December 18, 2008 Federal Task Force Calls for an Americanization Movement for the 21st Century.

December 12, 2008 Questions and Answers: USCIS Revises Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an interim final rule that revises the list of documents acceptable for the Form I-9, Employment Eligibility Verification, process. The revised form will improve the security of the employment authorization verification process. Employers will be required to use the revised form for all new hires and to reverify any employee with expiring employment authorization beginning 45 days after publication in the Federal Register. The current edition of the Form I-9, dated 06/05/2007, will no longer be valid for use 45 days after publication of the rule in the Federal Register. The interim final rule and an informational copy of the revised Form I-9 will be available for public comment at www.regulations.gov for 45 days after publication in the Federal Register. The revised Form I-9 will be available on the USCIS Home page 45 days after publication in the Federal Register. The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) is being updated to reflect these changes and will be published on the USCIS website in the near future.

Background

All employers, agricultural recruiters and referrers for a fee are required to verify the identity and employment authorization of each person they hire for employment in the United States. This requirement is set forth by section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)). USCIS has revised the Form I-9 to bring it into compliance with the governing statutes. The most significant change to the Form I-9 is the requirement that all documents presented during the Form I-9 completion process be unexpired. This and other revisions are detailed below.

Questions and Answers

Q. Why is a revised Form I-9 being released?
A. The revised Form I-9 reflects changes made to the list of documents acceptable for the Form I-9 in accordance with the Department of Homeland Security’s (DHS) recent interim final rule. The rule furthers DHS’s ongoing effort to increase the security of the employment authorization verification process. The new rule:

Requires that all documents presented during the verification process be unexpired;

• Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards)

• Adds foreign passports containing certain machine-readable immigrant visas to List A

• Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

• Makes technical updates.

Q: What is the difference between the revised Form I-9 and the old one?

A: The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired. Other than several technical updates, the following documents have been added or removed

Two documents have been added to List A (Documents that Establish Both Identity and Employment Authorization) on the List of Acceptable Documents

• A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp

• A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Although prior regulations refer to temporary I-551 "stamps," the Department of State for several years has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of aliens immigrating to the United States. DHS therefore is updating the regulations to reflect this alternate temporary I-551 document with the pre-printed temporary I-551 notation on MRIVs.

Additionally, under both the preexisting Compacts with the FSM and the RMI, and the Compacts as amended, most citizens of the FSM and RMI are eligible for admission to the United States as nonimmigrants. Such citizens of the FSM and RMI have the privilege of residing and working in the United States. Amendments to the Compacts include provisions that eliminated the need for citizens of the FSM and RMI to obtain an Employment Authorization Document (Form I-766). By adding to List A the FSM and RMI passports, with a valid Form I-94 or I-94A, citizens of the FSM and RMI will be able to use their passports in the I-9 process without the need to obtain a separate Employment Authorization Document.
Three documents were removed from List A of the List of Acceptable Documents:

• Form I-688, Temporary Resident Card

• Form I-688A, Employment Authorization Card

• Form I-688B, Employment Authorization Card

Q. Where can I obtain a copy of the revised Form I-9?

A. An informational copy of the revised Form I-9 and the interim final rule can be found in the Federal Register. Beginning 45 days after publication in the Federal Register, the revised Form I-9 for use by the public can be downloaded from the USCIS webpage. Paper copies of the Form I-9 can be ordered by calling USCIS at 1-800-870-3676.

Q. Why can’t I present an expired document?

A. DHS wants to ensure that documents presented for use in the Form I-9 process must be valid and reliably establish both identity and employment authorization. Expired documents may not portray a valid status. They are also prone to tampering and fraudulent use. This change takes into account the limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, such as a Social Security card, it is considered unexpired.

Q. Why is only one type of Employment Authorization Document left in List A?

A. Forms I-688, I-688A and I-688B are older employment authorization documents. These are no longer issued and have now expired.

Q. In Section 1 – Employee Information and Verification, of the revised Form I-9, an employee can now attest to being either a citizen or noncitizen national of the United States. Who is a noncitizen national?

A. Noncitizen nationals are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad. More information on noncitizen U.S. nationals can be found on the State Department website linked under the "Related Links" section on the upper right-hand side of this page.

Q: Where can I get the revised Form I-9 and the Employer Handbook (M-274)?

A: An informational copy of the revised Form I-9 and the interim final rule are available online through the Federal Register. Beginning 45 days after publication in the Federal Register, when the interim final rule takes effect, the revised Form I-9 will be available on the USCIS webpage. The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) is currently being updated to reflect the revision to the Form I-9 and will be available on the USCIS website in the near future. Employers who do not have computer access can order USCIS forms by calling our toll-free forms line at 1-800-870-3676. People can also request USCIS forms and information on immigration laws, regulations, and procedures by calling the National Customer Service Center toll-free at 1-800-375-5283.

Q: As an employer, can I accept documents that used to be on the Form I-9 but aren’t now?

A: No. Beginning 45 days after publication in the Federal Register, employers may only accept documents listed on the List of Acceptable Documents on the revised Form I-9. When an employee must be reverified because his or her employment authorization has expired, employers should ensure that they use the revised Form I-9 with its new List of Acceptable Documents. An employer may not reverify the employee by completing Section 3 – Updating and Recertification, of the previous version of the Form I-9.

Q: Are there any changes in the way the revised Form I-9 is completed?
A: No. The revised form should be completed exactly the same way as the old one was. Employers should be mindful of changes to the types of documents that they may accept in Section 2 – Employer Review and Verification.

Q: Is the Form I-9 available in different languages?
A: The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and keep it in their records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

Q: Are employers in Puerto Rico required to use the Spanish version of the Form I-9?

A: No. Employers in Puerto Rico may use either the Spanish or the English version of the revised Form I-9 to verify employees.

Q: When should employers begin using the revised version of the Form I-9?

A: Employers must use the revised Form I-9 for all new hires (and reverifications) beginning 45 days after publication in the Federal Register. The current edition of the Form I-9, dated 06/05/2007, will no longer be valid for use as of that date. Employers who continue to use the 06/05/2007 edition of the Form I-9 on or after that date may be subject to civil money penalties. An informational copy of the revised Form I-9 can be viewed online at www.regulations.gov. Beginning 45 days after publication in the Federal Register, USCIS will make the revised Form I-9 available for use by the public on the USCIS website.

Q. Do I need to complete the revised version of the Form I-9 for all my employees or just the new ones?

A: Employers only need to complete the revised version of the Form I-9 (Rev. xx/xx/09)N for new employees. Employers should not be completing Forms I-9 for existing employees. However, employers must use the Form I-9 when their employees require reverification.

Q: How can I formally comment on this interim final rule?

A: Please submit written comments on or before 60 days after publication in the Federal Register by one of the following methods:

Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

Mail:
Chief, Regulatory Management Division MS 2210
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Ave., NW (Suite 3008)
Washington, DC 20529-2210

Please reference DHS Docket No. USCIS-2008-0001 on your correspondence. This address may be used for paper, disk, or CD-ROM submissions
Hand Delivery/Courier:
Regulatory Management Division
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Ave., NW (Suite 3008)
Washington, DC 20529-2210
Contact Telephone: (202) 272-8377

November 13, 2008 Federal Contractors Required to Use E-Verify System

WASHINGTON— Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in the United States. In a final rule scheduled to publish tomorrow in the Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Federal contracts awarded and solicitiztions issued after Jan. 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

The final rule announced today takes into account the more than 1,600 comments received on the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council’s proposed rule published in June. It also reflects some changes from the proposed rule that are designed to lighten the burden on small businesses who decide to accept federal contracts, and to provide contractors with flexible means of complying with the basic requirement that all persons working on federal contracts be electronically verified.

More than 92,000 employers currently use E-Verify, a free Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their employees. During Fiscal Year 2008, more than 6.6 million employment verification queries were run through the system representing 1 out of every 8 hires made in the United States. Approximately 96.1 percent of all cases queried through E-Verify are instantly found to be employment authorized, and individuals who are not immediately cleared are given the opportunity to correct their government records in order to confirm their work eligibility. The new rule is available for viewing on the Federal Register Web site.

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. This final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers. Eligible TN nonimmigrant may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year.

The TN nonimmigrant classification is visa category available to eligible Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

This final rule will ease administrative burdens and costs on TN workers. It will also benefit U.S. employers by increasing the amount of time TN nonimmigrant will be able to work for them before having to seek an extension of status. Spouses and unmarried minor children of TN nonimmigrant in their corresponding nonimmigrant classifications will also benefit from the new regulation.

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. The effort is one of the 26 initiatives identified by President Bush’s Administration to address current immigration challenges using the tools and authorities available under existing law.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today it will delay implementation of the Direct Mail Program for the N-400, Application for Naturalization. A Federal Register notice is scheduled to be published Oct. 10, 2008, announcing this delay.

Last month, USCIS published a notice in the Federal Register, which would have changed the filing address for N-400s from USCIS Service Centers to two lockbox facilities in Arizona and Texas. Implementation of this new process would have begun Oct. 14, 2008.

USCIS is delaying implementation of this new filing procedure to conduct additional tests of the technology involved. Accordingly, the Sept. 12 notice will be withdrawn Oct. 10, 2008.

Applicants for naturalization should continue to submit their Form N-400 according to the instructions on the form until further notice. In almost all cases, this means applicants will submit their N-400s to a USCIS Service Center.

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today it has revised the filing instructions for the Petition to Remove Conditions on Residence (Form I-751). Effective immediately, all petitioners filing a Form I-751 must file with the California or Vermont Service Center, depending on the state in which they reside.

Petitioners who live in Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming must file their Forms I-751 with the California Service Center:

USCIS California Service Center
P.O. Box 10751
Laguna Niguel, CA 92607-1075

Petitioners who live in Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia must file their Forms I-751 with the Vermont Service Center:

USCIS Vermont Service Center
75 Lower Welden St.
P.O. Box 200
St. Albans, VT 05479-0001

Beginning September 24, 2008, USCIS will only accept the revised form dated August 25, 2008, and will reject previous versions of the form as well as petitions filed with the incorrect Service Center.

WASHINGTON– U.S. Citizenship and Immigration Services (USCIS) announced today a revised list of vaccines required for applicants seeking to adjust status to become legal permanent residents. This revision follows guidance from the Department of Health and Human Services, Centers for Disease Control and Prevention (CDC).

CDC’s revised Technical Instructions to Civil Surgeons for Vaccination Requirements require the following age-appropriate additional vaccinations to adjust status to legal permanent resident:

• Rotavirus
• Hepatitis A
• Meningococcal
• Human papillomavirus
• Zoster

The requirements for these new vaccines went into effect on July 1, 2008, however CDC approved a 30-day grace period for any medical exam conducted before August 1, 2008. At that time the new vaccinations, if appropriate, must be administered in order for USCIS to approve the applicant for adjustment of status.

USCIS has revised the Report of Medical Examination and Vaccination Record (Form I-693) to include these new vaccination requirements. The June 5, 2008 edition of Form I-693 must be used for any medical examination completed on or after August 1, 2008.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the suspension of premium processing service for religious worker (R-1) nonimmigrant visa petitions will continue at least until January 7, 2009. A previous six-month suspension was announced on January 4, 2008.

The Premium Processing Service provides faster processing of certain employment-based petitions and guarantees a 15-calendar day processing time. Due to the complexities with adjudicating R-1 nonimmigrant visa petitions, USCIS cannot reasonably ensure a level of processing service within 15 calendar days.

On April 25, 2007, USCIS proposed significant revisions to its regulations related to the special immigrant and nonimmigrant (R-1) religious worker visa classifications. The proposed rule suggested steps to eliminate fraud in the religious worker program and discusses potential vulnerabilities addressed in an August 2005 Benefit Fraud Assessment conducted by USCIS’ Office of Fraud Detection and National Security. USCIS is currently considering comments on the proposed rule and promulgating the final rule.

USCIS will continue processing R-1 nonimmigrant visa petitions which include established procedures designed to ensure the legitimacy of the petitioner and statements made in the petition. The procedures may include inspections, evaluations, verifications and compliance reviews for religious organizations – procedures that exceed the 15-day guarantee for premium processing.

In the future, if USCIS is able to properly process these cases within 15 calendar days of receipt, the Petition for a Nonimmigrant Worker (Form I-129) requesting R-1 nonimmigrant visa classification may once again be available for premium processing services. Additionally, USCIS may prescribe additional conditions of availability on the Premium Processing Service for religious worker petitions.

New EADs Limited to Certain Individuals Who Have Applied for LPR Status

What is an EAD?

Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.

Who is eligible for an EAD that is valid for two years?
The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9).

When will applicants expect to receive the new two-year EAD?
USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date.

Where can someone get more information on the new EADs?
For further information, please review the USCIS Update on the new two-year EAD posted online at: http://www.uscis.gov.

Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application?
Generally no. Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.

How will USCIS decide whether to issue an EAD valid for one or two years?
USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.

If I am filing for a replacement EAD under 8 C.F.R., Section 274.a.12(c)(9), how long is the EAD valid?
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date. If USCIS determines that an applicant has filed multiple Forms I-765, the agency may deny the applications for the replacement or renewal EAD.

Why is USCIS changing the validity period for some EADs?
USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers.

On July 30, 2004, USCIS published an interim rule, “Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security.

I filed my Form I-765 more than 90 days ago and I have not received a decision. Who should I contact?
If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may inquire about an interim EAD at your local USCIS District Office or by calling the USCIS National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TTY). You must have proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization when contacting USCIS.

If I believe I have received an EAD with the wrong validity period or other incorrect information who should I contact?
If you believe that you have received the wrong validity period, you should contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY).

For additional information, or if your application has been approved and you have not received your EAD, please contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY)

U.S. Citizenship and Immigration Services (USCIS) will make available Premium Processing Service for designated Form I-140 petitions1 (Immigrant Petition for Alien Worker) filed for alien workers in H-1B nonimmigrant status who are reaching the end of their sixth year in H-1B nonimmigrant status. Starting on June 16, 2008, USCIS will begin accepting Form I-907, Request for Premium Processing Service, for Forms I-140 filed for alien beneficiaries who, as of the date of filing the Form I-907:

• Are currently in H-1B nonimmigrant status;
• Will reach the end of their 6th year of their H-1B nonimmigrant stay in 60 days;
• Are only eligible for a further H-1B extension under AC21 §104(c)2 upon approval of their Form I-140 petition; and
• Are ineligible to extend their H-1B status under AC21 §106(a)3.

Under the Premium Processing Program, USCIS may place such conditions of availability for the service. See 8 CFR 103.2(f)(2). The petitioner must establish that the Form I-140 for which the Form I-907 is filed satisfies these conditions. Filings that do not clearly meet the conditions may not receive Premium Processing Service and will be rejected as described below.

To facilitate USCIS’s determination of whether a particular filing meets the conditions, petitioners can submit:

• A copy of the alien beneficiary’s Form I-94, Arrival/Departure Record, reflecting current H-1B nonimmigrant status;
• Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
• A copy of the relating Form I-140 petition receipt notice, if the Form I-140 was previously filed; and,
• A copy of the labor certification approval letter issued by the Department of Labor, if filing under EB-2 or EB-3 classifications.

Form I-907 Premium Processing Service requests will be rejected and returned with the I-907 fee, and the Form I-140 petition will be processed according to standard procedures if the Form I-907 is:

• Submitted without documentation establishing the conditions for availability noted above; or
• Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition; or
• Submitted to request Premium Processing Service for a Form I-140 petition filed for an alien beneficiary who is eligible to extend his or her H-1B nonimmigrant status under AC21 §106(a) as of the date that the Form I-907 is received by USCIS.

USCIS will accept Form I-907 either together with the Form I-140 petition or after the filing of the Form I-140 petition through the mail or delivery service only. E-filing for Form I-907 will not be available.

USCIS expects that adding other classifications to Premium Processing Service at this time would exceed USCIS’ capacity to provide timely Premium Process Service. USCIS will continue to evaluate whether it is able to process other groups of cases beyond this limited classification of petitions and will provide notification of any further availability of Premium Processing Service for Form I-140.

The Premium Processing Service guarantees petitioners that, within 15 calendar days of receipt of a petition, USCIS will either issue an approval or denial notice, a notice of intent to deny, a request for evidence, or a notice of investigation for fraud or misrepresentation. Information about Premium Processing Service is available on this website, or by calling the USCIS National Customer Service Center toll free at 1-800-375-5283.

1. USCIS previously designated Premium Processing Service for I-140 petitions involving:

• EB-1 Aliens with Extraordinary Ability and EB-1, Outstanding Professors and Researchers;
• EB-2, Members of Professions with Advanced degrees or Exceptional ability (not seeking a National Interest Waiver), and;
• EB-3 Professionals, EB-3 Skilled Workers and EB-3, Other workers.

See 71 FR 29662 (May 23, 2006).

2. The Public Law known as the American Competitiveness in the Twenty-first Century Act of 2000 (AC 21) permits up to a three-year extension of stay for an H-1B nonimmigrant alien, provided he or she is the beneficiary of an approved Form I-140 petition and otherwise eligible for lawful permanent resident status except that the employment-based preference visa is unavailable.

3. USCIS grants an H-1B extension of stay pursuant to §106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

• Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
• Deny the EB immigrant petition, or
• Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

Extension of Optional Training Program for Qualified Students

The U.S. Department of Homeland Security released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.

The rule also addresses situations in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

U.S. Citizenship and Immigration Services published an initial set of questions and answers related to the rule on April 4; below are a supplemental group of questions and answers that will provide essential guidance and more specific details on the program.

Supplemental Qs and As

On April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for FY 09 to request change of status in lieu of consular processing, as originally indicated on the petition. Since some FY09 H-1B petitions for these students may have already been approved for consular processing when USCIS published this e-mail notification process, can the petitioner still request change of status?

• Yes. The petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address. Such requests must include the H-1B receipt number, as well as the petitioner’s and the beneficiary’s name.
• If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice. In addition to including the receipt number and the name of the petitioner and beneficiary, the request should also include the beneficiary’s date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.
• Please note that separate e-mail addresses have been established for Premium and Non-Premium Processing Cases. These e-mail addresses are as follows:

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

California Service Center
Premium Processing cases: CSC.ppcapgap@dhs.gov
Non-Premium cases: CSC.nonppcapgap@dhs.gov

What does “timely filed” mean? Does this include a petition submitted to USCIS on April 1, but not yet selected under the random selection process for an H-1B visa number?

• “Timely filed” means that the H-1B petition was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect. The interim final rule states that the D/S admission includes the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period.”
• The interim final rule further states that once a timely filing has been made, the automatic cap gap extension will continue until September 30, if the petition is selected and approved, unless it is subsequently rejected, denied, or revoked. Students are strongly encouraged to stay in close communication with their employer during the cap gap extension. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.

What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?

• A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission, if the H-1B petition was filed during the H-1B acceptance period, which began on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

• The applicability of the 60-day grace period following rejection, denial or revocation of an H-1B petition is discussed in the Supplemental Section of the interim final rule. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States. 73 FR 18944, 18949 (April 8, 2008).
• For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

May students travel outside the United States during a cap gap extension period and return in F-1 status?

• The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Because the H-1B petition is for an October 1 start date, the student should be prepared to adjust his/her travel plans, accordingly.

Do the limits on unemployment time apply to students with a cap gap extension?

• Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.

If a student was not in an authorized period of OPT on the eligibility date, can the student work during the cap gap extension?

• No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of post-completion OPT on the eligibility date.

May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?

• Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period.

Would a student with an undergraduate STEM degree but a master’s degree in a non-STEM field be eligible for an extension of OPT based on the master’s degree?

• The interim final rule states that the “[t]he degree that was the basis for the student’s current period of OPT is a bachelor’s, master’s or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List.” This list is published on the SEVP website, located in the Related Links section of this page. This provision is found at 8 CFR 214.2(f)(10)(ii)(C)(2).
• Under the interim final rule at 8 CFR 214.2(f)(10)(ii)(C)(2), a student who received an undergraduate STEM degree, but whose graduate degree is in a non-STEM field and whose current post-completion OPT is based on that graduate degree, would not be eligible for the 17-month STEM extension.
• Would a student in post-completion OPT based on a non-STEM master’s degree be eligible for an OPT extension if the job offered to the student directly relates to the student's undergraduate STEM degree and the non-STEM master's degree?
• The student would not be eligible for an extension of OPT in such circumstances. The degree that was the basis of the current period of OPT must be a STEM degree.

Will ICE be adding new degrees to the STEM Designated Degree Program List during the comment period?

• New degrees will not be added to the list during the comment period. DHS, however, will consider all comments received regarding the possible inclusion of additional degrees and will be consulting with other interested government agencies regarding such possible additions. As stated in the interim final rule, however, the Department must also continue to ensure that the OPT extension remains limited to students with degrees in major areas of study falling within a technical field where there is a shortage of qualified, highly-skilled U.S. workers and that is essential to this country’s technological innovative competitiveness.

Can a student with a dual major qualify for the STEM OPT extension based on one of the degree programs?

• If a student has a dual major, and one of the degrees is on the STEM Designated Degree Program List, and the job is directly related to the student’s STEM degree, the student would be eligible to apply for the STEM OPT extension.

Can a student qualify for the STEM OPT extension based on the student’s minor?

• No.

Timing and Reporting

By what means must a student report a change in the student’s circumstances to the DSO?

• Students pursuing STEM extension OPT must report to their DSO, within 10 days, loss of employment or change to any of the following:
• The student’s legal name
• The student’s residential or mailing address
• The student’s email address
• Employer name
• Employer address

Additionally, these students must send a validation report to their DSO every six months starting from the date the STEM extension OPT starts and ending when the student’s F-1 status ends or the STEM extension OPT ends, whichever is first. The validation report must include the student’s:

• Full legal name
• SEVIS identification number (if requested by the school)
• Current mailing and residential address
• Name and address of the current employer
• Employment start date for the current employer

Students should consult with their DSO as to the preferred method of reporting changes. SEVP recommends using e-mail as it provides both evidence of reporting and the date reported. Some schools may provide other electronic means (such as a web page) to accept reports from students.

Students should keep a record of all reports made to the DSO and the method by which the report is made.

By what means must an employer report a student’s termination of employment to the student’s school? Must an employer’s report be received by the school within 48 hours of a student’s termination?

The school may provide the student with instructions on how to report the end of the student’s employment. The student must provide this information to the employer. If the school does not provide such instructions, the employer may send the report to the school address listed on the student’s Form I-20.

The employer should provide the student’s name, SEVIS ID number (if available), and the date the student’s employment ended.

The employer has complied with the reporting requirement on the day the report is timely sent (i.e., sent within 48 hours of a student’s termination). The school does not have to receive the employer’s report within 48 hours of the student’s termination for the employer to be in compliance with the requirement.

I-9 Employer Verification Compliance
What document can an F-1 student applying for a 17-month STEM extension show his or her employer when completing the Form I-9?

• According to the employment authorization regulations at 8 CFR 274a.12(b)(6)(iv), which were part of the April 8 interim final rule, an F-1 student who has timely filed an application on Form I-765 for a 17-month STEM extension of his or her post completion OPT, and whose employment authorization document (Form I-766) has expired, is authorized to continue working while that application is pending, for a period not to exceed 180 days.
• The expired Form I-766 EAD (issued under category (c)(3)(i)(B)), the USCIS receipt notice showing a timely filing of the STEM extension application (Form I-797, Notice of Action), combined with an I-20 updated to show that the DSO recommended the STEM extension for a work authorization period beginning on the date after the expiration of the EAD is the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 requirements for 180 days (or less if the application is denied beforehand). If the 17-month STEM extension is approved, the student should receive a new Form I-766 EAD reflecting the 17-month STEM extension within the 180-day period.

What documents can an F-1 student with automatic employment authorization under the cap-gap provision show his or her employer when completing the Form I-9?

• The DSO will issue a “cap gap” I-20 which will show on page 3 that the student’s employment authorization has been extended and the effective dates. The student may need to provide the DSO with evidence of a timely filed H-1B petition during the H-1B acceptance period if the student’s record has not been updated via an interface with USCIS.
• The expired Form I-766 EAD (issued under category (c)(3)(i)(B) or (c)(3)(i)(C)) combined with a “cap gap” Form I-20, endorsed to show that the student’s employment authorization is still valid, and the USCIS receipt notice (Form I-797, Notice of Action), showing receipt of the H-1B petition are the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 document presentation requirements until September 30, or on the date of rejection, denial, or revocation of the petition. If the receipt notice has not yet been issued, the expired EAD and cap gap Form I-20 are sufficient. This combination of documents satisfies the Form I-9 until the expiration date noted on the cap gap Form I-20, but not later than September 30. If the student presents a “cap gap” Form I-20 without a receipt notice, the employer must re-verify upon the expiration date noted on the Form I-20. The student may present another cap gap Form I-20 indicating continued employment authorization to satisfy the re-verification requirement.

How is the cap gap Form I-20 endorsed to indicate employment authorization?

• SEVIS will generate a cap gap Form I-20 that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap gap Form I-20 will contain the following endorsement:
• “F-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted, as noted below]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944)".
• Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Web site, located in the related links section of this page.
• The DSO will note an expiration date on the cap gap Form I-20 as follows:
• If the student’s post-completion OPT EAD expires before June 2 and the student can only show the DSO evidence of a properly filed H-1B petition that also includes a change of status request, then the DSO will note an expiration date of June 2 and August 2, respectively.
• If the student’s post-completion OPT EAD expires before July 28 and the student can show the DSO evidence of being on the wait list for an H-1B slot, the DSO will note an expiration date of July 28 and September 27, respectively.
• If the student can show the DSO a filing receipt (Form I-797, Notice of Action), or approved the H-1B petition and change of status request, the DSO will note an expiration date of October 1.

What are the limits on periods of unemployment?

Students on post-completion OPT may have up to 90 days of unemployment.

• Students who have OPT extended due to the cap gap provisions continue to be subject to the 90-day limitation on unemployment.
• Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

Do the limits on unemployment apply to any periods of unemployment prior to April 8, 2008?

• No, the limits on unemployment do not apply retroactively.

Do the limits apply to students who had post-completion OPT approved before April 8, 2008?

• For students who started post-completion OPT prior to April 8, 2008, unemployment time will accrue only for time spent unemployed after April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted.

Is a student who splits OPT between two degrees at the same level limited to a total of 90 days of unemployment?

• No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

What counts as time unemployed?

• Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.

How does travel outside the United States impact the period of unemployment?

• If the student whose approved period of OPT has started travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90/120-day limits.
• If a student travels while employed (either during a period of leave authorized by an employer or as part of their employment), the time spent outside the United States will not count as unemployment.

What types of employment are allowed for students during an OPT STEM extension?

• Students granted an OPT STEM extension must work at least 20 hours per week for an E-Verify-enrolled employer in a position directly related to the student’s STEM degree.
• STEM students may work multiple jobs related to their STEM degree, but all the employers must be enrolled in E-Verify.
• Students on an OPT STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status.

How do students show employment is directly related to their degree program?

• SEVP recommends that students maintain evidence that they held a particular position, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work.
• If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the employer’s hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.
  

What E-Verify information is required for an F-1 STEM student to extend his or her OPT?

• The student must provide his or her employer’s name and its E-Verify company ID, or Client Company ID if it uses a third party designated agent to perform its verification queries, in item #17 of the Form I-765 (revised 04/08/08).

Where does an employer find its E-Verify company ID #?

• The employer’s Company Identification Number is located on the upper left-hand corner of the Memorandum of Understanding (MOU) which was printed or saved upon registration with E-Verify. Employers who are unable to locate their company identification number on the MOU can find their identification number in the system by logging into their E-Verify account and running a report. To do this, select “View Reports” from the Reports Menu and then select one of the three reports available. Enter the report parameters and then select Excel as the format. The company ID will be located in the upper left hand corner of the report.

If an employer has concerns about providing an employee with their E-Verify Company ID, are they still required to provide it?

• The E-Verify Company ID number may be disclosed to an employee or a prospective employee for this purpose. An employer is not required to disclose the number, but if it does not, the Form I-765 cannot be completed and the application for extension of OPT cannot be approved.
• If a company enrolls in E-Verify in order to retain or hire an F-1 OPT STEM student for a 17-month extension, does that company only have to verify the employment eligibility for that F-1 OPT STEM student and/or future F-1 OPT STEM students, or for all new hires?
• Once an employer has enrolled in E-Verify, the employer is responsible for verifying employment eligibility for all new hires, including newly hired F-1 OPT STEM students with 17-month extensions. The verification of all new hires must be done at all the hiring sites identified in the MOU. The E-Verify system is designed only for verifying the employment eligibility of new hires. If an employer enrolls in E-Verify to retain the employment of an F-1 OPT STEM student, the employer may not verify the employment eligibility of that F-1 OPT STEM student employee as he or she is already an existing employee and not a new one. However, the student’s I-9 will need to be updated when the STEM extension is approved in order to document the continuity of the work authorization.

Does the Designated School Official (DSO) need to confirm that the F-1 STEM student’s prospective employer is enrolled in E-Verify?

No. DSOs are not required to check the employer’s E-Verify enrollment; however, they are strongly encouraged to advise the student that the STEM extension will be denied if their employer is not enrolled.

If an F-1 OPT STEM student currently works for two employers and wishes to apply for the 17-month extension, would both employers have to be enrolled in E-Verify?

• Yes, if a student wishes to continue with both employers, each employer would need to be enrolled in E-Verify. Additionally, each job must be directly related to the student’s STEM degree.

What if my company is enrolled in E-Verify at some locations, but the hiring site where the student will be employed is not enrolled – is this sufficient?

• If the hiring site where the student will be employed has not been identified in the MOU that the company signed during enrollment, that hiring site is not considered to be enrolled in E-Verify and therefore cannot employ an F-1 OPT STEM student under a 17-month extension.
• Employers seeking to employ an F-1 OPT student under a 17-month extension may enroll in E-Verify in one of two ways: register the hiring site individually by signing its own MOU or registering the intended job location as an additional hiring site under the employer’s existing MOU.
• This interim final rule allows an F-1 OPT STEM student to extend his or her employment authorization provided that the student has accepted employment with an employer who “…is a participant in good standing in the E-Verify program, as determined by USCIS.” How is “in good standing” defined?
• To be considered in good standing, an employer must be enrolled in E-Verify either individually by signing its own MOU or as a hiring site under another MOU for another location. Once enrolled, the employer must adhere to the terms and conditions set forth in the MOU. This requires that the employer verify the employment eligibility of all new hires, not just the F-1 OPT students.
• The regulatory reference to good standing is intended to emphasize and clarify that E-Verify participation for purposes of this rule means more than simply the one-time execution of the MOU; rather, it means continuing use of the system as provided under the MOU and in compliance with program requirements. Failure to be a participant in good standing could include (but is not necessarily limited to) these circumstances: The employer terminates the MOU; USCIS terminates the MOU, or suspends the employer’s system access, because of an employer’s substantial failure to follow its terms and conditions; the employer uses the system for a discriminatory or otherwise illegal or unauthorized purpose; or the employer has executed the MOU but substantially fails to use the system to verify newly hired employees at participating hiring sites.

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