The Law Offices of Robert Nadalin

H-1B Cap Reached


USCIS has confirmed that the FY 2012 H-1B cap was reached on Tuesday, November 22, 2011. 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.

Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by USCIS are not affected. Also, there are exceptions to the cap for nonprofit research organizations, institutions of higher education, and certain affiliated entities. Further, some employees who may be affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, it is important to contact an immigration attorney regarding any specific employees you may be considering for H-1B status.

USCIS will begin accepting H-1B petitions for the FY2013 cap on April 1, 2012, which is 6 months prior to the start of the new Federal fiscal year on October 1, 2012. As the required H-1B pre-filing steps can take several weeks to complete, employers who may want to sponsor a foreign worker under the H-1B program should begin that process at least 6-8 weeks prior to when the filing season opens on April 1, 2012.

STEM OPT Extensions for E-Verify Participants

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. The DHS list of recognized STEM degrees can be found at: www.ice.gov . Immigration and Customs Enforcement (ICE), which is responsible for administering the F-1 student SEVIS program, compiles the STEM list based on Classification of Instructional Programs (CIP) codes, which are set by the National Center for Education Statistics.

The STEM OPT rule allows for an additional 17 months beyond the normal limitation of 12 months. Students who may be able to benefit from this rule are encouraged to keep in close contact with the Foreign Student Advisor (FSA) who administers the university’s OPT program. 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 E-Verify system. Participation in E-Verify requires the employer to sign an MOU promising 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. In addition, E-verify requires steps that would consume additional HR time for all new hires– not just foreign workers. It is also noted that the program has about a 4% error rate, which may be frustrating for U.S. citizen and LPR new hires and their managers.
After signing up for E-Verify, the employer receives an E-Verify number. Any F-1 student seeking the additional 17 month extension will need to contact his or her FSA (Foreign Student Advisor) to explain that the current employer is enrolled in E-Verify and would like to request additional OPT time. The school will then send the employer an OPT questionnaire to confirm the full legal name of the Company, the Company’s E-Verify number, the appropriate HR contact, and other related details. The school will then submit the OPT application directly to USCIS on behalf of the student. The documentation submitted by the school to USCIS is similar to the information submitted for regular track OPT, plus a few additional details regarding the student’s STEM degree and the supporting Company’s name and E-Verify registration number.

New Office Address

We are pleased to announce that we will be moving our office in downtown San Diego from 110 West C Street, Suite 1902 to Symphony Towers at: 750 B Street, Suite 1925, San Diego, CA 92101. The effective date of the move will be Monday, December 19, 2011. The phone and e-mail will also transition on that day. We anticipate that the interruption to phone and e-mail service will be minimal, but please keep the move in mind if you have any difficulty in reaching us on the morning of that day. The move will only affect items sent to us by way of courier or personal delivery. Our U.S. mailing address will remain the same at: P.O. Box 124594, San Diego, CA 92112.

Happy Holidays! . . . and Related Travel Issues

We would like to extend an early, but sincere best wishes to you for a Happy Holiday Season and a prosperous New Year.

Regarding holiday travel issues, many foreign workers have made plans to visit friends and family abroad during the year-end holidays. Workers who plan to obtain a new visa stamp while outside of the U.S. should plan in advance. U.S. consulates abroad observe both U.S. holidays and local holidays and many of their staff also take vacations at this time. These circumstances can extend processing times by a factor of 2-3 weeks or even longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinate with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: www.usembassy.gov

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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.