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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.

Resurrecting A Revoked Family Petition

US citizens and lawful permanent residents may petition their relatives for a green card. Visa numbers are immediately available to immediate relatives namely spouses, parents and unmarried children of US citizens so that the process will be relatively quick.

However, beneficiaries who are not immediate relatives could face lengthy backlogs. Because of the lengthy wait times, it is possible for the petitioner to pass away between the time of the I-130 Petition for an Alien Relative and the availability of a visa number. Since as a rule, the death of the petitioner results in the death of the petition all together, this situation results in the revocation of the approved I-130 petition. For many foreign nationals, this could mean the end of their dream to live in the United States.

The good news is that the United States Citizenship and Immigration Services (USCIS) grants the USCIS director the discretion to reinstate the I-130 petition through humanitarian reinstatement. It is worth noting though that this form of relief is only available and may only be requested by the principal beneficiary of an approved I-130 petition. If the petitioner died before or pending the approval of his petition, this form of relief will not be granted.

There is no form or fee required to ask for this relief. You need to make a written request addressed to the USCIS office that originally approved the I-130 petition.

In your request, you need to state your name as well as the deceased petitioner’s name. Make sure to include the receipt number of the approved petition, your’s and your deceased relative’s alien registration number, if you have one, death certificate of the deceased relative, and you need to have a substitute sponsor. Your substitute sponsor has to be a US citizen or a lawful permanent resident, at least 18 years of age and must be any one of the following: your spouse, parent, mother-in-law, father-in-law, sibling, child, son-in-law, daughter-in-law, sister-in-law, brother-in law, grandparent, grandchild, or legal guardian. You need to submit an I-864 (Affidavit of Support) from the substitute sponsor.

Given that this is also a discretionary relief on the part of the director, you need to show in your request that a favorable exercise of said discretion is warranted due to any one of the following factors: disruption of the family unit, advanced age or health concerns, lawful residence in the US for a lengthy period of time, ties or lack thereof to the home country, other situations like long government processing timelines and procedural delays, among others. You need to make sure that these factors will be backed up by evidence to lead the director to decide in your favor.

In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful US residence.

Post-Sixth Year H-1B Extension and Portability Issues

Many foreign nationals in H-1B status apply for permanent residence in the United States. However, because of long government delays and per-country visa limitations, only a few are able to get their green cards before the end of the six-year maximum H-1B period.

Since it is not an option for them to remain outside the United States for at least one year to restart the 6-year H-1B period, what most H-1B workers do is apply for a post-sixth year extension of their H-1B status.

Under the American Competitiveness in the Twenty-First Century Act (AC21), an extension of H-1B status after the 6th year is allowed under either of two circumstances.

First, if the foreign national is the beneficiary of a labor certification or an I-140 immigrant worker petition filed at least 365 days before the expiration of the six year period, a one-year extension is available. This addresses the delays due slow government processing of the labor certification application and the I-140 petition.

Second, if the foreign national is the beneficiary of an approved I-140 petition but cannot adjust status because of per-country visa limits, he/she can apply for a three-year extension of H-1B status. This is helpful for heavily backlogged employment-based third preference category and second preference category with respect to nationals of China and India.

In some cases, the foreign national finds another employer who is willing to sponsor him/her for H-1B employment. Assuming that his original H-1B petitioner has filed a labor certification application by the fifth year, can the new employer file an H-1B petition for the foreign national and extend his/her H-1B status beyond the six-year period?

Under AC21 regulations, the petitioner in the post-sixth year H-1B extension does not have to be the same employer who filed the labor certification or I-140 on behalf of the H-1B worker. A seventh year H-1B extension is permitted as long as the foreign national is the beneficiary of any labor certification or immigrant petition

For example, let’s say Mark is working for Company A as a Marketing Manager. His H-1B status will reach its sixth year on March 31, 2012. Company A filed a PERM labor certification application for Mark on February 15, 2011. Mark then gets an offer from Company B in September 2011.

If Company A’s labor certification application is still pending, Mark can transfer to Company B, which must file a new petition by March 31, 2012 or while Mark is in a “period of stay authorized by the Attorney General” (for instance, Company B’s petition was filed after March 31, 2012 but while Company A’s 7th year H-1B extension for Mark was pending).

This assumes that Company A has not withdrawn the labor certification. In order for Mark to continue to pursue permanent residence, Company B should conduct its own recruitment and file its own PERM labor certification application on Mark’s behalf as soon as possible. After its PERM application is certified, Company B should file an I-140 petition and use premium processing if possible.

Another common portability issue relates to the timing of transfer. Under AC21, the H-1B worker may commence employment upon the filing of the H-1B petition.

Let’s say Anne works for Company C, with H-1B status valid until April 30, 2012, but she gets a job offer from Company D in early April 2012. If Anne immediately accepts Company D’s offer and Company D files an H-1B petition on April 15, 2012 and it is received by the USCIS on April 18, 2012, Anne can begin working for Company D on April 19, 2012.

If for some reason Anne does not begin working for Company D until May 15, 2012, she can do so even if it is past her original H-1B period and even before approval of her new H-1B petition.

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