Didn’t Mark “Change of Status” On H-1B Application? Cap-Gap Relief Problem Remedied

USCIS has remedied the ironic situation in which the H-1B applicants most in need of cap-gap relief were being excluded due to a requirement of the new regulation that the petition be marked for “change of status.”

To rectify the problem, USCIS is allowing the petitioners to request a change of status to make these employees eligible for the cap gap relief under the new regulation.

The request for change of status must be made within 30 days after receiving a receipt notice. Petitioners should not apply until a receipt notice is received.

USCIS explains the process as follows:

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.

 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.

 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.

 E-mail addresses for requesting change of status are:

Vermont Service Center

-  Premium Processing cases: Vscppcapgap@dhs.gov

-  Non-Premium cases: Vscnonppcapgap@dhs.gov

 California Service Center

- Premium Processing cases: ppcapgap@dhs.gov

- Non-Premium cases: nonppcapgap@dhs.gov

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 procedures.

For more information, please see the USCIS announcement.

H-1B Lottery Held Monday; Winners To Receive Notice By June

USCIS has announced it held the H-1B lottery for both regular and advanced-degree exemption petitions Monday, April 14, 2008.

Those H-1B petitions selected in the lottery for fiscal year (FY) 2009 now will continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number, according to the USCIS press release.

Petitioners selected for full adjudication should receive a receipt notice dated no later than June 2, 2008, according to USCIS.

USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives.

The total adjudication process is expected to take approximately eight to 10 weeks.

For cases selected through the lottery and initially filed for premium processing, the 15-day premium processing period began 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 said it 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. 

Pilot Program To Expedite Entry Into U.S. For Citizen, LPR Travelers

U.S. citizens, nationals, and permanent residents will soon be eligible for a pilot program enabling expedited clearance of pre-approved, low-risk air travelers into the United States, according to a new rule published in the Federal Register.

The International Registered Traveler (IRT) pilot project, a.k.a. Global Entry, is scheduled to start June 10, 2008 at  John F. Kennedy International Airport, Jamaica, New York (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), and may expand to other locations as announced.

CBP is working with other countries, exploring expansion of the program to include other categories of travelers as well.

Applications to participate in the pilot program should be submitted May 12, 2008, but will be accepted throughout the duration of the pilot program. The pilot program is expected to continue for at least six months. The time frame of the pilot program will vary, depending on the progress of CBP’s evaluation of the program.

The program enables participates to by-pass regular passport control primary inspection lines, using instead automated kiosks to verify identity via fingerprint biometrics technology, explains the Rule.

The procedure will also involve responding to several customs declaration questions by use of a touch-screen.

Upon verification, the traveler will receive a receipt, which, along with his passport and/or permanent resident card, he then gives to the CBP Officer at the exit control area for examination.

The application for the IRT pilot is available on-line through the Global On-Line Enrollment System (GOES).

There is a $100 non-refundable application fee.

CBP has posted a FAQ on its site.

H-1B Lottery Scheduled For Next Week

The H-1B lottery for FY 2009 is expected to start next week, USCIS announced.

Using a computer-generated random selection process, USCIS will start with the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree exemption will join the lottery for the regular 65,000 cap.

USCIS received almost 163,000 H-1B petitions during the filing period ending on April 7, 2008. More than 31,200 of those were for the advanced degree exemption, according to USCIS.

These numbers are up from last year’s preliminary figures, when USCIS reported receiving 133,000 filings, overall within the first two days of the April 1, the opening day of the filing season for the upcoming fiscal year.

In addition, unlike this year, the advanced degree cap was not immediately reached last year, with 12,989 being filed in connection with the opening-day rush.

International ODR Part 5: How To Select An ODR Leader

Today’s post concludes a series co-authored by attorneys Gini Nelson and Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One, Part Two, Part Three, Part Four.]

 This post addresses the question:

 Are There Special Considerations In Selecting An ODR Leader For Business Disputes?

Selecting the appropriate person to conduct your ODR is a critical element to success. ADR and ODR specialists are not interchangeable. ODR differs from ADR because the ODR dynamics and the technologies that must be managed are different than face-to-face dispute resolution processes.

Read the rest of this article, part 5 of a 5-part series, on Gini Nelson’s Engaging Conflicts blog.

International ODR Part 4: Does It Need To Be In The Contract To Do It?

Today’s post continues a series co-authored by attorneys Gini Nelson and Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One, Part Two, and Part Three.]

 This post addresses the question:

 My Contract Does Not Address ODR. Can I Take Advantage of It?

As with traditional ADR, ODR does not need to be specifically required in the contract. The only requirement is that both parties consent to ODR. In fact, even if you are the defendant in a case or feel as if the other party has all the power, you should still consider proposing ODR because the corporate culture of the opposing party might be to promote the use of ADR to resolve disputes.

Read the rest of this article, part 4 of a 5-part series, on Gini Nelson’s Engaging Conflicts blog.

New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 

H-1B Cap Hit; Application Lottery to Commence

USCIS announced the H-1B regular and advanced degree exemption caps for FY 2009 have been met, meaning applications will be drawn in a lottery for processing.

USCIS will use a computer-generated random selection process for all cap-subject petitions received, beginning with the 20,000 advanced degree exemption petitions first.

Once that category is hit, the excess advanced degree petitions will be added to the regular H-1B petitions for random selection for processing.

If your petition is not selected in the lottery for processing before the 65,000 visa limit is reached, USCIS will reject it and return the filing fee.

More information is available on the USCIS website. 

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

How to Report Suspected Criminal Violations by USCIS Employees

Immigration officers are required to abide by standards of integrity and efficiency, and if they do not, the U.S. government wants to know about it.

You may report suspected criminal violations, misconduct, wasteful activities, and allegations of civil rights or civil liberties abuse to the DHS Office of Inspector General.

To make a report, call 1-800-323-8603 or email DHSOIGHOTLINE@DHS.GOV.

Calls can be made anonymously and confidentially.

For more information, see the Office of Inspector General web page.

OPT Extension To Benefit H-1B Applicants and STEM Students

Optional Practical Training (OPT) time is being extended for pending H-1B applicants caught in the cap gap and for students with science, math and similar degrees, USCIS announced this week.

 

In particular, OPT will be extended automatically for those F-1 student visa holders who have applied for an H-1B work visa but who will have a gap in authorized stay because they cannot start work until Oct. 1, when visas for the next fiscal year will become available.

 

The extension will cover this gap, enabling them to continue working and alleviating concerns by employers who would be at risk of losing a valuable employees because of the unreasonably low number of H-1B work visas available annually.

 

The new rule also provides for the extension of OPT from the traditional 12 months to 29 months to students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program. (E-Verify is an internet-based system operated in partnership with the Social Security Administration that is used to check a newly hired employee’s right to work. E-Verify has been widely criticized for its error rate, forcing the employer to question employment eligibility of U.S. citizens and non-citizens alike.)

 

To be eligible for an OPT extension under the STEM program, an F-1 non-immigrant student must:

 

l Currently be participating in a 12-month period of approved post-completion OPT;

 

l Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;

 

l Be working for a U.S. employer in a job directly related to the student’s major area of study;

 

l Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program.; and

 

l Properly maintain F-1 status.

 

The STEM designated degrees include:

 

l Actuarial Science

l Computer Science (except Data Entry and Microcomputer Applications) 

l Engineering

l Engineering Technologies

l Biological and Biomedical Sciences

l Mathematics and Statistics

l Military Technologies

l Physical Sciences

l Science Technologies

l Medical Scientist (MS, PhD)

 

The new rule takes effect the day it is published in the Federal Register. That date has not been given yet, but should be soon. The public has 60 days to comment on the rule, after which the government will consider the comments and issue a final rule.

 

The rule is available here: http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf

 

USCIS has posted frequently asked questions regarding the new rule on its website. 

 

 

 

USCIS, FBI Announce Plan to Eliminate Name Check Backlog

USCIS and the FBI have announced a joint plan to eliminate the name check nightmare that holds up processing of applications, such as for green cards and naturalization.

The agencies say they will obtain their new processing goals “by increasing staff, expanding resources, and applying new business processes,” according to a USCIS press release.

The agencies have set the following milestones for name check processing:

May 2008 - Process all name checks pending more than three years

July 2008 - Process all name checks pending more than two years

Nov. 2008 - Process all name checks pending more than one year

Feb. 2009 - Process all name checks pending more than 180 days

June 2009 - Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.

International ODR Part 3: What Disputes Work Well for ODR?

Today’s post continues a series co-authored by attorneys Gini Nelson and Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One, Part Two.]

This post addresses the question:

What Disputes Work Well for ODR?

Online ADR works well for most business disputes, assuming the parties want to obtain a mutually-acceptable resolution to their problem as opposed to “winning.”

Read the rest of this article, part 3 of a 5-part series, on Gini Nelson’s Engaging Conflicts blog.

International ODR Part 2: How Does ODR Work?

Today’s post continues a series co-authored by attorneys Gini Nelson and Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One.]

This post addresses the question:

How Does ODR Work?

ODR takes advantage of technology that most everyone in business already uses, such as computers, internet, email, instant chat, video conferencing, telephone conferencing, and increasingly VoIP (e.g. Skype).

ODR is not radically different than ADR. In fact, ODR-ADR hybrids already are in common use. Traditional ADR is typically supplemented with online interactions such as email.

Just as with traditional ADR, there are several ways of conducting online ADR, depending on the technology available to the parties and the nature of the dispute.

Read the rest of this article, part 2 of a 5-part series, on Gini Nelson’s Engaging Conflicts blog.

ADR for the International Business: Online Dispute Resolution Breaks Down Logistical Barriers

For business leaders, alternative dispute resolution rather than litigation has no doubt become the preferred process for handling problems, thanks to its efficiency, cost-effectiveness, and flexibility.

As businesses become more global, however, the traditional methods of face-to-face mediation, arbitration or other dispute resolution processes pose significant logistical barriers to parties separated by oceans or continents, calling into question traditional ADR’s value in these circumstances.

Read the rest of this article, which is the first of a five-part series co-authored by attorneys Vonda K. Vandaveer and Gini Nelson, being published on Gini Nelson’s Engaging Conflicts blog.

Round Up of Individual Woes Across the U.S.: How H-1B and H-2B Employment Visa Caps Are Hurting the Economy

Headlines across the country in recent weeks have been sharing a common theme describing the consequences to the American economy caused by the insufficient availability of H-1B professional work visas and H-2B seasonal work visas.

The technology and other industries say they are having to relocate high-paying jobs abroad because they cannot find qualified Americans to fill them in the United States, and they cannot bring in professionals from overseas because the H-1B visas, capped at 65,000, with an additional 20,000 for those with advanced degrees from the U.S., are too limited for the need.

Meanwhile, seasonal industries that support the U.S. economy, including fishing and tourism are simply closing down because the owners cannot find American workers and cannot obtain H-2B visas to bring in foreign workers because of a similar cap on availability. For example, on the Gulf Coast, the seafood companies could not find enough home-grown crab pickers, so they are now having to import crab meat from Latin America to meet local demand.

Naturalization Interviews To Be Held Weekends, After Hours

If you receive your notice for a naturalization interview and it is schedule for the weekend or after hours, it was not a mistake.

USCIS said it is expanding its hours and staff to help respond to the deluge of naturalization applications received last year.

In pursuit of its processing time goals, USCIS will be interviewing applicants on Saturdays, Sundays and during the week after traditional work hours.

L-1 Visa Transfert Interne

Le visa non immigrant L est un visa qui permet aux employés d’entreprises multinationales d’être transférés à une filiale basée aux Etats-Unis et cela pour y travailler temporairement. Ce visa est destiné aux employés occupant des postes de gestionnaires ou d’administrateurs (L-1A) ou aux employés hautement qualifiés (L-1B). Le tributaire du visa L-1 est appelé «transfert interne».

Les rapports entre l’entreprise américaine et l’entreprise étrangère justifiant l’accès au visa L-1 :  Afin de bénéficier du visa L-1, l’éventuel employé doit avoir été employé à l’étranger avec une filiale, une maison mère, une succursale ou annexe de l’entreprise américaine faisant la requête. Le contrôle établi entre les deux entreprises constitue l’élément à la justification du rapport, signifiant que soit l’entreprise américaine ou l’entreprise étrangère exerce le contrôle sur l’autre. Une copropriété à 50/50 remplira les conditions d’admissibilités.

Estimated Processing Times For Summer Surge Naturalization Applications Reduced to 14-16 Months

USCIS has reduced its processing time projections to 14-16 months for naturalization applications filed during the surge last summer, increasing the chance yours will be approved in time to vote in the November presidential election, according to a recent statement.

Processing times were originally estimated to be between 16-18 months.

USCIS reports that during FY 2007, it received approximately 1.4 million naturalization applications. In the months of June and July of 2007 alone, it experienced an increase of nearly 350 percent compared to the same period in 2006.

The summer surge is attributed to a desire to beat the fee increase and to stepped up campaigns promoting naturalization in anticipation of the upcoming presidential election.

Study Slams Mandatory E-Verify Program As Ineffective, Expensive, Intrusive

The CATO Institute has issued a report lambasting the concept of a federally-imposed electronic employment eligibility verification system as ineffective, expensive and intrusive.

The report is arriving as more and more states are joining Arizona in passing laws that require employers to use the federal government’s existing E-Verify program to confirm work authorization and as the federal government is threatening to make its use mandatory nationwide.

The report says this state and federal effort to require use of any such electronic employment eligibility verification (EEV) program is ill-conceived and ill-advised, promising to create more problems than it may potentially solve.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally.

The report predicts such a program will actually result in an increase in identity fraud, document fraud and abuse of desperate foreign nationals seeking a better life in the United States.

Such a system would make working in the United States more difficult, of course, but it would not eliminate the United States’ attraction to immigrants. Some potential illegal immigrants would change their plans, but others would respond quite differently. Some workers and employers would collude to avoid this immigration enforcement system. Work “under the table” would increase and, along with it, other forms of illegality.

The value of committing identity fraud would rise, and more illegal immigrants would commit this crime or deepen the minor frauds they are now involved in. Criminals and criminal rings would use the Social Security number (SSN) data from stolen laptops and hacked databases much more often in identity fraud as a robust black market for Americans’ personal information emerged.

The use of these data to fabricate mock identities would compound the problem for victims in a diabolical way. Seeking to prove their right to simple employment, American workers would have to appeal to bureaucrats who assume they are identity thieves.”

The CATO Institute says EEV constitutes one more excessive, Big Brother intrusion by the government into our privacy and an attack on our civil liberties.

Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. “Mission creep” all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans’ lives even further.

But, the system is not free. CATO says that creating an accurate EEV system would require a national identification (ID) system costing the taxpayer about $20 billion to create and hundreds of millions more per year to operate.

This figure does not take into account the time that Americans and legal workers will waste gathering paperwork and standing in line at government offices waiting to correct errors.

The current E-Verify system has been maligned as error-prone. A human resources association reports that the social security database, which is the source used by E-Verify, has a 4.1 percent error rate. The group, Human Resource Initiative for a Legal Workforce further explains:

If all U.S. employers were to use the system, as many as six million U.S. citizens and legal residents could be denied employment due to bureaucratic error.  The error rate for legal foreign-born workers is estimated to be as high as 10 percent - opening the door to increased discrimination based on national origin.  

The federal government has said it will try and improve the system, according to this article in the Indianapolis Star.