FY2009 Cap-Subject H-1B Update

USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced recently that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade-NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The NPRM, once implemented as a final rule, will ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers by increasing the period of time beneficiaries are allowed to remain in the United States under a TN visa. The proposed changes would also apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.

This improvement to the TN nonimmigrant category was initially announced by Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez on Aug. 10, 2007. This is part of the Administration’s 26 initiatives to address current immigration challenges, including making existing temporary worker programs like the TN program more effective, using the tools and authorities available under existing law.

The NPRM is available under the related links section of this page. It will soon publish in the Federal Register. Once published, persons wishing to comment on the TN professional worker NPRM may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until 30 days from the date the NPRM is published in the Federal Register.

USCIS Releases Projected Naturalization Processing Times For Local Offices

Washington—U.S. Citizenship and Immigration Services (USCIS) released today the projected times for local offices to complete processing of applications for citizenship from individuals who filed during the summer of 2007.

Last July, USCIS received 460,000 applications for naturalization. That was three times the record for any previous month. For the year, USCIS received 1.4 million naturalization applications, almost double the normal annual volume.

USCIS is hiring and training hundreds of additional immigration officers to adjudicate these cases. The agency is also conducting naturalization interviews on weekends, after normal business hours and in additional locations.

The processing times listed below provide a sense of how quickly a case may be processed if there are no complicating factors. Still, some cases will take longer to complete for such reasons as:

• an applicant has been asked to submit additional information and their case is pending until they comply, or
• an applicant fails the naturalization test and has 60 days to prepare before they are retested, or
• the FBI name check is still in progress.

Projected Local USCIS Office Processing Times at end of September 2008

Office	Months		Office	Months
gana, Guam	8.6		Memphis, TN	9.8
Albany, NY	7.2		Miami, FL	14.2
Albuquerque, NM	8.7		Milwaukee, WI	6.8
Anchorage, AK	8.7		Mount Laurel, NJ	11.6
Atlanta, GA	9.9		New Orleans, LA	14.5
Baltimore, MD	14		New York, NY	10.1
Boise, ID	14.2		Newark, NJ	10.3
Boston, MA	9.9		Norfolk, VA	14.6
Buffalo, NY	6.4		Oklahoma City, OK	8.6
Charleston, SC	14.1		Omaha, NE	5.8
Charlotte Amalie, VI	7.9		Orlando, FL	14.4
Charlotte, NC	14.4		Philadelphia, PA	11.8
Chicago, IL	8.6		Phoenix, AZ	14.4
Cincinnati, OH	7.5		Pittsburgh, PA	6
Cleveland, OH	7.5		Portland, ME	7.3
Columbus, OH	7.4		Portland, OR	9.7
Dallas, TX	13.7		Providence, RI	14.2
Denver, CO	8.2		Reno, NV	7.3
Des Moines, IA	5.8		Sacramento, CA	7.8
Detroit, MI	8		Salt Lake City, UT	8.6
El Paso, TX	14.2		San Antonio, TX	9.8
Fort Smith, AR	8.6		San Diego, CA	9.1
Fresno, CA	12.6		San Francisco, CA	8.6
Harlingen, TX	6.5		San Jose, CA	14.2
Hartford, CT	14.3		San Juan, PR	13
Helena, MT	5		Seattle, WA	9.8
Honolulu, HI	6.8		Spokane, WA	6.9
Houston, TX	14		St Albans, VT	8.3
Indianapolis, IN	5.7		St Louis, MO	10.8
Jacksonville, FL	7.6		St Paul, MN	8.6
Kansas City, MO	10.4		Tampa, FL	11.3
Las Vegas, NV	14.1		Tucson, AZ	14.4
Los Angeles, CA	14.3		Washington, DC	14.7
Louisville, KY	7.1		West Palm Beach, FL	9
Manchester, NH	14.6		Yakima, WA	14.1

USCIS to Allow F-1 Students Opportunity to Request Change of Status

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.

This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status.  For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.
Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.
USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice.  Special email addresses for each service center have been established specifically for this purpose.  These addresses are listed below and are posted on USCIS’ website.  Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication.  The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.  Please do not contact the service center about requesting a change of status until after receiving the receipt notice.

E-mail addresses for requesting change of status are:

VermontService Center
Premium Processing cases:  VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases:  VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

CaliforniaService Center
Premium Processing cases:  CSC.ppcapgap@dhs.gov
Non-Premium cases:  CSC.nonppcapgap@dhs.gov
NOTE:  If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.

STEM Designated Degree Programs

Effective date: April 8, 2008

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The following is a list of Classification of Instructional Programs codes published by the National Center for Education Statistics (NCES CIP codes) that have been designated by ICE as science, technology, engineering, or math (STEM) degrees for the purpose of approving a 17-month STEM extension of optional practical training (OPT) under the provisions of 8 CFR 214.2(f)(10)(ii)(C).

In order for F-1 students to qualify for this 17-month extension, the code for the student’s degree program must be on this list. Other requirements are found in the regulatory language.

To suggest a change to the list of STEM designated degrees, write to SEVIS.Source@dhs.gov, with STEM Code Change Request in the subject line. Please include your name, phone number, organizational affiliation, the code(s) you would like to see added and the rationale for the addition. Change requests will be reviewed by ICE in conjunction with the Department of Education and other advisors.

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                                                                        Actuarial Science 52.1304
                                                                        Computer Science 11.xxxx (except 11.06xx)

11.0101	11.0102	11.0103	11.0201	11.0202	11.0203
11.0301	11.0401	11.0501	11.0701	11.0801	11.0802
11.0803	11.0901	11.1001	11.1002	11.1003	11.1004

Engineering 14.xxx

14.0101	14.0201	14.0301	14.0401	14.0501	14.0601
14.0701	14.0801	14.0802	14.0803	14.0804	14.0805
14.0901	14.0902	14.0903	14.1001	14.1101	14.1201
14.1301	14.1401	14.1801	14.1901	14.2001	14.2101
14.2201	14.2301	14.2401	14.2701	14.2801	14.3101
14.3201	14.3301	14.3401	14.3501	14.3601	14.3701
14.3801	14.3901

Engineering Technologies 15.xxx

15.0000	15.0101	15.0201	15.0303	15.0304	15.0305
15.0401	15.0403	15.0404	15.0405	15.0501	15.0503
15.0505	15.0506	15.0507	15.0508	15.0607	15.0611
15.0612	15.0613	15.0701	15.0702	15.0703	15.0704
15.0801	15.0803	15.0805	15.0901	15.0903	15.1001
15.1102	15.1103	15.1201	15.1202	15.1203	15.1204
15.1301	15.1302	15.1303	15.1304	15.1305	15.1306
15.1401	15.1501

Biological and Medical Sciences 26.xxxx

26.0101	26.0102	26.0202	26.0203	26.0204	26.0205
26.0206	26.0207	26.0208	26.0209	26.0210	26.0301
26.0305	26.0307	26.0308	26.0401	26.0403	26.0404
26.0405	26.0406	26.0407	26.0502	26.0503	26.0504
26.0505	26.0506	26.0507	26.0701	26.0702	26.0707
26.0708	26.0709	26.0801	26.0802	26.0803	26.0804
26.0805	26.0806	26.0901	26.0902	26.0903	26.0904
26.0905	26.0906	26.0907	26.0908	26.0909	26.0910
26.0911	26.1001	26.1002	26.1003	26.1004	26.1005
26.1006	26.1007	26.1101	26.1102	26.1103	26.1201
26.1301	26.1302	26.1303	26.1304	26.1305	26.1306
26.1307	26.1308	26.1309

Mathematics and Statistics 27.xxxx

27.0101	27.0102	27.0103	27.0104	27.0105	27.0301
27.0303	27.0501	27.0502

Military Technologies 29.0101

Physical Sciences 40.xxxx

40.0101	40.0201	40.0202	40.0203	40.0401	40.0402
40.0403	40.0404	40.0501	40.0502	40.0503	40.0504
40.0506	40.0507	40.0508	40.0601	40.0602	40.0603
40.0604	40.0605	40.0606	40.0607	40.0801	40.0802
40.0804	40.0805	40.0806	40.0807	40.0808	40.0809
40.0810

Science Technologies 41.xxxx

41.0101

41.0204

41.0205

41.0301

Health Professions and Related Clinical Sciences 51.1401

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The Federal Register notice for this rule is available on line at http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf .

More information on NCES CIP codes is available at http://nces.ed.gov/Pubsearch/pubsinfo.asp?pubid=2002165 .

USCIS today concluded the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved, these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advanced degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7 2008) were labeled with unique numerical identifiers.  USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitions whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008.  USCIS will return unselected petitions with the fees to petitioners or their authorized representatives.  As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begin today (April 14), the day of the random selection process.

USCIS has “wait-listed”  some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition.  USCIS will send a letter to the wait list petitioners to inform them of their status.

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

USCIS Updates Projected Naturalization Case Processing Time

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it will finish more than one million naturalization cases during fiscal year 2008 – far exceeding the number of cases completed last year. This update comes following a thorough analysis of the work completed during the last six months.

“By the end of the year, I expect USCIS will have finished 36 percent more naturalization cases than last year without compromising national security or the integrity of the naturalization process,” said USCIS Director Emilio Gonzalez.

The agency recently updated the expected time it will take to complete naturalization cases, projecting processing times averaging 13-15 months. That’s a three month improvement from the 16-18 month projection that USCIS made six months ago.

A critical component of the strategy for addressing this workload is to quickly grow the capacity to handle the influx of additional cases. That includes expanding the USCIS workforce by adding nearly 3,000 new employees, detailing employees to work in the most heavily affected offices, quadrupling the funding for overtime and using Asylum Office facilities and staff to conduct naturalization interviews.

Last summer, USCIS received an unprecedented number of applications and petitions for immigration benefits. During June, July and August alone, USCIS received nearly three million filings, compared to 1.8 million filings during the same period the previous year. This sudden surge included 1.4 million naturalization applications last year – 460,000 in July alone. While historically filing increases have occurred in advance of fee increases, Presidential elections, immigration debates and new legislation, none of the past increases are close to the magnitude of the last summer’s surge.

USCIS Reaches FY 2009 H-1B Cap

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009.  USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.   Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008.   Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

USCIS will carry out the computer-generated random selection process for all cap-subject petitions received.  USCIS will select the number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate.   USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first.    All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

AILA’s Service Center Operations Liaison Committee discussed several issues regarding the upcoming H-1B filing “season,” as well as recently-announced filing changes for institutions of higher learning, their affiliates, and research institutions on February 6, 2008. The following is an unofficial summary of the Q & A with SCOPS.

1. Should Premium Processing be used for cap-subject filings?

USCIS expects that the cap-subject H-1B receipt volume will be similar to last year. While Premium Processing is currently available, it may need to be suspended (as it was last year) for some period of time. USCIS understands that Premium Processing is used to get a quicker receipt. However, attorneys may want to consider waiting to see if a petition receives a cap number and then interfile the I-907. If there are any official changes to the Premium Processing option for these cases, USCIS will let AILA know. If you decide to file cases concurrently with Premium Processing make sure that clients are aware that the 15 days may not be guaranteed if there is a change to the program.

2. Can a petitioner file duplicate H-1B filings to increase chances of obtaining a cap number?

USCIS is currently drafting a regulation to address this question, expected to be published in the coming weeks, which will contain some sort of prohibition on the filing of duplicate cases. The definition of what is considered a “duplicate” will be addressed in that regulation. Please note that it is AILA’s understanding that a petition filed under both the regular and the master’s cap would not be considered a duplicate, but we will need to wait for the regulation to confirm.

3. What will happen to cap cases filed in the wrong Service Center?

Members should make sure to follow the guidance provided by USCIS on where to file their cases. Cap-subject cases should be filed based on the jurisdiction of the worksite. Cases that are filed at a wrong service center will be rejected.

4. What about e-filing?

E-filing will not be available for I-129 H petitions, including those which are cap-exempt.

5. Please clarify what petitions are to be filed at the CSC. Is it any petition that is not subject to cap-counting, including both cap-exempt and those already counted, or is it limited to petitions from institutions of higher learning, their affiliates, and non-profit and governmental research institutions?

On February 1, 2008, the USCIS published a USCIS Update designating the CSC as the place to file petitions by institutions of higher education and organizations and affiliated entities, and non-profit and governmental research institutions. Petitions for cap-exempt individuals (e.g., petitions for physicians to serve in shortage areas) and petitions for aliens already counted are to be filed according to established jurisdictional rules. A formal Federal Register notice in filing locations is in process. Until the notice is published in the Federal Register, H-1B cap-exempt petitioners are encouraged to file at the CSC under the terms of the USCIS Update. SCOPS advises that for the present time those sent to other service centers will not be rejected, but will be relocated. Once the formal Federal Register notice is published, filing those petitions at the CSC will be mandatory and petitions filed incorrectly will be rejected.

USCIS has updated information on its website to inform customers that an I-765 Application for Employment Authorization to extend an EAD may not be filed earlier than 120 days prior to the expiration of the original EAD. USCIS has informed AILA liaison that any I-765 application for an extension EAD received on or after January 29, 2008, that was filed more than 120 days from the date of expiration, will be denied as filed too early. An application for replacement of an EAD that was lost, stolen, or mutilated, or that contains incorrect information may be filed at any time.