UNITED STATES – Automatic Cap-Gap Solution for F-1 Students

Last year, the U.S. Citizenship and Immigration Services (USCIS) introduced an interim rule that generates an automatic extension of status for certain F-1 students with approved H-1B petitions filed under the FY2010 H-1B cap.  This interim rule remains in force for the FY2011 H-1B cap this year.

A gap in status can occur between the time an employer files a petition for an F-1 student to change to H-1B status and the time the H-1B status becomes active on October 1st.  Specifically, in years where all H-1B numbers are exhausted, employers may not file an H-1B petition earlier than April 1st for the following fiscal year, which starts October 1st.  So, for example, if an F-1 student has approved optional practical training (OPT) work authorization that expires on July 1st, and her H-1B status cannot begin until October 1st, there would be a 3-month gap during which she could not work.  (And, incidentally, in this example she would be required to return to her home country until her H-1B status became active, at which time she would need to apply for an H-1B visa stamp at a U.S. consular post before she could re-enter the United States in H-1B status.) 

Once a timely H-1B petition has been filed, the automatic cap-gap extension will be invoked and will continue until the petition is approved.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30th.  If the petition is ultimately denied, withdrawn or revoked, the cap-gap protection is removed.  In that case, the student would have the standard 60-day grace period from the date their OPT ends to depart the United States. 

An F-1 student benefiting from cap-gap provisions will need to get an updated Form I-20 from his designated school official (DSO).  Indeed, a new I-20 will be the only document a student will have to demonstrate continuing OPT work authorization. In some cases, the student’s DSO may need to update the student’s SEVIS record to have the cap-gap extension properly applied.

F-1 students should not depart the United States during cap-gap periods.  The reason for this is that, technically, the EAD card of an F-1 student on OPT will have expired under a cap-gap situation.  Therefore, if the student departs the United States during the cap-gap extension period, she will not be able to return in F-1 status.  Instead, she would have to apply for an H-1B visa at a U.S. consular post abroad and plan to re-enter the United States after her H-1B becomes active on October 1st.

TAIWAN – Former Director for the American Institute in Taiwan Supports ECFA

Former American Institute in Taiwan Director Douglas H. Paal believes the Economic Cooperation Framework Agreement (ECFA) will have a significant economic impact throughout the world.  He believes it will demonstrate that closer economic ties with the People’s Republic of China are good for Taiwan and its financial future.

The ECFA is a proposed agreement between the governments of Taiwan and mainland China that would enable Taiwan to generate economic integration China.  The agreement is still under negotiation and stands to be finalized sometime in June of this year.

Taiwan’s political status currently prevents it from signing free trade agreements with other countries.  The ECFA would change that.  However, it is not without controversy in Taiwan.  Some see it as part of a larger plan to unify Taiwan with the People’s Republic of China.  There is also a concern that it will allow easier access for professional Chinese workers to take desired positions in Taiwan, potentially displacing Taiwanese professionals.

Proponents see the ECFA as a landmark agreement that offers Taiwan the opportunity to increase its economic influence and cross new frontiers. Specifically, Taiwanese companies may experience new opportunities in the technology, services and manufacturing industries.  The ECFA is designed to level the playing field with neighboring competitor countries.  This is especially critical for Taiwan as mainland China continues to push forward as an economic superpower.

CANADA – Canada Plans to Launch E-passports Program

Canada is set to introduce a biometric passport system patterned after U.K.-style e-passports. Starting as early as 2011, Canadian citizens will begin receiving passports embedded with chips that contain digital images and personal information, including the individual’s name, gender, date of birth, and place of birth. 

Over 60 countries have e-passports, and Canada is the only member of the G7 that had not yet implemented them.  Some experts have expressed concern over the adequate protection of the holder’s privacy.  These concerns may have arisen due to recent research by British scientists who have uncovered weaknesses in electronic passports issued by the United States, United Kingdom, and approximately 50 other countries.  The research indicates movements of individuals as they enter or exit buildings are traceable by those with adequate technology.  Indeed, remote tracking of a given e-passport in real time is possible, and due to the e-passport’s radio-frequency identification, data in the passports cannot be turned off.  This makes the threat persistent unless the passport is shielded in a special identity document pouch that interrupts its radio transmissions.

A biometric passport, also known as an e-passport, uses biometrics to authenticate the identity of its holder. It uses smart card technology, including a microprocessor chip embedded in the cover or center page of the passport.  The passport’s information is printed on the data page of the passport and stored in the microprocessor chip.  Public Key Infrastructure (PKI) is used to authenticate the data stored in the chip, making it virtually impossible to tamper with or fraudulently replicate.

AUSTRALIA – Alternative Australian Visa Options in Light of Reduced Skills List

Recent changes to Australia’s Skilled Occupation List mean that fewer people qualify for visa status in Australia as skilled independent visa holders. Furthermore, the Migration Occupations in Demand List no longer exists. These changes make Australian immigration more difficult.

One alternative is sponsorship by an Australian State or Territory, under which relatives may sponsor as dependents.  The second option is the provisional 475 visa, which may be an alternative to the Skilled Occupation List.  A detailed description of the requirements for each of these visas is listed below:

State or Territory Sponsorship

Under the State or Territory Sponsorship visa, the individual must meet the following requirements:

  • Under 45 years of age;
  • Be employed in an occupation listed on the Skilled Occupation List;
  • Be employed in an occupation listed on the individual State Skills in Demand list;
  • Have experience in the occupation;
  • Have good English language skills;
  • Be sponsored by a State or Territory;
  • Attain a score of 100 points; and
  • Live in the sponsoring State or Territory for the first two years.

Those qualifying under this visa category are also able to sponsor certain relatives for permanent resident visas.

State Sponsorship – Provisional Visa 475

This option could be considered if the individual’s occupation is not on the Skills in Demand list.  The requirements are similar:

  • Under 45 years of age;
  • Be employed in an occupation listed on the Skilled Occupation List;
  • Be employed in an occupation listed on the State regional skilled occupations list;
  • Have experience in the occupation;
  • Have good English language skills;
  • Be sponsored by the regional area;
  • Attain a score of 100 points; and
  • Live in the regional area for the first two years.

This is not a permanent visa, so applicants cannot sponsor relatives for entry to Australia.  Sponsorship for relatives can be done after the two-year residency requirement is met and the individual applies for permanent residency.

Applicants under this visa type should review the regional skilled occupation lists specific states in which they wish to reside for at least two years.

UNITED STATES – USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices have issued updated processing times.  The general trend seems to be slightly faster processing times for most employment-based case types.  As the economy has struggled, fewer petitions have been filed.  This has enabled USCIS to move cases faster through the process to final adjudication.  As the economy begins to improve and the volume of employment-based sponsorship increases, USCIS will need to maintain proper staffing levels to avoid having processing times backslide.

California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.  CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s is 2 months.  This includes petitions for initial H-1B status, H-1B extensions, TN status, O-1 status, and H-3 status.  Petitions for L-1 individuals, H-2As, and H-2Bs are down to 1 month.

Interestingly, most applications for dependent spouses and children are at 2.5 months.  Applications for employment authorization for L-2 dependent spouses currently have a processing time of 3 months.

Vermont Service Center

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant employment-based immigration benefits.  VSC processes cases filed for individuals whose worksites are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

For employment-based cases, VSC’s processing times mirror CSC’s processing times.  Most I-129 petitions have a processing time of 2 months, with the exception of L-1 individuals, H-2As, and H-2Bs.  Again, applications for dependents are at 2.5 months, and applications for L-2 dependent spouse work authorization are 3 months.

Nebraska Service Center

For employment-based immigration cases, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

I-140 petitions now have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers or Professors, or those with Extraordinary Ability.  I-485 applications for adjustment of status are down to less than 10 months. 

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remains at a troubling 3 months.  The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.  Applications to extend EAD and AP can only be filed 4 months in advance.  With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization.

Texas Service Center

Under the bi-specialization initiative, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

The processing times at TSC are the same as those listed above for NSC, except that I-485 applications for adjustment of status are taking just over 6 months.  This is a surprisingly fast processing time for this type of case.  Several months ago, many I-485 applications for adjustment of status were taking close to a year.  Please note that the processing time for an I-485 only applies to applicants whose priority dates are current.

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplay.do;jsessionid=cab8BH8TCZBdC_JKj6Ils.  Select the desired regional processing center in the pull-down menu at the bottom of the page.

UNITED KINGDOM – U.K. Visa Fees Rise

The United Kingdom has announced that all U.K. visa applications will be subject to higher visa fees, although some are only rising slightly while others are rising significantly.  These new fee rates took effect on April 6th:
 
· Tier 1 visas for investors/entrepreneurs increased £15 to £690.
 
· Tier 2 visas for skilled workers increased by £5 to £270.
 
· 5-year multiple entry visas went up £20 to £420.
 
· 10-year visas increased £110 to £610.
 
· Tier 4 student visas increased £54 to £199.
 
The group that was impacted the most by the new fee structure is those with dependent relatives.  Settlement Visas for dependent relatives jumped from £585 to £1680, an increase of nearly 300 percent. An application for indefinite leave to remain for a dependent relative in the U.K. will rise to £1,930.  An additional 10 percent will now also be charged for dependent children.
 
The United States took similar action in 2007 with large fee increases. This sparked widespread criticism by immigrant advocates, who argued that steep hikes could impact some immigrants more than others, perhaps resulting in some applicants not being able to afford citizenship and other immigration benefits. In fact, immigration applications did drop off noticeably. U.K applications could face similar sharp declines, especially in light of the shaky economy.

MEXICO – Violence Against U.S. Targets in Mexico Increasing

On Friday, April 9th just before midnight, an unknown assailant tossed an explosive device over the wall surrounding the U.S. Consulate in Nuevo Laredo, Mexico.  The bomb caused some structural damage to the building, but no employees were injured.  Mexican officials in Mexico City said they were reviewing evidence, including security camera video surveillance recordings.
 
This attack is another link in an alarming chain of violence against U.S. targets in Mexico. Last month, a group conspired against U.S. consular workers in Ciudad Juarez who had been attending an engagement together. Gunmen followed and killed three individuals who had left the gathering, also injuring several of their children who were accompanying them.
 
The U.S. Department of State has issued an updated travel warning for citizens of the United States in Mexico. The warning was issued to alert travelers to the risks in northern territories of Mexico. It also noted that drug cartels have retaliated violently against individuals who speak out against them or whom they otherwise view as a threat to their organizations. The State Department has also authorized approximately 100 family members of employees of the U.S. Consulate in Ciudad Juarez to depart Mexico for the United States amid concerns of increased security risk.
 
In 2008, two men fired shots and threw a grenade – which didn’t explode – at the U.S. consulate in Monterrey. Nobody was hurt in that assault, but the gate was left pockmarked. Five days later gunmen again fired at that consulate.
 
Many individuals who need to apply for U.S. visas elect to cross the border into northern Mexican cities with U.S. consular posts. The convenience of the location is a draw for many foreign-born individuals living in the United States who have a need to travel internationally. Given the increased security risk and the potential for processing delays, individuals wishing to apply for visas at U.S. consulates in northern Mexico should weigh the risks of delay carefully in making their decision on where to apply for a visa.

SOUTH AFRICA – South Africa Contemplating New Policy on Business Immigration

South African officials have expressed concern that current immigration laws do not entice enough investors and entrepreneurial talent to the country.  The Global Entrepreneurship Monitor has consistently rated South Africa below other strong developing countries, which is due, in part, to its tight immigration policy that does not encourage a stead infusion of higher level skills and entrepreneurial-minded investors.
 
Currently, in order to qualify for a business visa to South Africa the applicant must demonstrate an intention of investing at least 2.5 million Rand (~$350,000) in a new or existing business.  This can be a serious barrier to entry for those who have innovative ideas, but little capital to get their business off the ground.  Such businesses would need to begin operations elsewhere and then relocate to South Africa.  While there is an exception to the capital investment rule, it is narrowly tailored to fit businesses in a limited number of industries.

Furthermore, South Africa’s work permit process only permits work authorization for 1 year at a time.  Work permits can be extended, allowing the person to remain and continue working, but the inconvenience of doing this on an annual basis can be discouraging to professional-level workers.
 
South Africa has taken steps to reform its education system to meet some of these needs.  However, the fruits of that effort will not appear for year.  In the meantime, South African’s International Investment Council has expressed a desire to reform current immigration law to entice young, risk-taking professionals who have the ability to add thousands of jobs to the economy.  In the meantime, some South African officials are concerned that the gap could lead to serious economic problems.

CANADA – Priority Occupation List Changing

Canada is restructuring its Priority Occupation List.  Discussions on this issue indicate that a number of occupations that were previously eligible will now be taken off the list.  The priority occupation list comprises the positions that the Canadian Government deems to be most in demand (i.e., hardest to fill with Canadian Citizens).  The positions that will be removed are likely going to be those not considered professional-level jobs.  Once the new occupation list is released, we will provide an update.
 
Because of the suffering global economy, Canada’s unemployment rate has been on the rise. According to Canada’s Labour Force Survey, unemployment in Canada has risen to 8.2%. While unemployment in Canada is not as severe as it is in the United States, it signifies a surplus of job seekers. This change to the priority occupation list is an effort by Canadian officials to help its citizens find open positions that might have otherwise been filled by talent from another country.
 
This change is scheduled to take effect on May 1, 2010.

UNITED STATES – April 9, 2010 – H-1B Cap Remains Open

The U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received 13,500 H-1B petitions under the regular H-1B cap of 65,000, and that 5,600 have been counted toward the 20,000 set aside for those with advanced U.S. degrees.  This means that USCIS continues to accept applications for initial H-1B status a week after the H-1B filing season opened up on April 1st.  This seems to be a reflection of the economy as it struggles to get back on track. 

Last year’s H-1B cap for FY2010 experienced a curious phenomenon wherein the 20,000 H-1B numbers set aside for those with advanced U.S. degrees were nearly used up within the first few days, but the 65,000 general H-1B numbers were available into December.  This was intriguing because of the inversion of the regular and advanced U.S. degree caps.  Ever since the 20,000 set aside came into existence, it has always taken longer to deplete than the 65,000 regular H-1B numbers.  This reflected a surplus of highly educated foreign graduates from U.S. universities who were hired in lieu of their bachelor’s or foreign degree counterparts.  Demand for H-1B numbers was certainly down last year overall, but the talent pool was larger and those with higher level degrees were still being pursued.

The lower demand of FY2010’s H-1B cap was in stark contrast to the FY2009 H-1B cap when 133,000 H-1B petitions were received within the first two days of filing.  Again, the usage of H-1B numbers appears to be in direct correlation with the health of the economy.

In light of the announcement today, H-1B petitions will continue to be accepted by USCIS.  If the 20,000 set aside for those with advanced U.S. degrees is exhausted first, H-1B numbers for these applicants will be taken from the regular cap of 65,000.  On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

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