The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2011 to April 15, 2011.  As of April 15, 2011, approximately 7,100 H-1B cap-subject petitions were receipted.  Additionally, the USCIS has receipted 5,100 H-1B petitions for foreign workers with advanced degrees (master degree or higher).

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On April 14, 2011, the USCIS announced its final rule regarding the employment eligibility verification process. Under federal law, employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States.  The list of acceptable documents that employees may present to verify their identity and employment authorization is divided into three sections: List A documents, which show identity and employment authorization; List B documents, which show identity only; and List C documents, which show employment authorization only.

Prior to the announcement of the final rule, the interim rule allowed employers to accept expired documents. However, under the final rule, this action is strictly prohibited.  So, if an employee presents an expired driver’s license or passport, employers must not accept those documents as proper identification proof for I-9 purposes.  The Final rule revised the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

The Department of Homeland Security wants to ensure that documents presented for use in the Form I-9 process are valid and reliable to establish both identity and employment verification. The DHS announced that expired documents are prone to tampering and fraudulent use, so the DHS prohibited employers to accept expired documents.

I-9 procedures are very important for both employers and employees. A foreign employee who is authorized to work in the United States must make sure that the information on his or her I-9 form is accurate.  In some cases, people misrepresent on the I-9 by claiming that they are a US citizen or national. Falsely claiming U.S. citizenship will bar you from future possible immigration benefits.  This is also a deportable offense.

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The H-1B filing season has started on April 1, 2011 for fiscal year (FY) 2012. Annually, there is a cap of 65,000 for the H-1B program, so early filing of the H-1B is very critical.  The USCIS released the number of receipted cap eligible petitions from April 1, 2011 to April 7, 2011.  As of April 7, 2011, approximately 5,900 H-1B cap-subject petitions were receipted.  Additionally, the USCIS has receipted 4,500 H-1B petitions for foreign workers with advanced degrees.

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The May 2011 Visa Bulletin is out and below are some notes on specific movements this month:

• The F-2A (Spouse of Legal Permanent Resident) preference cut-off date for all of countries shows forward movement.
• The F-3 preference (Married sons and daughters of U.S. citizen) cut-off date for all of countries shows forward movement.
• All of family sponsored immigration preferences for the Philippines advanced.
• The EB-2 cut-off date for India advanced to July 1, 2006. According to the April 2011 visa bulletin, the EB-2 cut-off date for India was May 8, 2006.  This forward movement is the first advancement in this category for fiscal year 2011.
• The EB-3 cut-off date for all countries advanced by two weeks to a month.

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On April 8, 2011, AILA released an update on what would happen to different immigration-related government agencies in case the government shuts down. Please note that if the budgetary issues are not resolved, the government plans to shut down at midnight on April 9. As a consequence, the government claims that all but “essential” government functions are not allowed to work.

USCIS (United States Citizenship and Immigration Service)

The USCIS processes permanent resident, naturalization, and non-immigrant  visa petitions, among others. It is the agency that conducts interviews, reviews applications, and makes decisions on green card and citizenship applications. The USCIS has indicated that in the event of a shutdown, they will continue to operate except for the E-Verify section.

DOS (Department of State)

The DOS deals with most visa and consular processing applications. J-1 waivers and visa petitions for people outside the United States go through them. If a shutdown occurs, only applications related to diplomats and “life or death” situations would continue to function.

CBP (Customs and Border Patrol)

The CBP guards the port of the entries – shipping ports, borders, and airports. They inspect and decide on whether a person gets in the United States, and enforce applicable immigration laws when someone is inadmissible. Inspection and law enforcement personnel are deemed “essential” personnel, but a shutdown will also limit their staff. The ramifications of a shutdown are thus uncertain.

EOIR (Executive Officer for Immigration Review)

The EOIR is the immigration court system. Immigration Courts, judges, clerks, and the Board of Immigration Appeals all fall under this branch. A general warning that “non-essential” personnel would not be allowed to work has been set forth, and that the only aspect of operations that is certain to continue is the detained docket, which is considered an essential function.

DOL (Department of Labor)

The Department of Labor is one of the first agencies involved in employment-based petitions, as they review and make determinations on the Labor Certification process. Personnel would certainly not be available to respond to emails or other inquiries, but it is yet to be determined if the ICERT and PERM functions would shut down.

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The CIS on April 7 provided a question and answer article about the AC21 same or similar occupation provision. Below is a summary of what the article discussed.

Section 106(c) of the AC21 (American Competitiveness in the Twenty-First Century Act of 2000) allows certain aliens to move jobs, retain an I-140 petition filed for their behalf, and remain eligible to adjust status without having to file another I-140. In these cases, the I-485 must have been pending with the CIS for 180 days or more and the new job must be in the same or similar occupational qualification. It applies to both job changes to different employers or to situations where one accepts a different position or receives a promotion from the same employer.

A major factor for CIS officers in determining whether a job is the same or similar is the SOC (Standard Occupational Classification). The SOC is a system of classifying jobs and occupations used by the Department of Labor. It is organized into codes, consisting of six numerical digits, with each one pertaining  to the following:

• First and Second Digits: major group
• Third: minor group
• Fourth and Fifth: broad occupation
• Sixth: detailed occupation

Note that this is not the only factor the CIS looks to in determining whether two occupations are the same or similar. There is no exact rule in how they make a determination. Other factors for consideration are wage discrepancy and job duties. Yet each of these factors can’t also be the sole basis for making their determination. So if job A and job B have a substantial discrepancy in wage, that factor can’t be the sole reason the CIS deems the two jobs as not the same or similar. CIS officers should view the totality of the circumstances in making this determination.

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Green card applications based on employment petitions rely on the visa bulletin to determine whether one can already apply. The visa bulletin is updated monthly, and is categorized into India, China, Mexico, and “Other Countries” corresponding to different types of employment-based petitions such as the EB-1, EB-2, EB-3 etc.  The availability and priority dates of these are determined by quotas, availabilities, and backlogs in the immigration service.

Charlie Oppenheim, the chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, recently pointed out that there has been a decline in filings for the EB-1 category. He mentioned that this decline started in October 2010 and he does not anticipate any changes in the future. This led to at least 12,000 visa numbers being available to be disbursed to other visa categories. In particular, he specified  that the EB-2 category for India will be advanced in May and may also lead down the road to EB-3 advancement.

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The Department of State (DOS) has recently revised the Foreign Affairs Manual (FAM), in particular 9 FAM 41.53 N4.1, the section regarding general licensure requirements for H-1B visas. The revision helps those applicants for tourist visas who seek to enter the United States to take the National Physical Therapy Examination (NPTE).

FAM is a reference guide for consular officers as they adjudicate visa applications for foreigners wishing to enter the United States on certain visas. The FAM is constantly updated in response to new policies, misinterpretations of current language, and to foster a clearer application of the law for consular officers. The issuance of tourist and H-1B visas by consular officers are guided in part by FAM.

When someone applies for a tourist visa, there should not be any immigrant intent, and the applicant should meet his burden of showing that he plans to go back to his home country after the temporary visit to the U.S. Prior to this revision by the DOS, consular officers, especially in the Philippines, have denied B-2 visa applications for those seeking to enter the U.S. to take that NPTE exam, even though the applicants intend to come back to their home countries after the NPTE exam, and then reapply at home for their H-1B visas. The revision corrects this misinterpretation by most consular officers.

The language is revised as follows for 9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant: “The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.”

This revision helps those foreigners seeking to enter the U.S. to take a certain state or national exam in order for them to eventually by eligible for H-1B petitioning. Applicants and attorneys for these applicants are advised to include this new revision in application packets for the B-2 visas. Those who were denied previously may also reapply. Still take note though that other factors for the B-2 visa applications such as non-immigrant intent have to be met in order to get approved.

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Below is a summary of new issues the CIS addressed on its latest question and answer post on the H-1B Cap Gap.

The typical school year in college ends in May, thus most Optional Practical Training (OPT) cards of F1 international students end between May to July of the following year. Those who are lucky to have an employer petition them for an H-1B can start in April 1 for the employment start date of October 1. Thus, between the expiration of the OPT (May to June typically) up to the start date of the H-1B (October 1), there is a gap of a few months for international students.

The H-1B Cap-Gap resolved this issue by allowing foreigners in these situations to extend their F-1 status and OPT card until the start date of their H-1B employment, provided the H-1B Petition was filed by their employer prior to the expiration of their OPT cards or the 60-day grace period after. If the H-1B is filed before the OPT expires, then the OPT is extended and the beneficiary can work until the H-1B date of October 1 kicks in. If the H-1B though is filed after the OPT expiration but before the 60 day grace period, F-1 status continues but the beneficiary is not authorized to work.

A student who obtains the benefit of the cap-gap can obtain proof of this by going to their Designated School Official (DSO) with a copy of the H-1B receipt notice. The DSO would then issue a new I-20 evidencing continued F-1 status for the beneficiary. This I-20 though, unlike those issued while one is a full-time student, could not be used to reenter the United States during the cap-gap period. One who travels abroad while on cap-gap could not reenter as an F-1 student, but instead needs to apply for an H-1B visa at the US Consulate abroad before returning.

For international students who have received science, technology, engineering, and mathematics (STEM) degrees and are working for employers enrolled in E-Verify, and who have received an initial OPT card, they can apply for a 17-month extension. Those who would benefit from STEM, who are in the middle of the cap-gap period, can still apply for a 17-month extension of their OPT.

If the beneficiary is working on an extended OPT due to the cap-gap for the H-1B petitioning employer, and that employer lays off the beneficiary and withdraws the H-1B Petition while the extended OPT is still valid, the student must show the DSO a copy of the CIS acknowledgement of the withdrawal, who will then ask SEVIS to provide a data fix. The international student can continue to work while the data fix is ongoing. But if the CIS does not receive the withdrawal prior to the H-1B effective date, then the student must file an F-1 reinstatement and wait for approval before resuming employment.  Same thing goes  in a scenario where the withdrawal occurs after October 1, the student will need to apply for reinstatement and wait until this is approved before continuing to work.

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The E-Verify Self Check is a free web-based service that can be used by a US-based worker to check on his or her employment eligibility. This is part of E-Verify, which is a program by the Department of Homeland Security in conjunction with the Social Security Administration. Unlike the beginning stages of the E-Verify program, the Self Check option is more for the employee rather than the employer, in that it is the first service offered directly to them by the E-Verify program. It gives the worker access to their eligibility to work, and gain knowledge about any inconsistencies that they may wish to correct either with the DHS or Social Security Administration.

The Self Check is described as a response to Congressional requests to provide a service in which the U.S. worker could verify their own eligibility status. As of March 21, 2011, this service is available to those who maintain residence and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia. It shall be expanded to other states in the coming months.

The steps in using Self Check are as follows:

• Click on this Self Check link
• Enter to basic identifying information such as your name, address, birthday, and social security number
• You would answer security assurance questions provided by a third party identity assurance service
• Provide possible eligibility information including immigration documents, citizenship, work permit information etc.
• A response is provided almost instantly on whether your employment is authorized or if there is a mismatch

With regards to privacy, it should be noted by employees using this service that the information they provide to Self Check is never shared with any employer.

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