Philadelphia Immigration Lawyer Blog

On June 11, 2008, the USCIS announced that starting June 16, 2008, it will accept I-907 Premium Processing requests for I-140 applications (Immigrant Petition for Alien Worker) that are filed on behalf of alien workers who are near the end of their sixth year in H-1B nonimmigrant status.

Requests for premium processing will be accepted for I-140 petitions that are filed on behalf of those who are 1) currently in an H-1B nonimmigrant status; 2) whose sixth year in H-1B status will end within 60 days; 3) who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of AC21* and 4) who are ineligible to extend their H-1B status under section 106(a) of AC21**.

*Section 104(c) of AC21 permits someone in H-1B status to extend their stay in increments of up to three years if they are the beneficiary of an approved Form I-140 and if an immigrant visa is not immediately available.

**Section 106(a) of AC21 permits someone in H-1B status to extend their stay in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

This change will really help those who otherwise would not be able to maintain status while waiting for normal processing times for their I-140 and where because an immigrant visa is not immediately available, they would not be able to file their I-485 application to adjust to permanent residency status when their I-140 is filed.

With premium processing, the USCIS will make a decision on the I-140 within 15 calendar-days from the time of filing the I-907 request for such premium processing.

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Posted In: Employment Based Immigration , H-1B , News

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On May 31, 2008, opponents of the DHS decision to extend Optional Practical Training (OPT) to 29 months (under certain limited circumstances) have challenged that decision in U.S. District Court in Newark, New Jersey. The lawsuit was filed by the so-called Immigration Reform Law Institute and it was joined by the Programmers Guild and some other groups such as the American Engineering Association and Brightfuturejobs.com.

It’s questionable whether these parties even have standing to bring the lawsuit. Assuming that they have standing, it’s clear that the suit has no merit whatsoever.

DHS, which announced the new rule on April 4, 2008, wisely extended the period of OPT from 12 to 29 months for certain qualified F-1 non-immigrant students who have a degree in science, technology, engineering, or mathematics (STEM) and who are employed by businesses enrolled in the E-Verify program.

The whole purpose of the rule change is to do what’s necessary to attract and retain highly skilled foreign workers that will help U.S. companies stay competitive in today’s world economy. If the U.S. doesn't welcome these highly skilled workers, other countries certainly will.

The new rule also addressed the situation where an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. Finally, the new rule will also allow students to apply for OPT within 60 days of graduation.

I’ll post updates on the progress of the suit which I am confident will ultimately be dismissed.

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Posted In: Employment Based Immigration , H-1B

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I recently obtained H-1B approval (not a FY 2009 cap case) for a therapist who required licensing in the State of New Jersey but who could not obtain that licensing until after the H-1B petition was approved.

Matters like this can present a classic Catch-22 situation: on the one hand, the H-1B Beneficiary cannot obtain the required license that is necessary to practice his or her profession from a State but they can’t get that license without first obtaining H-1B approval; on the other hand, the USCIS may not approve the H-1B petition without proof that the Beneficiary has obtained the required license.

A recent Memorandum by the USCIS provides common sense guidance to adjudicators in deciding such cases. The Adjudicators Field Manual (Chapter 31) has now been updated to allow for a temporary, one-year USCIS approval of the H-1B petition (assuming all other requirements have been met) that then allows the State (or other licensing authority) to issue the license.

In order for the USCIS to approve the H-1B petition for this one year period, the Beneficiary must prove that he or she has filed an application for the required license and that they are fully qualified to receive the license (that is, that the H-1B beneficiary has met all the educational, training, experience and any other requirements required for the license).

It is incumbent upon the employer and Beneficiary to file a timely request to extend the H-1B status during this one year time period with proof that the Beneficiary has, by then, obtained the license.

The USCIS makes it very clear in the Memorandum that this one year approval does NOT imply that it is authorizing the Beneficiary to actually work at the job that requires the license—the State must issue the license first.

Here is a copy of the USCIS Memorandum.

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Posted In: Employment Based Immigration , H-1B

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I was pleased today that I received the last of the receipt notices for all of the premium processed H-1B applications that I filed on April 1.

The last receipt notice was emailed to me today by the Vermont Service Center followed later tonight by an emailed approval notice on the same matter.

I have not received receipt notices on non-premiumed processed H-1Bs yet.

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Posted In: Employment Based Immigration , H-1B

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On April 18, 2008, the USCIS announced that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year 2009 to request a change of status in lieu of consular processing.

This rule change will greatly benefit students who otherwise would have a gap between the end of their F-1 student status and the start date for their H-1B status. The April 18th announcement is a follow-up to an interim final rule that was announced by the USCIS on April 8th that automatically extended the F-1 status of students who are the beneficiaries of approved H-1B petitions so that this gap can be covered.

F-1 Students will get the automatic extension if they are the beneficiary of an H-1B petition filed for the 2009 fiscal year and if they already requested a change of status as part of their H-1B application.

Students should be aware however that if the USCIS ultimately rejects or denies the H-1B petition, the automatic extension will also terminate at the same time.

If you, understandably, thought that you did not qualify for an extension when your H-1B petition was filed and thought that you needed to depart the U.S. and consular process for your H-1B visa, you can now request a change of status. Your request has to be received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, you (or your lawyer) need to send an e-mail with the change of status request to the USCIS Service Center where your petition is pending. You have to do this within 30 days after you get the H-1B receipt notice. There are specific USCIS email addresses for each service center for just this purpose.

Your request has to include the I-129 Petition receipt number, the petitioner’s and beneficiary’s name, the beneficiary’s date of birth, the I-94 number, and the SEVIS number. Here are the email addresses:

For the Vermont Service Center:

For Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
For Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

For the California Service Center

For Premium Processing cases: CSC.ppcapgap@dhs.gov
For Non-Premium cases: CSC.nonppcapgap@dhs.gov

Please contact me if you have any questions or if you need any assistance in requesting the change of status.

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Posted In: Employment Based Immigration , H-1B

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Today, April 14, 2008, the USCIS conducted its computer-generated random selection processes on H-1B petitions for fiscal year 2009. Those selected will now be adjudicated and if approved, will be eligible to receive an H-1B visa number. First, a random selection was done for the 20,000 “master’s or higher degree” exemption and then a second random selection was done on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

If your petition was selected for full adjudication, you should receive a receipt notice dated no later than June 2, 2008. If your petition was not selected, the USCIS will return your petition packet and the fee.

Some H-1B petitions have been “wait-listed” and potentially could replace petitions chosen to receive an FY-2009 cap number, but for whatever reason are denied or withdrawn. If your petition has been wait-listed, you’ll get a letter from the USCIS informing you of that status.

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Posted In: Employment Based Immigration , H-1B

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The USCIS announced on April 10th that the preliminary count for H-1B applications is 163,000 of which 31,200 were for the advanced degree category.

The USCIS will likely conduct the computer generated selection process next week and it will begin by selectiing 20,000 petitions filed under the advanced degree exemption.

If an advanced degree petition is not selected in this initial lottery, it will then be included in the later lottery for the cap-subject 65,000 limit H-1B petitions.

I'll keep you updated.

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Posted In: Employment Based Immigration , H-1B

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Just a reminder that the USCIS has revised the I-765 Work Authorization form (the revision date is April 8, 2008) and the new form, which is filed by foreign nationals to obtain an EAD (Employment Authorization Document) must be used as of March 31, 2008. The new, revised I-765 include a change that is relevant to F-1 students seeking OPT-based employment authorization and the change is a result of the recently announced Rule that provides for a 17 month extension for certain OPT students.

Here are the new USCIS instructions for the revised I-765.

The prior eligibility code (c)(3)(i) will no longer be used on the I-765. It has been replaced with the following three codes: (c)(3)(A) for pre-completion OPT; (c)(3)(B) for post-completion OPT; and (c)(3)(C) for a 17-month extension for an F-1 student who has received a degree in Science, Technology, Engineering, or Mathematics (STEM), that appears on the STEM designated Degree Program List published on the SEVP website.

If you are filing as a STEM student requesting the 17-month extension of your currently authorized optional practical training under (c)(3)(C), you must state on the new I-765 your degree, you must now include the employers name and E-Verify id number and you must submit a copy of your degree that must indicate your major field of study.

The new Form I-765 also eliminates the option of filing due to replacement of an EAD that was never received, and for re-issuance of an EAD that was issued with incorrect information due to a USCIS error. If you require a new EADs for either of these two specific reasons, you must contact the specific office that processed the initial EAD or call the National Customer Service Center at 1-800-375-5283.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration , H-1B , News , Student Visas

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On April 8, 2008 and to no one’s surprise, the USCIS announced that it has received enough H-1B petitions to meet the cap for fiscal year 2009.

USCIS also received more than 20,000 H-1B petitions filed on behalf of beneficiaries under the “advanced degree” exemption. Before it runs the random selection process, the USCIS will first complete initial data entry for all the filings it received but it has not announced the date on which it will conduct that random selection process.

It will conduct the selection process for “advanced degree” exemption petitions first and any “advanced degree” petition that is not selected will get another shot at approval by then being included in the random selection process for the 65,000 limit.

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Posted In: Employment Based Immigration , H-1B

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On March 19, 2008, the USCIS announced that it will deny or revoke multiple petitions filed by an employer for the same H-1B worker and that it will not refund the filing fees submitted with multiple or duplicative petitions. This step is being taken by the USCIS in an effort to be fair to all employers seeking to hire H1-b workers this year, recognizing that once again, it’s expected that the number of applicants will exceed the available number of visas. Here is a link to the new interim rule. Here is a link to the USCIS fact sheet for the new interim rule is stated.

For fiscal year 2009 (which starts on October 1, 2008) the H1-b visa cap is 65,000 for most H-1B workers although the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Once the USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap.

The rule also states that if USCIS determines that the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year (with the first day for filing being April 1, 2008), it will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. H1-b petitions subject to the 20,000 limit that are not selected in that random selection will then be considered with the other H-1B petitions in the random selection for the 65,000 limit.

The final rule will become effective upon publication in the Federal Register.

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Within a few days of Bill Gates’ Congressional testimony on March 12th on the issue of keeping the U.S. competitive in a global market in which many countries gladly welcome the best and the brightest of the world’s highly skilled workers, two new bills to raise the H-1B cap reached the House floor.

Rep. Gabrielle Giffords (D-Ariz.) introduced the Innovation Employment Act (H.R. 5630) which would initially double the annual H-1B visa cap to 130,000 and then allow the cap to increase the following year if that cap were reached.

Rep. Lamar Smith (R-Texas) introduced a separate bill, the SUSTAIN Act (Strengthening United States Technology And INnovation Act), which would triple the H-1B cap, but only temporarily, in 2008 and 2009, to 195,000.

Gates testified: "We live in an economy that depends on the ability of innovative companies to attract and retain the very best talent, regardless of nationality or citizenship [but] the U.S. immigration system makes it hard to attract and retain high-skilled immigrants." U.S. firms will have no choice, said Gates, but to take advantage of opportunites in other countries with more favorable visa programs, such as Canada and Great Britian if the U.S. continues to cap H-1Bs.

The Giffords bill (and the Smith bill to a lesser degree) represents realistic and practical progress since it’s not realistic to think Congress will simply lift the cap altogether as it should. Congress has to do something to peg the cap to the needs of the marketplace—not some arbitrary fixed number that has no relationship to the needs of American businesses. Hiring H-1B workers creates jobs for Americans, it doesn’t take jobs away from Americans. Businesses don’t hire H-1B workers instead of Americans, they hire H-1B along with American workers. The National Foundation for American Policy (NFAP) recently published a well-publicized study that found that for larger S&P 500 technology companies, on average, for each H-1B visa requested by a company, overall American hires climbed an average of five employees. For smaller companies, the NFAP found that seven new American employees were hired for every H-1B application submitted. Here’s the published study.

Let’s hope this newfound bipartisan effort on H-1Bs results in a change in the law. Since comprehensive immigration reform doesn’t seem likely any time soon, if we have to accept reform in piecemeal fashion like this, we’ll take it.

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The USCIS has released information on what companies were issued H-1B visas in 2007. The top H-1B visa recipient at 4,559 was Infosys and number 2 was Wipro at 2,567—both Indian outsourcing companies.

The next eight of the top ten, in order were Satyam Computer (1,396), Cognizant Technology (962), Microsoft (959), Tata Consulting (797), Patni Computer (477), UST Global (416), i-flex Solutions (374) and finally Intel (369).

Unfortunately, critics of the H-1B system are using the fact that Microsoft and Intel are the only two traditional U.S. tech companies in the top ten as evidence of the fact that the system is not working as it was intended. Both Senators Charles Grassley (R-Iowa), who says the numbers “should send a red flag to every lawmaker”, and Richard Durbin (D-Ill) will be proposing restrictions in the next several months including a requirement that a company recruit for a U.S. worker before applying for an H-1B for a foreign worker. In the H-1B program, that kind of recruitment is not presently required.

The real issue, however, is the fact that the annual cap on H-1B visas is too low and U.S. companies are becoming less competitive in the global economy because of it. Bill Gates regularly testifies before Congress that the cap should be removed altogether so that companies like Microsoft can attract the best and the brightest from around the world (especially since they are often being educated in the U.S. in the first place). As Gates points out, what sense does it make to educate a foreign student in the U.S. and then tell him or her that they are not welcome to stay here to use their education and talents here. Here's a You Tube video of Gates speaking before students at Waterloo University on the need for a free flow of talent and why the H1-B cap should be lifted.

But with the economy faltering, with news that the U.S. jobless rate is climbing and now with news that H-1B visas are, in the view of many, not going where they were intended to go, no one should be surprised to see restrictions in the program in the near future.

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The Administrative Appeals Office has entered a ruling in an H1B appeal dealing with the definition of “specialty occupation” that seems a little odd to me. The case illustrates how important it is to carefully describe the job duties in H1B I-129 applications.

The beneficiary of the H1B petition at issue is to be employed as a “dental research assistant”. When the Service Center denied the petition on the grounds that “dental research assistant” is not a specialty occupation, the employer appealed the denial to the AAO.

The AAO noted that the many duties of the dental research assistant position as described by the employer included “assist dentist with diagnosis” of teeth and tissue problems and therefore the offered position “requires the beneficiary to perform duties normally performed by licensed dentists”. The AAO determined that the Service Center was wrong to have decided that the offered position was not a specialty occupation. So far so good for the beneficiary.

But the AAO then went on to hold that if the beneficiary was going to be performing the duties normally performed by a dentist, then the beneficiary had to satisfy the governmental licensing requirements for dentists. In California, where the Beneficiary is proposed to work, the law requires a license to practice dentistry so the AAO remanded the matter back to the Service Center to determine whether the Beneficiary has a license to practice dentistry.

Huh?

The AAO seems to have decided that someone who is being hired to assist a dentist with a dental diagnosis is, under California law, actually making the diagnosis and actually practicing dentistry and therefore needs a dental license.

If the Beneficiary had a license to practice dentistry presumably he or she would be hired by the employer as a dentist, not as a “dental research assistant”. Even if this particular Beneficiary does have a license to practice dentistry under California law but for some reason is only to be hired as a dental research assistant, presumably he or she still would have submitted evidence of that license to the Service Center. So we can safely assume that the Beneficiary does not, in fact, have such a license and will not, on remand to the Service Center, be able to satisfy his or her burden of proof.

The lesson in this case is that care always needs to be taken when filing an H1B petition in describing the duties of a specialty occupation so that the job is not a job that the Beneficiary clearly isn’t qualified for. It looks to me that such care was taken in this case—the listed job duties seem to plainly state that the dental research assistant will be assisting the dentist in the dentist’s diagnosis and not actually making the diagnosis themselves.

The remand looks like a hollow victory for the employer and the Beneficiary.

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Posted In: Employment Based Immigration , H-1B

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The February 18, 2008 edition of the San Jose Mercury News has an interesting article suggesting that at least in California Bay Area, the fastest growing group of illegal immigrants is, surprisingly, Indians. The article cites the USCIS statistic that there are 270,000 unauthorized Indian natives in the United States - a 125 percent jump since 2000 which is the largest percentage increase of any nation with more than 100,000 illegal immigrants in the United States.

Still, it’s a small number compared to the number of illegal residents from other countries but it’s the trend that is disturbing. If the trend continues, within three years India would trail only Mexico, El Salvador and Guatemala as a source of illegal immigration.

The problem of course is not illegal entry but legal entry followed by falling out of status. According to the Mercury News article, that typically involves losing H-1b employment especially in today’s economy and even more especially in Silicon Valley.

It’s an unfortunate development and it certainly highlights the importance of H-1b visa holders doing everything they can to remain in status - - for example, always keeping in mind that there is no “grace period” at the termination of an H-1b job and, as much as possible, having a seamless transition from one H-1b employer to another. People should also remember that under certain limited circumstances (depending on the timing of an application for a labor certification or an I-140 Immigrant Petition) H-1b status is available beyond the typical last sixth year.

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Posted In: Employment Based Immigration , H-1B

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The USCIS Service Center Operations has provided some more guidance for the upcoming H-1B season in recent discussions with a liaison committee of AILA which then published a summary of that guidance. Here are the highlights.

First, stating the obvious, the USCIS fully expects the same volume of H-1B I-129 filings as last year. Because of that high volume, the USCIS is cautioning that a request for Premium Processing (by which the USCIS promises to adjudicate an application within 15 days) may not be able to be honored. Premium processing will be available to request (via Form I-907) but the 15 day guarantee may not be met simply because of the volume. Personally, I think it is still definitely advisable to request premium processing.

On the issue of filing duplicate H-1B applications in an effort to increase the chances of getting it in under the numerical cap, the USCIS advises that it is currently working on a regulation to prohibit this although there may be a question about how “duplicate” is defined. For example, AILA believes that an H-1B petition filed under both the regular and the Master’s cap is NOT considered a duplicate. We know for sure when the reg is published.

Finally, SCOPS confirms that an H-1B application can not be E-filed.

I’ll keep posting on any H-1B news throughout the H-1B season.

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Posted In: Employment Based Immigration , H-1B

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The USCIS has posted three articles on its website that give some very practical advise about the procedures in filing H1-B I-129 petitions to help filers make sure their applications are filed correctly the first time. With the expected crunch of filings all on April 1, 2008, a single mistake in following the procedures could cause the petition to be rejected and sent back by the USCIS (days or weeks later) and by then the annual H1-B cap will have been reached. In fact, there is every indication that the cap will be reached, like last year, on the first day for filing—April 1st. No one is going to get a second chance to get it right.

The first posting is here and rather than restate it all, here are some highlights. 1) Clearly label the I-129 petition in red ink on the top margin as either a regular cap case or a C/S (Chile/Singapore) cap case or a U.S. Masters cap case or an exempt case. 2) Make sure you include the right fee and send in each appropriate filing fee with a separate check—that will minimize the possibility of a simple math error resulting in a single check having the wrong total. 3) Sign in blue ink—it makes it less likely a signature will look like a photocopy rather than the required original. 4) Send in only one petition per envelope, although the USCIS says you can send in multiple envelopes within the same mailing. Personally, I much prefer sending in one petition per Fed Ex envelope. In that way, I have proof of mailing and delivery for every single H1-B petition I file.

The second posting is found here. It covers what the USCIS says are most common mistakes people make when filing H1-B petitions. Incorrect fees, inconsistent and incorrect answers on the I-129 and the H supplements. Be careful, take the time to fill out the applications correctly and then check and check again.

The third posting is found here. It provides helpful ideas on organizing the H1-B applications. First, staple the appropriate check to the appropriate petition; for example the $320.00 check (and the other applicable fees) to the I-129 and the $1,000.00 check to the I-907 premium processing application. The USCIS preferred order is: I-907, then G-28, then I-129 with the H Supplements and then a table of contents with a copy of the applicant’s I-94, the SEVIS Form I-20 or the SEVIS Form 2019 (if applicable), the Certified Labor Condition Form ETA 9035, the employer’s letter of support and a copy of the applicant’s passport. If the applicant will be asking for visa issuance abroad, then the USCIS would like a second copy of everything.

All three postings are worth taking a look at.

Also, here are the links to my own three recent H1-B postings, one dealing with H1-B basics and the other discussing the upcomi