Client Situation: Client is eligible for post-completion Optional Practical Training (OPT). However, the college will not issue her the I-20 showing OPT eligibility because she still owes a portion of her tuition payments. Since you must file for the OPT within 60 days of completion of your program, the client will lose her ability to secure OPT on July 15th and will need to depart the U.S.
SEVIS Policy: An SEVP-certified school is not required to request OPT for any student. Although the payment of fees to the school should not directly be linked by a school policy to SEVIS status or F-1 benefits, it is a common and acceptable practice for institutions to keep students from graduating who owe money to the institution. If a student is not completing the program according to the school, that student cannot apply for post-completion OPT. The school must have in place a general statement—that applies to all students—of how it interprets and applies its policies in situations where a student has not complied with their financial obligation.
That being said, the school could refuse to endorse OPT for any reason. However, so that it does not appear capricious or callous an extant school policy should be in place.
Question: I have filed an H-1B to change employers from my current H-1B employer to my new employer. I received an RFE asking for evidence of “Maintenance of Status.” What does this mean?
Answer: Great question. In order for H-1B portability to apply, you must show USCIS that you have maintained your H-1B status. Basically, you need to provide evidence showing USCIS that you remained employed by your H-1B employer up to the time USCIS received the H-1B requesting a change to your new employer. Generally, you would submit your last 3 months pay slips to USCIS along with the H-1B change of employer petition. If you’ve done this and if the pay slips were current as of the filing of the new petition you should be fine. However, occassionally USCIS will still request more evidence that you maintained your H-1B status. This evidence can include your W-2 statements and a copy of your Federal Income Tax Return.
Example 1: I filed a change of employer petition on June 1st for the beneficiary to change from Employer A to Employer B. The petition was received by USCIS on June 2nd. Along with that petition, I included the beneficiaries pay slips from Employer A from May 2009, April 2009 and March 2009. For good measure, I also included the beneficiary’s W-2 statements from 2008. This was a simple maintenance of status issue because the beneficiary had remained at Employer A right up to the filing of the H-1B petition. However, Example 2 contrasts this.
Example 2: Same facts as Example 1 except the employee was terminated from Employer A on April 1, 2009. This beneficiary was no longer maintaining status as of her termination date on April 1, 2009. In this case, the beneficiary is not maintaining status and must depart the U.S. after termination from her H-1B employer. If the gap between termination and the filing date is long and pay slips or unpaid leave evidence is not available to show maintenance of H-1B status, USCIS would likely deny the change of employer and approve the H-1B requiring the beneficiary to return to her home country to obtain H-1B stamping before beginning work for Employer B.
Note: H-1B portability enables you to “port” or change employers to a new employer AND begin working for the new employer upon FILING of the change of employer petition. In order to commencee employment upon filing of the new petition, however, three requirements must be met:
1. You must have been lawfully admitted to the U.S. (must have an unexpired passport and visa and be admissible and must provide USCIS with your I-94 and H-1B approval notice showing your lawfully admitted status);
2. The new petition must be “nonfrivolous” meaning that it must be a bona fide petition for a position which is available and for which you are qualified and eligible to fill;
3. the new petition was filed before the date of experation of the period of stay authorized.
If the above conditions are met and you continue to maintain status in the U.S. you may change employers and can start to work for the new employer as soon as the petition reaches USCIS (I recommend waiting for the receipt). However, if you are terminated, your H-1B relationship has ended with your employer and the employer is REQUIRED by law to notify USCIS of your termination and provide you with transportation back to your home country. This will seriously hinder your job search in the U.S., however, so line up that new job BEFORE your employer terminates you or BEFORE you tender your resignation. In this case, a little pre-planning and a backup employer can make a huge difference.
Interesting series of articles from Business Week.
http://www.businessweek.com/bwdaily/dnflash/content/may2009/db2009058_701427.htm
As of May 1, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
The Department of Labor is launching a new Labor Certification and PERM certification system called iCert.
iCert will replace the legacy PERM and Foreign Labor Certification systems previously used. The best feature for practitioners is the combination of both PERM and the ETA 9035E (LCA) used for the H-1B, H1B1 and E-3 visa categories. However, the new iCert program also carries with it delays in processing of the H-1B LCA. The new LCAs will all be reviewed before certification which could mean delays from 30 days to 2 weeks.
22 C.F.R. 41.112(d)-An alien can re-enter the U.S. with an expired visa in her passport if:
In essence, Automatic Revalidation may allow you to reenter the U.S. after a brief trip to Canada or Mexico without going to the Consulate for a new visa. How do you qualify for Automatic Revalidation?
If your nonimmigrant visa is expired and you must travel to Canada or Mexico for less than 30 days, automatic revalidation may apply to you.
Automatic Revalidation applies when:
Automatic Revalidation may also apply when you have changed status in the U.S. and never had the new visa stamped in your passport or the visa is now expired.
For example: An Indian citizen on L-1B visa is working in the United States. He applies for and is approved for an Extension of Stay and receives an Approval Notice which includes a new I-94 at the bottom. The L-1B employee is asked to go to Canada for business meetings for a two week period. There is no Consular appointment available to have the extended visa stamped in his passport. He returns through the Border (or Airport preinspection station), shows his unexpired passport, expired visa and Approval Notice and requests Automatic Revalidation to return to the U.S. Under Automatic Revalidation, the Officer can allow the L-1B employee to enter without a new stamped visa in the passport. CAUTION: While Automatic Revalidation is authorized, several Ports of Entry will not admit a nonimmigrant based on Automatic Revalidation. Therefore, it is best to contact the Port of Entry to confirm local policy before you attempt to enter via Automatic Revalidation.
Cite as “AILA InfoNet Doc. No. 09042065 (posted Apr. 27, 2009)”
April 27, 2009 H-1B Cap Count
On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 27, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.
I love to travel and particularly love to travel to areas of the U.S. with diverse populations. I am completing a trip to St. Pete Beach and Orlando, Florida. Both areas are diversely populated which gave me the opportunity to meet and hear some great stories. Muhamar is a U.S. citizen who migrated to the U.S. from Albania. In Albania he was a successful man and a Major on the police force. When he arrived in the U.S. his first job was that of a housekeeper in a hotel. Today, he is a U.S. citizen and a Sergeant in the security force of a major resort. His courage to leave his land and start a fresh life is inspiring.
April 9, 2009 - USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
USCIS is reporting that they have received only half of the petitions needed to fulfill the H-1B Cap of 65,000. USCIS has received nearly all of the 20,000 Cap exempt packets for individuals with a U.S. Master’s Degree. USCIS will continue to accept petitions until the Cap is reached.
Note to employers of H-1B employees. H-1B Compliance is on the rise.
2009-Cognizant recently agreed to pay $509,000 in back wages as a result of a Department of Labor (DOL) investigation into its prevailing wage practices. Cognizant bellieves that it complied with prevailing wage requirements but agreed to pay the wages due to pressure from DOL. See the Silicon India article at:
2008-Eleven managers of affiliated companies were arrested on serious charges of mail fraud and conspiracy based on fraudulently prepared and submitted Labor Conditions Applications. In this case, the managers completed all LCAs for the lower prevailing wage work location of Iowa while workers were placed at positions throughout the United States. As an example, the prevailing wage for a Level I Software Engineer (Applications) in Des Moines, IA is $54,538 while the same position in Orange County, CA requires a prevailing wage of $61,776. Therefore, the employee was being paid $7238 below the required wage. Multiply this number by hundreds (or thousands) of employees and you’ll see the company’s motivation.
http://www.itbusinessedge.com/cm/community/news/sou/blog/11-arrested-in-h-1b-fraud-sweep/?cs=30493
2007-Patni paid $2.4 million in back wages for shortages to H-1B employees.
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9023964
Fines, indictments and debarrment from filing future H-1Bs is at stake. How does a company become and remain compliant?
1. Do a complete audit of all of company LCAs. Make certain the work location reported on the LCA is the work location where the beneficiary is assigned. Make certain the wage reported is the proper prevailing wage required of the position. (compare with the job description) In some cases, you could be under reporting the prevailing wage by selecting a Level I wage for a position which requires a much more experienced individual. LCA compliance assistance is available at http://www.dol.gov/compliance/
2. Prepare new H-1B petitions to correct any LCA deficiencies for material changes in job duties, salary or corrections in geographical wok locations.
3. Expect an audit.
4. Pray that you can complete all of this before you are audited.
5. Set up internal systems for tracking geographical and job duty changes so that you remain compliant.
6. Call an attorney experienced in compliance and H-1B issues for advice. This is a potentially costly area for companies and the managers who participate in the immigration program. Is your company next? You should not try to navigate this alone.
April 8, 2009 USCIS has announced that it will continue to accept H-1B Cap subject cases for the FY2010 H-1B Cap. They will continue to monitor the number of petitions submitted under the Cap and will announce the final receipt date once the 65,000 Cap is reached.
Q: I have an approved immigrant petition for an employment based case and have an Immigrant Visa in my passport. I have not made my first entry to the United States as an immigrant. I am pregnant and will have a child in France. After the baby is born, my husband will accompany me to the U.S. Will our child also be a Lawful Permanent Resident? What paperwork will I have to complete?
In this case, you obtained your Immigrant status based on your employment. Your husband obtained his status as your derivative. Your baby is considered an NA3 “child of a marriage which existed prior to the principal alient’s admission to the United States.” As a result, your baby is considered to be “previously acquired” and will be entitled to the same status and priority date as your husband. Therefore, when you enter the U.S., the port of entry will process your baby as an NA3 immigrant and will admit you, your husband and baby as Lawful Permanent Residents (LPR).
9 FAM 42.53 N6.2 Child of Marriage Existing Prior to Principal’s Admission
The child of a marriage which existed prior to the principal alien’s admission into the United States is considered to have been previously acquired and thus is entitled to the same status and priority date as the “accompanying” or “follow to join” parent.
9 FAM 42.53 6.3 Spouse/Child Acquired After Principal’s Admission
A spouse or child acquired after the principal alien’s admission to the United States, except a child of a marriage existing at the time of the principal alien’s admission into the United States, is not accorded derivative status, and thus is not entitled to the priority date of the principal alient. The principal alient must file a second preference petition for such spouse or child.
Don’t get excited too quickly if you receive an H-1B receipt notice this week. USCIS has announced that they accidentally issued some receipt notices for H-1B Cap counted cases. The receipt notice would normally be the indicator of acceptance under the H-1B Cap. In this case, however, the receipt notices will be recinded and those cases which received receipts in error will be placed in the H-1B Cap lottery.
Now that the H-1Bs are filed, we are receiving questions asking what happens next and how long it will take for a beneficiary to find out if they’ve been accepted under the H-1B Cap.
The California and Vermont Service Centers will collect and sort all petitions submitted under the H-1B Cap from April 1st through April 7th. Those with U.S. Master’s Cap cases will be reviewed and will be included in the Master’s Cap. If the Master’s Cap of 20,000 is met, those cases above the 20,000 will be included in the 65,000 Regular H-1B Cap.
The H-1B Regular Cap cases will be reviewed and assigned random numbers. The selection process will occur for those cases which were properly filed and notifications will begin to arrive in May 2009. The notification process is simple. If you receive a receipt notice, you’ve been accepted under the Cap. If your packet is returned, you have not been accepted under the Cap. The receipts will arrive first with the returned (unaccepted) packets arriving sometime in June. If USCIS processes the cases as they did last year, most receipt notices will be send by the first week of June. It is safe to assume that, if you haven’t received your receipt notice by the end of June, you likely haven’t been accepted under the Cap.
Last night I dropped off 224 H-1B packets at the courier for filing at the Vermont and California Service Center. Today, all of the packets have been delivered and the wait begins for the H-1B Cap “Lottery.” My guess is that 127,000 petitions were submitted this year. Let’s see how close I come to the actual number submitted.
The next several postings will include updates on how many petitions are submitted to USCIS under the H-1B Cap and how many of our petitions were accepted under the Cap so please check back for updates.
“I’m on H-1B and have just been terminated from my job. What do I do?”
Losing a job is a turning point for anyone. For the H-1B holder, however, the consequences are severe and immediate. As soon as you are informed of your termination there are steps you must take to secure your benefits and, perhaps, your future H-1B employment. As an H-1B employee your status in the United States is tied to your employment. The day you are terminated you are not considered to be maintaining lawful status in the
You must file a change of employer petition as soon as possible.
When terminated from your employment you are not maintaining lawful status in the
Reminder: Do not begin working for your new employer until you confirm that your H-1B change of employer petition has reached USCIS. The safest way to confirm this is to wait for the receipt notice issued by the
Your employer must pay for your transportation home.
If you wish to depart the
Returning home does not necessarily subject you again to the H-1B Cap.
It is important to note that departing the
There are alternatives to termination.
Finally, if you have a good relationship with your employer, but tough economic times are forcing them to terminate employees, consider applying for and negotiating a period of unpaid leave. You will need to put your request in writing and request a written response from your employer. This unpaid leave period will provide you with the time needed to seek new employment and to have the new employer prepare your H-1B petition. In addition, the written correspondence between you and your employer may serve as the evidence needed to show that you have maintained status in the
The economic downturn in the
Question: I am a citizen of China on F-1 and am graduating on February 1, 2009 with a Bachelor’s degree in Economics. I will begin OPT on March 2, 2009 through March 1, 2010. I have been applying for jobs but have not yet been able to find an employer who will sponsor my H-1B. If I am unable to find a job with a company who will sponsor my H-1B what will happen when my OPT expires in 2010.
First, the new OPT rules state that you must not be unemployed for an aggregate period of 90 days while on your 12 month post-completion OPT. Therefore, you will need to secure employment with your OPT by June 1, 2009. Also, your school will require you to report your employer name, address and contact information so that they may add this information into SEVIS.
Second, you need to secure employment with a company willing to sponsor you for H-1B by April 1st, 2009 (preferably sooner). Your OPT will expire on March 2, 2010 and, at that time, you will not be eligible for an OPT extension beyond the 12 months. Unfortunately, you are not eligible for the two OPT extensions meant to help students deal with the H-1B Cap.
The two types of OPT extensions available are:
1. H-1B “Cap Gap” provisions automatically extend status and work authorization (OPT) until October 1st when you are the beneficiary of a timely filed Change of Status petition from F-1 to H-1B. This is to ensure that there is no “gap” between F-1 expiration and the October 1st start date of the H-1B. For example, if you graduate in May, 2008 and your OPT is valid from June 1, 2008 through May 31, 2009 AND you file an H-1B petition requesting that your status be changed from F-1 student to H-1B AND you are accepted under the H-1B Cap, your OPT and F-1 status will automatically be extended until Oct 1, 2009 so that you may remain in the U.S. and work while your H-1B is pending.
2. For STEM (Science, Technology, Engineering, Mathematics) degree holders are eligible for an additional 17 months of OPT (29 month total) if the degree is in one of the designated programs listed at http://www.ice.gov/sevis/stemlist.htm.
If you do not qualify under one of the two categories above, extension of your OPT beyond the 12 months is not possible and you’ll need to look for other alternatives to remain in the U.S. beyond March 2, 2010.
This Blog is written and managed by Stephanie Scarborough, Esq., Partner at Serotte Law Firm. http://www.serottelaw.com/ To contact Stephanie, please email her at sscarborough@serottelaw.com.
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Disclaimer: The information provided on this site is not legal advice. For legal advice, please contact a qualified immigration attorney. All information provided on this site is for informational purposes only. Stephanie Scarborough, http://www.myimmigrationstories.com/ and http://www.serottelaw.com/ makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use.