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Posts Tagged ‘EAD’

What to Know About the H-1B Cap Gap

Wednesday, March 22nd, 2017

Visa_iStock_000016934361_ExtraSmall (2)By:  Allison McDowell, Content Coordinator

Current federal regulations allow for the automatic extension, if certain circumstances are met, of Optional Practical Training (OPT) time for F-1 students who have a pending or approved H-1B petition.  These “Cap Gap” provisions require that the beneficiary’s petition is subsequently selected and approved in the H-1B lottery.  If approved, Cap Gap helps cover the gap that may otherwise disrupt an employee’s employment authorization, which would occur between when the OPT EAD expires through September 30th, in other words, after the OPT ends and before an approved H-1B petition takes effect.  Any F-1 student with a timely filed H-1B petition and request for change of status will be allowed to extend the duration of F-1 status and any current employment authorization until the first day of the new fiscal year, October 1 st.  If the petition is not selected for processing, 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 departing the USA.

Major Criteria

To be eligible for Cap Gap extension, the employer must file the H-1B Change of Status petition with USCIS and have it received prior to the post-completion OPT expiration date.  Or, if received by USCIS after the post-completion OPT expires but during the following 60 day grace period, the beneficiary’s F-1 status and permission to remain in the U.S. are extended, but there is no work authorization.

Effects of Premium Processing Suspension

 USCIS has suspended premium processing for all H-1B petitions for six months, starting April 3, 2017.  This also applies to H-1B quota cases, or “cap cases.”  This suspension could have major effects on those who have a status expiration date earlier than October 1, 2017.  For F-1 OPT beneficiaries, whose employment authorization is only extended until September 30, 2017, there would be a period of lack of employment authorization until the H-1B case is approved.  Similarly, L-1 visa, or other employment visa holders, may have their work authorization set to expire shortly after October 1, 2017 and the H-1B cap case may remain pending past October 1st, therefore leaving a gap in work authorization until USCIS completes processing of the case.

STEM OPT Extension

 Stem Extension could be available to bridge the gap in employment authorization for those that qualify.  Any F-1 nonimmigrant student with a degree in science, technology, engineering, or mathematics (STEM) can apply for a 24-month extension of their post-completion OPT employment authorization.  Students who are eligible for Cap Gap extension of their post-completion OPT can apply for a STEM OPT extension during the Cap Gap.  In order to be eligible, the employer must be enrolled in and in good standing with E-Verify, and the initial grant of post-completion OPT employment authorization must also have been related to the STEM degree.  Note that an application cannot be submitted once the H-1B petition is rejected, denied, revoked, or withdrawn and the 60-day departure prep period has begun.

Additions have recently been made to the list of STEM degrees and can be found at STEM Designated Degree Program List.  Additional information for F-1 students regarding STEM OPT extensions can be found at USCIS’s Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Travel Outside U.S.

While USCIS is processing the H-1B visa petition, beneficiaries should not travel outside the U.S.  Doing so would void the Change of Status H-1B petition, subsequently turning it into an outside the U.S., Consular Processing H-1B petition.  Similarly, if the practitioner selects consular processing, the H-1B petition will not process under the Cap Gap regulations, which would be disastrous to the case.  Leaving the U.S. while employment authorization is based on Cap Gap voids the Cap Gap authorization.  Therefore, the employee will only be able to re-enter the U.S. up to 10 days prior to the effective date of a subsequently approved H-1B petition.

Practitioners need to be aware of the effects of foreign employees traveling abroad, as many attorneys who are not skilled in business immigration are not aware of the major consequences of visa beneficiaries doing so.

Dependents

The H-1B Cap Gap authorization also applies to dependents of the visa beneficiary that are in valid F-2 status, including spouses and children.  Keep in mind, however, that the travel restrictions also likely apply to dependent visa holders, whose foreign travel may void the Change of Status petition.

 

 

 

New Administration Indicates Trump is Placing DACA on Backburner for Now

Thursday, January 26th, 2017

Jobs_iStock_000016785771XSmall (2)By:  Allison McDonnell, Content Coordinator

Despite repeated campaign promises to take immediate action upon taking office, the new administration has now indicated that Present Donald Trump will not be immediately dismantling the Deferred Action for Childhood Arrivals (DACA) program instituted by Barack Obama in 2012.

The administration has been tight-lipped about their intentions with DACA since Trump took office a short time ago.  When asked about when Trump will take action on DACA at a recent press briefing, White House Press Secretary Sean Spicer sidestepped the question and placed little emphasis on DACA as an action item.  Spicer went on to state that the President and administration’s main focus and priority is on immigrants with criminal records and will “prioritize the areas of dealing with the immigration system — both building the wall and making sure that we address people who are in this country illegally.”

Similarly, White House Chief of Staff Reince Priebus failed to clearly expound on the President’s intentions for DACA recipients, known as DREAMers.  Although during the presidential campaign Trump vehemently claimed that he would immediately overturn Obama’s executive action on DACA, Priebus indicated that DACA might not be addressed with a quick fix.  While Priebus failed to make any exacting commitments on the topic, he strongly indicated that Trump will not be signing any executive actions on DACA in the week following his inauguration.

Instead, Trump seems to have pledged to work with Congress to assist DREAMers.  Chief of Staff Priebus has suggested that the administration will work with the House and Senate leaders to build a long-term solution.  This seems to match a statement Trump made late last year during a Time Magazine interview that, while he does intend to overturn Obama’s executive action, he will also be looking for a compromise that will not disadvantage young immigrants.

On a similar positive note, a resolution for immigration reform was approved last week by The United States Conference of Mayors.  This resolution calls for the continuation of programs protecting DREAMers and the need to adopt an approach that welcome immigrants, stating “…we stand united as mayors through the United States Conference of Mayors in calling on Congress to fix our broken immigration system and immediately begin working toward the enactment of comprehensive immigration reform legislation.”

The U.S. Department of Homeland Security (DHS) has articulated enforcement priorities that mirror what Spicer and Priebus have stated – that national security threats and criminals will be priority number one for the time being. And, U.S. Citizenship and Immigration Services (USCIS) continues to process DACA applications without change.  For now, over 741,500 DREAMers who benefit from the DACA program will have to continue to wait to see what their future may hold.

 

 

 

 

 

H-1B Visas – The Job Description and Degree Requirement

Thursday, January 29th, 2015

Visa_iStock_000016934361_ExtraSmall (2)

It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.

REMINDER: New E-Verify Laws; Some go into Effect January 1, 2013

Wednesday, December 5th, 2012

As follows:

•Georgia: Companies employing more than 10 persons must register for E-Verify by July 1, 2012.
•North Carolina: Companies employing more than 100 persons must be registered for and using the E-Verify system on January 1, 2013.
•Pennsylvania: State contractors and sub-contractors must register for E-Verify beginning January 1, 2013 – but only if the project is greater than $25,000.
•Tennessee: Companies employing more than 5 persons must register and begin using E-Verify by January 1st.

Businesses within the above 4 states will need to collect an employee’s Social Security number and E-Verify all candidates before employing.

For more on E-Verify by state, we link here, compliments of LawLogix (www.lawlogix.com).

I-9/E-Verify News: USCIS Issues I-9 Guidance to Employers for DACA Employees

Monday, November 19th, 2012

USCIS released I-9 instructions to employers today regarding how to fill out the I-9 form for new and existing DACA employees.  There have been many questions and speculations  concerning how to handle the Form I-9 with existing employees; thus, this guidance is certainly welcomed.  We would advise you to print out the instructions and keep them for reference and attach them to either your I-9 reverifications or your new I-9 forms (whichever is appropriate based upon the instructions) for existing DACA employees.

Please note also that the DACA website has been updated with new FAQ’s, instructions offered in various languages and Filing Tips.

To review, the DACA initiative offers a two year grant of reprieve from deportation as well as work authorization for unauthorized immigrants who were under the age of 31 as of June 15, 2012 and who can demonstrate that they meet the following criteria:

• Entered the United States before the age of 16
• Have continuously resided in the United States since June 15, 2007 and up to
the present time, and were physically present on June 15, 2012 and at the time
of application
• Are currently in school, have graduated from high school or earned a GED, or
are honorably discharged veterans of the US armed forces (including the Coast
Guard)
• Have not been convicted of a felony, significant misdemeanor, or three or more
misdemeanors; or otherwise pose a threat to public safety or national security
• Entered the country illegally or overstayed their visa prior to June 15, 2012.

You might wish to refer to our previous blog post on DACA and sign up to receive our free newsletters, blog posts and I-9 information and updates.