H-1B Cap Gap and OPT Extension
What is the Cap-Gap?
If you are reading this article on the “Cap-Gap” rule, then you most likely are familiar with terms such as H1B, F-1, and OPT. If you are not familiar with these terms, explanations can be found elsewhere on this site.
The “cap gap” generally refers to the period of time between when your optional practical training (OPT) ends and your H-1B takes effect. In the past, it was quite common for your OPT to expire more than 60 days before October 1st, the date that the H1B takes effect, and therefore left you with unlawful presence during that period. The “cap” on the limited number of H-1B visa numbers issued each year created a “gap” in the prospective employee’s status; thus we have the term Cap-Gap. The new cap-gap regulations fix this.
How does the new Cap Gap regulation help?
This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the student has an H-1B petition filed on his/her behalf during the acceptance period. This rule does not apply to all F-1 students, only those with F-1 OPT status and work authorization incident to status while an H-1B application is filed and pending. For example, if a student’s OPT expires on 6/15/09 (and his or her EAD card expires accordingly), and if the student has a valid H-1B application that has been accepted and is pending with USCS, his or her status and work authorization is automatically extended until USCIS makes a decision on the H1B.
What happens to the cap-gap if USCIS denies the H-1B?
If the H-1B application is rejected or denied on the merits, the status and work authorization would end on the date of rejection and/or denial. If approved however, the student’s OPT status and work authorization is valid until the beginning of the next FY, which always begins on October 1 of each year.
Extended OPT for students in the high-tech industry
F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a maximum of 29 months of post-completion OPT.
What are the eligible STEM degrees?
To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields: Computer Science Applications, Life Sciences, Actuarial Science, Mathematics, Engineering, Military Technologies, Engineering Technologies, Physical Sciences, Biological and Biomedical Sciences, and possibly others.
Minnesota Immigration Lawyers
www.cundyandmartin.com
Saturday, January 24, 2009
Wednesday, January 21, 2009
H-1B Employer Must Pay Back Wages
In a recent case from the U.S. Department of Labor, an employer that terminated an H-1B worker was ordered to pay back wages in the amount of $39,666.47, plus interest.
More importantly, the DOL held that termination of the H-1B employee did not become effective until the employer properly notified the immigration service about the termination. The judge held that even though the employee had not worked for the employer for several months, the employer must pay back wages because it failed to notify the immigration service in a timely manner.
This decision may have serious consequences in the H-1B world. Currently, many employers do not inform USCIS that the H1B worker has left the company as a favor to the employee so that the employee can try to find another employer willing to transfer the visa. As employers learn of this recent decision, I suspect that most will no longer be willing to hold off on informing USCIS and risk severe penalties.
For more information on H-1B visas, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html
http://www.cundyandmartin.com/
http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/07_008.LCAP.HTM
More importantly, the DOL held that termination of the H-1B employee did not become effective until the employer properly notified the immigration service about the termination. The judge held that even though the employee had not worked for the employer for several months, the employer must pay back wages because it failed to notify the immigration service in a timely manner.
This decision may have serious consequences in the H-1B world. Currently, many employers do not inform USCIS that the H1B worker has left the company as a favor to the employee so that the employee can try to find another employer willing to transfer the visa. As employers learn of this recent decision, I suspect that most will no longer be willing to hold off on informing USCIS and risk severe penalties.
For more information on H-1B visas, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html
http://www.cundyandmartin.com/
http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/07_008.LCAP.HTM
H1B Start Now
USCIS, the immigration service that processes work visa applications, will begin accepting H-1B petitions on April 1. This will be for employment to begin on October 1. As in past years, it is expected that all 65,000 H1B visa numbers will be taken in the first day or two.
The H1B is not a green card. It is a temporary work visa, typically valid for three years. The H-1B allows people to work in the U.S. if they are filling jobs that require at least a bachelor's degree or higher.
If you are considering the H-1B, now is the time to start getting things in order for filing on April 1. What is the H-1B, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html .
Minnesota Immigration Lawyer
The H1B is not a green card. It is a temporary work visa, typically valid for three years. The H-1B allows people to work in the U.S. if they are filling jobs that require at least a bachelor's degree or higher.
If you are considering the H-1B, now is the time to start getting things in order for filing on April 1. What is the H-1B, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html .
Minnesota Immigration Lawyer
Thursday, January 8, 2009
H-2B Cap Reached, Posted by Minneapolis Immigration Lawyers
USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that Jan. 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.
USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 that arrive after Jan. 7, 2009.
If deemed necessary, USCIS may apply a computer-generated random selection process to all petitions that are subject to the cap and received on Jan. 7, 2009 in order to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
Extend the stay of a current H-2B worker in the United States;
Change the terms of employment for current H-2B workers and extend their stay; or
Allow current H-2B workers to change or add employers and extend their stay.
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that Jan. 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.
USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 that arrive after Jan. 7, 2009.
If deemed necessary, USCIS may apply a computer-generated random selection process to all petitions that are subject to the cap and received on Jan. 7, 2009 in order to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
Extend the stay of a current H-2B worker in the United States;
Change the terms of employment for current H-2B workers and extend their stay; or
Allow current H-2B workers to change or add employers and extend their stay.
Wednesday, December 17, 2008
I-9 Law and Rule Change
The Department of Homeland Security (DHS) is amending its regulations governing the types of
acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I–9, Employment Eligibility Verification.
Under this interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I–9. This rule also adds a new document to the list of
acceptable documents that evidence both identity and employment authorization and makes several technical corrections and updates.
This rule is effective February 2, 2009.
Read more at:
http://edocket.access.gpo.gov/2008/pdf/E8-29874.pdf
www.cundyandmartin.com
Minnesota Immigration Lawyers
acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I–9, Employment Eligibility Verification.
Under this interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I–9. This rule also adds a new document to the list of
acceptable documents that evidence both identity and employment authorization and makes several technical corrections and updates.
This rule is effective February 2, 2009.
Read more at:
http://edocket.access.gpo.gov/2008/pdf/E8-29874.pdf
www.cundyandmartin.com
Minnesota Immigration Lawyers
Monday, December 8, 2008
How long can a Green Card holder stay outside of the United States?
Losing Permanent Residence Because of Travel
By Minnesota Immigration Lawyer - www.cundyandmartin.com
There are many myths about how long a permanent resident (green card holder) may remain outside of the United States before losing his or her green card status. This article will address some of those myths and provide the information necessary to try and avoid getting into trouble due to staying outside of the U.S. longer than the immigration law permits.
Myth 1 - “Now that I have my green card I can move back to my country.”
If you remain outside of the U.S. for more than one year continuously, you may lose your green card automatically. The Immigration Service takes the position that if you stay out this long, you have abandoned your green card status.
Myth 2 - “If I visit the U.S. once a year I’ll be okay.”
This is wrong. The law and the Immigration Service look to your “intent” or the purpose of your travel, not just whether you have returned to the U.S. once in a while. In fact, even if you travel to the U.S. frequently but you are living abroad, the Immigration Service may find that you have abandoned your residence and revoke your green card. The test is whether you intended to be abroad temporarily or whether you plan to live abroad permanently, not simply the time you spend outside of the U.S.
For example, if a person stays outside of the U.S. continuously and returns every few months but has no “roots” in the U.S., such as a job, bank accounts, a home, yearly tax returns, etc., the Immigration Service may find abandonment. On the other hand, if a person has strong ties to the U.S. but only returns once a year because he or she is abroad taking care of an ill or elderly family member, a finding of abandonment would not be appropriate if all other aspects of the person’s life establish that he or she has no intent of abandoning his or her residence (e.g., maintains a home, pays taxes, owns a business, etc.).
In determining whether a person has abandoned his residence, the courts have generally looked at the following factors: a. Purpose of departure; b. Existence of fixed termination date for visit abroad; and c. Objective intention to return to U.S. as place of permanent employment or actual home.
“How will the Immigration Service know how long I’ve been gone?”
This typically occurs either at the time you return to the U.S. and come through customs or when you apply for citizenship and the Immigration Service inquires about your travels.
“It is important to note that you have the right to contest the Immigration Service’s allegation that you have abandoned your residence.”
In order to prevail on a finding that someone has abandoned her green card status, the Immigration Service must prove by “clear, unequivocal and convincing evidence” that residence has been abandoned.
If it was not your intent to abandon your residence and you maintained strong ties to the U.S., do not be intimidated by the Immigration Service merely because an immigration officer makes allegations of abandonment – make them prove it!
Myth 3 - “I am automatically eligible for citizenship after five years.”
One last point about traveling abroad is that it may effect your eligibility for U.S. citizenship. In addition to maintaining your ties to the U.S., you must also be physically present in the U.S. for certain periods of time in order to be eligible for citizenship. Generally, you must be physically present in the U.S. for at least half of the previous five years.
For most travelers, abandonment of residence will not be an issue, but for those who stay outside the U.S. for extended periods of time, the above tips should be kept in mind.
Minnesota Immigration Lawyer - www.immigrationlawmn.com
By Minnesota Immigration Lawyer - www.cundyandmartin.com
There are many myths about how long a permanent resident (green card holder) may remain outside of the United States before losing his or her green card status. This article will address some of those myths and provide the information necessary to try and avoid getting into trouble due to staying outside of the U.S. longer than the immigration law permits.
Myth 1 - “Now that I have my green card I can move back to my country.”
If you remain outside of the U.S. for more than one year continuously, you may lose your green card automatically. The Immigration Service takes the position that if you stay out this long, you have abandoned your green card status.
Myth 2 - “If I visit the U.S. once a year I’ll be okay.”
This is wrong. The law and the Immigration Service look to your “intent” or the purpose of your travel, not just whether you have returned to the U.S. once in a while. In fact, even if you travel to the U.S. frequently but you are living abroad, the Immigration Service may find that you have abandoned your residence and revoke your green card. The test is whether you intended to be abroad temporarily or whether you plan to live abroad permanently, not simply the time you spend outside of the U.S.
For example, if a person stays outside of the U.S. continuously and returns every few months but has no “roots” in the U.S., such as a job, bank accounts, a home, yearly tax returns, etc., the Immigration Service may find abandonment. On the other hand, if a person has strong ties to the U.S. but only returns once a year because he or she is abroad taking care of an ill or elderly family member, a finding of abandonment would not be appropriate if all other aspects of the person’s life establish that he or she has no intent of abandoning his or her residence (e.g., maintains a home, pays taxes, owns a business, etc.).
In determining whether a person has abandoned his residence, the courts have generally looked at the following factors: a. Purpose of departure; b. Existence of fixed termination date for visit abroad; and c. Objective intention to return to U.S. as place of permanent employment or actual home.
“How will the Immigration Service know how long I’ve been gone?”
This typically occurs either at the time you return to the U.S. and come through customs or when you apply for citizenship and the Immigration Service inquires about your travels.
“It is important to note that you have the right to contest the Immigration Service’s allegation that you have abandoned your residence.”
In order to prevail on a finding that someone has abandoned her green card status, the Immigration Service must prove by “clear, unequivocal and convincing evidence” that residence has been abandoned.
If it was not your intent to abandon your residence and you maintained strong ties to the U.S., do not be intimidated by the Immigration Service merely because an immigration officer makes allegations of abandonment – make them prove it!
Myth 3 - “I am automatically eligible for citizenship after five years.”
One last point about traveling abroad is that it may effect your eligibility for U.S. citizenship. In addition to maintaining your ties to the U.S., you must also be physically present in the U.S. for certain periods of time in order to be eligible for citizenship. Generally, you must be physically present in the U.S. for at least half of the previous five years.
For most travelers, abandonment of residence will not be an issue, but for those who stay outside the U.S. for extended periods of time, the above tips should be kept in mind.
Minnesota Immigration Lawyer - www.immigrationlawmn.com
Wednesday, November 12, 2008
Learn English With Help from Government
The information below is from the U.S. Department of Education and provided as a courtesy of Cundy & Martin, LLC, Minnesota Family, Divorce, and Immigration Lawyers www.cundyandmartin.com .
The U.S. Department of Education today launched U.S.A. Learns, a free Web site to help immigrants learn English. The Web site, which is located at www.USALearns.org, provides approximately 11 million adults who have low levels of English proficiency with easily accessible and free English language training.
"America's limited-English adults will now have readily available materials to improve their literacy and help them become more productive workers, better parents, engaged community members and active citizens," said Troy Justesen, assistant secretary for the Office of Vocational and Adult Education.
Launch of the site completes one of the goals in President Bush's Aug. 10, 2007, announcement of 26 immigration reforms that his Administration would pursue within existing law -- including the assimilation of new citizens and helping immigrants learn English to expand their opportunities in America. Recognizing that "[k]nowledge of English is the most important component of assimilation" and "an investment in tools to help new Americans learn English will be repaid many times over," the Administration pledged to launch a free, Web-based portal to help immigrants learn English.
The U.S. Department of Education today launched U.S.A. Learns, a free Web site to help immigrants learn English. The Web site, which is located at www.USALearns.org, provides approximately 11 million adults who have low levels of English proficiency with easily accessible and free English language training.
"America's limited-English adults will now have readily available materials to improve their literacy and help them become more productive workers, better parents, engaged community members and active citizens," said Troy Justesen, assistant secretary for the Office of Vocational and Adult Education.
Launch of the site completes one of the goals in President Bush's Aug. 10, 2007, announcement of 26 immigration reforms that his Administration would pursue within existing law -- including the assimilation of new citizens and helping immigrants learn English to expand their opportunities in America. Recognizing that "[k]nowledge of English is the most important component of assimilation" and "an investment in tools to help new Americans learn English will be repaid many times over," the Administration pledged to launch a free, Web-based portal to help immigrants learn English.
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