USCIS issues FAQ on F-1 "cap-gap" OPT extensions

USCIS has just issued an FAQ sheet on the "cap-gap" extension of employment authorization for F-1 students.

The cap gap relief applies to F-1 students who (a) are working pursuant to Optional Practical Training; (b) have F-1 status that will expire more than 60 days before 10/1/10; and (c) have been approved for H-1B status to start on 10/1/10. Without cap-gap relief, these students would fall out of status before 10/1/10, so would need to leave the US and return once the H-1B status could start. This could mean a gap of months if the F-1 status expired in early summer.

The cap gap provision automatically extends the F-1 status and OPT, if applicable. As the FAQ explains:

Once a timely filing 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is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

The FAQ explains how to get this extension:

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their 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 an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

 For information on the H-1B cap: http://martinvisalaw.blogspot.com/2009/03/new-guidelines-for-h-1b-cap-cases-from.html

CIS releases naturalization video

USCIS has released an instructional video for citizenship applicants here. The 16-minute video provides an overview of the naturalization process including the eligibility requirements, the application process, preliminary steps, the naturalization interview, the English tests and the U.S. history and government test (civics). The video includes two simulated interviews between applicants and USCIS Officers.

Supreme Court protects immigrants against bad legal advice.

The US Supreme Court issued a major decision this week, whereby immigrants must be advised that pleading guilty to a criminal charge could result in removal (deportation).

In the case of Padilla vs. Kentucky, a Vietnam War veteran with permanent residence (green card) had lived in the US legally for over 40 years. He was arrested in 2001 after authorities found 1,000 lbs of marijuana in his truck. Mr. Padilla pleaded guilty to marijuana trafficking, after his criminal lawyer told him that the guilty plea would not affect his immigration status. In fact, this plea rendered Mr. Padilla removable.  

The US Supreme Court held that the bad legal advice constituted ineffective assistance of counsel.  There exact wording of the decision states that

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. 

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The New York Times wrote about the decision here . The full text of the Supreme Court decision is here.

Photo by http://www.flickr.com/photos/yeowatzup/172651523/

Do I need to file an AC21 letter when I change jobs?

USCIS does not require you or the new employer to notify CIS if you change jobs and intend to use AC21 portability. Immigration attorneys are divided on whether filing such a letter is useful. It may prevent a Request for Evidence (RFE) later, but this is unlikely. CIS often sends RFEs in long-pending adjustment cases asking for an updated employment letter. Sending an AC21 letter at the time of the job change will probably not prevent such an RFE. 

Filing an AC21 letter at the time of job change may raise more questions than it answers, so I do not strongly recommend it. However, if a client prefers to send a letter, of course I will do that.

More important than notifying CIS is ensuring that the two positions are the same or similar BEFORE making any job change.

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For more AC21 information, including links to USCIS guidance memos, see here.


Photo by http://www.flickr.com/photos/84299143@N00/2448562117/.

Can I do internship/volunteer work in dependent status?

A very frequently asked question is whether the dependent spouse of a nonimmigrant can do an unpaid internship or volunteer work. The spouse is commonly in H-4 status, which does not allow for independent work authorization. 

My view is that you cannot volunteer in H-4 status if your position would normally be a paid position or if you are providing services to a US company for a benefit. The benefit might not be money; it could be career opportunity, vocational experience, useful contacts, free products, etc. You could volunteer at a museum, perhaps, or homeless shelter, but generally not in a for-profit business. Many people ask if they can do unpaid internships, for example, and this is generally not permitted.

CIS has taken the view, in a different context, that volunteer work is that which, for example, is done without any expectation of compensation, where the volunteer did not require free goods in exchange for volunteering (nor were they offered), and that the volunteer would have performed the services regardless of whether he or she were to receive free products.

DHS plans to enhance E-verify.

DHS has publicized initiatives to enhance the E-verify program here. The initiatives include:

(1) a new agreement with the Department of Justice that will streamline the adjudication process in cases of E-Verify misuse and discrimination;

(2) an informational telephone hotline for employees to provide a more timely, effective and seamless customer experience for workers seeking E-Verify information; and

(3) new training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish.

The DHS's fact Sheet answers questions such as when and why E-Verify will share information with DOJ, what information it will share, what videos are available and where, how the employee hotline will work, what issues it will address, etc.

For more information on E-Verify, see my prior blog posts here.

USCIS: Change of Filing Location for Form I-131, Application for Travel Document

USCIS: Change of Filing Location for Form I-131, Application for Travel Document

What is "Humanitarian Parole?"

The USCIS has issued a Fact Sheet explaining Humanitarian Parole, how to apply, fees, supporting evidence required, etc.  

Humanitarian parole allows a person to enter the US temporarily due to urgent humanitarian reasons. Parole cannot be used to avoid regular visa-issuing procedures or to bypass immigration procedures. An applicant for parole will need to show why she was not able to get a visa to enter the US. Parole does not confer any permanent immigration status, but does enable a recipient to apply for work authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. The parolee can request an extension of the parole period, however.

Humanitarian parole is applied for using a Form I-131 (available here). For more information about Humanitarian Parole, please contact my office.

April 2010 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for April 2010. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. EB-2 for China moves forward by about 6 weeks, and EB-2 for India stays at 2/1/05, like last month.  EB-3 for China advances by about 7 weeks, India advances by 9 weeks, Mexico stays the same, Philippines and ROW advance by 6 weeks. EB-3 Other Workers has stayed at June 2001 since October 2009 for every country except India. India moved to June 2001 in Jan. 2010 and has stayed there since then.

Prepare your cap-subject H-1Bs ASAP - LCA delays possible

USCIS will accept H-1B petitions for the Fiscal Year 2011 starting on April 1, 2010. In the past, it was possible to prepare and file a petition in a matter of days or less, so we were able to file petitions with very little noce in emergencies. This is no longer possible, because the Department of Labor has changed the procedure for certifying Labor Condition Applications (LCAs). LCAs are filed electronically and used to be certified almost instantly. Now it takes a week or more to get an approved LCA, and the H-1B petition cannot be filed without an approved LCA. 

For a few months, from November 5, 2009 to March 9, 2010, CIS accepted petitions without an approved LCA, acknowledging that the delays in LCA approvals could be very difficult for employers and foreign nationals.  However, CIS just announced (see here) that it would not extend that temporary measure. As of March 10, 2010, CIS will reject any H-1B petition filed without an LCA certified by DOL.

Greece added to Visa Waiver Program

The Department of Homeland Security (DHS) now allows nationals of Greece to use the Visa Waiver Program (VWP). Travellers will be able to enter the US for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

To travel to the United States under the VWP, an alien must be from a participating country and must (1) be seeking entry as a tourist for a period of 90 days or less; (2) be a national of a VWP participant country; (3) present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure; (4) execute the required immigration forms; (5) if arriving by air or sea, arrive on an authorized carrier; (6) not represent a threat to the welfare, health, safety or security of the United States; (7) have not violated U.S. immigration law during a previous admission under the visa waiver program; (8) possess a round trip ticket; and (9) waive the right to review or appeal a decision regarding admissibility or to contest other than on the basis of an application for asylum, any action for removal.

For the DHS press release, see here. For more information about the Visa Waiver Program and ESTA, see here.

Photo by http://www.flickr.com/photos/london/43530136/.

ICE sends audit notices to 180 new businesses

US Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection (NOIs) of I-9 forms to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

The notices warn  business owners that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The names of the businesses have not been released.

See the ICE press release here.  For information on I-9 requirements, see this blog posting.

CIS issues guidance on H-1B filings for Fiscal Year 2011

The USCIS has issued guidelines for petitioners filing cap-subject H-1B petitions for Fiscal year 2011.  The guidance explains what that cap is, what petitions are subject to the cap, filing fees, where to file, etc. See here.

BBC News - Rapper Snoop Dogg wins UK immigration fight

BBC News - Rapper Snoop Dogg wins UK immigration fight

Two recent successful cases against false immigration providers

And now for some good news.....The New York Times and the St. Petersburg Times reported two separate indidents of penalties and [prison sentences imposed on people who provided fraudulent immigration services to foreign nationals.

The NYT article describes how Miriam Mercedes Hernandez was ordered to pay $3 million in fines and restitution to her victims. Ms. Hernandez charged her victim up to $15,000 per person to help them get permanent residence or citizenship within eight month but never performed the services she claimed.

As the article states

Immigration fraud, often orchestrated by immigrants, has proliferated across the country, victimizing people desperate to gain legal residency or citizenship. Law enforcement officials say such schemes are particularly difficult to uncover and prosecute because many victims are in the country illegally and are hesitant to seek help from the authorities for fear of deportation.

Under state and federal law, only lawyers or representatives accredited by the Justice Department can represent people before the immigration authorities. Anyone providing immigration services must also comply with strict rules governing contracts and advertising. 

The St. Petersburg Times article describes a Clearwater woman who was ordered to 5 years in prison for filing false asylum claims.  She was also ordered to forfeit $800,000 in profits. The defendant filed 274 asylum applications with false allegations of persecution.

See this prior blog posting about "fake "immigration lawyers."

New Form I-485 and new filing location

CIS has published a new Form I-485, Application to Adjust Status, and has changed where the I-485 should be filed. Instructions are here. The new Form I-485 must be used after March 29, CIS will accept the older versions until that date.

List of Immigrant Detention Centers

The New York Times has posted a list of jails and detention centers where ICE (Immigration and Customs Enforcement) holds people. As the article states these people include:

"noncitizens the government wants to deport, including asylum-seekers, people suspected of being in the country illegally and legal immigrants convicted of a wide range of crimes or misdemeanors."

The list includes the results of annual inspections.

Photo by http://www.flickr.com/photos/figgenhoffer/2370929884/. 

CIS teleconference today on recent H-1B memo

As noted yesterday, CIS held a "collaboration session" on the recent H-1B "employer-employee relationship" memo. Not surprisingly, the session was very well attended, with 500-600 people listening by phone, and another 40-50 attending in person. The session was generally not in a question and answer format, more a forum for each side to air opinions and comments.

CIS began by noting that the memo had been in the works for years.  The goal was to clarify the requirements and make it easier for employers and immigration lawyers to understand the standards.

Criticism

Many of the public comments that followed CIS's opening statements were critical of the memo and urged CIS to revoke it.  The comments, primarily from attorneys but also from one Senator and some business-owners, objected to the memo on various grounds, mainly

1. that it was creating new law in violation of the required rule-making procedures. Some businesspeople told of the US workers that had been laid off because their jobs would have supported H-1B workers that couldn't get hired;
2. that reducing the flow of H-1B workers into the US would stifle the American economy and encourage outsourcing;
3. that the memo as written would affect more than just the "job-shops" that CIS seemed to target., For example, a few attorneys remarked that this memo would prevent most doctors from getting H-1B status because very few doctors are employed directly by the hospital where they work. CIS seemed to acknowledge that they had not thought of this consequence;
4. that it violated existing H-1B regulations;
5. that it was having a domino effect, already causing problems for H-1B holders entering at US airports, and had even been the cause of one L-1 petition denial. CIS stated that it had no authority over CBP actions at the airport and that  the memo was not intended to effect anything other than H-1B petition decisions at CIS Service Centers.

Praise for the memo

Some speakers praised the memo. though their comments were vastly outnumbered by the memo's criticisms. Those in favor of the memo thanked CIS for restricting H-1B numbers at a time that many US workers were unemployed. One particularly vehement opponent of the H-1B program railed against Indian workers in particular and was cut off when her comments became particularly unhelpful and harsh.

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In the end, CIS agreed to consider all the comments and have a subsequent call on the topic. It noted that people can sign up for notice of this and other CIS events on their Public Engagement web page here.

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P.S. I will not accept anonymous comments that criticize my firm, foreign nationals, US immigration policy, etc.  If you want these comments posted, please say who you are, like I do.