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H-1B Cap Exhausted


The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants.

On April 8, 2008, USCIS announced that as of April 7, 2008 it had received more than 20,000 master’s cap filings filings as well as more than 58,200 filings for the other cap. The agency will first assign visa numbers to the master’s cases. Any master’s case not selected under the master’s cap lottery will be added to the general pool of H-1B cases for which 58,200 visas will be available. Thus, master’s cases will have two chances to obtain a visa number. Cases not selected will be returned to the filer along with the case filing fees.

Under the current rules, USCIS will penalize any employer who attempted to submit two duplicate filings by retaining the filing fees and denying or revoking any case filed in duplicate. It will likely take USCIS at least 6-8 weeks to complete the lottery process to assign visa numbers.

OPT Extensions for STEM Graduates

A new DHS rule provides that F-1 students who obtained degrees in the fields of science, technology, engineering or mathematics (STEM) may obtain optional practical training (OPT) for up to 29 months. This new rule allows for an additional 17 months beyond the previous limitation of 12 months. Students who may be able to benefit from this rule are encouraged to keep in close contact with their Foreign Student Advisor (FSA), which is the person responsible for administering the OPT program on behalf of each university.

To be eligible for the full 29 months of OPT time, students currently working under OPT must meet the following requirements:

1.) Currently be participating in a 12-month period of approved OPT;
2.) Have completed a degree in a STEM field from an institution certified through the DHS Student and Exchange Visitor Program;
3.) Be working for an employer in a job directly related to the student’s area of study;
4.) Have properly maintained F-1 student status;
5.) Be working for, or accepted employment with, an employer enrolled in the USCIS E-Verify program.

The most controversial aspect of applying for 29 months of OPT is the requirement that the employer use the USCIS E-Verify system.

The E-Verify Program

Participation in the E-Verify program requires the company program administrator to complete system training and to take and to pass short test. It also requires the company to sign a Memorandum of Understanding (MOU) confirming the following:

1.) A promise not to use the program to pre-screen employees prior to hiring;
2.) A promise to enter the SSN and ID information for all new hires within 3 days of hire;
3.) A promise to list the E-Verify case verification number on each new I-9;
4.) A promise to allow employees who experience a verification problem 8 Federal work days (approximately 10 calendar days) to continue working while they attempt to resolve their document problem;
5.) A promise to allow DHS and SSA, or their authorized agents or designees, to make periodic visits to the company for the purpose of reviewing E-Verify related records, and to make these records available to these agencies, their agents or assignees;
6.) A promise to allow DHS and SSA, or their agents or assignees to interview persons acting on behalf of the company, which may include HR and corporate officers, as well as to allow employees hired during the time the company used E-Verify to be interviewed.

It is clear that E-verify requires steps that would consume additional HR time for all new hires, not just foreign workers. Also, the program has about a 4% error rate, which would be very frustrating for U.S. citizen and LPR new hires and their managers. As many readers may know, the DMV, CIS and Social Security Administration are not always able to resolve problems within 10 days. If the employee’s issue is not resolved within the required period of time, the company may not be able to terminate the employee solely on the basis of E-Verify if the employee can document that he or she is actively taking steps to resolve the issue. Thus, the resolution of E-Verify problems may require HR to continue to monitor issues through the time a final resolution can be obtained, which could take months in some cases.

Further, use of the program does not provide the company with a safe harbor from DHS enforcement activities. That may be especially troubling given the specific language in the MOU through which the company would authorized DHS, SSA, its agents and assignees to review documents and to interview HR, possibly company officers, as well as employees who were subjected to the E-Verify system. Agreeing to give any Federal agency open access to the company’s records and its employees carries the potential for significant problems. It is noted that financial penalties exist for overly lax companies judged not to be in compliance with the employment verification obligations as well as for overly strict companies judged to be in violation of anti-discrimination laws. The penalty for a finding of a “knowing violation” can range from $375 to $16,000 per worker unlawfully employed.

A copy of the required MOU can be found at: hwww.uscis.gov

Additional information on E-Verify can be found on the USCIS website.

Naturalization Application Processing Times

Prior to last summer, naturalization application processing times averaged 6-8 months. At this time, USCIS predicts that processing times will average at least 13-15 months due to the large number of applications received in advance of last year’s fee increase. During the months of June, July and August of 2007, the agency received approximately 1.4 million applications. Further, applications continue to be filed in large number due to the excitement surrounding the upcoming presidential election as well as the desire of many lawful permanent residents to obtain the more secure status of citizenship. To accommodate the unanticipated volume of applications, USCIS is in the process of expanding by adding more than 3,000 employees, quadrupling the funding for overtime and using Asylum Office facilities to conduct naturalization interviews.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.