Green Card & Visa News » Visa

H1B Visa Cap Update

Tushar Mathur — Tue, 24 Apr 2012 16:24:00 +0000

As of 04/20/2012, the USCIS has received 25,000 regular H-1B cap cases and 10,900 advanced degree cap cases.

H-1B Cap-Gap Relief for FY2013

Tushar Mathur — Sat, 31 Mar 2012 01:30:00 +0000

(The USCIS released the following Q&As on H-1B Cap-Gap Relief for FY2013 on 03/29/2012.)

Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations – Questions and Answers

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?

A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?

A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012. 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 October 1, 2012. Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?

A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student’s authorized F-1 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 Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, 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, 2012 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?

A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2012.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?

A7. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?

A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?

A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?

A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

§ the student finds employment appropriate to his or her OPT;

§ the period of OPT is unexpired; and

§ the DSO has requested a data fix in SEVIS.

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

A13.Yes. The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date. This will prevent the student from changing to H-1B status. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE: This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective da te, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:03/29/2012

U Visa – An important tool for crime victims to obtain legal status

Tushar Mathur — Fri, 06 Jan 2012 15:04:00 +0000

Many immigrants in the United States are hesitant to approach police and other law enforcement officers when they become crime victims. For people who are in the U.S. without legal status, they try to avoid contacts with police officers for fear that their illegal status may be exposed. Even legal immigrants are sometimes afraid to approach police in the U.S. because of cultural differences and language barriers. Most of them do not know that there exists a special visa designed for victims of certain crimes called the U visa. The purpose of the U visa is to provide eligible victims of crimes with temporary nonimmigrant status so that they may assist law enforcement agencies in criminal investigations and prosecutions.

Congress created the U visa in The Victims of Trafficking and Violence Prevention Act (VTVPA) of 2000 to encourage victims to report crimes and help law enforcement officials to investigate and prosecute criminal activities regardless of the victims’ immigration status. Women and children are especially vulnerable to certain crimes such as human trafficking, sexual assault and domestic violence. If a U visa petition is approved, the petitioner receives nonimmigrant status to live and work in the United States for up to four years. Subsequently, qualified recipients may apply to adjust status to become a lawful permanent resident (green card) after three years of continuous presence in the U.S. as a U visa holder. There are other eligibility requirements for a green card as well, including the ongoing duty to cooperate with law enforcement in the investigation or prosecution of the qualifying crime. Additionally, other immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients. These family members include: Unmarried children under the age of 21 of principal U visa recipients; Spouses of principal U visa recipients; Parents of principal U visa recipients under age 21; and Unmarried siblings under 18 years old of principal U visa recipients under age 21.

To apply for a U visa, one must file the USCIS Form I-918, Petition for U Nonimmigrant Status (Form I-918), and submit it to U.S. Citizenship and Immigration Services (USCIS) with all relevant documentation, including Form I-918B, the U visa law enforcement certification. The Form I-918B is a requirement for the U visa and must be certified by a qualified law enforcement agency including a federal, state, local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime. Essentially, the law enforcement agency must certify that the petitioner was a victim of a qualifying crime, has specific knowledge and details of crime, has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime. Qualifying crimes includes qualify for the U visa including murder, robbery, abduction, rape, sexual assault, kidnaping, incest, perjury, prostitution, obstruction of justice, etc.

The U visa is an extremely important incentive for victims of crimes to come forward to testify against the perpetrators. Because of the complexity of U visa petitions, applicants should seek assistance from a legal representative or victim advocate. It is important to know that certification by a law enforcement agency does not guarantee approval of a U visa. The USCIS must determine if other requirements of the U visa are met including whether the applicant has suffered substantial physical or mental abuse as a result of the subject criminal activity. However for victims of serious crimes without legal status especially women and children, the U visa may be their only hope to fight back.

September Visa Bulletin: F2A Advances; EB-2 India, China Stagnant

Tushar Mathur — Fri, 12 Aug 2011 01:44:00 +0000

The September 2011 Visa Bulletin has been released by the State Department. On the employment side, there is not much movement. As the FY2011 is coming to an end, many employment visa beneficiaries were hoping that there would be some nice movements in EB-2 and EB-3 preference categories. However, for September, both Eb-2 China and Eb-2 India remain unchanged at 15 April 2007, although EB-3 and Other Workers have some small movements.

Things are mixed on the family side. F1 is unchanged again for China, India and the Other Countries but advances more than six months and one week respectively for Philippines and Mexico. There are some significant movements in F2A (lawful residents’ spouses and children). F2A has advanced more than four months for China, India, Philippines and the Other Countries to 1 December 2008. F2A Mexico also moves forward to 22 September 2008.

Family	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01MAY04	01MAY04	01MAY04	15MAR93	01NOV96
F2A	01DEC08	01DEC08	01DEC08	22SEP08	01DEC08
F2B	01JUL03	01JUL03	01JUL03	01NOV92	22MAR01
F3	22AUG01	22AUG01	22AUG01	22NOV92	15MAY92
F4	15APR00	15APR00	15APR00	22MAR96	08JUL88

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 “A” preference is for Spouses and Children (under 21 & unmarried) of LPR’s.

2B: The 2 “B” Preference is for Unmarried Sons and Daughters (21 or older) of LPR’s.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
EB1	C	C	C	C	C
EB2	C	15APR07	15APR07	C	C
EB3	22NOV05	15JUL04	08JUL02	22NOV05	22NOV05
Other Workers	01AUG05	22APR03	01JUN02	01AUG05	01AUG05
EB4	C	C	C	C	C
Religious Workers	C	C	C	C	C
EB5	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: “Special Immigrants” (Religious & others)

5th: Employment Creation (Investors)

Tips for Improving Your Chances of Getting Cleared by US Customs at an Airport

Tushar Mathur — Sat, 21 May 2011 15:26:00 +0000

1) Be honest, upfront, and polite with the Customs & Border Protection (CBP) agents. They are trained to detect when you are lying so don’t even try, it will only hurt you. Being upfront with the agents is especially in your interest because during the admission process at the border/point of entry they are the only people who can help you. You have no right to an attorney during this time. The CBP agents have a certain amount of discretion and you want to make sure that they will feel inclined to exercise it with you, if necessary, to admit you to the US.

2) Make sure you bring detailed documents with you to present to the CBP. This means more than simply your visa. Most importantly, non-immigrant visitors need to show reasonable ties and equities to and in their home country. This means you need to have documentation showing employment, family, and social ties to a residence abroad, and adequate financing arrangements to carry out the purpose of your visit.

If you are traveling to the US for an employer, make sure you have a letter from the employer detailing the purpose of your visit and the activities you will engage in during the visit. Remember, the burden is on you to prove that you are not inadmissible to the US. (No criminal convictions, prior immigration law violations, etc.) In general, this means you need to show that you have proper documentation and the requisite intent for the type of visa for which you applied. Common sense applies here. For example, if you are coming to the US for a three-day conference on a B-1 visa but your return ticket isn’t until 90 days later, you can expect that this will raise a red flag for CBP.

3) Make sure that you have a good phone number for the employer sponsoring you or the employer’s immigration attorney, or, if visiting family or friends, then the family meeting you, or your own immigration attorney. It’s best to have both a regular phone number and cell number for one or more of these people. CBP may call them to help answer questions that the agents have about your situation. Having the phone number of someone who is knowledgeable about your situation and available can make the difference between having to withdraw your application for admission and fly back to your country of origin the same day or being admitted to the US.

4) If you are offered the choice to voluntarily withdraw your application for admission because CBP does not believe you are telling the truth or you do not have proper documentation and they are unable to contact anyone that can clarify your situation (and you do not have a credible fear of returning to your own country or an asylum claim), it is always preferable to accept this offer rather than force CBP to use the alternative, which is expedited removal.

If you have committed visa fraud, and/or made misrepresentations starting back with the US consulate in your home country–this does not apply to asylum cases–then you can expect that CBP will order an expedited removal. This means you will be returned to your home country (or country of last embarkation) with no hearing and a permanent bar from returning to the US. (If CBP issues an expedited removal order for simply lack of documentation, there is only a five-year bar to returning.) In most cases, you will be put on the next flight back, using your return ticket if possible. The air carrier is liable to the US government to return anyone who is inadmissible, so most likely you will be sent back on the same carrier, or a code share partner. And, even though the carrier must fly you back, it will certainly look to you to pay the cost of the ticket.

An important note about the expedited removal power: an expedited removal order under INA 212(a)(6)(C) is for fraud and misrepresentation, and results in a LIFETIME bar from re-entry to the US. An expedited removal order issued under INA 212(a)(7) is for lack of documentation and results in a 5 year bar to re-entry. Not surprisingly, it is much harder to get a waiver to return to the US if you were removed under the (a)(6) ground than (a)(7).

The bottom line is that the best way to improve your chances of getting cleared by US Customs at the airport is to make sure you are traveling on the correct visa, bring copies of the appropriate documentation with you, bring phone numbers for contacts in the US who are available to speak to CBP to address any problems that may arise, and, above all, be honest!

If you have any concerns about you or a family member traveling to the US, consider consulting with an immigration attorney that is knowledgeable about CBP procedures. Advance planning can go a long way to improve the chances of CBP clearing you or your family member and admitting them to the US.

Also, frequent international travelers—non-citizens and US citizens alike—should apply for the CBP’s Global Entry program, which allows you to enter the US using automated kiosks at the airport.

Help for Students on F1 Visa in US

Tushar Mathur — Thu, 12 Nov 2009 11:28:43 +0000

Getting an admission to one of the schools in the United States and then getting the visa approved basis that to get in to the United States on an F1 visa is really the easy part. It’s to be noted that the F1 visa is not a sponsored program, as in the case of the J1 visa. Thus the visitor has to bear all the related expenses himself during his stay in the United States. Thankfully the United States government is considerate about this and to help the students during the stay they are allowed to work for limited number of hours.

Thus a lot of the students choose to take up driving as a profession during this period. As this profession fetches them more money than any other job that they would be eligible for. Though every state has a different set of rules and procedures related to the issuance of the driving license but the basics are as follows.

There are 2 steps for the same.

Pass the written test.
Pass the road test.

The procedure to get the Drivers license is.

Go to the DMV office with a prior appointment for a prompt service.
Now submit the fee along with the completed form for the test.
A thumb print would also be required from you.
Have your picture clicked.
You would be required to provide your SSN and proof of your date of birth, along with your passport.
Now you are good to appear for the written test.

The written test – A fee of $12 is required for the same, and you would be able to attempt thrice basis the amount. Normally there are 36 questions related to traffic laws and signs and its essential you have atleast 31 correct answers to pass the test. Once this is passed, then you need to appear for the eye test. Upon successful completion of the same, you would be eligible to be issued the temporary driving permit. You can use the same to practice driving.

The road test – It’s the practical part of the tests and is the most important part. In this part you would be tested for your carefulness and your ability to drive safely on the streets. It’s not going to take long but is a 100 marks test in which the minimum passing score would be 70%. In this one also you would be given three chances to pass the test in case you flunk in the 1^st attempt.