USCIS, a panel of history and government scholars, and English as a Second Language (ESL) teachers conducted a thorough review of the responses to the 142 items on the pilot test.

“We are very proud of this new test, and the open manner that we worked with our stakeholders throughout this entire process,” said USCIS Director Emilio Gonzalez. “Together, we developed a test that will encourage citizenship applicants to learn and identify with the basic civic values that unite us as Americans.”

The revised naturalization test will help strengthen assimilation efforts by emphasizing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. It will also promote patriotism among prospective citizens.

Following the pilot, USCIS refined the questions and answers, dropping several and adjusting others to increase clarity, narrowing the list to the new 100 questions. The range of acceptable answers to questions will increase so that applicants may learn more about a topic and select from a wider range of responses.

For instance, one of the new questions with a range of correct answers is: “What is one right or freedom from the First Amendment?” The applicant may respond with a variety of possible answers such as speech, religion, assembly, press, and petition the government.

USCIS conducted the pilot during actual citizenship interviews in 10 districts across the country: Albany, NY; Boston, MA; Charleston, SC; Denver, CO; El Paso, TX; Kansas City, MO; Miami, FL; San Antonio, TX; Tucson, AZ; and Yakima, WA. Volunteers who participated in this pilot test achieved a 92.4 percent overall pass rate on the first try. The pass rates by test component were: civics, 93.7 percent; reading, 99.8 percent; and writing, 99 percent.

Following the pilot, USCIS and an expert technical advisory group affiliated with Teachers of English to Speakers of Other Languages (TESOL) reviewed the responses and re-piloted several re-phrased questions at 64 civics and citizenship classroom sites across the country. This secondary review was primarily focused on groups of individuals possessing Low-Beginning to High-Beginning levels of English comprehension to ensure that the average citizenship applicant was able to understand the question and answer items.

USCIS has posted the 100 new question and answers, the reading and writing vocabulary lists, a side-by-side comparison of the current and new test, answers to frequently asked questions and other information about the new test online at: http://www.uscis.gov/newtest.

- USCIS -

www.uscis.gov

BALCA :: Matter of Demos Consulting Group, 2007-PER-00020 (5/16/07)

“Since the Alien only qualified for the position under the alternative experience requirement, under section 656.17(h)(4)(ii), the Employer’s application was required to state that any suitable combination of education, training, or experience was acceptable. It did not, and we therefore find that the CO properly denied certification.”

See Kellogg Language.

Dear Employer:

The purpose of this letter is to provide you with additional guidance on how to respond of the enclosed letter from the Social Security Administration (SSA) in a manner that is consistent with your obligations under United States immigration laws. You are now aware that the Social Security numbers you have provided on W-2 Forms for certain employees do not match SSA’s records. Many employers that receive this information are concerned about how to respond appropriately, and whether the receipt of such information implicates an employer’s obligations under the Immigration and Nationality Act. This letter will answer the common questions arising from this situation.

Q: Can I simply disregard the letter from SSA?
A: No. You have received official notification of a problem that may have significant legal consequences for you and your employees. If you elect to disregard the notice you have received and if it is determined that some employees listed in the enclosed letter were not authorized to work, the Department of Homeland Security (DHS) could determine that you have violated the law by knowingly continuing to employ unauthorized persons. This could lead to civil and criminal sanctions.

Q: What should I do?
A: You should take reasonable steps to resolve the mismatch, and apply these reasonable steps uniformly to all employees listed in the enclosed SSA letter. It is possible that a mismatch was the result of a clerical error on the part of the employee, the employer, or the government.

You should:
1) Promptly (no later than 30 days) check your records to ensure that the mismatch was not the result of an error on your part;
2) If this does not resolve the problem, ask your employee to confirm the accuracy of your records;
3) If necessary, ask the employee to resolve the issue with SSA;
4) If you were able to successfully resolve the mismatch, make sure you have followed all of the instructions in the enclosed SSA letter. You should also verify that the correction has been made by using the Social Security Number Verification System (SSNVS) administered by SSA, and retain a record of the date and time of your verification. SSNVS can be accessed through http://www.socialsecurity.gov/employer/ssnv.htm or by telephone at 1-800-772-6270; and
5) If none of the foregoing measures resolves the matter within 90 days of receipt of this letter, you should complete, within three days, a new I-9 Form as if the employee in question were newly hired, except that no document may be used to verify the employee’s authorization for work that uses the questionable Social Security number and no document may be used to verify the employee’s identity that does not have a photograph of the employee.

If you cannot confirm that the employee is authorized to work (by following the above procedures), you risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Q: Does receiving a mismatch letter, standing alone, indicate that I ought to terminate the employees whose numbers did not match SSA records?
A: There are many reasons for a mismatch between employer and SSA records, including transcription errors and name changes due to marriage that are not reported to SSA. Employers should not assume that the mismatch is the result of any wrongdoing on the part of the employee. Moreover, an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.

Q: Will I be liable for discrimination charges brought by the United States if I terminate the employee after following the steps outlined above?
A: No. An employer that receives such a letter and terminates employees without attempting to resolve the mismatches, or who treats employees differently based upon national origin or other prohibited characteristics, may be found to have engaged in unlawful discrimination. However, if an employer that follows all of the procedures outlined by DHS in this letter (and http://www.ice.gov) cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the mismatch letter, then that employer will not be subject to suit by the United States under the Immigration and Nationality Act.s anti-discrimination provision.

If you have any additional questions, please visit http://www.ice.gov for extensive information or feel free to contact the Immigration and Customs Enforcement Office of Investigations at 1-800-421-7105.

Go to Diversity Visa Electronic Entry Form for DV-2009.
Read Diversity Visa Lottery Instructions for DV-2009 (.pdf).

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 provides for a class of immigrants known as “diversity immigrants”. Section 203(c) of the INA provides a maximum of up to 55,000 Diversity Visas (DV) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. A computer-generated random lottery drawing chooses selectees for diversity visas. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the U.S. over the period of the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2008, natives of the following countries were not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. over the period of the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Are there any fees for the Diversity Visa Program?
There is no fee for submitting an electronic lottery entry. DV applicants must pay all required visa fees at the time of visa application directly to the consular cashier at the embassy or consulate. Details of required diversity visa and immigration visa application fees will be included with the instructions sent by the Kentucky Consular Center to applicants who are selected.

Do I qualify for the Diversity Visa Program?
You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

What Occupations qualify for the Diversity Visa Program?
The Department of Labor (DOL) O*Net Online Database groups job experience into five “job zones.” While many occupations are listed on the DOL Website, only certain specified occupations qualify for the Diversity Visa Program. To qualify for a Diversity Visa on the basis of your work experience, applicants must, within the past five years, have two years of experience in an occupation that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.

Follow these steps to find out if your occupation qualifies: Select “Find Occupations” and then select a specific “Job Family”. For example, select Architecture and Engineering and click “GO”. Then click on the link for the specific Occupation. After selecting a specific Occupation link, select the tab “Job Zone” to find out the designated Job Zone number and Specific Vocational Preparation (SVP) rating range.

2008 Diversity Visa Lottery Registrations

Over 6.4 million entries for the 2008 Diversity Visa Lottery were received during the two-month electronic registration period, from October 4, 2006, through December 3, 2006. This is an increase from the more than 5.5 million applications received in the 2007 Diversity Visa Lottery. Taking into account dependents, there are more than 10 million participants in the 2008 Diversity Visa Lottery.

Most of the applications were from Africa and Asia with 41 percent of the total from Africa, 38 percent from Asia, 19 percent coming from Europe, and 2 percent coming from South America, Central America, and the Caribbean. The largest number of applicants came from Bangladesh (more than 1.7 million applicants) followed by Nigeria (684,735) and Ukraine (619,584). The number of winning entries by country will be available after the random lottery process is conducted next year.

The electronic registration process makes it easier for applicants to apply and continues to increase the Department’s ability to screen against duplicate and other fraudulent entries. Anti-fraud technology using facial recognition and data mining will be used to eliminate duplicate cases.

Winners will be notified with a letter mailed from the Kentucky Consular Center confirming the name, date of birth, and country of chargeability for the registrant, as well as a time/date stamp when entries were registered. Notification will be sent to the winning entrants by mail only between April and July 2007 and will provide further instructions, including information on fees connected with immigration to the United States.

There have been several attempts to defraud Diversity Visa Lottery entrants. Lottery entrants selected as winners in the Diversity Visa random drawing are notified only by the Department of State’s Kentucky Consular Center. No other organization or company is authorized by the Department of State to contact winning entrants.

http://ocp.hul.harvard.edu/immigration/

Wall Street Journal, Firms Get Creative To Work Around Visa Bottlenecks (08/27/2007)

BIA Decision - August 15, 2007

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act. 8 C.F.R. § 1245.10(a)(3) (emphasis added).

This appeal addressed the second prong - whether the inital visa petition was “meritorious in fact” - and illustrates that determinations will be made based on the circumstances that existed at the time the qualifying petitions or applications were filed. This standard applies to both marriage-based and employment-based adjustment of status applications filed under section 245(i) of the Immigration and Nationality Act.

For additional information on section 245(i) and the definition of “approvable when filed”, see

Yates Memo :: March 9, 2005 :: Approvable When Filed.

…part 274a of chapter I of title 8 of the Code of Federal Regulations is amended.

Section 274a.1(l) is revised to read as follows:

(l)(1) The term knowing includes having actual or constructive knowledge. Constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Examples of situations where the employer may, depending on the totality of relevant circumstances, have constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the employer:

(i) Fails to complete or improperly completes [the] Form I–9;
(ii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf; and
(iii) Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not
employment authorized, such as—

(A) An employee’s request that the employer file a labor certification or employment-based visa petition on [their] behalf;
(B) Written notice to the employer from the SSA reporting earnings on a Form W–2 that employees’ names and corresponding social security account numbers fail to match SSA records; or
(C) Written notice to the employer from the DHS that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I–9 is assigned to another person, or that there is no agency record that the document has been assigned to any person.

(2)(i) An employer who receives written notice from the SSA as described in paragraph (l)(1)(iii)(B) of this section will be considered by the DHS to have taken reasonable steps—and receipt of the written notice will therefore not be used as evidence of constructive knowledge—if the employer takes the following actions:

(A) The employer must check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error. If the employer determines that the discrepancy is due to such an error, the employer must correct the error and inform the SSA of the correct information (in accordance with the written notice’s instructions, if any). The employer must also verify with the SSA that the employee’s name and social security account number, as corrected, match SSA records. The employer should make a record of the manner, date, and time of such verification, and then store such record with the employee’s Form I–9(s) in accordance with 8 CFR 274a.2(b). The employer may update the employee’s form I–9 or complete a new Form I–9 (and retain the original Form I–9), but the employer should not perform a new form I–9 verification. The employer must complete these steps within thirty days of receiving the written notice.

(B) If the employer determines that the discrepancy is not due to an error in its own records, the employer must promptly request that the employee confirm that the name and social security account number in the employer’s records are correct. If the employee states that the employer’s records are incorrect, the employer must correct, inform, verify, and make a record as set forth in paragraph (l)(2)(i)(A) of this section. If the employee confirms that its records are correct, the employer must promptly request that the employee resolve the discrepancy with the SSA (in accordance with the written notice’s instructions, if any). The employer must advise the employee of the date that the employer received the written notice from the SSA and advise the employee to resolve the discrepancy with the SSA within ninety days of the date the employer received the written notice from the SSA.

(C) If the employer is unable to verify with the SSA within ninety days of receiving the written notice that the employee’s name and social security account number matches the SSA’s records, the employer must again verify the employee’s employment authorization and identity within an additional three days by following the verification procedure specified in paragraph (l)(2)(iii) of this section.

(ii) An employer who receives written notice from the DHS as described in paragraph (l)(1)(iii)(C) of this section will be considered by the DHS to have taken reasonable steps—and receipt of the written notice will therefore not be used as evidence of constructive knowledge—if the employer takes the following actions:

(A) The employer must contact the local DHS office (in accordance with the written notice’s instructions, if any) and attempt to resolve the question raised by the DHS about the immigration status document or employment authorization document. The employer must complete this step within thirty days of receiving the written notice.

(B) If the employer is unable to verify with the DHS within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee’s employment authorization and identity within an additional 3 days by following the verification procedure specified in paragraph (l)(2)(iii) of this section.

(iii) The verification procedure referenced in paragraphs (l)(2)(i)(B) and (l)(2)(ii)(B) of this section is as follows:

(A) The employer completes a new Form I–9 for the employee, using the same procedures as if the employee were newly hired, as described in section 274a.2(a) and (b) of this part, except that—

(1) The employee must complete Section 1 (‘‘Employee Information and Verification’’) and the employer must complete Section 2 (‘‘Employer Review and Verification’’) of the new Form I–9 within ninety-three days of the employer’s receipt of the written notice referred to in paragraph (l)(1)(iii)(B) or (C) of this section;

(2) The employer must not accept any document referenced in any written notice described in paragraph (l)(1)(iii)(C) of this section, any document that contains a disputed social security account number or alien number referenced in any written notice described in paragraphs (l)(1)(iii)(B) or (l)(1)(iii)(C) of this section, or any receipt for an application for a replacement of such document, to establish employment authorization or identity or both; and

(3) The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.

(B) The employer must retain the new Form I–9 with the prior Form(s) I–9 in accordance with 8 CFR 274a.2(b).

(3) Knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274A(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual, except a document about which the employer has received written notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section.

USCIS FAQ #3

Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107.

Adjustment applications and ancillary benefits – The new application fee for an I-485 is a package fee that includes associated EAD and advance parole applications.Thus, if you file an I-485 with the fee listed above, while you will still need to submit applications for an EAD and advance parole, you will not need to pay a separate fee so long as your adjustment application is pending. However, if you filed your I-485 before this fee change, to apply for or renew your EAD or advance parole, you must file a new application with the new fee for those applications.

Full list of USCIS filing fees.

USCIS Update :: Revised Processing Procedures for I-485 Applications

On July 2, 2007, USCIS announced that it would not accept any additional employment-based applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining employment visa number availability, and that Visa Bulletin #108 (dated July 2) has been withdrawn.

“The public reaction to the July 2 announcement made it clear that the federal government’s management of this process needs further review,” said Emilio Gonzalez, USCIS Director. “I am committed to working with Congress and the State Department to implement a more efficient system in line with public expectations.”

USCIS’s announcement today allows anyone who was eligible to apply under Visa Bulletin No. 107 a full month’s time to do so. Applications already properly filed with USCIS will also be accepted. The current fee schedule will apply to all applications filed under Visa Bulletin No. 107 through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will apply to all other applications filed on or after July 30, 2007).

New York Times Editorial, Immigration Malpractice (07/07/2007)

Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a priority date accorded by approval of an employment-based first, second or third preference petition is retained by the beneficiary for any other first, second or third preference petition approved subsequently for the same beneficiary. In all cases, the beneficiary of multiple petitions is entitled to the earliest of the filing dates of the various petitions.

Effective Monday July 2, 2007 there will be no further authorizations in response to requests for Employment-based preference cases. All numbers available to these categories under the FY-2007 annual numerical limitation have been made available.

Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation.

Department of State Publication 9514
CA/VO: July 2, 2007

Neufeld Memo :: Removal of the Standardized Request for Evidence (RFE) Processing Timeframe

On April 17, 2007, U.S. Citizenship and Immigration Services (USCIS) published “Removal of the Standardized Request for Evidence Processing Timeframe” in the Federal Register (FR) as a final rule. 72 FR 19100. This rule will become effective 60 days after publication in the Federal Register, on June 18, 2007.

Orlandi Landscaping Group, 2007-PER-00016

We affirm the CO’s denial of certification on the basis that the Employer failed to properly recruit for a professional occupation, as required under 20 C.F.R. § 656.17(e)(1). When an employer applies for certification on behalf of an alien, the job duties described must “be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones.” 20 C.F.R. §656.17(h) (2005) (emphasis added). The employer must take certain recruitment steps depending on whether the position is a professional occupation or a nonprofessional occupation. 20 C.F.R. § 656.17(e). Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as “occupation[s] for which the attainment of a bachelor’s or higher degree is a usual education requirement.” 20 C.F.R. § 656.3 (2005).

Outback Steakhouse, 2005-INA-00096

Although the Employer’s efforts were not vigorous, they were reasonable and constitute good faith efforts under the Act.

An employer does not need to establish actual contact with applicants in order to establish good faith recruitment efforts. M.N. Auto Electric Corp., 2000-INA-00165 (Aug 8, 2001)(holding that reasonable efforts are sufficient). It is clear that this Employer made reasonable efforts to contact all three applicants. The Employer provided copies of the certified mail receipts, demonstrating that it mailed recruitment letters through certified mail, return receipt requested, to the addresses provided on the applicants’ resumes. Each of the certified mail receipts was postmarked and each letter requested that the applicant contact the Employer if interested in setting up an interview.

The Employer then went a step further and followed the letters with two phone calls to each applicant at a number provided on his resume. The Employer recorded the dates, times, and circumstances of each call attempt, which further demonstrates reasonable efforts to contact the U.S. applicants. M.N. Auto Electric Corp., 2000-INA-00165 (Aug 8, 2001). Additionally, attempting to contact each applicant through two different means of communication demonstrates good faith effort. Diana Mock, 1988-INA-255 (Apr 9, 1990)(noting that where there are a small number of applicants, reasonable effort to recruit may require more than a single method of contacting applicants); Bruce A. Fjeld, 1988-INA-333 (May 26, 1989)(holding that merely calling a telephone number and not writing a letter can constitute a failure to make reasonable efforts to contact an applicant).

Although the Employer’s efforts were not vigorous, they were reasonable and constitute good faith efforts under the Act. Accordingly, based on the above, we find that the Employer made a good-faith effort to recruit qualified U.S. workers and that applicants were rejected solely for lawful job-related reasons.

(a) Exemption From Limitation - The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since –

(1) the filing of a labor certification application on the alient’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
(2) the filing of the petition under such section 204(b).

(b) Extension of H-1B Worker Status - The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

(a) the H-1B nonimmigrant is the beneficiary of an employment based (EB) immigrant petition or an application for adjustment of status; and
(b) 365 days or more have passed since the filing of a labor certification application, Form ETA 750, that is required for the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of the EB immigrant petition.

The Attorney General is required to grant the extension of stay of such H-1B nonimmigrants in 1-year increments, until a final decision is made on the H-1B nonimmigrant’s lawful permanent residence.

1. Procedures for Obtaining Extension of Status in Cases of Lengthy Adjudication

In order for an H-1B nonimmigrant to receive an extension of stay under AC21 106 beyond the maximum 6-year limit, a petitioner must file a Form I-129 on behalf of the nonimmigrant beneficiary. The petitioner may be either the beneficiary’s current employer or a new employer. If the H-1B petition is approved, the petition will be valid for a period of 1 year. One-year extensions of the beneficiary’s H-1B status may continue until a final decision is made on the alien’s lawful permanent resident status. A petitioner is required to file a new Form I-129 and pay the $110 $190 $320 filing fee for the request for a 1-year extension of status under AC21 106. Existing guidelines in the instructions to the Form I-129W for payment of the $1,000 $1,500 H-1B Nonimmigrant Petitioner Account Fee shall be followed. For example, if the petitioner is a nonprofit research organization or the petition is a second or subsequent request for extension of stay filed by that petitioner on behalf of that beneficiary, the petitioner is exempt from payment of the $1,000 $1,500 H-1B Nonimmigrant Petitioner Account Fee.

The status of a dependent of an H-lB nonimmigrant is derivative of and linked to the status of the principal H-1B nonimmigrant. Therefore, dependents are eligible for H-4 status upon the filing of an H- 1B petition on behalf of the principal alien, and the filing of a Form I-539 with filing fee and all necessary supporting documentation for the dependent. Dependents should be advised to file the Form I-539 concurrently, whenever possible, with the H- 1B petition filed on behalf of the principal H- lB nonimmigrant.

A. 365 days or more have passed since the filing of any application for labor certification, Form
ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.

Once these requirements have been met, the alien may be granted an extension beyond the 6-yearmaximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.

Question 3. Are there cases where an alien, who has been granted an H-1B extension
beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the
EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the
implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitation applicable to immigrants under those paragraphs,

may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made theron.
>>SEE SEC. 104(c) GUIDANCE

(1) the filing of a labor certification application on the alient’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
(2) the filing of the petition under such section 204(b).

(b) Extension of H-1B Worker Status - The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.
>>SEE SEC. 106(a) GUIDANCE

Aytes Memo Dec. 5, 2006

(1) Time spent in H-4 status will not count against the 6 year limit;
(2) Extensions of status are available even if outside the U.S. and not in H-1B status; and
(3) H-1B visa holders who leave the US before expiration of the 6 year limit and stay outside the US more than one year have the option of reentering for the remainder of the time left on the 6 year limit (and avoiding the “Cap“) or applying for a new six years and being subject to the Cap.

Expanded Summary:

(1) Time spent in H-4 status will not count against the 6 year limit
From the memo:

USCIS reviewed the current INA provisions governing the H classifications as well as its governing regulations and policy guidance. Neither the statute nor regulations addresses whether time spent in H-4 status counts against the six-year maximum period of admission available to an alien seeking H-1B status. Further, USCIS has not issued any recent policy guidance that clarifies the issue.

USCIS, therefore, is now clarifying that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

(2) Extensions of status are available even if outside the U.S. and not in H-1B status
From the memo:

In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).

(3) H-1B visa holders who leave the US before expiration of the 6 year
limit and stay outside the US more than one year have the option of
reentering for the remainder of the time left on the 6 year limit (and
avoiding the “Cap”) or applying for a new six years and being subject
to the Cap.
From the memo:

There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status. For example, an alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United
States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e. a total of one year. If the alien was previously counted toward the H-1B numerical limitations in relation to the time that has accrued against the six-year maximum period of admission, the alien would not be subject to the H-1B cap. If the alien was not previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien will be counted against the H-1B cap unless he or she is eligible for another exemption.

In the alternative, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year. For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension. “New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See INA §§ 214(g)(1) and (g)(5).

For the most part, companies were willing to work with students to find solutions to fill the 16 months between graduation and Oct. 1, 2007, when the next round of H-1B visas will take affect. Some graduates will remain in the United States temporarily by using “optional practical training” — up to 12 months of employment authorization provided by the international student visa. They may take time off before starting work or transfer abroad between the end of their OPT and next October.”

Foreign alums cope with visa troubles :: Yale Daily News

“where the alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer’s alternative requirements are unlawfully tailored to the alien’s qualifications, in violation of [the pre-PERM regulation at § 656.21(b)(5)], unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable.”

Aytes Memo :: June 6, 2006

Guidance on the Requirement of a “Permanent Offer of Employment” for Outstanding Researchers and Researchers.

Aytes Memo :: May 2, 2006 :: US Masters Exemption

H-1B Cap Exemption for Aliens Holding a Master’s or Higher Degree from a U.S. Institution.

Aytes Memo :: May/December 2005

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).
To: REGIONAL DIRECTORS SERVICE CENTER DIRECTORS
From: Michael Aytes, Acting Director of Domestic Operations
Date: December 27, 2005
Re: Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I. The entire reissued memorandum, with the clarification, follows:

Purpose
The purpose of this memorandum is to provide field offices with interim guidance on:

(1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21;
(2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of §106(a) of AC21;
(3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and
(4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of §105 of AC21;

This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicator’s Field Manual (AFM) will not be updated at this time.

Prior AC21 Guidance

• On January 29, 2001, the Office of Field Operations issued a memorandum entitled “Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.”

• On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).”

• On February 28, 2003, the Immigration Service Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.”

• On April 24, 2003, the Office of Operations issued a memorandum entitled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).”

• On August 4, 2003, the Office of Operations issued a memorandum entitled “Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”

All of these memoranda remain in effect and this memorandum supplements the existing guidance.

New AC21 Guidance
New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.

This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel:

• Section I - Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under §106(c) of AC21.

• Section II - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §106(a) of AC21.

• Section III - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §104(c) of AC21 (aliens subject to per country limitations).

• Section IV - Processing of H-1B petitions where there is a question of the affect of H-1B portability under §105 of AC21.

I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-140 PORTABILITY PROVISIONS OF §106(C) OF AC21

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?
Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and
B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?
Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases?
Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC 203(b)(1)(C) avail themselves of AC21 §106(c) (8 USC §204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can “same or similar” for multinational employees mean employment with an unrelated company?
Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?
Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA §204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification?
Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable?
Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21?
Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required).

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF §106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT

Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:

A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.

Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is
made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an
extension beyond the time remaining on his or her 6-year maximum stay unless another basis for
exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?
Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?
Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY PROVISIONS

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”

In other words, porting under INA §214 does not require that the alien currently be in H-1B status as
long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.
* * * * *
Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations.

Aytes Memo :: November 23, 2005

Guidance on Evaluating a Request for the Rescheduling of an Interview and Handling the Failure of an Applicant, a Petitioner, a Sponsor, a Beneficiary, or other Individual to Appear for a Scheduled Interview.

Yates Memo :: March 9, 2005 :: Approvable When Filed

Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act.

Compaq Decision

“We find that a CO may decline to grant an RIR when an employer which has laid off numerous U.S. workers, limits its consideration of qualified workers to those in a localized facility, and does not address the potential availability of workers from other locations. Moreover, we find that a CO may decline to grant an RIR where an employer does not adequately explain why the laid off U.S. workers could not perform the main job duties.”

-Yates Memo :: April 24, 2003 (.pdf)

-Authorized Stay :: Cook Memo :: March 27, 2003 (.pdf)

-Hernandez Letter (to Sheela Murthy) :: Apr. 24, 2002 (.pdf, 4 pgs)

-Cook Memo :: November 20, 2001(.pdf)

Initial Guidance for Processing H-1B Petitions as Affected by the “American Competitiveness in the Twenty-First Century Act” (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).

-Cronin Memo :: May 25, 2000 (.pdf)

-Period of Stay :: 120-day tolling :: Pearson Memo :: March 3, 2000 (.pdf)

From: Office of Programs

Effective immediately, the Service will accept adjustment of status applications from aliens who are subject to the 2-year foreign residence requirement of section 212(e) of the INA provided that the United States Information Agency (USIA) has recommended a waiver of such foreign residence. A copy of the USIA recommendation must be attached to the alien’s application for adjustment of status.

In order to be eligible to apply for adjustment of status, an alien who has participated in an exchange visitor program and is subject to the 2-year foreign residence requirement must, among other things, either have complied with the foreign residence requirement or have been granted a waiver of that requirement. 8 CFR 245.1(c) (2). An alien who has received a USIA recommendation for a waiver of the foreign residence requirement is deemed to have met the requirement of 8 CFR 245.1(c)(2) and may submit an application for adjustment of status. Nevertheless, Service Officers should adjudicate the waiver request first, as the decision will determine the alien’s eligibility for adjustment of status.

The waiver request is considered properly filed with the Service only at such time as the Service receives a favorable recommendation from the United States Information Agency (USIA).

The statute permits waivers of the foreign residency requirement in four possible circumstances. Waivers may be based on (1) a request by an interested U.S. Government agency; (2) a request by a State Department of Public Health (or its equivalent) on behalf of a foreign medical graduate who will practice medicine for 3 years in a medically underserved area; (3) a statement by the government of the country of the applicant’s nationality or legal foreign residence that it has no objection to a waiver in the applicant’s case (this is statutorily unavailable for foreign medical graduates); or (4) the claim that the exchange visitor’s compliance with the foreign residence requirement would (a) impose exceptional hardship on the applicant’s United States citizen or lawful permanent resident spouse or child, or (b) subject the applicant to persecution on account of race, religion, or political opinion.

Waiver applications based on requests by a U.S. Government agency or State Department of Public Health, or based on no-objection statements, do not involve the filing of a specific form or fee. In these types of cases, USIA mails the favorable recommendation to the Service, with a copy to the applicant. It is, however, the Service adjudicator who has final responsibility for approval or denial of the waiver request. If the adjudicator decides that the Service should concur in the USIA’s favorable recommendation, a notice of approval should be prepared and issued to the applicant and/or the applicant’s legal representative, if applicable. A copy of the notice of approval should be placed in the applicant’s A-file, and the adjudicator should proceed to adjudicate the adjustment application.

Waiver applications based on a claim of hardship or persecution are filed with the Service on Form I-612 (Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act). When the Service finds that the applicant has established the requisite hardship or persecution, the Service prepares Form I-613 for submission to USIA. USIA returns Form I-613 to the Service with its views and a recommendation as to whether or not the waiver should be granted. The waiver may be granted only if the USIA recommendation is favorable. If the USIA recommendation is unfavorable, the waiver application must be denied, despite such initial finding of hardship or persecution. In view of these considerations, Service officers should accept the filing of an I- 485 by an applicant with a pending 212(e) waiver application based on exceptional hardship or persecution only after the issuance of a favorable USIA waiver recommendation. In such cases, a copy of the USIA recommendation must be attached to the alien’s I-485.

Paul Virtue
Executive Associate Commissioner