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NEWSBack to TopArrest of H1B Holder Prompts SuitThe American Immigration Lawyers Association has filed an amicus brief in federal court, seeking to prevent officials from arresting H-1B employees while their extension requests are being processed. The filing was in response to a Lebanese national H-1B holder whose employer requested an extension one month before the deadline and also paid a $1,000 premium processing fee. The extension was neither granted nor denied. The government reportedly was unresponsive to requests for information as to its status. (The premium processing fee is supposed to guarantee a decision within 15 days.) Seven months later, the H-1B holder was arrested for overstaying their visa. The brief argued that non-citizens should not be subject to arrest as a result of simple processing delays. These types of situations, the brief argued, threaten to disrupt key sectors of the US economy and also undermine the overall goal of the H-1B program. Background: Although law permits H-1B employees to remain in the US for up to six years, the government grants visas for only three years at a time. But federal regulation permits H-1B employees to continue working for up to 240 days after their initial period of admission expires, if employers file extension requests before that period ends. Back to TopNovember 2010 H1B Petition StatusUSCIS has recently updated the count of H-1B visa petitions received and counted towards the H-1B cap for the fiscal year 2011 employment. As of November 26, 2010, USCIS has received 50,400 H-1B cap subject petitions against the cap limit of 65,000 and 18,400 petitions qualifying for the advanced degree cap exemption against the limit of 25,000. The weekly run-rate is 1,423 new cap subject H1B petitions were filed under regular quota and 564 new advanced degree cap exempt petitions were filed under cap exemption quota. Overview of H-1B Related Concepts, IssuesBack to TopOVERVIEW: J-1 WAIVERS FOR PHYSICIANS TO DELIVER MEDICAL SERVICES IN DESIGNATED UNDERSERVED AREAS OR AT VA HOSPITALSPhysicians who receive clinical medical residency training in the U.S. pursuant to a J-1 exchange visitor visa are required to return to their home country for two years before they are eligible to apply for an H-1B visa or permanent residency. J-1 visa physicians need not complete this two-year home requirement if they are approved for a waiver to deliver medical services in a designated underserved area or at a VA hospital. Candidates must first obtain a recommendation from an interested government agency (IGA) or state agency, which is then forwarded to the United States Department of State Waiver Review Division, which issues recommendations to the U.S. Citizenship and Immigration Services (USCIS), which hopefully approves an Application to Waive Foreign Residence Requirements (Form I-612). Technically, any federal agency may sponsor a waiver. The federal agencies most involved are the Appalachian Regional Commission (ARC) and Delta Regional Authority (DRA), which recommend waivers for shortage areas in their region. Also, the Veterans Administration (VA), which recommends waivers for physicians to work in Veterans Administration hospitals. In 2002 the Department of Health and Human Services (DHHS) became an IGA for delivering medical services in underserved areas. Interested state agencies may establish a State 30 Program, recommending up to thirty (30) waivers for J-1 physicians per state each fiscal year. Except for the VA program, the general rule is the intended practice site is located in a federally designated shortage area. Such Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA) or Medically Underserved Population (MUP) are usually, but not always, recognized by each state. Each state may also sponsor up to five J-1 waivers per year for physicians treating those (but not working in) medically underserved areas. The ARC program is limited to physicians who have completed residency training and agree to practice in a primary care field, such as:
Most J-1 Visa Waivers typically require a three year service obligation. All waiver programs require a showing that the employer has made "extensive" recruitment efforts (typically, over a six month period) to recruit a U.S. physician prior to offering a position to a J-1 physician.. An approved Application to Waive Foreign Residence Requirements is limited to the waiver of the two-year home requirement. This doesn't place the J-1 physician into a legal nonimmigrant status or imply authorization to work in the U.S. So, a J-1 physician must obtain H-1B approval as well. Upon completion of the J-1 Visa waiver service obligation, the applicant will be eligible to obtain permanent resident status. Back to TopH1-B and Dual IntentIn the past, the process for obtaining an employment-based green card only took a few years. Today, employment-based immigration has become a more time consuming process. Applicants from highly skilled professions and certain countries might wait years to obtain their green cards. So, since the H1-B visa duration hasn't changed, many of these visa holders must renew them frequently to maintain their legal status in the United States during their green card application process. Likewise, although the H-1B is a non-immigrant visa, it is recognized as one of few categories that are designated as "dual intent". This means the holder can intend to apply and obtain a green card while holding the visa. Back to TopOverview: Overstay, Out of Status and Unlawful PresenceLawful Presence: Entering the United States legally typically involves receiving a visa at a U.S. consulate and being admitted at a U.S. port-of-entry. Note that the visa stamp applied in your passport by a U.S. Customs Official does not guarantee entry into the U.S., it simply allows you to seek entry. It is the officer at the U.S. port-of-entry who decides whether or not to grant you entry into the U.S. Maintaining lawful status typically means filing a non-frivolous application for either an Extension of Stay or a Change of Status. The Dept. of Homeland Security will consider your period of stay authorized, until the date the USCIS arrives at a decision concerning your application. If your application is turned down, unlawful presence would start accruing from the date of the decision (not from the date your prior nonimmigrant status expires). Overstay: Overstay means you are in the U.S. beyond the date indicated on your I-94 or the corresponding Duration of Status. Overstay is the most common reason for being 'out of status'. Out-of-Status: Means that you have violated the terms of your 'Lawful Status'. Each status comes with certain rights and permissible activities. Frequently, foreign nationals become out of status due to:
Unlawful presence: Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom's Officer at the time of entry. It also includes any presence in the U.S. without being inspected and admitted or paroled. NOTE: If your I-94 is non-date specific, i.e. D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status. Back to TopOverview: Students, OPT and H-1B StatusStudents in F1 status often have doubts about Optional Practical Training (OPT) and how to obtain H1B status to continue their employment in the U.S. Employers often have questions regarding how to retain their services once they've completed OPT. F1 students in a bachelor's, master's, or doctoral degree program may apply for authorization to engage in temporary employment for Optional Practical Training (OPT) directly related to their major area of study. Employers filing H1B petitions for F1 students employed on OPT need to ensure that the applications are filed in a timely manner during the H1B acceptance period and while the student's authorized duration of status admission is still in effect, to avoid any undesirable breaks in employment arising due to cap-gap issues. Students changing status from OPT to H1B must also keep in mind that if they leave the U.S. during the "cap-gap" extension, they may not be able to return back to the U.S. before the start date mentioned in the petition and without obtaining an H1B visa through a U.S. consulate or embassy. Back to TopOverview: Important Terms DefinedF1 Visa/Status: The F1 is a nonimmigrant student classification that allows foreign nationals to pursue education in the United States. OPT: Optional Practical Training or OPT is a period during which a foreign student in valid F1 status is allowed to accept employment in a field directly related to his or her major field of study. To be considered for OPT, the student must have completed or have been pursuing a degree and maintained status for nine months (generally, 2 semesters). Although the student does not have to change status, the student must apply for an Employment Authorization Document before commencing employment. OPT is usually granted for 12 months, unless the field of study is within STEM (science, technology, engineering, mathematics) wherein the student is eligible for a 17-month extension. H1B Visa/Status: The H1B is a nonimmigrant visa classification for "specialty" workers. It allows foreign national to work temporarily in the U.S. and perform services in a prearranged professional job. The job must be in a 'specialty occupation' and must require a bachelor's degree as a minimum for entry into the field. H1B Cap: The H1B visa has an annual numerical limit of 65,000 visas each fiscal year. An employer may not file an H1B petition earlier than six months in advance of the date of actual need for the beneficiary's services. NOTE: April 1st is the earliest date that an employer can file an H1B petition for the following fiscal year starting October 1st. H1B Cap-Gap: The H1B "cap-gap" is a period of stay and/or work authorized by USCIS and ICE for F1 students whose student status, OPT or grace period expires after an H1B Change of Status petition is filed but before October 1, the beginning of the next fiscal year. FAQsBack to TopWhat are the Typical Steps from F1 OPT to H1B Status?1. An Employer Files an H1B on Your Behalf You are an F1 student and you find an employer who is willing to file an H1B petition on your behalf. 2. You Beat the H1B Cap Since the USCIS only has a total of 65,000 H1Bs available under the cap (and another 20,000 for those who have a U.S. master's degree or higher) you are in position to file in a timely manner. 3. Employer Files the H1B Petition Your employer files an H1B petition on your behalf. Thereafter, if the H1B petition is approved, you will be granted H1B status. Note that if you are F1 status and your employer has filed the H1B petition as a "Change of Status", then the earliest date that you may start H1B employment is October 1st. 4. Seek Cap-Gap Extension Current regulations allow certain students with pending or approved H1B petitions to remain in F1 status in the United States during the period of time when the student's status and/or work authorization would otherwise expire up to the start of his or her approved H1B employment period. Find out if you are eligible for "Cap-Gap." NOTE: F1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1 are required to leave the United States, apply for an H1B visa at a consular post abroad, and then seek readmission to the United States in H1B status for the dates reflected on the approved H1B petition. Back to TopWhat Travel is Allowed During the "Cap-Gap" Extension Period?Regulations state that a student with an unexpired Employment Authorization Document (EAD) issued for post-completion OPT, who is otherwise admissible, may return to the United States to resume employment after a temporary absence. By definition, the EAD of an F1 student covered under a cap-gap extension is necessarily expired and as a result, if a student granted a cap-gap extension travels outside the United States during the cap-gap extension period, he or she will not be able to return in F1 status. The student will need to apply for an H1B visa at a U.S. embassy or consulate abroad before returning to the U.S. Also, the H1B petition is generally for an October 1st or later start date, and students must understand that they may not be able to enter the U.S. prior to the date mentioned on the approved H1B petition. Back to TopWhat is the H-1B Processing Time?The H1B processing time varies because all cases are different. Generally it takes between three to six months to process an H-1B visa. You must wait at least two weeks after you send in your application for a receipt from the USCIS and another two weeks before you call the USCIS to check the status. Upon receipt of your application, the USCIS officials will send you a receipt showing the date your case was received and the receipt number assigned to it. Use the receipt number to track the status of your application when you call the number listed at the bottom of the receipt notice. Back to TopHow Do Employers Reach H-1B Dependent Status?An employer risks becoming an 'H-1B dependent employer' if too many H-1B employees have been hired. There are three categories that can put them into a non-compliant status: -An employer has 25 or fewer full time employees of which more than seven are H-1B employees -An employer has between 26 to 50 full time employees of which more than 12 are H-1B employees -An employer has more than 50 full time employees of which 15% or more are H-1B employees Back to TopWhen should I file my H-1B petition if I am currently under optional practical training on F-1 visa?You may file for H-1B status while in your practical training itself. Getting an H-1B takes a lot of time and sometimes you might have to wait for three to four months before you resume employment. If you file your H-1B petition while in the practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiration of F-1 or B-2, you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved. Back to TopCan I bring my dependents on H-1B visa?Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status. However, they may not accept employment, but may attend school in the U.S. Back to TopHow should an employer petition for an H-1B visa?Form ETA-9035 Labor Condition Attestation, with the Regional Department of Labor office. Through this application your employer assures the DOL that they will provide you with fair salary and equal benefits which are provided to a U.S. citizen. It also states that it was not able to find any U.S. citizen who was qualified for the position. Form I-129 Petition for Nonimmigrant Worker, with H-Supplement and supporting documentation including the approved LCA should be filed with the USCIS Regional Service Center having jurisdiction over the city of intended employment. When it is approved, the employer or agent is sent a notice or approval Form I-797 and a copy of it is forwarded to the American Consulate. Back to TopWhat is the difference between H-1B status and an H-1B visa?An H-1B visa is a nonimmigrant visa issued by a U.S. Embassy or Consulate abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally. Back to TopAs a fired or laid off H-1B holder, what are my options?You have the option of applying for a Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status within 10 days after you are fired. If you are not planning to depart the U.S. the only way to maintain legal status is to file a new petition under a new employer or change status from H-1B to other nonimmigrant status, such as B-1 or B-2. Back to TopWhat is the "displacement" or "no lay-off" attestation rule?There are two that apply to H-1B dependent employers: The first requires employers to attest they did not displace and will not displace a U.S. worker employed by the employer within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition. The second requires the employer to attest that he will not place the H-1B worker with another employer, unless the petitioning employer has properly established that a U.S. worker isn't being displaced with the other employer, as a result. |
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Shane L. Parker, esq. |
