Also, the September Visa Bulletin noted the following:

VISA AVAILABILITY FOR OCTOBER

The Mexico F2A and Employment Third preference cut-off dates are “unavailable” for both August and September, since those FY-2008 annual limits have been reached. The Visa Office had originally anticipated that this would be a temporary situation. Then with the start of the new fiscal year in October the cut-off dates would have returned to those which had applied during June. However, continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. A formal decision determination of the October cut-off dates will not be possible until early September. (emphasis added by me)

September 2008 // Family-Based Visa Bulletin

September 2008 // Employment-Based Visa Bulletin

Source: travel.state.gov

Post your comments and questions about the September Visa Bulletin below.

August 2008 // Family-Based Visa Bulletin:

August 2008 // Employment-Based Visa Bulletin:

Source: travel.state.gov

Post your comments and questions about the August 2008 Visa Bulletin below.

Download USCIS Memo

I reformatted the text of the memo and pasted it below to make it easier to read and skip to relevant sections.

–Source: USCIS.gov–

I. Purpose

The purpose of this memorandum is to incorporate certain portions of previously issued guidance into the Adjudicator’s Field Manual, as well as to provide additional guidance on adjudication of:

1. H-1B petitions in connection with the extension provisions of AC21 §106(a);
2. H-1B petitions in connection with the extension provisions of AC21 §104(c) for aliens subject to per country visa limitations;
3. H-1B petitions requesting concurrent employment on behalf of certain H-1B cap-exempt aliens;
4. INA § 212(n)(2)(C)(v) Guidance Relating to Changes in Employment by H-1B Aliens who report LCA violations; and
5. I-140 petitions and Form I-485 applications in connection with the portability provisions of AC21 §106(c).

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).
• On September 23, 2005, the Office of Field Operations issued a memorandum entitled Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, duplicate Labor Certification Requests and Requests for Extension of H-1B Status Beyond the 6th Year.
• On October 18, 2005, the Acting Deputy Director, designated a decision of the Administrative Appeals Office (AAO) in Matter of Al Wazzan (January 12, 2005) as a USCIS Adopted Decision.
• On December 27, 20051, the Office of Field Operations issued a memorandum entitled 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).

All of the provisions of these memoranda remain in effect except where noted herein. This memorandum supplements the existing guidance.

II. Background and Field Guidance

1. AC21 §106(a) Guidance Relating to Recent DOL Final Rule-Making

USCIS hereby clarifies the impact of two recently published DOL rules on the adjudication of H-1B petitions pursuant to AC21 §106(a), and § 104(c) and Form I-140 petitions pursuant to §106(c) of AC21, INA 204(j). The two DOL rules are the “Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System”, [69 FR 77326], hereinafter called the “Perm Rule” (published on December 27, 2004, and effective as of March 28, 2005); and the DOL Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity, published in the Federal Register, hereinafter call the “Perm Fraud” rule, published on May 17, 2007, (71 FR 27904), which took effect on July 16, 2007.

Revocation of Approved Labor Certifications The DOL Perm rule, at 20 CFR 656.32 provides for the revocation of approved labor certifications by DOL if a subsequent finding is made that the certification was not justified. In such instances, DOL provides notice to the employer in the form of a Notice of Intent to Revoke an approved labor certification that contains a detailed statement of the grounds for the revocation and the time period allowed for the employer’s rebuttal. The employer may submit evidence in rebuttal within 30 days of receipt of the notice. If rebuttal evidence is not filed by the employer, the Notice of Intent to Revoke becomes the final decision of the Secretary. If the employer files rebuttal evidence and DOL determines the certification should nonetheless be revoked, the employer may file an appeal under 20 CFR 656.26 within 30 days of the date of the adverse determination. If the labor certification is revoked, DOL will also send a copy of the notification to USCIS and the Department of State.

Approved Labor Certification Validity Period

The DOL Perm Fraud rule, at 20 CFR 656.30(b) provides for a 180-day validity period for labor certifications that are approved on or after July 16, 2007. Petitioning employers will have 180 calendar days after the date of approval by DOL within which to file an approved permanent labor certification in support of a Form I-140 petition with USCIS. Likewise, revised CFR 656.30(b)(2) established an implementation period for the continued validity of labor certifications that were approved by DOL prior to July 16, 2007; such labor certifications must have been filed in support of an I-140 petition within 180 calendar days after the effective date of the DOL final rule in order to be valid, i.e., prior to January 13, 2008.

DOL Rules Impact Adjudication on H-1B Extension Requests:

As addressed in the April 24, 2003 and December 27, 2005, guidance memoranda, USCIS is required to grant the extension of stay pursuant to §106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

• 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;
• Deny the EB immigrant petition, or
• Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

The previous published guidance outlined above does not take into account that approved labor certifications may now be revoked by DOL, or that approved labor certifications must be filed with a Form I-140 petition within the validity period stipulated by DOL in order to remain valid. In light of these regulatory changes implemented by DOL, the existing guidance on this topic is revised as follows:

USCIS will grant the 106(a) extension of stay in one-year increments, unless a final decision is made to:

• Deny the application for labor certification;
• If the labor certification is approved, to revoke the approved labor certification;
• Deny the EB immigrant petition; or
• 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 extension request one of the above occurs, the H-1B alien 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.

Also, because approved labor certifications must be filed with a Form I-140 petition within the validity period stipulated by DOL in order to remain valid, USCIS looks to see if, at the time an extension request under 106(a) is filed, the labor certification is unexpired.

USCIS adjudicators may grant an extension of stay under AC21 §106(a) if evidence is provided that:

• A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
• The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
• The extension and I-129 petition are otherwise approvable. AD 08-06: Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications.

USCIS will not grant an extension of stay under AC21 §106(a) if, at the time the extension request is filed, the labor certification has expired by virtue of not having been timely filed in support of an EB immigrant petition during its validity period, as specified by DOL. USCIS sees no reason to consider a labor certification that has expired through the passage of time differently than one that has been denied or, for that matter, revoked. In addition, the filing of an immigrant petition with an expired labor certification would result in the automatic rejection, or if accepted in error, denial of that EB immigrant petition, which in turn, acts as a statutory bar to the granting of an extension beyond the 6- year maximum.

Extension requests under AC21 §106(a) may be made in a petition that also contains a request for an extension of stay that reaches the maximum 6 year limit. USCIS adjudicators should first determine the amount of H-1B extension time that may be granted to reach the 6-year limitation of stay, then determine if the labor certification or I-140 petition was filed at least 365 days by the conclusion of the 6-year limitation of stay in such instances. If so, then the one year AC21 106(a) extension may be granted. However, in no case can an extension be granted for more than a three-year period of time.

Evidence of Pending Pre-PERM (ETA-750) and PERM (ETA-9089) Labor Certifications

USCIS takes administrative notice that all labor certification applications filed with DOL prior to March 28, 2005, have received a final determination with the exception of still-active cases pending on appeal at BALCA or those cases still noted as pending in the BECs’ Public Disclosure System (PDS) [http://pds.pbls.doleta.gov/ ].

USCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H-1B beneficiary is still pending, or has been certified and is still valid:

• If the labor certification is a Form ETA-750 that is still pending with DOL, a screen-print from the BECs’ PDS that shows that the status of the labor certification application is In Process or is actively On Appeal that includes the name of the petitioning employer, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the pending Form ETA-750; or,
• If the labor certification is a Form ETA-9089 that was denied but is on appeal, documentation from DOL or BALCA that shows that the labor certification is on appeal; or
• If the labor certification application was certified on or before July 16, 2007, a complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of certification and a copy of the Form I-140 petition receipt notice for the petition filed on behalf of the H- 1B beneficiary; or
• If the labor certification application was certified after July 16, 2007, a complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of certification and the date upon which the labor certification will expire, along with a copy of the Form I-140 petition receipt notice for the petition filed on behalf of the H-1B beneficiary, if any.

If an applicant for extension of stay cannot present a screen print from the PDS, he or she may present a letter from DOL issued within the previous 60 days prior to the filing of the extension petition instead. The DOL letter must explain why the PDS screen print is unavailable and verify that an application for a labor certification is pending.

2. AC21 §104(c) Guidance for Aliens Subject to Per Country Visa Limitations

Pursuant to AC21 §104(c), an alien is eligible for an extension of H-1B status if the alien is the beneficiary of an I-140 petition and would be eligible to be granted immigrant status but for the application of per country limitations applicable to immigrants under INA § 203(b)(1), (2) or (3). Despite the title of AC21 §104(c), referring to “one-time” protection, USCIS may grant such H-1B extensions, in a maximum of three year increments, until such time as the alien’s application for adjustment of status has been processed and a decision made thereupon.

AC21 § 104(c) is applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of a per country limitation to which that alien is subject or, alternatively, if the immigrant preference category applicable to that alien is, as a whole, “unavailable”. Any petitioner seeking an H-1B extension on behalf of an H-1B alien beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations or, alternatively, because the immigrant preference classification applicable to the alien is “unavailable”.

In order to make a determination as to the H-1B alien beneficiary’s eligibility for an extension of H- 1B status under the provisions of §104(c) of AC21, USCIS adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of filing of the Form I-129 petition. If, on the date of filing of the H-1B petition, the Visa Bulletin shows that the alien was subject to a per country or worldwide visa limitation in accordance with the alien’s immigrant visa “priority date”, then the H-1B extension request under the provisions of §104(c) of AC21 may be granted. To establish the alien’s priority date, USCIS may accept a copy of the H-1B alien beneficiary’s Form I-140 petition approval notice.

3. INA § 214(g)(6) Guidance relating to Concurrent Employment Requests for certain H-1B Cap-Exempt Aliens

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).

Petitions filed on behalf of aliens who will be employed by certain types of educational, nonprofit or governmental organizations (these types of petitioners are normally referred to as “cap-exempt” because an H-1B alien employed by such an entity is not subject to the H-1B numerical limitations) are not counted towards the numerical limitations in INA § 214(g)(1) H- 1B. See section 214(g)(5)(a) and (b) of the Immigration and Nationality At (INA); and 8 CFR 214.2 (h)(8)(i)(A).

Pursuant to the provisions of INA §214(g)(6), USCIS does not require that an alien who is cap- exempt by virtue of the above types of employment, be counted towards the limitation contained in 214(g)(1)(a) if they accept concurrent employment with a non-exempt employer. INA §214(g)(6) reads as follows:

Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 1101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). (Emphasis added.)

Documentary evidence, such as a current letter of employment or a recent pay stub, should be provided in support of such a concurrent employment petition at the time that it is filed with USCIS in order to confirm that the H-1B alien beneficiary is still employed in a cap-exempt position.

At the time of filing of a concurrent employment H-1B petition that is subject to the numerical limitation of 214(g)(1)(a):

1. If the H-1B alien beneficiary has not “ceased” to be employed in a cap-exempt position pursuant to INA § 214(g)(5)(A) and (B), then he or she will not be counted towards the cap.
2. If the H-1B alien beneficiary has “ceased” to be employed in a cap-exempt position, then the alien will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary.
3. If USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap- exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.

4. INA § 212(n)(2)(C)(v) Guidance Relating to Changes in Employment by H-1B Aliens who report LCA violations

ACWIA provides for enhanced penalties against H-1B employers who violate attestations made on a Labor Condition Application filed with the Secretary of Labor. Among these provisions for enhanced enforcement are measures designed to enable and encourage H-1B workers to report employers who violate certain attestations. As a result, §212(n)(2)(C)(v) of the Act calls for a process under which an H-1B alien beneficiary who files a complaint regarding a violation of §212(n)(2)(C)(iv) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification. A more formalized process for the adjudication of H-1B petitions containing such extension requests will be incorporated into a forthcoming rulemaking relating to various AC21 and ACWIA statutory provisions.

USCIS adjudicators are instructed that, if credible documentary evidence is provided in support of an H-1B petition that the alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA §212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This process may allow the alien additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.

Credible documentary evidence should include a copy of the complaint filed by the H-1B alien beneficiary, along with corroborative documentation that such a complaint has resulted in the retaliatory action against the H-1B alien beneficiary as described in 20 CFR 655.801 in pertinent part:

(a) No employer subject to this subpart I or subpart H of this part shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee (which term includes a former employee or an applicant for employment) because the employee has– (1) Disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t), including this subpart I and subpart H of this part and any pertinent regulations of DHS or the Department of Justice; or (2) Cooperated or sought to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t).

5. AC21 §106(c), INA § 204(j) Portability Guidance relating to USCIS Adopted Decision, Matter of Al Wazzan

Pursuant to AC21 § 106(c), the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs or employers, if:

• A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained un-adjudicated for 180 days or more; and
• The new job is in the same or similar occupational classification as the job for which the petition was filed.

On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision established that a petition that is deniable (i.e. not approvable) will not be considered “valid” for purposes of INA 204(j). An unadjudicated Form I-140 petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days. A denied From I-140 petition is also not considered valid regardless of whether the I-140 petition is denied 180 days or more after the filing of the adjustment of status application and regardless of when a request to invoke the portability provision of INA § 204(j) is made. In order to be considered valid, an I-140 petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a portability request made under INA § 204(j).

The holding in this decision is consistent with the guidance previously provided in the answer to Question 1, Section 1, on page 3 of the December 27, 2005 memorandum entitled Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313). The guidance provided in that section of the memorandum is now being incorporated into Chapter 20.2(d) of the Adjudicator’s Field Manual.

III. Questions

Questions regarding this memorandum should be directed through channels to Alexandra Haskell in the Business and Trade Branch of Service Center Operations.

IV. AFM Update

Accordingly, the Adjudicator’s Field Manual is revised as follows:

1. Paragraph (d) of Chapter 20.2 is revised to read:

20.2 Petition Validity.

(d) Form I-140 Petition Must be Approved Prior to a Favorable Determination of a §106(c) AC21 portability request.

On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision established that a petition that is deniable (i.e., not approvable), whether or not the petition is denied 180 days or more after the filing of the adjustment of status application, cannot serve as the basis for approval of adjustment of status to permanent residence under the portability provision of INA § 204(j). An un-adjudicated Form I-140 petition is not made valid merely through the act of filing the petition with USCIS or through the passage of 180 days. Rather, the petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a §106(c) AC21 portability request.

* * * * *

2. Paragraph (d)(4) of Chapter 31.2 is revised to read:

(d) Limits on a Temporary Stay.

(4) Exemptions to Limitations of Stay. The limitation on the total period of stay does not apply to H-1B aliens when, as of the date of filing the extension request:

• 365 or more days have passed since the filing of any application for labor certification, Forms ETA-750 or ETA-9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is unexpired or has been timely filed with an EB petition within the labor certification’s validity period; or
• 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or
• The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.

* * * * *

3. Paragraph (g)(8) of Chapter 31.3 is revised to read:

31.3 H1-B Classification and Documentary Requirements.

(g) Adjudicative Issues.

((8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition.

(A) Conditions for the Granting of an H-1B Extension of Stay Under AC21 §106(a). Assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year if evidence is provided that:

• A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
• The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
• The extension and the I-129 petition are otherwise approvable.

An extension of stay under AC21 §106(a) should not be granted if, at the time the extension request is filed, the labor certification has expired by virtue of not having been timely filed in support of an EB immigrant petition during its validity
period, as specified by DOL.

(B) Cut off for Granting of an H-1B Extension of Stay Under AC21 §106(a). USCIS will grant an extension of stay to such H-1B nonimmigrants in one-year increments until a final decision is made to:

(i) Deny the application for labor certification;
(ii) If the labor certification is approved, to revoke the approved labor certification;
(iii) Deny the EB immigrant petition; or
(iv) Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

A decision to certify, deny or revoke an application for labor certification is made by one of the Department of Labor’s certifying officers.

If the application is denied or revoked, the employer is advised that there is a period of time within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA):

• For denied Form ETA-750 labor certification applications filed prior to March 28, 2005, the employer must file an appeal within 90 days.
• For denied or revoked Form ETA-9089 labor certification applications, the employer must file an appeal within 30 days.

If the employer does not file an appeal within the required timeframe, the denial becomes the final decision of the Secretary of Labor. USCIS will not consider a DOL decision to be final until either the time for appeal has run and no appeal has been filed or, if an appeal is taken, the date a decision is issued by BALCA. Therefore, the labor certification will still be considered “pending” while the denial or revocation of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay.

(C) Combined pre and post 6th year extension requests. USCIS will grant, in certain instances, extensions that request time remaining towards the 6-year maximum under 214(g)(4) and additional time allowed under AC21 § 106(a).

7th year extension requests under AC21 §106(a) may be made in a petition that also contains a request for an extension of stay that reaches the maximum 6 year limit. USCIS adjudicators should first determine the amount of H-1B extension time that may be granted to reach the 6 year limitation of stay, then determine if the labor certification or I-140 petition was filed at least 365 days by the conclusion of the 6 year limitation of stay. If so, then the one year AC21 106(a) extension may be
granted. However, in no case can an extension be granted for more than a three year period of time. If the alien beneficiary 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, then the extension of stay request cannot be granted.

(D) Documentation for Form ETA-750 Labor Certifications Filed Pre-PERM and Still Pending, and for Form ETA-9089s filed in PERM.

USCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H-1B beneficiary is still pending, or has been certified and is still valid:

• If the labor certification is a Form ETA-750 that is still pending with DOL, a screen-print from the DOL Public Disclosure System (PDS) [http://pds.pbls.doleta.gov/ ] that shows that the status of the labor certification application is In Process or is actively On Appeal that includes the name of the petitioning employer, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the pending Form ETA-750; or
• If the labor certification application was certified on or before July 16, 2007, a complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of certification and a copy of the Form I-140 petition receipt notice for the petition filed on behalf of the H-1B beneficiary; or
• If the labor certification application was certified after July 16, 2007, a complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of certification and the date upon which the labor certification will expire, along with a copy of the Form I-140 petition receipt notice for the petition filed on behalf of the H-1B beneficiary, if any.

If an applicant for extension of stay cannot present a screen print from the PDS, he or she may present a letter from DOL issued within the previous 60 days prior to the filing of the extension petition instead. The DOL letter must explain why the PDS screen print is unavailable and verify that an application for a labor certification is pending.

(10) Requests for an extension of H-1B status under the provisions of AC21 §104(c) for aliens subject to per country visa limitations.

USCIS interprets AC21 §104(c) as only applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations. Any petitioner seeking an H-1B extension on behalf of an H-1B alien beneficiary pursuant to §104(c) of AC21 must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations.

USCIS will accept a copy of the H-1B alien beneficiary’s Form I-140 petition approval notice which shows that an immigrant visa is not immediately available to him or her based on the approved petition’s priority date as evidence of the H-1B alien beneficiary’s eligibility for an extension of H-1B status under the provisions of §104(c) of AC21.

Adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of the filing of the Form I-129 petition in which a request for an §104(c) of AC21 H-1B extension request is made. If the H-1B alien beneficiary is shown to be ineligible to be granted lawful permanent resident status because of the per country visa limitations, then the H-1B extension request under the provisions of §104(c) of AC21 may be granted for a maximum of three year
increments, until such time as the alien’s application for adjustment of status has been processed and a decision made thereupon.

(11) H-1B Portability Provisions of INA § 214(n), AC21 § 105.

INA § 214(n), provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a nonfrivolous H-1B petition on the nonimmigrant’s behalf, if:

• The nonimmigrant was lawfully admitted to the United States;
• The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
• The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the nonfrivolous petition. In order to port, an alien must meet all the requirements of INA § 214(n), including the requirement that the new petition must be filed while the alien is in a “period of stay authorized by the Attorney General.”

Successive H-1B portability petitions may be filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions). However, 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 that 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”, meaning that any petition to extend or change status that was filed after the expiration of the alien’s status that is denied will result in the denial of all successive requests to extend or change status.

The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is linked to the status of the principal nonimmigrant.

(12) Changes in Employment by H-1B Alien Beneficiary under the Provisions of INA §212(n)(2)(C)(v).

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277, was enacted on October 21, 1998. ACWIA provides for enhanced penalties against H-1B employers who violate attestations made on the LCA. Among these provisions for enhanced enforcement are measures designed to enable and encourage H-1B workers to report employers who violate certain attestations. As a result, §212(n)(2)(C)(v) of the Act requires the creation of a process under which an H-1B alien beneficiary who files a complaint regarding a violation of §212(n)(2)(C)(iv) and is otherwise eligible to remain and work in the United States may in some circumstances be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.

If credible documentary evidence is provided in support of an H-1B petition that the H-1B alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This may allow the alien time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.

Such credible documentary evidence should include a copy of the complaint filed by the H-1B alien beneficiary, along with corroborative documentation that such a complaint has resulted in the termination of employment of the H-1B alien beneficiary or other retaliatory action by his or her employer as described in 20 CFR 655.801 in pertinent part:

(A) No employer subject to this subpart I or subpart H of this part shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee (which term includes a former employee or an applicant for employment) because the employee has— (i) Disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t), including this subpart I and subpart H of this part and any pertinent regulations of DHS or the Department of Justice; or (ii) Cooperated or sought to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t).

In addition, adjudicators are reminded that the portability provisions of AC21 §105 may also apply to the whistleblower H-1B alien beneficiary should he or she choose to use them to seek new employment and obtain relief. * * *

(13) Cap Exemptions Pursuant to 214(g)(5) of the Act. [Chapter 31.3(g)(13) added June 6, 2006]

(D) Requests for Changes in Employment or Concurrent Employment Requests for Certain Cap-Exempt Aliens.

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).

Petitions filed on behalf of aliens who will be employed by certain types of educational, nonprofit or governmental organizations (these types of petitioners are normally referred to as “cap-exempt” because an H-1B alien employed by such an entity is not subject to the H-1B numerical limitations) are not counted towards the numerical limitations in INA § 214(g)(1). See section 214(g)(5)(a) and (b) of the Immigration and Nationality At (INA); and 8 CFR 214.2 (h)(8)(A).

Pursuant to the provisions of INA §214(g)(6), USCIS has not required that an alien who is cap exempt by virtue of the above types of employment, be counted towards the limitation contained in 214(g)(1)(a) if they accept concurrent employment with a non-exempt employer. INA §214(g)(6) reads as follows:

Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 1101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). (Emphasis added.)

Documentary evidence, such as a current letter of employment or a recent pay stub, should be provided in support of such a concurrent employment petition at the time that it is filed with USCIS in order to confirm that the H-1B alien beneficiary is still employed in a cap-exempt position.

At the time of filing of a concurrent employment H-1B petition that is subject to the numerical limitation of 214(g)(1)(a):

–The End–

July 2008 // Employment-Based Visa Bulletin:

July 2008 // Family-Based Visa Bulletin:

Source: state.gov

If you have any comments about the July Visa Bulletin, feel free to drop them below.

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.

Thanks to everyone who has visited this site over the last few months, especially the return visitors. Traffic has been huge!

One of the most popular features on the site has been the comments. In fact, there have been so many comments that I’m having trouble moderating and responding to all of them. We need a more intuitive system that will make it easier for visitors to find information and post questions. So I’ve come up with a solution — forums!

I’m in the process of installing and testing the forums software right now. The forums might be up this weekend (or even today). To that end, is there anyone who would like to help me test the software? You’ll just need to register with an email/username and you’re good to go. If you’re interested, send me a quick message using this form.

Thanks! –John

June 2008 // Employment-Based Visa Bulletin:

June 2008 // Family-Based Visa Bulletin:

Source: state.gov

UPDATE - Friday, May 9th — Still no official June visa bulletin. As usual, the Mumbai Consulate has posted expected dates for the visa bulletin, see http://mumbai.usconsulate.gov/cut_off_dates.html (thanks KY).

Update - Thursday, May 8th — I haven’t seen any commentary from State Department officials about predictions for the June visa bulletin. So the next best thing is the notes from the May visa bulletin, which discuss employment-based visa availability:

E. EMPLOYMENT VISA AVAILABILITY

Many of the Employment cut-off dates have continued to advance more rapidly than might ordinarily be expected. This is a result of consultations with U.S. Citizenship and Immigration Services (USCIS) regarding their pending demand, which is currently using approximately 90% of all Employment numbers. USCIS has indicated that they would prefer to review a substantial number of cases at this time to ensure that number use in the various categories can be maximized. Should USCIS projections of the resulting number use prove to be incorrect it may be necessary to adjust the cut-off dates during the final quarter of FY-2008.

What does that mean? I think it means visa numbers could retrogress or even become unavailable in the June/July/August/September visa bulletins.

Stay posted for the June visa bulletin, and feel free to drop your comments below.

May 2008 // Employment-Based Visa Bulletin:

May 2008 // Family-Based Visa Bulletin:

Source: travel.state.gov

From USCIS,

In Fiscal Year 2007, USCIS received a significant increase in naturalization applications (Form N-400). To address the increase, USCIS is expanding work hours and adding staff to complete these filings within our processing time goals.

If you have received a notice from USCIS that your naturalization interview has been scheduled on a Saturday, Sunday, or after traditional business hours, the notice is correct and you should appear at the scheduled time.

Immigration lawyers are happy because the additional resources should help USCIS process clients’ applications faster. Immigration lawyers are not happy because they now have 7-day work schedules.

On a related note, a New York Times Editorial bashed USCIS soon-to-be-ex-Director Gonzalez in a story about the processing delays. Director Gonzalez published a direct response on the Leadership Journal, a blog published by the Department of Homeland Security. Whether you prefer the NYT or USCIS version of the story, give Director Gonzalez credit for addressing the issue so directly.

“Interim Final Rule on Duplicate H-1B Petitions” [full pdf]

Jump to summary:

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 ↓

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 ↑.

More experienced immigration lawyers and most savvy employers are familiar enough with LCA predating. The American Immigration Lawyers Association (”AILA”) recently published some H-1B filing tips (member access only), and LCA predating was included. But I am going to write a longer summary here because it might be useful to immigration lawyers, employers with H-1B filings, or the prospective H-1B employees themselves.

What is the LCA?

For every H-1B petition, the employer, most times through its attorney, files a labor condition application or “LCA” with the Department of Labor, to certify that the offered wage is appropriate for the position, i.e. the employer is not offering the job to a foreign worker at a lower wage than US workers are paid for comparable jobs in that area.

The filing and approval of the LCA is a requirement that must be met before filing the H-1B petition with USCIS. Through the LCA, sponsoring employers agree to several undertakings, enforceable by heavy civil and criminal penalties: Specifically, the employer agrees:

• To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
• That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
• That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
• That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
• To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

LCA Timing Issues

The LCA cannot be submitted to the Department of Labor earlier than six months prior to the start date of the period of intended employment (see 20 CFR § 655.730(b)). For most H-1B petitions being filed April 1st, the intended start-date will be October 1, 2008 - the first day of Fiscal Year 2009. So the earliest an LCA could be filed would be April 1st (6 months prior to start-date of October 1st ). But the LCA must be filed before April 1st because a certified LCA (or copy) must be included with the actual H-1B petition, and the H-1B petition should be received by April 1st in order to beat the Cap.

In an ideal world, an H-1B petition would be filed with a start date of October 1, 2008, and an end-date of September 30, 2011. These dates reflect the three-year maximum validity for each approved H-1B petition. And the LCA must cover the full three years.

This is not possible, though, because of timing issues with the H-1B cap. As covered above, the H-1B petition must be received by USCIS, with a certified LCA, on April 1st. Yet the LCA cannot be filed before April 1st if it is to cover the full three years of the H-1B petition from October 1, 2008 through September 30, 2011. It’s a real catch-22.

So, what to do?

The solution is to predate the LCA with a start date earlier than October 1, 2008, and then file the H-1B petition (Form I-129) with a start date of October 1, 2008, but with an expiration date that matches up with the end date of the LCA. For example, if we were to file an LCA today, we could set the start date of LCA for September 18, 2008 and an end date of September 17, 2011. Then we could file the H-1B petition April 1st and request a start date of October 1, 2008, and an expiration date of September 17, 2011 (to match the LCA end-date).

The only drawback to this method is that the H-1B petition will be approved for less than the three-year maximum. But it is worth sacrificing a week, or even a month, of eligibility to make it possible for the petition to be accepted under the Cap.

If USCIS publishes any more H-1B Cap filing tips, I will add them to this post so check back soon.

Feel free to drop any comments or questions below.

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

…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.

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

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.

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.

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.

The memo in a nutshell,

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 pdf]

This is good news. But we need some questions and answer to fill in the gaps.

USCIS finally (re)issued its revised Questions and Answers today. They are pasted below.

Short on time? Skip to questions 7 ↓ and 9 ↓.

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 upd