News Update - April 21, 2008

By Alan Lee, Esq.^†‡

H-1B News - Selection Process and Allowing F-1 Students to Change Their Mind Who Designated Overseas Processing Because of Doubt that They Could Remain Legally Until October 1st

U.S.C.I.S. has been acting with speed in dealing with H-1B petitions which were filed between April 1st-April 7th for the fiscal year 2009 cap cases. The agency conducted the random selection process of approximately 163,000 petitions for both U.S. master's or higher and other H-1B applicants on April 14, 2008. The total number available under the two caps was approximately 85,000. There were also a number of petitions being
wait-listed in the event that chosen petitions are subsequently denied, withdrawn, or otherwise found ineligible. The agency anticipates that it will send a letter to the wait listed petitioners to inform them of their status, and that it will either issue a receipt notice or return the petition with fees within 6-8 weeks. Petitioners who have been chosen should receive a receipt notice dated no later than June 2, 2008. U.S.C.I.S. expects the total adjudication process to take approximately 8 to 10 weeks. (This would be extremely quick in light of the agency's past performance in which many petitions were not adjudicated until August or September). It is processing the selected premium processing cases first, and has already sent receipts on a number of those cases.

U.S.C.I.S. has liberally resolved the dilemma in which it placed many F-1 students and their petitioning organizations by not publishing the rule extending OPT (optional practical training) status to October 1st until April 8, 2008, after the filing period had closed for fiscal year 2009 H-1B petitions. Many petitions were marked for overseas processing as F-1 students believed that they would not be able to maintain legal non immigrant status until October 1st. In an announcement on April 18, 2008, the agency said that it will allow the petitioners in such cases to now request a change of status if the cases are selected as long as such requests are received within 30 days of the issuance of the receipt notices. Such notices should be sent by e-mail to the below addresses and should include the receipt number and both the petitioner's and beneficiary's name, date of birth, I-94 (arrival/departure record ) number, and SEVIS (Student and Exchange Visitor Information System) number.

E-mail addresses for requesting change of status are:
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

The U.S.C.I.S. is to be thanked for recognizing the importance of the H-1B program to America and making such accommodations quickly to further the program's purposes.

† 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.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.