|
|
Random Selection Process on H-1B
Petitions On April 14,
2008 the U.S. Citizenship and Immigration Services (USCIS)
conducted a random selection process on H-1B petitions for
fiscal year 2009. The selections were made on the petitions
that qualified for the 20,000 master’s or higher degree
exemption and on the remaining advanced degree petitions
totaling the 65,000 cap.
Roughly 163,000 petitions were received on the first five
days of the eligible filing period and were immediately
labeled with numerical identifiers. The appropriate service
centers have been notified which petitions have been
randomly selected so that the service center can begin the
adjudication process.
The USCIS has estimated that those with petitions selected
for processing should receive a receipt notice dated no
later than June 2, 2008. The unselected petitions will be
returned to the petitioner along with the filing fees. It is
expected that the overall adjudication process will take
about eight to ten weeks. The 15-day premium processing
period began April 14 for petitions that have been chosen in
the random selection and requested Premium Processing
Service.
Some H-1B petitions have been put on a waiting list, in case
petitions that were chosen in the lottery are withdrawn or
denied and a cap number becomes available. The USCIS
will notify the waitlisted petitioners informing them of
their status.
USCIS Announces
the Interim Final Rule Regarding OPT Extensions
On April 8, 2008, the Department of
Homeland Security (DHS) issued an interim final rule that
provides for an extension of the Optional Practical Training
(OPT) period for certain students currently in F-1 status in
the U.S.
The rule contains two different extensions; the first
provision is designed to provide an automatic extension of
F-1 status for all students with a pending H-1B petition,
provided various conditions are met. The second provision
provides certain F-1 students with degrees in science,
technology, engineering, or mathematics (STEM), the
opportunity to receive an additional 17 months of OPT by
filing the revised Form I-765 (Application for Employment
Authorization).
1) Expanding “Cap-Gap” Relief for F-1 Students with Pending
H-1B Petitions
This Interim Final Rule eliminates the commonly referred to
”cap-gap” problem by extending the authorized period of stay
and work authorization for all F-1 students who have a
properly filed H-1B petition and change of status request
pending with the USCIS. The F-1 student may benefit from
this automatic extension only if they have not violated
their status. This rule further states that an F-1 student
on the 12 month OPT, who is unemployed for a more than 90
days has violated their status and thus, are ineligible for
this extension.
If the USCIS approves the H-1B petition, the students will
have an extension of OPT that enables them to remain in the
United States and be employed until the requested start date
indicated in the H-1B petition takes effect. If the USCIS
denies a pending H-1B petition, the student will have the
standard 60-day period before they have to leave the U.S.
2) Extending Period of OPT with STEM Degrees
The interim final rule also extends the maximum period of
OPT from 12 months to 29 months for F-1 students who are
already in the post-graduate OPT period who have completed a
STEM degree and have accepted employment with employers
enrolled in the USCIS’ Employment Verification Program
(E-Verify). A complete list of STEM degrees and exceptions
can be found on the Immigration and Customs Enforcement
website at http://www.ice.gov/sevis/stemlist.htm.
In relation to the E-Verify requirement, the extension is
only available to students who are hired by employers
enrolled in the E-Verify program at the time the student
applies for the extension.
The Interim Rule also changes reporting requirements for
students, employers and the Designated School Official
(DSO). Students with an approved 17-month OPT extension are
required to report changes in the student’s name or address
and changes in the employer’s name and address as well as
periodically (every six months) verify the accuracy of this
reporting information. Employers of F-1 students with a
17month OPT extension are now required to report to the
school’s DSO within 48 hours of the student’s termination or
resignation from his or her position with that employer,
prior to the end of the authorized period of OPT. The
contact information for the DSO will be listed on the
student’s Form I-20. The DSO must, in turn, report all of
this information in Student and Exchange Visitor Information
System (SEVIS), a web-enabled database for the collection of
information related to foreign students, certified schools,
and State Department approved exchange visitor programs.
Students who wish to extend their OPT must request that
their DSO recommend the 17-month extension. The DSO must
verify the student’s eligibility, certify that the student’s
degree is on the STEM list and ensure the student is aware
of his or her reporting requirements. Following this
recommendation, prior to the expiration of the current OPT
period, the student must submit Form I-765 (Application for
Employment Authorization). In the wake of the Interim Final
Rule, the DHS has revised Form I-765 to include a new
question which asks students to identify the degree they
have received. Students are also required to provide the
name of their employer and their employer’s E-Verify Company
I.D. number. A student who has properly filed Form I-765 may
continue employment for up to 180 days while the USCIS
adjudicates the request for extension.
PERM Processing Times Expected to Increase
The Department of Labor (DOL) recently released updated
statistics on PERM processing for 2008. As of March 23,
2008, of the total 28,000 active cases, 45% were in Audit
Review, 38% in Final Review, and 14% in Appeal. This update
confirms the DOL’s current stand that, in order to maintain
the integrity of labor certification process, PERM audits
are necessary. Since the percentage of cases in Audit Review
jumped from 11% in January 2007 to 44% in June 2007, the DOL
is continuing to audit approximately 1 out of 2 PERM
applications.
Given such high volume of audits, as well as impending
transfer of all pending PERM applications from Chicago
Processing Center to Atlanta Processing Center on June 1,
2008, the processing time for PERM applications is expected
to increase significantly. When asked to provide a general
timeframe for PERM processing at the two processing centers
for cases with audits, the DOL acknowledged that there were
cases pending at the Atlanta Processing Center in the audit
queue that are 6-8 months old. Chicago Processing Center’s
audit queue is not as long, though they have some cases
pending the same amount of time.
Some additional highlights from the released fact sheet
include:
-
Approximately 12,600 cases were certified during the first
quarter of FY 2008; 66% of foreign workers on H-1B visas.
The top 5 states of intended employment for these permanent
labor certifications were California (3,135), New York
(1,293), New Jersey (1,057), Texas (901), and Florida (774);
-
Alien beneficiaries representing 135 different countries
were certified for permanent employment in the U.S. The top
10 countries of citizenship of alien beneficiaries included
India (4,074), China (993), South Korea (875), Philippines
(804), Mexico (690), Canada (669), United Kingdom (267),
Taiwan (234), Brazil (233), and Pakistan (227); and
-
Top job titles certified for permanent employment included
Computer Software Engineers (2,147), Computer Systems
Analysts (734), Computer and Information System Managers
(470), Electronics Engineers (266), Computer Programmers
(251), Market Research Analysts (238), Mechanical Engineers
(185), Financial Analysts (182), Accountants (178), and
Engineering Managers (175).
Plan to Eliminate FBI Name Check Backlog Announced
On April 2, 2008, the U.S. Citizenship and
Immigration Services (USCIS) and the Federal Bureau
of Investigation (FBI) announced a joint plan to
eliminate the backlog of name checks pending with
the FBI. This announcement came two months after the
USCIS decision to adjudicate certain cases if the
application is otherwise approvable, outside of
normal processing times, and the FBI name check
request has been pending for more than 180 days.
In an effort to eliminate the FBI name check
backlog, the USCIS and FBI have established a series
of milestones prioritizing work based on the age of
the pending name check. The FBI has already
eliminated all name check cases pending more than
four years.
By increasing staff, expanding resources and
applying new business processes, their goal is to
complete 98 percent of all name checks within 30
days. The USCIS and FBI intend to resolve the
remaining two percent, which represent the most
difficult name checks and require additional time to
complete, within 90 days. The agencies intend to
achieve and sustain these processing times by June
2009.
The joint plan will focus on resolving the oldest
pending FBI name checks first. USCIS has also
requested that the FBI prioritize resolution of
approximately 29,800 pending name checks from
naturalization applicants submitted to the FBI
before May 2006 where the naturalization applicant
was already interviewed.
The target milestones for processing name checks
are:
|
Completion Goal |
Category |
|
May-08 |
Process all name checks pending more
than 3 years. |
|
Jun-08 |
Process all name checks pending more
than 2 years. |
|
Nov-08 |
Process all name checks pending more
than 1 year. |
|
Feb-09 |
Process all name checks pending more
than 180 days. |
|
Jun-09 |
Process 98% of all name checks within
30 days and process the remaining 2% within 90 days. |
Advancement in Naturalization Processing Times
Citing a recent drastic upturn in the
number of filed naturalization cases marked by a high point
of roughly 3 million naturalization cases filed in June,
July and August of 2007 alone, the U.S. Citizenship and
Immigration Services (USCIS) has announced that it is
devoting additional resources to processing naturalization
filings at an increase rate. In order to expedite
processing, the USCIS reports that it is expanding its
workforce by more than 3,000 employees, increasing overtime
funding for its workers, assigning employees to work
specifically in its high traffic offices, and enlisting the
use of Asylum Offices to conduct interviews for pending
naturalization cases. The USCIS is confident these measures
will expedite the naturalization process.
The USCIS now estimates it will complete processing for more
than one million naturalization cases during fiscal year
2008. These changes have already impacted the published wait
times for naturalization processing. These dates have gone
from a 16-18 month processing timeline to a 13-15 month
estimate within the past six months. There is optimism that
these timelines will remain short, for the benefit of all
naturalization applicants.
U.S. Legal Permanent Residents: 2007
In 2007, a total of 1,052,415 persons became Legal
Permanent Residents (LPRs) of the U.S. This number
indicates a 17 percent decrease from last year where
1,266,129 became LPRs in 2006. This decrease was not
due the decrease in the number of Green Card
applicants, but due primarily to application
processing issues at U.S. Citizenship and
Immigration Services (USCIS). The number of
adjustment of status applications filed increased
from 2006 to 2007, but the number pending a decision
also increased due to significant adjustment of
status application backlog at the USCIS.
The majority of new LPRs (59 percent) already lived
in the U.S. when they were granted lawful permanent
residence. Two-thirds were granted permanent
residence based on a family relationship with a U.S.
citizen or legal permanent resident of the United
States. The leading countries of birth of new LPRs
were Mexico (14 percent), China (7 percent), and the
Philippines (7 percent). They were followed by India
(6.2 percent), Colombia (3.2 percent), Haiti (2.9
percent), Cuba (2.8 percent), Vietnam (2.7 percent),
the Dominican Republic (2.7 percent), and Korea (2.1
percent). These 10 countries accounted for 51
percent of all new LPRs in 2007.
|
