Unemployment Compensation or Benefits on EAD? - Read this

If you ever wondered that getting Unemployment benefits on EAD or Green Card will make you ineligible for admission to US, Please read this. In general, lawful permanent residents who currently possess a "green card" cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible.

Released April 29, 2011

Introduction

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.

Definition of Public Charge

In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

* Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
* Children's Health Insurance Program (CHIP)
* Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
* Housing benefits
* Child care services
* Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
* Emergency disaster relief
* Foster care and adoption assistance
* Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
* Job training programs
* In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
* Non-cash benefits under TANF such as subsidized child care or transit subsidies
* Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, and other forms of earned benefits
* Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Source

H1B FY 2012 CAP Count - 29 April 2011

As per recent release by USCIS, regular cap has utilized till date 9,200 visas and Masters quota has utilized 6,600 visas as of 29th April 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 700.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

Predictions for EB2-IC for FY 2011 - Updated 1st May 2011

We have updated predictions for EB2-FY 2011 for Employment Based category based on new EB2-ROW Demand, PWMB data gathered from PERM data and our EB2-EB3 porting calculations. This is it from us until August visa bulletin unless we will get some updates from Mr. Charlie Oppenheim in meantime.

Predictions for EB2 Category for FY 2011 - Updated 01 May 2011

EB2 - ROW-Mexico-Philippines Visa Demand FY 2011 - Based on PERM Data

We have analyzed the PERM data for FY 2011 Q1 and Q2, and FY 2010 Q4 (Aug-Sep) for EB2-ROW-M-P to ballpark current visa demand for this category. Goal behind this was to see if there is a possibility that some spillover from EB1 would be consumed by EB2-ROW before it will come to retrogressed EB2 countries. The reason behind using the FY 2010 month of August and September for the analysis was to consider the only demand from last fiscal year that is not considered in the September bulletin.. Please note that September bulletin is usually released in first week of August and hence any demand later than that is not considered during that bulletin. Though some of the cases are processed in the same fiscal year but gap time between PERM approval and submission of concurrent I-485/I-140 is minimum one month. So there is less likelihood that this demand was ever seen in FY 2010. We expect that all this demand was seen early this fiscal year.

Again to segregate PERM data in EB3 and EB2, 'minimum wage required' of less than $55000 was used as a criteria. Please note minimum wage required is different than wage offered. Any PERMs that would require wages above $55,000 were considered EB2. Though there is some error to this assumption, but this should give you rough idea about fair distribution. We understand that minimum wages required differs from state to state, and in some cases wages offered at universities and higher education institutes are lower but job requirements still qualifies you to EB2 category. All these errors in our assumptions for considering EB3s with higher minimum salary into our EB2 criteria and not considering EB2s from higher education institutes due to lower salary will offset each other. In order to complete an informed analysis, it was necessary to make some kind of assumptions.

That said, data was used to calculate total demand based on primary and dependents. On average family size used was 1.75. Further, this data was extrapolated for rest of the fiscal year only based on high demand seen in February and March. Data was extrapolated until July 2011 (reason same as explained before about release of September visa bulletin in first week of August).

What does this mean for EB2-ROW-M-P
This means PD dates for EB2-ROW-M-P will reman current for remaning fiscal year. For EB2-ROW if demand will pick up more than predicted, they can always use unused visa numebrs from EB1 category.

What does this mean for EB2-IC?
Expected EB2-ROW-M-P demand for current fiscal year will be around 28,599 +/- 1,000. Current fiscal year quota for EB2-ROW-M-P is around 34,400. Expected spillover is around 5000-7000 from EB2-ROW-M-P. Any increase in demand for EB2-ROW alone means consumption of some EB1 category unused visa numbers. EB2-M-P will yield atleast 2800 unused visas.

EB2-ROW-M-P Demand absed on PERM data

Monthly PERM Processed Data for First Half of FY 2011

Here is a break down of PERM data (certified and certified_expired only) that was processed each month for FY 2011 Q1 and Q2. Data has been broken down among different PDs per monthwise. You would see as year progressed through current fiscal year, most of the PERMs processed were from older PDs. This suggest that USCIS has currently shifted it's attention towards reducing inventory of the audited cases. This trend will continue until audited cases processed would clear and audited case processing time would come close to September-October 2010. Current actions taken by DOS to reduce PERM backlog would also explain sudden increase in EB2-ROW-M-P demand for the current fiscal year; even though earlier in the year we predicted less demand.

Click Here to Enlarge

H1B FY 2012 CAP Count - As of 22 April 2011

As per recent release by USCIS, regular cap has utilized till date 8,000 visas and Masters quota has utilized 5,900 visas as of 22th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

People Who Missed the Boat (PWMB) during July 2007 - Analysis of EB- India and China

Question was asked in the comment section that how would applications with Priority date before July 2007 who could not file in July 2007 would affect EB2-IC movement for FY 2011. These people are commonly referred as "People Who Missed the Boat (PWMB)" by some people. We earlier thought that these numbers will small percentage of the whole group. But careful analysis of PERM data suggests that these numbers are significant when you will include primary + dependents (assuming a family would consume 2.5 visas) applications. Some of the assumptions were made when analyzing the PERM data. To segregate petitions from EB2 and EB3 from the whole lot, "PWD Minimum Wage" was used. Any petition with minimum wage less than $55000 were assumed EB3 and rest were assumed EB2. Please note minimum wage required for the job is different than offered wage. Please see the PWMB database for EB - India and China below. Priority date was assumed as same as Receipt date. For many cases this may differ by 2-3 days. Entire data is broken by usual visa bulletin Priority cut-ff date. We plan to inculcate this data in our Prediction for EB2-IC for FY 2011. This will definitely change the whole outlook of potential movement. Depending upon how dates will progress in every bulletin, please add these data to the porting numbers. We will update our prediction calculator that will include PWMB data automatically (PWMB section will be added). EB2-IC movement beyond March 2007 does not look good in light of these added visa demand.

CLICK HERE FOR COMPLETE ANALYSIS

PERM Processing Time as of 25 April 2011

DOL recently released current PERM processing times. There is great reduction in audit cases. Compared to last month audit case processing time has moved from March 2009 to December 2009. Huge reduction in inventory. DOL has started processing cases from March 2011. We are seeing some approvals for first week of March. Good Luck to applicants who are waiting patiently. On average expect wait-time of 45-60 days for PERM approval.

PERM Processing Times as of April 25, 2011

• Analyst Reviews: March 2011


• Audits: December 2009


• Standard Appeals: September 2008


• Government Error Appeals: Current

Sample I-140 Experience Letter

Common question that is asked during I-140 filing is about sample experience letter format. Please find below an sample of a such experience letter. USCIS prefers that an individual should provide an experience letter on a company's letter head. Experience should be provided preferably by your past supervisor or manager. Experience letter by previous colleagues are acceptable but do not provide enough weightage. If it is not possible to provide experience letter on a company's letterhead, letter could be provided on a plain paper (should be notarized) which is duly signed by a refrencee in front of a notary. Providing notarized experience would require submitting more letters from past colleagues or supervisors, and in future could call for more RFEs. Number of experience letters provided should be just enough to validate the job requirements of the certified LC or PERM. Please do not provide any extra non-pertinent experience letters.

Sample I-140 Experience Letter

------------------------Company's Letter Head----------------------------------------

TO Whomsoever it may concern

Date:

This is to confirm that [applicant name] was employed as [position] with [Previous company name] from [date join] through [date end] working [ --hr/week] as a [full-time or part-time] employee.

I am familiar with Mr./Ms. [applicant]'s duties, because I am/was serving at [company name] from [date start] through [current/date end] in the position of [position of person who is giving reference]. In this capacity, I had responsibility for monitoring Mr./Ms. [applicant]'s activities during his tenure at [company name].

His duties during this time included:
-Copy the responsibilities from labor application +

Thank you very much for your consideration.

Sincerely,

[person providing reference]
[position]
[company]
[Email Address]
[Phone Number]

Interfiling I-485 after Sucessfully Porting from EB3 to EB2

This post explains the current procedure for interfiling I-485 once you have successfully ported your Priority Date from previously approved I-140 and your old I-485 is still pending with USCIS.

Procedure to Transfer Pending I-1485 From Current Approved Underlying I-140 Petition to New I-140 Petition

This posting involves aliens who are waiting for the I-485 applications where the underlying I-140 petition was approved but due to retrogression, I-485 cannot be approved. Most of these cases are EB-3 cases. When the same alien obtains an EB-2 labor certification approval through the same employer or a different employer and the visa number is available for the EB-2 for him or her, he should be eligible for filing another I-485 application based on the visa number available EB-2 I-140 petition. This can be achieved either by concurrent I-140/I-485 filing or if the new EB-2 I-140 has already been approved, by filing of stand-alone I-485 application. However, in the foregoing situation, the Pearson Memo of 2000 allows the alien to transfer the pending I-485 application from the existing underlying approved I-140 petition to a new EB-2 I-140 petition such that the alien does not have to file another I-485 application to use the second I-140 petition. This is called "Interfiling".

Interfiling Procedure

For this to happen successfully, two conditions must be met:

(1) The existing underlying I-140 petition (most likely EB-3) must have been approved before the I-485 transfer is requested.

(2) Secondly, the visa number must be "current" for the new I-140 petition (most likely EB-2) before the I-485 transfer is requested. As long as the PD is current, the pending I-485 application that suffer from the visa number retrogression can be transferred to the next I-140 petition.

According to the USCIS, people should take the following procedure to request such transfer of pending I-485 application from one I-140 petition to another I-140 petition:

• Request for Transfer of Pending I-485 Application to a Newly Filed I-140 Petition That Has Priority Date Current: In this situation, he/she is filing a new I-140 petition (probably EB-2 with visa number "current") with the agency to transfer the pending I-485 application and attach it to the new I-140 petition. The USCIS states that if he/she files such new I-140 petition, he/she should use "large, bold print in the cover letter or with a separate, brightly colored cover page and notation 'Inter-file I-140 with Pending I-485' and include the Receipt/File Number of Pending I-485 Application, both on the Envelope and Cover Letter."

• Request for Transfer of Pending I-485 Application to Already Approved New I-140 (most likely EB-2 category): USCIS asks to print the cover sheet on brightly colored paper, and submitting it with a cover letter providing the following Information:

• Name of 485 applicant
• Name of I-140 petitioner (employer)
• I-485 Receipt Number
• "A" Number of the 485 applicant
• Prior I-140 petition (1) Receipt Number, (2) Filing Date, and (3) Approval Date+ New I-140 to be inter-filed
• Statement requesting new I-140 be inter-filed with the pending I-485 application.

These procedures may be particularly helpful to individuals whose has recently ported from EB3 to EB2 and would like to send an interfile letter on their own to transfer pending I-485 application to newly approved I-140 cases.

H1B FY 2012 CAP Count - 15th April 2011

As per recent release by USCIS, regular cap has utilized till date 7,100 visas and Masters quota has utilized 5,100 visas as of 15th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

EB3 to EB2 Porting Calculations - Part III

gcw07 said...

"Excellent analysis done by you. I have become a big fan of your blogs. All I understand that DoS is afraid of heavy porting EB3 India to EB2 India. Do you have any estimation for EB3 India to EB2 India porting? I have seen your dashboard and how to apply the dashboard sample to real world data?"

EB3 to EB2 Porting Poll Results

We have a poll on EB3 to EB2 Porting which is up since last week of February 2011, and till-date we have received '445' votes. Results has been consistent through out the poll for the last two months. It suggests that the general trend or distribution of individuals with different PD that are porting has not changed from day to day regardless of number of votes received, at most by +/- 1%. So we feel safe to assume that sample size represents entire population of EB3 to EB2 porting applicants. We are convinced that this will be a general trend for rest of the current year regardless of porting numbers.

Converting EB3 to EB2 Porting Results to Real World Data

There are number of ways that we can use the dashboard data and convert it into real-world data. One way to do it is to use new PERMs received during last quarter of fiscal year 2010 and first two quarters of FY 2011 for EB2-I and convert it into real world data assuming percentage for new cases and refiled cases. There are lot of unknowns in this approach and I do not feel comfortable using this approach.

Simple calculation is just based on assumption that no quarterly spillover is used until today (except to move EB2-I for May visa bulletin) and DOS is waiting to use majority of available spillover during the last quarter excluding few numbers that will be used for May and June visa bulletin to gauge EB3 to EB2 upgrade demand. Since we know that DOS has utilized total annual limit for EB2 India due to continuous incoming EB3 to EB2 upgrade demand, we think that atleast 2800 visa numbers is used to satisfy this demand.

Assuming that these 2800 numbers are porting numbers for first 6 months (Oct-Mar) of the fiscal year 2011 (May visa bulletin released first week of April), we can assume that this will convert into 5600 porting application for full fiscal year 2011 for individuals with PD before 08 May 2006. This includes primary applicants + beneficiary applicants. We know on an average a primary applicant will use 2.5 visa numbers.

Primary applicants with PD before 08 May 2006 = 5600/2.5 = 2240


Based on poll results percentage of applicants that are porting with PD before 08 May 2006 is equal to

Percentage of PD (2002 + 2003 + 2004 + 2005) + Percentage of PD April 2006 (08 May 2006)
= 7+9+9+9+ (19 * 4/12)
= 40.33 %


Total Primary EB3 to EB2 porting applicants for the fiscal year 2011 (PD 2002-PD 2011)

40.33% of Total Primary applicants = Primary applicants with PD before 08 May 2006
40.33% of Total Primary applicants = 2240

Total Primary applicants for fiscal year 2011 = 5554


Total Primary + Dependent EB3 to EB2 porting applicants for the fiscal year 2011 (PD 2002-PD 2011)

Assuming on an average a family member will use 2.5 visa numbers,
Total Primary + Dependents applicants for fiscal year 2011 = 5554 * 2.5 = 13885


EB3 to EB2 Porting for FY 2011

Before PD 08 May 2006 = 40.33% of 13885 = 5600
Beyond 08 May 2006 and before PD 31 December 2006 = 8/12* 19 % of 13885 = 1759
Beyond 31 Dec 2006 and before PD 01 July 2007 = 7/12* 15 % of 13885 = 1215
Beyond 01 July 2007 and before PD 31 Dec 2007 = 5/12* 15 % of 13885 = 868
and so on .......


Comparing data to "EB3 to EB2 Porting Calculations - Part II" based on Google Analytics

Above calculations matches very well with our data based on Google analytics. We are convinced that the EB3 to EB2 porting numbers are reasonably high as dates will move from July 2006 to July 2007. It will at least bring more 3000 porting applications (primary + dependents) to current porting demand.

EB3 to EB2 Porting - ROW - M-P

"gcw07 said... All your blogs are well analyzed, well researched and well written. Appreciate all your blogs and the contents, which are informative and convincing the readers.I differ from your view on concerns/ conclusions.

From DoS angle, increase in upgrades (EB3 to EB2 portings) include all countries (ROW includes M & P), while many perceive the topic as 'India' specific. I know many M & P guys and gals who ported to EB2. The spillover from EB2 ROW to EB2 India & China would be less compared to last year"

I totally agree that EB3 to EB2 porting is happening for ROW-M-P as well, but numbers seems less and it would not affect spillover by large amount (unless you can point me to some trackitt data which suggests otherwise). Porting numbers could be around 500, and in case it is more than that it would be counted towards EB2-ROW demand. We are assuming at least 8000-9000 number as spillover, 500-1000 less visa numbers are so few that it can be ignored as 'noise'. I do not think that DOS is worried about EB3 to EB2 upgrades from ROW-M-P. Please see excerpts from May visa bulletin. It clearly indicates they are worried about movement of EB2 - IC due to upgrade demand. End of the day movement is based on available spillover after porting (regardless of India, China or ROW), thus numbers cannot be that high. EB2-I movement after receiving EB1 spillover indicates that EB2-ROW is not consuming any spillover and thus demand is low. For sure some spillover is expected from them. I would not worry about few hundred or thousand of EB3 ROW upgrades as of now. How this will change in coming years would be interesting to see.

While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries.

"INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, there will be otherwise unused numbers in the Employment First and Second preferences."

June 2011 Visa Bulletin Predictions - EB Category

Here is the prediction for June 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations.




Updated 10 May 2010 - (Check this for Reason of Update)

Predictions

• EB3- China could advance to 01 July 2004


• EB3-Philippines could advance to 22 September 2005. (As EB3-P cannot have cut-off date surpass that of EB3-ROW, predicted cut-off dates are revised)
  


• EB3-Mexico could advance to 15 October 2004.


• EB3-ROW could advance to 22 September 2005. (Due to unknown hidden demand as mentioned in above linked article, we have to revise our prediction for EB3-ROW from 1 Oct 2005 to 22 September 2005. Reduction in demand for May was only 1575)
  


• EB2 will be current for ROW, Mexico and Philippines.


• EB3-India could advance to 22 April 2002.

• EB2-India would see movement till 15 July 2006 - Since I-485 Inventory suggested that demand for EB2-India from '08 May 06' to '01 July 2006' was 2806 and demand data only reduced by 2875, this suggests that not much upgrade demand was gauged. We still think DOS will be interested in gauging some more demand before moving dates in June visa bulletin by significant amount. We still predict that cut-off dates for EB2-I will move by two weeks and at most by 4-5 weeks. We expect significant movement for EB2-IC in July visa bulletin.
  


• EB2-China could advance to 08 August 2006.

H1B FY 2012 CAP Count - 7th April 2011

As per recent release by USCIS, regular cap has utilized till date 5,900 visas and under Masters quota has utilized 4,500 visas as of 7th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

Visa Bulletin - May 2011

May 2011 Visa Bulletin was released today. Little movement for Family-Based categories. For Employment-Based category, EB-3 overall saw some movement in cut-off dates for each country. EB2 is current for all other countries except India and China. EB2-India finally moved after long stall. EB2-China progressed to 01 August 2006. EB1, EB4 and EB5 are still current. Please also read some of the projected movements for each category in coming months.

Family-Based

Family 1st – saw some movement for most countries;

Family 2A – most countries advanced to June 2007; Mexico advanced to January 2007.

Family 2B – world numbers stalled at April 2003; Mexico saw no movement and Philippines advances to 01 March 2000.

Family 3rd – most countries advanced to May 2001; Philippines retrogress to February 1992; Mexico advances to 15 November 1992.

Family 4th – most countries stalled at January or March 2000; Philippines stalled at 08 April1988; Mexico stays at February 1996.

Employment-Based

Employment 1st – still current in all categories

Employment 2nd – 01 July 2006 for India; one week improvement for China (01 August 2006) and current for all other categories.

Employment 3rd – EB3 saw overall movement for each country and category

Employment 4th – still current in all categories

Employment 5th – still current in all categories


VISA AVAILABILITY DURING THE COMING MONTHS

Family-sponsored: The extremely high level of demand during the first few months of FY-2011 resulted in the retrogression of most worldwide cut-off dates in January or February. While most of these cut-offs have begun to advance slowly, heavy demand in the Family First preference has caused a further retrogression for May. At this time it is not possible to predict the rate of forward movement, but some movement is anticipated in most categories for the remainder of the fiscal year.

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible at this time.
Philippines: three to six weeks

EB2 India and China FY 2011 Movement - Analysis based on May Visa Bulletin

So May visa bulletin has been released and it brought disappointment to Indian and Chinese national under EB-2 Category. There were lot of hype and emotion around immigrant community that we would see a significant movement for EB2-IC in May Visa Bulletin due to availability of 12,000 unused visa numbers from EB-1 category (which is still available by the way). Here we would like to have a very critical analysis of the entire situation, statements made in Visa Bulletin, why we did not see ample movement in May visa bulletin, what we expect in coming bulletin, how this would change the predictions for EB2-IC over the course of year and of course, EB3-EB2 porting.

Why dates did not move to predicted December 2006 cut-off for EB2-IC?

Our predictions were based on availability of 12,000 unused visa numbers from EB1 category and half yearly EB2-ROW , EB4 and EB5 demand. Movement in May visa bulletin clearly suggests that former were not completely used and it is too early to use latter when we are just near early April, far from spillover season which usually commence in last quarter of fiscal year. In addition to this, DOS is worried about unknown demand from EB3 to EB2 upgrades. Before going into further detail, let's analyze Section "VISA AVAILABILITY DURING THE COMING MONTHS" in detail and read through each line carefully.

Analyzing "VISA AVAILABILITY DURING THE COMING MONTHS"

"Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high."

Above statement definitely bolsters the statement from Mr. Oppenhiem that EB1-demand is low and EB2-IC would at least receive 12000 visa numbers from them.

"Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)"

DOS here confirms that there are still thousands of "otherwise unused" visa number available from EB1-category but is worried about "unknown demand" from EB3 to EB2 porting which restricts them from moving the cut-off dates by bounds and leaps for EB2-IC. If you will read above quote carefully, it also suggests that the EB2-ROW demand is not high enough to consume any spillover and unused visa numbers for now would only be consumed by EB2-IC.

Allocation of “otherwise unused” numbers in accordance with Immigration and Nationality Act (INA) Section 202(a)(5)

"INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, there will be otherwise unused numbers in the Employment First and Second preferences."

Assures that there are otherwise unused numbers available from EB1 and EB2-ROW category. So we should expect some spillover from EB2-ROW. How much, is still to be seen. I would still assume at least 8000 -9000.

"Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. "

Since EB2-C has not reached it's annual limit (see below), DOS could not use available unused visa numbers to move China with EB2-India (unless it is last quarter where they have to move dates to avoid wastage of annual visa numbers) . This is one of the few reasons that entire "12000 unused visa numbers" was not used for May visa bulletin. At most EB2-I could have advanced to 01 August 2006, same PD as EB2-China. Though (INA) Section 202(a)(5) allows EB2-I to use available spillover but PD cut-off date cannot move beyond that of EB2-C PD.

"Since under INA Section 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates."

As known EB2-I would receive most of the otherwise unused visa numbers from EB1 and EB2-ROW compared to EB2-C as demand and PD cut-off date for EB2-I is earlier than EB2-C.

"Based on amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country, for the purpose of assuring that the maximum amount of available numbers will be used. Note that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit."

DOS just bolstering or justifying their decision of moving cut-off date for EB2-I to 01 July 2006 using "otherwise unused" numbers whereas EB2-C only moved due to it's allocated 233 visa monthly limit.

"For example, at present the India Employment Second preference cut-off date governs the use of numbers under Section 202(a)(5), India having reached its Employment Second annual limit; the China Employment Second preference cut-off date governs number use under the quarterly limit, since China has not yet reached its Employment Second annual limit."

Of all the statements, India has reached it's annual limit is most difficult to digest. We would discuss this in detail below. This could give some indication of EB3-EB2 porting numbers.

"The rate of number use under Section 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. This helps assure that all available Employment preference numbers will be used, while insuring that numbers also remain available for applicants from all other countries that have not yet reached their per-country limit."

DOS want to ensure that available spillover from all employment preference (EB1, EB2-ROW, EB4 and EB5) should be used for oversubscribed countries in a controlled manner but at the same time does not want to overuse the spillover for one country (India in this case), and thus ensuring that enough visa is available for applicants from other countries, which is yet to reach their per country limit (China, may be South Korea, other ROW countries).

"As mentioned earlier, the number of applicants who may be “upgrading” their status from Employment Third to Employment Second preference is unknown. As a result, the cut-off date which governs use of Section 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of “upgrade” demand in the pipeline while at the same time administering use of the available numbers. "

DOS just want to test the waters and want to ball-park the numbers for EB3 to EB2 porting before they can entirely use available spillover from other categories. It seems that so far they have just thrown otherwise unused 2800 available visa numbers from EB1 to gauge the demand for porting numbers. EB2-IC still have at least 9000 unused visa numbers from EB1-category that will be used later in year.

"This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year. However, it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement."

It is unclear to me if DOS is suggesting that there is a possibility of visa wastage this year due to lack of cut-off date movement (which will be terrible) or they are suggesting that this action would restrict them from wasting any visas. It is not explicitly stated and completely ambiguous to me.

Summarizing above statements and predicting movements in coming months.

"Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time."

Since DOS would not know any real EB2-IC demand due to EB3 to EB2 porting until May end or early week of June (demand would only start coming after 1st May 2011) , we expect no or limited movement for EB2-I until July visa bulletin. If demand would rise or surge in month of May-June due to EB3-EB2 porting, we expect movement by few weeks in July visa bulletin. Do not expect spillover to kick in until August-September in this case. In meantime EB2-C will keep on moving by a week every month based on it's annual visa allocation.

Of this entire situation, one good thing is that DOS moved dates only by two months and not by huge amount because we expect EB3 to EB2 porting to be a decent number around 1500 for folks with PD beyond 08 May 2006 and before 2007. This high demand would have overwhelmed DOS and EB2-I could have ended up seeing lesser movement for rest of the fiscal year; greater movement is still a possibility due to ONLY two months advancement. This may be a "Blessing in Disguise" after all for EB2-I.

EB3 to EB2 Porting and Annual Limit for EB2-India reached
DOS mentioned that annual limit for EB2 category for India is reached which is still little shocking. There could be two scenarios to it. Lets discuss them in detail here.

a) DOS moved dates for EB2-IC in FY 2010 to 08 May 2006 without considering or (knowing) the real demand for EB3 to EB2 porting and USCIS/DOS were later burned with number of new applications they received that were far beyond available unused visa numbers from FY 2010. So DOS continued to use visa numbers from EB2-I current fiscal year allocation to satisfy demand from previous year in addition to demand from all new EB3-EB2 porting applications post September 2011. In order to avoid retrogressing cut-off dates for EB2-I and to fulfill backlog demand, entire annual visa allocation limit for EB2-I was utilized. Thus DOS wants to be very careful for this fiscal year and would move cut-off dates in a very controlled manner so not to underestimate demand from EB3 to EB2 porting. This suggests that DOS rather be on underside for annual limit and waste few visas rather than underestimating the porting demand and consuming more than annual limit.

OR

b) EB3 to EB2 porting is really very high which is not transparent in monthly demand data due to continuous turnover. Utilizing complete annual limit for EB2-I suggests that EB3 to EB2 porting for fiscal year so far is around 3000 and this would convert into 6000 porting numbers plus addition of new EB3 to EB2 porting application with PD beyond 08 May 2006 PD for entire year. So yearly upgrade could be somewhere between 6000-7500 depending upon how and when dates will progress in coming months.

Predictions for EB2 in light of new developments

We would still like to say that in worst case scenario we are still marching towards our current worst-case scenario of 01 April 2007, which apparently could become realistic scenario due to conservative DOS approach and potential for some spillover going unused or wasted. It highly depends on how EB3 to EB2 porting demand would shake up in coming two months. A steep increase in demand would make DOS more conservative and dates reaching 01 January 2007 would be a challenge.

I still have a hunch that 01 July 2007 is a possibility as long as DOS can be little aggressive and we will see decent movement in July visa bulletin.

Again as mentioned before, dates would never become current for EB2-IC to open the gates to build huge inventory for future I-485s .DOS would always moves dates in controlled manner in forthcoming years.

Concerns - Two Fold

• This may a bold statement but it looks like AILA is guiding DOS too much on how to advance Priority Dates than it being vice-versa. All hype of unknown high EB3 to EB2 upgrades has come from AILA. I really doubt EB3 to EB2 porting number is so high and DOS is getting heedlessly so conservative in their approach . The numbers may be high but I am still not convinced. We would know in few months.
  

• The worry that if dates are not progressed enough in July- August visa bulletin, some visa numbers can go waste which otherwise could be used wisely.

F.A.Q on AC21 portability and Similar Job Classification

Introduction

Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j). This portion of the INA is provided below for convenience:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification. Within these questions and answers, the term “port” or “porting” means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition. For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.

Questions and Answers

Q1. What is an “occupational classification”?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.

The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.

• [47]-2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.
• 47-[2]022: The third digit, “2” represents the minor group, which includes all construction trade workers.
• 47-2[02]2: The forth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
• 47-202[2]: The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.

47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
47-2022 Stonemasons

No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit). A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.

Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:

• The job duties of both positions
• The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
• The wages associated with each position

USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?
A3. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.

When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.

In the example in Q.1, the “47” encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.

For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:

Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.

The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:

Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.

Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.

Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.

Q5. Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

Last updated:04/07/2011

Source - USCIS

FAQ on OPT and F1 Status for Students under H1B Cap-Gap

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. 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 of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

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 the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status 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.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?
A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:04/01/2011

Source - USCIS