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OPT Cap-Gap and Work Authorization Beyond September 30th Questions

Question: What do I do if I was picked in the H-1B lottery but my OPT ends before October 1st?

Answer: When an H-1B Petition that is timely filed (April 1 + 1st 5 business days of April) requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin when the authorized OPT period ends 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 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever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 and depart the United States.

Please note: F-1 students who have entered the 60-day grace period are not employment-authorized.  If an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Follow Up Question: What if my case is not adjudicated before September 30?

Answer: Cap-Gap will only extend work authorization until September 30. If a case has not be adjudicated by September 30, the F-1 Student must stop working. The F-1 Student is likely authorized to remain in the United States while the H-1B Petition is pending. To avoid a lapse in work authorization, an H-1B Petition may be upgraded to premium processing. By upgrading to premium processing, the USCIS must adjudicate a petition within 15 days. Certain exceptions apply to this 15-day rule, such as issuance of a Request for Evidence or Return of Fee for Inability to Premium Process.


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Visa Bulletin Priority Date Movement Question

Question: A member of the American Immigration Lawyer’s Association asked Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, the following question about what data is shared between USCIS and the Department of State regarding visa number usage and whether efforts are being made to improve the information sharing process to make priority date movement more predictable?

Answer: Charlie [Oppenheim] meets monthly with the USCIS Ombudsman and the agencies are in discussion regarding USCIS providing additional data to the Visa Office. No further details are available at this time, other than to say that these meetings continue to provide positive results in the exchange of data. Charlie favors as much data transparency as possible since it enables the Visa Office to better predict immigrant visa demand within each category, enabling the State Department to more effectively manage the cut-off dates.

The State Department uses a “qualifying date” system which provides the information required to minimize/prevent erratic movement in the family-sponsored cut-off dates. The National Visa Center uses this system to send out “Agent of Choice” letters requesting that applicants assemble/submit certain required information, based on expected cut-off date movement during a specific period of time. The end result allows for a more accurate comparison of targeted number use versus the total number of applicants who could be scheduled for final processing, during the determination of the monthly cut-off dates.

In Plain English: The Visa Bulletin is a system designed to notify family-based petitioners of eligibility to adjust status to lawful permanent residence. Historically, family-based categories have much longer wait times than employment-based categories. For example, the priority date for U.S. citizens filing for their unmarried sons and daughters from Mexico is November 15, 1994. Often, the size of a family will increase in the 20+ years it must wait in processing. Obviously this has serious implications on the nuclear families of those who want to immigrate legally to the United States in a family-based category. For this reason, the Visa Bulletin is more accurate for family-based categories and somewhat erratic for employment-based categories.

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USCIS National Customer Service Center Hotline: (800) 375 – 5283

Question: It seems like every time I call the USCIS hotline, all I get is some general answer that does not help me. What information can the USCIS hotline provide?

Answer: The USCIS National Customer Service Center is designed to provide consistent, accurate information and assistance about immigration Services and Benefits. This is the tagline from their website. In reality, the NCSC is set up in two tiers. Both Tier 1 and Tier 2 representatives create “service requests,” which record information from the inquiry and forward it to the appropriate service center or local office for such matters as expedite requests, change of address, appointment rescheduling, case processing delays that exceed normal processing times, or other case-specific matters. Each tier handles cases as follows:

Tier 1 includes Customer Services Representatives (CSRs), who relay basic immigration and form-specific information to customers through scripts provided by USCIS. In plain English, USCIS provides canned answers to the questions that CSRs are permitted to answer. If a question posed is outside the scope of the automatic responses, then the CSR is not allowed to answer. In limited circumstances, the CSR can escalate an issue to Tier 2. A CSR, however, is not permitted to answer case-specific questions, with the exception of information available through Case Status Online, or to transfer calls to local offices or services centers where a case is pending. CSRs may never provide legal advice.

Tier 2 inquiries are fielded by Immigration Service Officers (ISOs). An ISO can review USCIS systems on a case, request that notices be re-issued, provide information that may be received at an Infopass appointment, provide specialized assistance to dependents or active member of the U.S. Armed Forces, or provide information on pending and adjudicated cases. ISOs cannot review Requests for Evidence (RFEs), directly issue duplicate notices, receipt notices, RFE notices, or transfer calls to local offices or service centers. ISOs may never provide legal advice.

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Last Action Rule Travel Question

QUESTION: Currently, my wife has H4 status, but she received a job offer and was picked in the FY2016 H-1B visa lottery. She wants to travel for a wedding on May 15th, 2015 and to return on July 8th, 2015. I would like to know if she can travel while USCIS is processing the H1B​ application?

ANSWER: At first blush, the answer to this would seem obvious. She has valid H-4 status now. She will have valid H-1B status in the future. So she should be able to travel now and return on her valid H-4 later this summer, and so long as her H-1B is approved, she would be able to adjust to H-1B in October. Oh, but the devil is in the details when it comes to U.S. immigration law. After some digging, I uncovered correspondence between Susan J. Cohen, Esquire and Efren Hernandez, USCIS Chief of Business and Trade Services Branch, written in 2004, that describes the effect of the Last Action Rule on travel during the pendency of an adjustment of status case. Using the scenario posed in the letter from Ms. Cohen to Mr. Hernandez but modifying to our reader’s question, I will explain how the Last Action Rule effects the change of status for beneficiaries of an H-1B petition, particularly those who are picked in the April H-1B lottery.

Scenario 1: Assume our H-4 files premium processing in the FY2016 H-1B lottery and is picked on April 20, 2015. She receives notice of approval on May 10, 2015 and travels abroad to a wedding on May 15, 2015. She returns on July 8, 2015. What effect does the travel have on her H-1B adjustment of status?

Answer: The H-4’s change of status will take effect automatically on the date noted on the Notice of Action (Form I-797), October 1, 2015, even if there is an intervening admission. The “Last Action Rule” does not affect the change of status because the last action is the taking effect of the change of status on October 1.

Scenario 2: Assume our H-4 files regular processing in the FU2016 H-1B lottery and is picked on April 20, 2015. She travel abroad to a wedding on May 15, 2015 before her H-1B is approved. She returns to the U.S. on July 8, 2015. What effect does the travel have on her H-1B adjustment of status?

Answer: The H-4 will remain an H-4 because she traveled abroad before the H-1B is approved. She will be considered to have abandoned her H-1B. Therefore the “Last Action Rule” would effect the change of status because the last action would be entering as an H-4, which would continue to be her status beyond October.

Lesson: do not travel when a petition is pending with USCIS!

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OPT Offer Letter Question

Recently a reader asked a couple of questions related to the requirements for OPT sponsorship and how these requirements could later effect H-1B sponsorship. Here are the questions and answers.

1) Will it be a problem for me as a manufacturing graduate working for the IT industry even though my employer XYZ, a consulting firm, has agreed to name title and job responsibility according to my educational background in a offer letter that will suffice my work to apply for OPT extension?

ANSWER: The legal answer is that “Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study.” What the term “directly related,” however, is not clearly defined by the immigration regulations. On its face, there is nothing that would preclude the IT industry from being directly related to a manufacturing degree. In plain English, what you need to show for each job is: (1) the position held; (2) the duration of that position; (3) the job title; (4) the contact information of your employer; and (5) the description of the work. In all of these factors, the student should be honest, but there is nothing dishonest about drawing a correlation between the specific position and the specific major through the use of specific terminology.

2) Is a client letter also necessary to apply for opt extension?(Since client won’t change my job role and responsibility as my employer did)

ANSWER: Generally, the answer is no. I say generally because there can always be an exception, but the only company responsible for providing documentary evidence supporting sponsorship of an F-1 student for optional practical training (OPT) is the employer. Stated in plain English, an employer is not required to provide a letter from its client when sponsoring an alien worker, although such letters may be submitted.

3) XYZ, consulting firm, is also saying that they will sponsor my H-1B next year and they have system based application in place where the employer generates its own application . So they can file for me with my education qualification and I will not have to worry about a client letter. So how does it sounds to you, can I proceed with them on OPT and H-1B for future?

ANSWER: An H-1B Petition is entirely sponsored by the employer, so much the same as the answer to question number 2, there is no requirement to provide a letter from the end client; however, letters from the end client may be submitted to support an employer’s petition. H-1B petitions do not carry a requirement for a specific major. All that is generally required for an H-1B Petition, at a minimum, is that the Beneficiary holds a Bachelor’s Degree. So in plain English, XYZ Corporation appears to be operating within acceptable practices of the immigration regulations, which should not have a negative consequence for an OPT or H-1B candidate.

For more information on F-1 OPT Policy click here.

The above is not legal advice and does not create an attorney-client relationship. It is provided for informational purposes only. For specific information on the facts of a particular case, it is recommended that our readers consult with an experienced immigration attorney.

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Has the H1-B Cap reopened?

The question: I heard that the H1-B Cap reopened. Is this true?

The short answer: No.

H1-B foreign worker visas are subject to annual statutory limits imposed by the U.S. Government. Each year the United States Citizenship and Immigration Service (USCIS) is authorized to issue 65,000 general-class and 20,000 advanced-degree-exempt employment visas. These visas become available on October 1st of any given year because the U.S. Government is based on a Fiscal-Year Calendar from October to October. Due to USCIS policy, the CIS will not accept such petitions more than 180 days from the annual availability date of October 1st. This is why April 1st is considered a significant date for H1-B petitioners and beneficiaries. Once the CIS determines that it has received a sufficient number of H1-B petitions to reach the statutory cap for that year, the “cap closes” and no more non-exempt H1-B filings will be accepted until the following year. After the cap closes, a computer-generated process will select 20,000 advanced-degree petitions. Any remaining advanced-degree petitions are then added to the general-class computer-generated “visa lottery.”

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