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Posts Tagged ‘OPT’

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.

 

 

 

Details on the Proposed STEM OPT Rule

Sunday, October 25th, 2015

Passport immigration stampReports are that DHS has begun circulation of one of Obama’s employment-based executive actions which is also in response to a judge’s order that struck down the existing STEM OPT program for a lack of a notice & commenting period with the issuance of the 2008 interim rule.  The public will have 30 days (until November 18) to comment on the proposed rule.  You can view the notice in the Federal Register here

The Rule will make several changes to the F-1 STEM OPT program.  Most importantly, the STEM OPT extensions would increase from 17 to 24 months.

The new rule adds both additional benefits and employer requirements for all individuals and companies utilizing OPT.  Here is an excellent summary of the proposed changes as posted on ILW.com.

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Immigration Compliance Group provides US inbound immigration services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, among others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement (O-1, P visas, EB-1 and EB-2 Exceptional Ability cases) and PERM Labor Certification. Our doors are always open for new clients — we extend a 20% discount on the first case with our firm.  Contact us at info@immigationcompliancegroup.com or call 562 612.3996.  Follow up on Twitter (@immigration_biz) Google Plus and check out our groups on LinkedIn:  I-9E-Verify: Smart Solutions for Employers and Immigration InFocus News.

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.

DHS Reforms To Attract And Retain Highly Skilled Immigrants; Expand OPT Eligibility, H-4 dependents work authorization & more

Thursday, February 2nd, 2012

The Department of Homeland Security (DHS) this week announced a series of administrative reforms to help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world. These reforms are to take place over a period of time.

Leaders in the private sector launched the Startup America Partnership, an independent alliance of entrepreneurs, corporations, universities, foundations, and other leaders, joining together to fuel innovative, high-growth U.S. start-ups. Within just one year, the Partnership has mobilized to make over $1 billion in business services available to a national network that will serve as many as 100,000 start-ups over the next three years.

For more on this: http://www.whitehouse.gov/economy/business/startup-america

Procedures for the 17 month OPT extensions for F-1 students with a STEM degree

Saturday, April 4th, 2009

8.1. Eligibility
8.1.1. Who is eligible for the STEM extension?

F-1 students who completed a bachelor’s, master’s, or doctoral degree in a STEM field and are currently engaged in post-completion OPT may apply for the STEM extension if they have a job or job offer from an E-Verify employer.
8.1.2. Is the extension available to students who completed their post-completion OPT prior to April 8, 2008?

No. The eligibility is not retroactive.
8.1.3. How does a student or DSO know which degrees are designated as STEM degrees?

Read more about the 17 month extension here

E-Verify for Students in Curricular Practical Training

Thursday, September 18th, 2008

AILA recently posted an article on Curricular Practical Training (CPT) functioning as employment that is part of a student’s specified degree curriculum.  

It was posted in “AILA InfoNet Doc. No. 08091769 (posted Sep. 17, 2008)

Curricular Practical Training (CPT) is employment that is part of a student’s specified degree curriculum. The Designated School Official (DSO) authorizes CPT for students before they can begin wok by annotating their I-20 in accordance with the 8 CFR 214.2(f)(10)(i). Unlike Optional Practical Training (OPT), no employment authorization from USCIS is needed. This raises two questions, which were posed to DHS by AILA’s E-Verify Liaison Committee. DHS’ responses are below:

1. Is an E-Verify employer required to put CPT students through the E-Verify system?

Answer: “Yes, an employer must run E-Verify queries on CPT students.”

2. If yes, is the E-Verify system capable of automatically checking the student’s I-20 to produce an automatic confirmation of employment eligibility?

Answer: “No, the system cannot automatically check a student’s I-20. E-Verify does not currently access SEVIS during the automated first step of the verification process. Students under CPT will always be sent to secondary verification. He or she should, however, have employment eligibility confirmed within 24 hours provided his/her record can be located in SEVIS during secondary verification.”

Lack of H-1B Cap Increase, Supporters Call for Extension of Student OPT

Friday, March 28th, 2008

With Congress not helping their cause anytime soon, H-1B visa supporters are asking the Bush administration to extend the Optional Practical Training program (a student’s right to work) to 29 months, rather than the 1 year period that is now authorized.  This was originally proposed in November 2007 to Secretary/DHS Michael Chertoff, in a letter signed by 19 Senators.

The proposed extension is a measure that would allow foreign students to buy extra time when they graduate from college in the U.S.  However, this would act as a stopgap measure – while supporters hope Congress will soon raise the number of H-1B visas allotted each year.

A foreign student currently needs a degree to qualify for an H-1B visa, but seniors who will end up graduating this spring, won’t have their degrees before the April 1 deadline – the day the USCIS will begin to accept H-1B petitions for the fiscal year 2009.

With the current system in place, upcoming graduates will have to wait until next year before they are allowed to apply for H-1B status.  And if they were not allotted H-1B visas through the USCIS random lottery – they will be forced to leave the U.S. according to the current OPT rules, following a 60-day grace period.

This would allow students a stronger chance at receiving an H-1B visa  because the new measure would increase the amount of time a foreign graduate could work in the U.S on OPT instead of  instead of having to contemplate accepting positions in competitor countries..  Proponents for the measure also say the new rule could be enacted administratively, without any legislative action necessary.

For more information on the call for a student’s OPT work extension:
Read this article from Computerworld