Same-Sex Spouses Now Eligible for Green Card

Last Wednesday, June 26, 2013, the  U.S. Supreme Court decision striking down the Defense of Marriage Act DOMA) was a great victory for same-sex couples. With the end of DOMA, a U.S. citizen or legal permanent resident can immediately  petition their same-sex spouse for permanent residence.
A couple needs only to be legally married in a U.S. state or a foreign country for immigration spouse rules to apply.

Long Awaited Immigration Reform Begun

The long journey to comprehensive immigration reform has begun, as you might expect for Washington, with a single memo. Eight senators, four from each party, released it on Monday, January 28, 2013: a statement of principles behind a deal to overhaul the system in one big bill. It calls for more border and workplace enforcement, more visas for needed workers and legalization — with a path to citizenship — for 11 million undocumented immigrants. A bill should be introduced in the Senate in the spring or summer.  Stay tuned.

Obama Administration's Version of DREAM Act

Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will be able to remain in the United States without fear of deportation and receive a work permit.

Who Is Eligible?

The following persons are eligible to remain in the U.S. and receive a work permit if they:
1.  Have come to the U.S. under the age of 16;
2.  Have continuously resided in the U.S. for at least 5 years preceeding June 15, 2012 and are physically present in the U.S. on June 15, 2012;
3.  Are currently be in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the U.S.;
4.  Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public security;
5.  Not be above the age of 30.

Call our firm today toll free at 1-800-794-4546 to see if you qualify to remain in the U.S. legally and receive a work permit. 

USCIS Releases Information on Automatic Extension of F-1 Student Status for Those with Pending H-1Bs

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).  

A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the 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:
USCIS has issued the following Questions & Answers that 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.

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 date, 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.

Unlawful Presence in the United States Before April 1, 1997

Good news for those filing for green cards who have unlawful presence in the United States.  San Jose USCIS Office confirms that it still will not count unlawful presence in the United States before April 1, 1997 for purposes of an unlawful presence bar.  This was in question after the recent 9th Circuit Court of Appeals decision in Carrillo de Palacios v. Holder.

Small Businesses A Target of USCIS Fraud Investigation

Small companies petitioning for foreign workers face a higher scrutiny from USCIS, and thus should ensure that every aspect of their H-1B Petition is carefully reviewed and prepared by a competent immigration attorney.  The consequences of unintended inconsistencies could be a delay in bringing required talent on board the company, or a denial of the H-1B petition and losing the worker entirely.

According to the recent May 18, 2012 release of confidentail internal USCIS guidance, USCIS has been instructed to target small businesses or new companies who want to hire foreign workers for fraud investigations.  According to a USCIS internal memo released May 18, 2012, USCIS should presume fraud when two of the following conditions exist:

          1.  Petitioning companies with a gross annual income of less than $10 million;
          2.  Petitioning companies which employ less than 25 employees;
          3.  Petitioning companies that were established within the last 10 years.

When an immigration officer initially handling the petition finds two or more of the above conditions exist, then the officer is instructed to further review the H-1B filing for the following:

          1.  presence of fraudulent information relating to the Petitioning company or sponsored foreign worker, and/or any forged documentation;

          2.  reported business was non-existent, suggested by a review of independent sources that reveal fictitious or inconsistent addresses in the petition, a questionable organizational chart is present in the record, there are photos of the purported business in a staged setting, there is evidence in the H-1B filing or otherwise uncovered that point to business zoning inconsistencies, or the Petitioning

companys website contains information inconsistent with the information in the H-1B petition; or
          3.  inconsistent or otherwise questionable evidence regarding the proposed job duties and/or the foreign worker's qualifications to perform those job duties.  In other words, the actual job duties are significantly different from the job position listed on the Labor Condition Application (LCA); 
work experience letters without signatures; missing addresses and/or telephone numbers for the      company; required skills, age or education discrepancies or mismatches.

When the above conditions are met, the immigration officer should refer the H-1B case to an immigration fraud unit (CFDO) for further scrutiny to rule out fraud in the petitioning process.

Moreover, the immigration officer initially handling the case is also instructed to review the filing not only for fraud, but for technical violations, including whether:

           1.  the physical job location is not listed on the Form I-129 Petition and/or LCA;
           2.  the beneficiary is not receiving the prevailing wages as listed on the LCA (salary discrepancies or mismatches);
           3.  any misrepresentation regarding the Beneficiary's current or prior immigration status (passport, I-94 or visa discrepancies);
           4.  any evidence that the Beneficiary paid the ACWIA filing fee associated with the H-1B filing fee;
           5.  any conflicting information about the business or its operations;
           6.  the facility would not be appropriate for the type of work to be performed ( for example, Petitioner claims to have 100 employees and the worksite is zoned for a residential apartment);
           7.  the job offered is inconsistent with the normal activities of the business.

Petitioning employers are advised to be diligent when preparing and submitting H-1B petitions to USCIS to ensure as much as possible that they obtain needed foreign talent.

LAC Wins Release of H-1B Fraud Documents for AILA

On May 18, 2012, USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center (LAC) and Steptoe & Johnson LLP on behalf of AILA.  AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. USCIS’s H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret.

In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report.

This lawsuit is part of the LAC’s continued effort to increase transparency and promote accountability regarding DHS enforcement practices. Read more about the lawsuit on our here.