Immigration News That You Can Use - USCIS Takes First Steps for H-1B Cap Season; Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

by Alan Lee, Esq.

  1. USCIS Takes First Steps for H-1B Cap Season.

A big change for H-1B filings – both cap and non-cap with I-129 and I-907 is being announced to take effect in February to make everything electronic. USCIS is encouraging setting up organizational accounts to allow multiple people in an organization and legal representatives to collaborate and prepare H-1B registrations, I-129’s, and I-907’s. There will be two national engagements on organizational accounts on January 23 for companies and 24 for legal representatives as well as several smaller sessions leading up to the H-1B registration. The entire H-1B lifecycle then becomes fully electronic from registration to final decision and transmission to the Department of State. For those still doing paper filings, USCIS will transition the paper filing location from service centers to the USCIS lockbox.

This is a good change to further save the forests of the world. USCIS will have shrunk its H-1B paper footprint from two copies to the present one copy to the future no copy. If this had been announced earlier, it would have given USCIS the option of demanding complete petition filings of all interested parties instead of soliciting registrations of organizations if the new beneficiary centric registration system was not yet ready for this year’s H-1B cap selection process.

  1. Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

Perusing the USCIS policy manual pertaining to nonimmigrant students, there are some new and old policies of which readers should be aware of or remember:

  1. The policy manual on F or M-1 status now says that officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or immigrant visa petition as not necessarily impacting eligibility for the classification, so long as the student intends to depart at the end of the temporary period of stay – that in all cases, the officer must consider all facts presented when determining whether the student is eligible for F or M classification.
  2. F-1 students may be eligible for public high school for one year after paying the school district the real cost of schooling, but there is no F-1 study allowed in public schools for elementary grade children.
  3. When a student is transferring between schools or programs, the limit is five months that he or she is allowed before resuming classes at the transfer school or program, or within five months of the program completion date on the I-20 – whichever date is the earlier.
  4. The policy manual reminds students on STEM OPT extensions that they have duties not only to report change of address or employer or loss of employment within 10 days of the change to the DSO, but also to complete a validation report every six months to the DSO within 10 business days of each reporting date; and submit a self-evaluation of progress toward the training goals described in the I-983 prior to the conclusion of the STEM OPT period, and both student and employer must sign each evaluation to attest to its accuracy. There must be an initial evaluation within 12 months, and a concluding evaluation.
  5. On travel outside the US during the cap-gap period and returning under F-1 status, the policy manual says that travel is permitted where USCIS has approved the H-1B petition and request for change of status; the student seeks readmission before the date of the student’s H-1B employment beginning (normally October 1), and the student is otherwise admissible. If traveling when the application for change of status is pending, the change of status portion is deemed abandoned.

Knowing or remembering the rules may serve to keep the nonimmigrant student from running afoul of the intricacies of the law in this area.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2023), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. 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; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.