H-1B CAP ALERTS

USCIS REACHES FY 2009 H-1B CAP

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the "advanced degree" exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selected process.

USCIS will carry out the computer-generated random selection process for all cap-subject petitions received. USCIS will select the number of peititions needed to meet the caps of 65,000 for the general category and 20,000 under the "advanced degree" exemption limit. 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.

The agency will conduct the selection process for "advanced degree" exemption petitions first. All "advanced degree" petitions not selected will be part of the random selection process for the 65,000 limit.

April 7, 2008

Relief For F-1 Student Employees

The Department of Homeland Security has issued an Interim Final Rule, effective immediately, which provides two very useful forms of relief to F-1 Student Visa graduates and their employers.

The first provides for the extension of Optional Practical Training work authorization for up to an additional 17 months for F-1 graduates of U.S. Science, Technology, Engineering, or Mathematics (“STEM”) programs who are working for employers who have enrolled in the government’s E-Verify Program for verification of new hires’ employment authorization.

The second benefit provides an extension of stay and work authorization for F-1 students who would otherwise have a gap between completion of Optional Practical Training and the Oct. 1 start date of a pending or approved H-1B Petition. This benefit requires neither a STEM academic program nor the employer’s enrollment in E-Verify.

New H1-B OPT and “Cap Gap” Cheat Sheet

I.     17 Month Extension of OPT of students with STEM degrees
          (maximum period 29 months)
        1. Only available to students employed by employers enrolled
            in E-Verify program, the electronic authorization
            verification system run by the Social Security Administration
            and USCIS
            a. Employer’s must be enrolled at the time 17 month
                extension is requested
         2. Extension may be requested when student currently has
              post-completion OPT status approval
         3. Code of student’s degree code must be on SEVIS as a
              STEM (science, technology, engineering, mathematics)
              program list
            a. Catch all codes ending in “99” are not included
        4. Student must:
            a. Have completed the school’s STEM academic program;
            b. Request extension through DSO at school;
            c. Once DSO recommends extension, student must file
                 I-765 and with fees (new form forthcoming- Q#17,
                 ER’s E-Verify I.D. number);
            d. Agree to report all changes in student’s name, address,
                employer and employer’s address to their school’s DSO;                 and
            e. Must verify information with DSO every six months
        5. Extension of EAD is automatic for properly filed I-765
            extension requests for 180 days while USCIS adjudicates
        6. Employer must report to DSO within 48 hours of early
            termination of student’s employment
        7. DSO reports all information to SEVIS

II.  Cap Gap Bridge for F-1
        1. Allows automatic extension of status and employment
            authorization for F-1 students with pending H-1B petitions
            to bridge the “gap” between expiration of OPT and the
            October 1st start date of the H-1B petition.
        2. If the petition is denied, the student will have the standard
            60-day departure preparation period
        3. This applies to all H-1B petitions accepted for adjudication
            during fiscal year; Not Only STEM degrees.
            a. Does not limit extension only to employers in E-Verify
                  program.

III. OPT Requests Post Education
        1. Students may apply for OPT within the 60 day departure
            preparation period following completion of studies

IV.  Unemployment Within OPT
        1. Unemployment allowed within OPT for an aggregate period
            of 90 days on 12-month OPT; period increases by
            30 days for students within 17-month OPT extension.

February 2008

H-1B Cap Alert

As you may know, the FY2009 annual quota of 65,000 new, non-exempt H-1B visa petitions becomes available for employment beginning October 1, 2008. Petitions for these visas may be filed with U.S. Citizenship & Immigration Services (“USCIS”) as early as April 1, 2008, and will be approved for an October 1, 2008 start date.

Last year, some 130,000 cap-subject petitions were received by USCIS on April 2 and 3, and were entered into a lottery for the 65,000 available slots. We expect the same volume of petitions to be filed subject to the FY2009 H-1B cap. Therefore, it is clear that petitions subject to the cap must be filed on April 1, 2008.

Note that not all H-1B petitions are “cap-subject.” The following H-1B petitions are exempt from the cap: petitions by Institutions of Higher Education or government research programs, or by not-for profit institutions affiliated with either; H-1B extensions; H-1B “transfers” from another non-exempt employer; and applications by persons who have been counted against the H-1B cap within the last 6 years.

Additionally there are 20,000 annual cap exemptions for people with a Master’s or higher degree from a United States university. However these limited exemptions will be used up quickly too. Last year they were not available for petitions filed after April 30, and they will likely go faster this year.

If you are contemplating hiring a foreign national in H-1B status or changing an existing employee’s immigration status to H-1B, please contact us immediately to ascertain if that person is subject to the H-1B cap, and if so, how we can ensure that person is not “capped out.”

Contact one of the following members of Immigration Law Group if you have questions.

Kevin R. McNamara (krm@mkmlegal.com)
Hilary R. McGregor (hrm@mkmlegal.com)
James E. McLaughlin (jem@mkmlegal.com)
Lynda C. Rubin (lcr@mkmlegal.com)