News Update - April 11, 2008H-1B Cap Reached; OPT Extended to Cover Cap Gap; 17 Month Extension for STEM Degree HoldersU.S.C.I.S. announced on April 8, 2008, that the entire cap of H-1B visas [approximately 85,000] has been filled for fiscal year 2009 which begins on October 1, 2008. The agency will now complete initial data entry for all filings received during the period April 1-7, 2008, before conducting its random selection process. U.S. master's and higher degree holders will have two chances of being selected as the random drawing of 20,000 U.S. master's cases will be conducted first and those U.S. master's and higher degree holders who were not selected there will automatically be added to the selection process for other applicants. U.S.C.I.S. did not announce a date for the random selection process. On April 4, 2008, the agency announced that an automatic extension would be given to October 1st for those F-1 students who had applied for a change of status to H-1B if their OPT (optional practical training) periods expire prior to that date, which is the first day on which H-1B visa petitions for fiscal year 2009 are effective, and are picked in the random selection. This move eliminated the concerns of many students who were forced to choose between going home or attempting to obtain legal status during the period of the gap between the ending of OPT and October 1st. A question that U.S.C.I.S. may have to address in the near future is what to do with those F-1 students whose H-1B petitions were marked for processing overseas because they saw little chance to stay here legally until October 1st, and U.S.C.I.S. did not come up with this rule until the end of the H-1B acceptance period for cap cases. A second question is what U.S.C.I.S. will do with the cases that it fails to adjudicate by October 1st since the automatic extension only covers up to that date. U.S.C.I.S. announced at the same time that F-1 students could obtain
a 17 month extension on their OPT period if they were STEM students
(Science Technology Engineering Mathematics) included in the DHS
STEM designated degree program list, and working in a job directly
related to the major field of study for a U.S. employer who is enrolled
in U.S.C.I.S.'s E-Verify program. The agency did answer the question
of whether individuals with a STEM degree who are on OPT under a
non STEM degree are eligible for the 17 month extension in its Question
and Answers of April 4, 2008, in the negative, saying that a student
with an undergraduate degree in a designated STEM field, but currently
in OPT based on a subsequent M.B.A. degree, would not be eligible
for an OPT extension. U.S.C.I.S. also stated that the student must
apply on time before the current post completion OPT expires, thereby
making it clear that applications will not be accepted during the
60 day departure period following the end of OPT. † The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2008 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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