Faegre & Benson LLP: H-1B Visa Lotteries Conducted, F-1 OPT Extended for Qualified Students and Employers

H-1B Visa Lotteries Conducted, F-1 OPT Extended for Qualified Students and Employers

U.S. Citizenship and Immigration Services conducted a computer-generated random lottery April 14 for 20,000 master’s cap exemption cases. A subsequent lottery for the remainder of advanced U.S. degree petitions—together with the general H-1B pool of petitions for the regular cap—has also been conducted.

USCIS announced last week it had received enough cap-subject H-1B petitions to meet the annual cap of 65,000 H-1B visas for fiscal year 2009. An additional 20,000 H-1B visas available under a cap exemption for individuals who obtain an advanced degree from a U.S. college or university was reached. In a preliminary count, the agency estimated nearly 163,000 H-1B petitions were received during the filing period. More than 31,200 of these petitions were for the advanced degree category, according to USCIS.

The 15-day premium processing period commenced April 14. Receipt notices for cases selected in the lottery for full adjudication and without a request for premium processing should be received by petitioners no later than June 2.

Some Petitions on “Wait List”

This year, USCIS has also “wait-listed” some H-1B petitions. These could replace petitions that were denied, withdrawn or otherwise found ineligible after being designated to receive a cap number. Such petitioners will receive a letter informing them of the wait-list status. USCIS will retain these petitions until a final decision is made. H-1B petitions not selected in the lottery will be returned along with the related filing fees.

Cap-Gap Relief for F-1 Students with Pending H-1B Petitions

USCIS released an interim rule, effective April 8, 2008, expanding H-1B cap-gap relief for F-1 students with a pending H-1B petition. USCIS estimates that approximately 10,000 students will benefit from this rule. This rule provides that an F-1 student who is the beneficiary of an H-1B petition and a request for change of status shall receive an automatic extension of status and work authorization until October 1, 2008, as long as the following items are satisfied:

H-1B petition was properly filed and is not rejected or denied

Employment start date is October 1, 2008 (the first day of FY2009)

F-1 student has properly maintained F-1 status

On its face, this rule looks like welcome relief to employers and their foreign national employees with F-1 optional practical training (OPT) expiring prior to an H-1B start date of October 1. As it is written, however, this rule will assist only F-1 students with OPT that expires after August 1, 2008.

F-1 students whose OPT expires prior to August 1 were not eligible to request change of status when their H-1B petitions were filed this year. Employers of these students—lacking ability to prove students would maintain F-1 status until October 1—likely filed H-1B petitions with a request for consular notification.

Without a pending change of status request, foreign nationals will not meet conditions for cap-gap relief under the interim rule. However, this issue has been brought to the attention of USCIS and subsequent relief may be issued to allow F-1 students who are selected in the cap to “refile” for a change of status request in order to meet requirements under the rule.

17-Month Extension of F-1 OPT for F-1 Students with STEM Degree

The interim rule also provides for a 17-month extension of F-1 OPT for students with a science, technology, engineering or mathematics (STEM) degree. To apply for the 17-month extension for a maximum of 29 months of OPT, the following requirements must be satisfied:

F-1 student must apply for the extension while in a valid period of post-completion OPT

Has successfully completed a degree included in the DHS STEM designated degree program list from a college or university certified by the U.S. Immigration and Customs Enforcement student and Exchange Visitor Program

F-1 student will work for a U.S. employer in a job directly related to the student’s major area of study

F-1 student will work for, or accept employment with, an employer enrolled in the USCIS E-Verify program

F-1 student has properly maintained F-1 status

Under the rule, the student must apply for extension prior to expiration of his current employment authorization card (EAC). If the EAC expires prior to a decision on the application for the 17-month extension by USCIS, the student’s work authorization end date is automatically extended.

As part of the application extension process, the designated school official for the F-1 student’s college or university will authorize the 17-month extension and certify the STEM degree.

Form I-765, Application for Employment Authorization, has been revised and is available on the USCIS Web site. The prior version of the form will be accepted only through May 8, 2008. The form and instructions have been changed to implement the new OPT regulations and include a specific eligibility code for the STEM OPT extension, STEM degree conferred major field of study and the employer’s E-Verify company or client identification number.

The following is a list of STEM degree fields:

Actuarial science

Computer science applications

Engineering

Engineering technologies

Biological and biomedical sciences

Mathematics and statistics

Military technologies

Physical sciences

Science technologies

Medical scientist (MS, PhD)

E-Verify Program Enrollment Tied to Immigration Benefits

F-1 students not selected in this year’s random H-1B lottery will likely wish to seek the additional 17-month extension. While employer enrollment in the E-Verify program is a requirement for the F-1 OPT extension, few employers have registered for this government-sponsored employment verification system. Most are waiting to assess potential advantages and disadvantages—and learn more about how the system functions.

It is clear from this new rule, however, that certain immigration benefits will likely be tied to employer use of E-Verify. Other recent federal and state laws also support this assertion, as well as pending legislation in Congress.

Employers must therefore decide whether the benefits of continued F-1 work authorization— combined with the advantages of E-Verify—outweigh any disadvantages of participation in the program.

With E-Verify, the verification process applies only to hiring sites specifically identified in the Memorandum of Understanding between the employer and DHS. Although more guidance will likely be forthcoming, it appears registration and implementation of E-Verify will only be necessary at hiring sites where the F-1 student applying for the STEM extension is or will be employed.

More information on E-Verify is available on the USCIS Web site.

* * *

The Faegre & Benson employment practice has more than 50 attorneys working exclusively to provide employers with practical, prompt and integrated solutions to difficult legal issues. The employment practice includes service teams focused on best practices, employee benefits, employment litigation, executive compensation, global employee mobility, international employment law and benefits, labor law, and non-competition and trade secret law.