H-1B Cap Reached for 2009 With Record Number Of Petitions Received; Certain F-1 Students Given Additional Immigration Benefits

As we have previously reported, on April 14, 2008, United

States Citizenship and Immigration Services (USCIS) conducted

an electronic lottery to select the lucky H-1B winners from

among the approximately 163,000 petitions received between

April 1 and April 7. Since the total number of cap-subject

petitions received during this period included a sufficient

number of filings to grant all available 2009 H-1Bs, USCIS ran

two random selections: first for the 20,000 allocation

available for individuals with advanced degrees from American

universities, and second for the designated 58,200 slots for

all other capsubject cases, together with holders of U.S.

advanced degrees who were not selected as part of the 20,000

allocation.

The agency said it would, by June 2nd, notify employers

whose petitions were selected in the lottery, and that the

total adjudication process is expected to take eight to ten

weeks. For cases that were selected through the random lottery

and filed with a request for premium processing, the 15 day

premium processing period began on April 14, the day of the

random selection process. A wait list of unselected petitions

was also created in case some of the selected petitions are

denied or withdrawn.

Immigration Benefits for Certain F-1 Students

Introduced

Practice and USCIS statistics shows that many new H-1B

beneficiaries are nonimmigrant students in the U.S., holding

valid F-1 student status. Because of the speed with which

last year's H-1B cap was met (April 1, 2007 for

the regular allocation, and April 30, 2007, for the U.S.

advanced degree allocation), a considerable number of petitions

received this year were for students whose petitions were

rejected or were not filed last year. This domino effect means

that, even if the H-1B petition was selected this year, many

lawful students now have expired or expiring optional practical

training (OPT) work authorization. In addition, to an even

greater extent than last year, we are faced with a significant

number of petitions that will not be selected, based on the

sheer volume of petitions submitted. The problem will only

continue to grow more dire, unless and until Congress acts to

fix the H- 1B program.

In the meantime, there have been a few measures taken by

USCIS to ease the sting of the H-1B cap crisis for valid F-1

students. On April 4th, USCIS announced it would extend the

optional practical training (OPT) work authorization for some

nonimmigrant students who have completed their degree programs.

The rule, published in the Federal Register on April

8th, contains two provisions to extend the period of Optional

Practical Training (OPT) for certain F-1 students. The rule

will also implement other changes, including authorization for

students to apply for OPT within 60 days after graduation; the

current rule requires that the OPT application be submitted

within the 90 days prior to graduation only.

Students With STEM Degrees

The first provision extends the OPT from 12 to 29 months for

qualified F-1 non-immigrant students. The extension will be

available to an F-1 student with a degree in science,

technology, engineering, or mathematics (STEM degrees) who is

employed, pursuant to OPT based on the STEM degree, in a

position related to the STEM degree, by a business enrolled in

the E-Verify program. This is a major innovation, that will

relieve some of the intense pressure to file an H-1B petition

for a student worker as early as possible. As the rule

recognizes, a 29 month OPT period might give an employer up to

three tries to file an H-1B petition while the student is in

valid - and work authorized - status.

A list of currently recognized STEM fields may be found on

the website of the Bureau of Immigration and Customs

Enforcement (ICE) at http://www.ice.gov/sevis/stemlist.htm. New

guidelines have been published to provide instructions to

students, authorized school representatives, and employers on

how to implement the extension of work authorization, and an

affected student may obtain a new Employment Authorization

Document (EAD). The rule also imposes a new burden on an

employer, requiring that it notify the student's school

within 48 hours of her termination of eligible employment.

One major remaining question is that of E-Verify enrollment:

this is a particularly pressing issue for an employer that is

not currently participating in E-Verify. E-Verify is a program

conducted by USCIS in partnership with the Social Security

Administration (SSA) that allows an employer to check the

employment authorization and social security number (SSN) of

newly hired employees as an extension of the employment

eligibility verification process. Several state laws include

the obligation for an employer to enroll in E-Verify, and the

federal government increasingly encourages participation in the

program. See our March Newsletter for a more comprehensive

explanation of the E-Verify program.

In general, E-Verify allows an enrolled employer to select

the work location(s) at which it will implement the program; at

any participating location, the employer must utilize E-Verify

for each new hire, beginning at the time of enrollment. In a

"Supplemental Question and Answer" bulletin posted on

the USCIS website on May 23rd, USCIS confirms that, for a

student who seeks an OPT extension under the STEM rule, the

employer must be an E-Verify participant at the location

where the F-1 student will be employed.

For an employer not currently enrolled in E-Verify, or one

enrolled in a limited number of locations, an evaluation of the

pros and cons of participation in the program at all, or on a

broader basis, must be considered, since the...