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CIS Raffles 85,000 H1B Visas Among 163,000 Applicants; Results by June
F-1 Foreign Student OPT Work Authorization Automatically Extended for H1B Selectees
STEM Graduates Will Be Permitted to Extend F-1 OPT Status to 29 Months – Only If Working for Registered “eVerify” Employers
May 08 Visa Bulletin Movement of Priority Dates Designed to Avoid Another
Enforcing the 20-day Limit Under FOIA for Production of Documents:
Attorney Philip Boyle Returns from the East Coast to Join E&M
On April 14th, Citizenship & Immigration Services [CIS] conducted its computer-generated random selection process to select the 85,000 “winners” of new H-1B Temporary Professional visas for FY09. 163,000 petitions were filed between April 1-7 for new employment starting October 1, 2008, the beginning of the 2009 Fiscal Year. CIS expects the process of receipting the winners and returning the petitions of those not selected [with uncashed checks] to take until the end of May. Those winners who have paid an additional $1,000 for Premium Processing [PP] will have their petitions adjudicated by Monday, April 28th.
Over 31,000 of the total filings were for the U.S. University Advanced Degree allocation, limited to 20,000 annually. Those 11,000+ who were not selected in that group had a second chance to obtain H-1B status, since they were all included in the remaining pool of 143,000 who competed for the 65,000 basic allocation. The number of petitions filed is not significantly different from last year, when there was about a 50/50 chance of successful selection.
An unspecified number of petitions have been “wait-listed” this year in the event that certain selected petitions ultimately end up being ineligible for approval. Those wait-listed will be advised via letter, and 6 – 8 weeks later will either be selected and receipted OR have their petition returned.
Other winners who desire an expedited decision may pay the $1K for Premium Processing as soon as a receipt notice is received from CIS. The major utility of PP is that an H-1B approval notice permits international travel on current visa [F-1 Student; J-1 Exchange Visitor, etc] with change of status effective October 1, 2008 [if requested]; international travel while a visa petition is pending at CIS may cause “abandonment” of the change of status aspect [although the underlying H-1B visa petition gets approved].
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The gap between the end of F-1 Foreign Student Optional Practical Training [OPT] in summer 2008 and the October 1st onset of H-1B employment has been bridged by a new Department of Homeland Security [DHS] regulation granting an automatic extension of OPT work authorization. Only those students in F-1 OPT status who are lucky enough to have their H-1B visa petition selected in the FY09 lottery will gain this benefit. No further application to CIS will be required. A receipt notice for the successful H-1B filing is all that will be necessary to extend the validity of the OPT work authorization. This extension is NOT limited to those students who have pursued studies in the STEM fields [Science, Technology, Engineering, Math].
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The benefit of using the government's "eVerify" electronic work authorization verification system was boosted by DHS on April 4th. New regulations now permit certain F-1 Foreign Student graduates to extend their Optional Practical Training [OPT] for an additional 17 months from the basic initial year to a total of 29 months. This benefit is limited to those graduates of U.S. universities with F-1 OPT Work Authorization who have completed a program in STEM concentrations: Science, Technology, Engineering and Math AND whose employers are registered users of “eVerify.” A complete list of these concentrations can be found at: www.ice.gov/sevis/stemlist.htm. Nursing is NOT included on this list.
Employers must carefully weigh the costs and benefits of implementing eVerify, since once a Memo of Understanding is entered into with DHS, all new hires must be vetted through this system, not just foreign students. eVerify continues to be plagued with inaccuracies which put additional burdens on employers. Moreover, the system may not have the capacity to handle increased popularity.
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The Visa Bulletin released in April to govern May 2008 Immigrant Visa issuance shows continued forward movement for the basic EB-3 Employment-Based benefit category [Skilled Workers]. The State Department [which controls the visa “spigot” on a month-to-month basis via publication of the Visa Bulletin] and CIS [which uses 90% of the 140,000 EB Immigrant Visas available annually via the Adjustment of Status process] are trying to coordinate better this year in order to avoid the chaos caused by last summer’s “Visa Blizzard.”
The goal of both State and CIS is to use every single one of the available visas [but no more] in each fiscal year. In most fiscal years, however, CIS never manages to complete the Adjustments that it promises to State, causing significant numbers of scarce Immigrant Visas to be irretrievably lost.
For May 2008, the Worldwide and Philippines EB-3 dates moved forward by eight months to March 1, 2006. This may open the doors to many Filipino RNs stuck abroad by “Retrogression.” The Mexico date also moved significantly, from October 2001 to July 1, 2002. The India date moved only a month to November 1, 2001, while the China cut-off moved only a few weeks to March 22, 2003.
EB-1 and EB-2 higher level Immigrant Visa categories remain current for those born in all countries – except EB-2 for China and India, which each moved a month to January 1, 2004.
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Northern California attorney Kip Steinberg has taken action in federal court to enforce the 1991 settlement provisions of Mayock v. INS, which required expeditious handling of certain requests under the Freedom of Information Act [FOIA]. In 1986, Jim Mayock began building a record to challenge the dismal history of the Immigration & Naturalization Service [INS] in complying with the Freedom of Information Act [FOIA]. With no discovery provisions in deportation proceedings, Mayock's clients were subjected to "trial by ambush." This culminated in a settlement agreement with both local and nationwide impact, but as CIS FOIA operations have become centralized, the provisions of the settlement have fallen by the wayside. Hajro v. USCIS portends to require CIS to expand and improve its expedited FOIA handling provisions, complying with the earlier settlement.
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After a 7-year hiatus in his native Vermont, attorney Philip Boyle has returned to the West Coast to lead a practice team at Elliot & Mayock LLP. Philip and Jim Mayock tackled the first amnesty program together in the late 1980's, not long after Philip graduated from Santa Clara University School of Law. After getting his MBA from UC Berkeley, Philip managed the global immigration practice for Baker & McKenzie in San Francisco/Palo Alto before starting his own firm in the City.
Philip has studied Mandarin in Taiwan and promoted professional soccer in China and Vietnam. His entrepreneurial bent has led him to explore production and marketing of organic and conventional juice drinks based on coconut water sourced in the tropics.
Attorney Nancy Zhu, and paralegals Rosario Calderon, Alexis Pong and Chandler Downs have left E&M and we wish them well. Meanwhile, E&M welcomes paralegals Ms. Maria Marcelo [formerly of Berry, Appleman & Leiden] and Ms. Jin Qian [MBA, Intl Business, GGU; formerly with Law Offices of Jean Chen] who have joined the firm and bring a wide range of experience in business immigration matters.
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Elliot & Mayock LLP
Immigration Attorneys
"visas made easier"
1-866-321-VISA (8472) toll free
http://www.emvisa.com
E&M Washington Office
1629 K Street NW, 12th Floor
Washington, DC 20006-1643
Tel: (202) 429-1725
Fax: (202) 452-0161
infodc@emvisa.com
E&M San Francisco Office
220 Sansome Street, 12th Floor
San Francisco, CA 94104-2327
Tel: (415) 765-5111
Fax: (415) 765-5122
infosf@emvisa.com
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