Seguritan US Immigration Articles

USCIS Issues H-1B Filing Instructions

H-1B petitions for fiscal year 2017 that starts October 1, 2016 will be accepted beginning April 1, the USCIS announced last March 16.

More petitions than the H-1B cap of 65,000 are expected to be filed during the first five business days. So all the petitions received during that period will be subject to a computer-generated lottery system to randomly select the petitions required to meet the cap.

Last fiscal year, the USCIS received approximately 233,000 during the first five business days in April. The USCIS will notify the public when the H-1B cap has been met. Those not selected will be returned.

The first 20,000 H-1B petitions for individuals holding a US master’s degree or higher are exempted from the cap. Once this limit is reached, the petitions will be subjected to the regular cap.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year the USCIS will start premium processing of H-1B petitions subject to cap no later than May 16.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

F-1 STEM Students Can Now Stay Longer

A new Department of Homeland Security (DHS) rule just gave international students with F-1 visa two more years of on-the-job training here in the US.

Before, an F-1 student with a degree in science, technology, engineering and mathematics (STEM) from a US institution of higher education can apply for 17 months of OPT on top of the one year already allowed to them after graduating in a STEM field. Under the new rule, starting May 10, students can apply for a 24-month extension of their post-completion OPT.

This means that the new rule that was published last March 11 gave international students earning a degree in these fields the chance to experience three years of on-the-job training. This gives them more time to expose themselves to valuable and practical STEM experience.

This is good news for a lot of students who want to gain more knowledge in their field of study. This is also great news for US employers who can benefit from their skills and know-how.

However, there are a lot to consider as the new rule is very strict when it comes to reporting.

In order for one to be eligible to apply for the extension, you have to have a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by the Student and Exchange Visitor Program (SEVP) when you submit your STEM OPT extension application. It is also important that your OPT must be in a field related to science, technology, engineering and mathematics. Should you have a non-STEM master’s degree but you have a bachelor’s degree in any of the fields mentioned, you can use your bachelor’s degree to apply for a STEM OPT extension.

A formal training plan developed with your prospective employer is also necessary. You need to draw a plan where you and your future employer identify learning objectives and the ways by which you envision to achieve these. In order to keep track of how these goals are being met, the DHS may conduct unannounced site visits when necessary.

The new rule also imposes a six-month validation requirement where you or your school must confirm the validity of certain information about you. This information may be about your home country, your address, current employment status and other biographical information. There is also a yearly self-evaluation that you will submit to your designated school official (DSO) detailing the progress of your on-the-job training. The employer must sign this evaluation.

Come May 10, USCIS will accept applications for STEM OPT extensions. If you feel like you need more time to hone your skills here in the US, you must submit an I-765, Application for Employment Authorization together with an I-20 Certificate of Eligibility for Nonimmigrant Student Status, endorsed by your DSO.

You may also submit your application up to 90 days before your current OPT employment authorization expires, and within 60 days of the date your designated school official (DSO) enters the recommendation for OPT into your Student and Exchange Visitor Information System (SEVIS) record.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Travel Guidelines for F-1 Students who Change to H-1B

An H-1B petition may be filed not earlier than April 1 of any given year or six months before the start of the following fiscal year on October 1. In some cases, the F-1 status or Optional Practical Training (OPT) period of a student who is a beneficiary of an H-1B petition expires before October 1. The cap-gap provision addresses this problem and grants an automatic extension of the F-1 status and OPT period allowing the student to remain and work in the United States.

To be eligible under the cap-gap provision, the F-1 student must be a beneficiary of a timely filed petition requesting change of status to H-1B with an employment start date of October 1. Those benefiting from this provision should be aware of the repercussions of travelling abroad during the cap-gap period.

The USCIS construes travelling outside the United States during the cap-gap extension as an abandonment of the application for change of status. Leaving the United States during this period will mean not being able to re-enter the U.S. as a student and being required to obtain an H-1B visa at a U.S. consulate abroad.

The H-1B petition filed on behalf of an F-1 student on OPT who leaves the U.S. during the cap-gap period may still be approved by the USCIS; however, the application for change of status will be considered abandoned. He will not be able to return to the U.S. immediately as he will be required to undergo normal visa application process abroad which could be subject to delays and longer wait.

An F-1 student who is on OPT with a valid Employment Authorization Document (EAD) through October 1, on the other hand, may travel outside the United States and should be able to re-enter. Documents required to be readmitted as a student include a valid passport with a valid F-1 visa stamp, Form I-20 endorsed for travel by a designated school official (DSO), a valid EAD and a letter of OPT employment. Keeping these documents always in hand while travelling will avoid delays at the port of entry.

The number of days spent overseas must be considered when travelling during OPT. The maximum number of days for unemployment during OPT is 90 days. This includes days spent travelling abroad unless it is a leave authorized by the OPT employer or is part of the OPT. The F-1 student must carry the letter from the OPT employer when travelling to avoid delays or difficulties when inspected at the border.

An F-1 student who already finished his course of study may remain in the United States during the cap-gap period. The cap-gap period automatically extends his F-1 status provided the H-1B petition was filed before his course of study ended. The cap-gap period starts from the time when his course of study ended including the 60-day grace period.

An F-1 student who is still in school through October 1, on the other hand, may travel abroad and re-enter the U.S. even with an approved H-1B petition and change of status application. He must however bring the required documents and be able to prove nonimmigrant intent. He must be in the U.S. on October 1 when his change of status to H-1B takes effect.

Obtaining a new F-1 visa abroad to re-enter the U.S. with an approved H-1B petition will be very difficult. Because a professional job in the U.S. contradicts nonimmigrant intent required for an F-1 visa, the visa application may be denied.

Some F-1 students may want to apply for their H-1B visa abroad. In this case, they should consider the processing times at their respective U.S. consulates. If they are issued their visas abroad, they may re-enter the U.S. ten days prior to the employment start date on October 1.

J-1 exchange students unlike F-1 students are not covered by the cap-gap provision. However, change of status to H-1B for J-1 exchange students will not be a problem if their authorized stay in the U.S. remains valid through October 1 or when the change of status to H-1B takes effect.

Student Employment While Under Practical Training

In this year’s State of the Union Address, President Obama made mention of the unfortunate repatriation of international students enrolled in U.S. colleges and universities. His comment is a recognition of the significant contributions of international students and scholars to this country.

The United States gains by allowing foreign students to get training not only in terms of the economic impact of the students’ presence and the diversity and global character that they bring to the workplace, but also because the country benefits from the application of the students’ knowledge which they acquired in their advanced studies.

Apart from formal classroom education, another way that students learn is through practical training. Practical training allows qualified foreign students to gain work experience by applying their academic knowledge to a position directly related to their area of study.

Employment may be authorized for F-1 students enrolled for one full academic year in a Department of Homeland Security (DHS)-approved college, school, university, conservatory, or seminary, except students in English-language training programs.

There are two types of practical training: curricular practical training (CPT) and optional practical training (OPT).

The first type, CPT, is approved by the designated school official (DSO) for an activity that is an integral part of an established curriculum, such as a work-study program, internship or practicum offered through cooperative agreements between a school and an employer.

The DSO issues the student an I-20 with the CPT endorsement after updating the student’s information in the SEVIS, the online database that tracks information on international students and visitors who are in the U.S. under the F visa, among others. The I-20 with the CPT endorsement constitutes the student’s employment authorization.

There is no limit as to the duration of part-time (20 hours or less) or full-time CPT, but a student who has one year of full-time CPT may no longer be granted OPT at the same academic level. Part-time CPT is not accumulated or deducted from OPT.

The other type of practical training, OPT, is not limited to students who are currently enrolled in any class. Pre-completion OPTs are available for students on a part-time basis during school sessions, and on both part- and full-time basis during annual vacations and school breaks for students who are enrolled and will register for the next school session.

A maximum of 12 months OPT authorization is allowed for each educational level. This means that a student can have 12 months of OPT each for the bachelor’s, master’s, and doctoral levels. A one-time 17-month STEM extension of a post-completion OPT is possible for F-1 students who earn a degree in science, technology, engineering, or mathematics.

According to a policy guidance, employment under OPT may be part-time or full-time employment. It may be for a single or for multiple employers, for multiple short-term employers, for an agency or consulting firm, or for the student him/herself as the business owner. Unpaid volunteer work and internships are also allowed. Moreover, the student may perform work as a contractor paid on tax form 1099 and need not be an employee. However, the employment practice must not be in violation of labor laws, and in all cases the employment must be directly related to the student’s major area of study.

The student initiates the process by asking the DSO to recommend the OPT. The DSO makes such recommendation by issuing a Form I-20 with the OPT endorsement. The student will then file Form I-765 with the USCIS. If the application is approved, the student will receive a Form I-766 Employment Authorization Document. Regulations require the student to report any change of name or address or interruption of employment to the DSO.

In cases where their employers are willing to continue their employment under an H-1B visa, foreign students most of the time encounter the “cap gap” – the period between the expiration of the OPT and the start of their H-1B status, which usually occurs on October 1 of each year. Because of the limited number of available H-1B visas, highly qualified students often face difficulty in continuing their employment.

In an effort to remedy this, the USCIS implemented the “cap gap” rule which offers automatic extension of duration of status and any OPT employment authorization until October 1 of the fiscal year where the student is the beneficiary of a petition requesting a change of status to H-1B. This will allow the student to remain and continue working in the U.S. until the change of status takes effect.

Changing F-1 Student’s Status to H-1B

To change a nonimmigrant status to another, an applicant must be in lawful status not only up to the time that the application is filed but also up to the time when the new status becomes effective. 

In the case of a change to cap subject H-1B for fiscal year 2011 that starts on October 1, 2010, the applicant must have a valid status until that date. If the applicant is out of status, he/she is required to leave the U.S. and apply for H-1B visa at a U.S. consulate abroad. 

The cap refers to the 65,000 annual numerical limitation imposed on initial H-1B visas. In the last several years, the number of H-1B petitions filed exceeded the cap. The latest United States Citizenship and Immigration Services (USCIS) report shows that so far, 13,500 petitions were received since the start of the filing period on April 1. It is expected that the cap will again be reached before the end of 2011 fiscal year. 

There is a new immigration regulation that automatically allows certain students with a pending or approved H-1B petition to remain in the U.S. during the time when the F-1 status and work authorization would otherwise expire. This regulation provides a way to fill what is referred to as the cap gap so that the students do not have to go abroad to obtain their H-1B visas. 

An example of a cap gap occurs when a student’s optional practical training (OPT) ends in the spring and his/her status expires 60 days after that, leaving a gap of several months before the H-1B status begins on October 1. 

To qualify for the cap gap extension, the H-1B petition must be filed while the student’s authorized duration of status (DS) is still in effect (including any OPT period and the 60 day preparation time known as the grace period.) 

Once the petition is timely filed, the cap gap extension begins and will continue until the adjudication of the petition is completed. To prove continuing status, the student should obtain an updated Form I-20 from his/her designated school official. 

If the H-1B petition is subsequently rejected, denied or revoked, the student will be entitled to the standard 60-day grace period to prepare to depart unless the denial or revocation is based on fraud, misrepresentation or status violation. The grace period begins on the date that the letter of rejection, denial or revocation is postmarked. 

If the H-1B petition is denied or withdrawn, the student may apply for a STEM OPT extension provided that his/her degree is included on the STEM designated degree program list and the application is made within ten (10) days of the denial or withdrawal. STEM refers to degrees in science, technology, engineering and mathematics. Students who obtained such degrees are eligible for a 17-month extension in addition to the twelve (12) months initially granted. 

The student who is granted an automatic extension cannot travel outside the U.S. during the cap gap period. If the student wants to travel, he/she will have to apply for an H-1B visa at a U.S. consulate abroad.

Scroll To Top