USCIS MODIFIES APPLICATION FOR EMPLOYMENT AUTHORIZATION  

Previous Versions of Form I-765 Accepted until July 8, 2008
WASHINGTON—(April 26, 2008) 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).

Updates to Post-Completion Optional Practical Training (OPT):   

ICE website, posted Apr. 25, 2008: "SEVP Policy Guidance: 0801-01; Title: Updates to Post-Completion Optional Practical Training (OPT); Applicability: Designated school officials (DSOs) for SEVP-certified schools with F-1 students who are eligible for or pursuing post-completion OPT; Effective Date: April 25, 2008."

Purpose: On April 8, 2008, DHS published an Interim Final Rule (IFR) titled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The text of the rule can be read at http://edocket.access.gpo.gov/2008/E87427.htm.

This rule makes some changes to post-completion OPT that are effective immediately. The Federal Register notice gives a detailed explanation of the reasons for publishing the rule and for making the provisions effective immediately.

This Policy Guidance for DSOs explains the changes in OPT based on this rule and provides guidance for DSOs. To learn more about the entire process visit http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_pdf.pdf

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

Washington, D.C. More good news for students with F-1 visas. U.S. Citizenship and Immigration Services announced those who are beneficiaries of selected H-1B petitions for fiscal year 2009 will be allowed to request change of status instead of consular notification.

On April 8, it was announced F-1 status would be automatically extended until the start of employment in October for qualifying students who are the beneficiaries of approved H-1B petitions. The job must begin on Oct. 1 for fiscal year 2009, and the student-beneficiary must have requested change of status. If USCIS rejects, denies or revokes the petition, or if the student violates his or her status, the F-1 extension is terminated.

Since the rule was published after the filing period for fiscal year 2009, many F-1 students did not request change of status with the H-1B petition, because they did not know it would be possible. Therefore, USCIS instructs those F-1 students whose H-1B petitions were randomly selected to file request for change of status within 30 days of issuance of the receipt notice

Petitioners or authorized representatives should send an email to the USCIS service center where the petition is pending to request change of status rather than consular notification. Requests should include the receipt number, the names of the petitioner and beneficiary and beneficiary's date of birth. Also include the beneficiary's I-94 number, and Student and Exchange Visitors Information System number. Do not contact the service center until after a receipt notice is received.
 
E-mail addresses for requesting change of status are:

VermontService Center
Premium Processing cases:  VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases:  VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
 
CaliforniaService 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

As always, it is best to consult a qualified attorney to make sure all procedures are followed correctly

USCIS RUNS RANDOM SELECTION PROCESS FOR H-1B PETITIONS  

WASHINGTON  (April 14, 2008) - 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 in 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 Releases Preliminary Number of FY 2009 H-1B Cap Filings  

Washington (April 10, 2008) - 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 category.
 
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 category will join the random selection process for the cap-subject 65,000 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.
 
www.seadie.com will provide regular updates as the processing of FY 2009 H-1B cap cases continues

DOL Publishes Final Rule on E-3 Visa LCA Requirements and Filing Procedures  

On 4/11/08 DOL published a final rule amending E-3 visa regulations regarding procedures employers must follow to obtain an LCA. The final rule is effective immediately. (73 FR 19943, 4/11/08)--
 
The Department of Labor (the Department or DOL) is publishing this Final Rule to amend its regulations regarding the temporary employment of nonimmigrant foreign professionals in order to implement procedural requirements applicable to the E-3 visa category. This visa classification was established by Title V of the REAL ID Act of 2005 (Division B) in the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and applies to certain Australian nationals coming to the United States solely to perform services in specialty occupations. This Final Rule clarifies the procedures that employers must follow in obtaining a DOL- certified labor condition application before seeking an E-3 visa for a foreign worker.

Department of Labor Wins H-1B Benching Lawsuit against IT Consulting Company in New Jersey  

PEGASUS CONSULTING GROUP, Plaintiff, v. ADMINISTRATIVE REVIEW BOARD FOR THE DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, Defendant.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (March 31, 2008)

On June 8, 2001, the Department of Labor issued a determination letter stating that Pegasus Consulting Group had violated the Immigration and Nationality Act (INA) because it failed to pay 19 nonimmigrant workers the required wage rate. The amount of shortage was $401,228.21 and the DOL additionally assessed a civil penalty of $40,000. Pegasus requested a hearing before an Administrative Law Judge, who on Nov. 13, 2002 reduced the damages on wage deficiencies to $231,279.41, but retained the penalty of $40,000. Subsequently, both Pegasus and the DOL petitioned the DOL's Administrative Review Board to review the decision. The ARB affirmed ALJ's finding that Pegasus had failed to effect bona fide terminations of certain H-1B employees that had been laid off. Pegasus was not obligated to pay back wages for those employees. ARB accepted the $40,000 in civil penalties, but reversed ALJ's finding regarding burden of proof with regard to several witness. Despite stating they were not owed back wages, ARB found that they were. ARB also found the ALJ had improperly credited Pegasus for payments made to four employees, because these payments were not wages. 

Pegasus sought further review and the case was transferred to the United States District Court for the District of New Jersey as Pegasus Consulting Group, Plaintiff, v. Administrative Review Board for the Department of Labor, Wage and Hour Division, Employment Standards Administration, Defendant. Civil Action No. 05-5161.

Both parties moved for summary judgment. On June 27, 2007, the court granted the motion of Pegasus and denied the motion of DOL. On July 12, 2007, DOL requested reconsideration of court's decision, which Pegasus opposed. The court ruled DOL's motion would be considered. On March 31, 2008, the court issued its opinion, granting the DOL's motion for reconsideration, vacating the court's original grant of summary judgment to Pegasus and granting summary judgment to the DOL. The judge found DOL's evidence and testimony did support the original determination 

OPT Interim Final Rule and Gap in the "Cap Gap Bridge" (April 4, 2008) 

We have observed in the interim final regulation revising and extending F-1 Optional Practical Training that the provision of the regulation allowing for a "bridge" for F-1 students who are picked in the H-1B lottery requires the petitioner to have marked the petition "change of status."

Of course, many petitioners did not mark petitions "change of status" because of the very "cap gap" the interim final rule intended to close. Though the regulation has been published by ICE, AILA liaison has contacted USCIS for guidance going forward, and USCIS is looking for a solution. Watch www.seadie.com for further information.

SUMMARY: Currently, foreign students in F-1 nonimmigrant status who have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by U.S. Immigration and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP) are eligible for 12 months of optional practical training (OPT) to work for a U.S. employer in a job directly related to the student's major area of study. This interim final rule extends the maximum period of OPT from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program. This interim rule requires F-1 students with an approved OPT extension to report changes in the student's name or address and changes in the employer's name or address as well as periodically verify the accuracy of this reporting information. The rule also requires the employers of F-1 students with an extension of post-completion OPT authorization to report to the student's designated school official (DSO) within 48 hours after the OPT student has been terminated from, or otherwise leaves, his or her employment with that employer prior to end of the authorized period of OPT.

This rule also ameliorates the so-called ``cap-gap'' problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect. This interim final rule also implements a programmatic change to allow students to apply for OPT within 60 days of concluding their studies.

17-Month Extension of Optional Practical Training for Certain Highly Skilled Foreign Students:  (April 04, 08)

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

"This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy," said Homeland Security Secretary Michael Chertoff. "By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens."

Another aspect of the rule responds to the situation 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 problem 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.

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

• Currently be participating in a 12-month period of approved post-completion OPT
• 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;
• Be working for a U.S. employer in a job directly related to the student's major area of study;
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services' E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newlyhired employees; and
• Properly maintain F-1 status

The interim final rule and additional information on the H-1B program is available at www.dhs.gov.