Newsletter
May 27, 2010
Immigration Inbox: News You Can Use - May 2010
- Abundance of H-1 Visas Remain Available for FY 2011. USCIS has received approximately 19,600 H-1B petitions counting toward the 65,000 cap and 8,200 counting toward the 20,000 cap for individuals with advanced degrees.
- USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations. The Q&A outlines which F-1 students are eligible for cap-gap protection and other details.
- USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs. USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public.
- SWAT: Arizona Passes Strict Immigration Act. Governor Jan Brewer signed into law a bill directing police to determine the immigration status of non-criminals if there is a “reasonable suspicion” they are undocumented.
- ICE Plans More Visa Security Units. The program is intended to maximize the visa process as a counterterrorism tool.
- DOS Discusses Visa Number Availability. The Mexico employment third and "Other Worker" preference categories have become "unavailable," and a cut-off date may need to be established for the employment fourth preference category as early as June.
Also in this issue:
Recent News from Seyfarth’s Immigration Lawyers
1. Abundance of H-1 Visas Remain Available for FY2011
U.S. Citizenship and Immigration Services (USCIS) continues to accept H-1B nonimmigrant petitions subject to the fiscal year (FY) 2011 cap.
USCIS recently announced that, as of May 21, 2010, the agency had received approximately 19,600 H-1B petitions counting toward the 65,000 cap and approximately 8,200 petitions counting toward the 20,000 cap for individuals with advanced degrees from U.S. institutions. By the same date in 2009, USCIS had received a higher number of H-1B petitions, which could mean that H-1B numbers may be available for some time as the 2009 H-1B cap was not reached until December 22, 2009.
When USCIS receives the necessary number of petitions to meet the cap, it will issue a public update that the FY 2011 H-1B cap has been met as of a certain date (the "final receipt date"). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.
USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.
Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have previously been counted against the cap within the past six years will not be subject to the congressionally mandated H-1B cap.
USCIS's notice is available here.
2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations
USCIS released a Q&A (questions and answers) document on April 2, 2010, that addresses the automatic extension of F-1 student status in the United States for students with pending or approved FY 2011 H-1B petitions that include a request for change of status to H-1B (the so-called, “Cap-Gap” provision).
The Q&A notes that an employer may not file an H-1B petition earlier than six months in advance of the date of actual need for the beneficiary's services. As a result, the earliest date that an employer can file an H-1B petition for the following fiscal year is April 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission in H-1B status for the dates reflected on the approved H-1B petition.
H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. Timely filed means that the H-1B petition and request for change of status was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during 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").
Once a timely filing has been made, the Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student's H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to depart the United States. Note that, if the student held valid OPT status on the H-1 filing date, then the student is authorized to continue working until the H-1 petition is selected and approved. If there was no OPT status on the H-1 filing date, then the cap gap relief extends lawful status but does not provide work authorization.
USCIS strongly encourages students "to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing."
The Q&A, which includes details about how to obtain proof of continuing status under the cap-gap extension, limitations on travel and unemployment, and other information, is available here.
3. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs
USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.
Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are "informed, responsive, and effective."
As part of USCIS's overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. The reviewed visa types included O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability aliens and outstanding researchers).
A related Q&A is available here.
4. SWAT—Arizona Passes Strict Immigration Act
On April 23, 2010, Governor Jan Brewer signed into law a bill—S.B. 1070—that calls for any law enforcement official or agency to make a reasonable attempt to determine the immigration status of any person whom the official or agency has reasonable suspicion to suspect is unlawfully present in the United States. In addition, the law provides a law enforcement officer the authority, without a warrant, to arrest a person if the officer has probable cause that the person has committed an offense rendering him removable (i.e. deportable).
The bill is set to take effect in August or September, if it withstands legal challenges that a number of groups who oppose the legislation are expected to raise. The complete bill can be found here.
5. ICE Plans More Visa Security Units
U.S. Immigration and Customs Enforcement (ICE) recently announced that the agency plans to expand its visa security units from 12 countries to 16 this year and an additional country next year. ICE has worked with the Department of State to identify high-risk posts that will receive visa security units. The program, intended to maximize the visa process as a counterterrorism tool, assigns experienced special agents to visa security units overseas to review visa applications, initiate investigations, and provide advice and training to consular officers.
The list of countries to be added has not been announced, but the Department of Homeland Security separately has identified 14 nations whose citizens underwent mandatory secondary screening for a temporary period after the Christmas Day bombing attempt: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Currently, ICE has visa security units in Canada, Egypt, Germany, Hong Kong, Indonesia, Jordan, Morocco, Pakistan, Philippines, Saudi Arabia, United Arab Emirates, and Venezuela.
6. DOS Discusses Visa Number Availability
Due to continued heavy applicant demand, primarily by USCIS offices for adjustment of status cases, the annual limits for the Mexico employment third and "Other Worker" preference categories have been reached. As a result, both categories have become "unavailable," the Department of State Visa Bulletin for May 2010 notes. Visa numbers will become available once again in October with the start of the new fiscal year.
The Visa Bulletin for May 2010 also notes that applicant demand for employment fourth preference numbers remains very heavy. It is likely that a cut-off date will need to be established in an effort to keep the numbers within the annual limits. Depending upon volume, this action could occur as early as June, the Visa Bulletin warns.
The May Visa Bulletin includes a reminder that any c hanges of address for applicants processing their case overseas should be reported to the National Visa Center so that information regarding the processing of the case at an overseas post may be sent to the applicant.
The May 2010 Visa Bulletin is available by clicking here.
Also in this issue:
Comprehensive Immigration Reform: On Again? Off Again?
In the past two weeks, immigration watchers have been see-sawed by reports that Congress would—and then would not—take up comprehensive immigration reform this year. The controversy began when Senate Majority Leader Harry Reid, Democrat of Nevada, suddenly declared that the Senate would soon take up immigration legislation instead of other long-planned legislation. The President then announced that he also agreed the time was right for Congress to consider comprehensive immigration reform.
This announcement came as a surprise to most members of Congress, both Democrat and Republican, many of whom protested the decision. Given the current economic environment (with near 10% unemployment in many areas of the country) and the current political environment (with approval ratings for Congress at historic lows), virtually no one believed a controversial immigration bill had a realistic chance of passing this year. Consequently, within days Senator Reid and the President quickly changed course, acknowledging that perhaps this was not the best time to bring up immigration legislation. At least for now...
Recent News from Seyfarth’s Immigration Lawyers
Jason Burritt Obtains Favorable Result in Published Decision Related to Employer’s Wage Obligations for H-1B Worker
Jason Burritt successfully argued on behalf of a pro bono client that the client, which had used its own survey to set the appropriate wage for an H-1B worker, was not required to pay the worker at the level of a State Workforce Agency (SWA) determination obtained in connection with a later PERM labor certification. The published decision was featured on the American Immigration Lawyers Association (AILA) website on April 8, 2010. The complete decision can be found by clicking here.