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

April 19, 2008

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

April 15, 2008

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

April 12, 2008

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

April 12, 2008

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

April 11, 2008

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?

April 10, 2008

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

April 9, 2008

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.