CPTF1H1BOPTSeptember 2018 Immigration Updates

September 19, 20180

It is important to note that a lot is changing in the employment-based immigration landscape this month. This article captures some of the main immigration topics as it pertains to H-1B adjudications that are currently impacted and pertinent based on current changes occurring this month.

The recent US Citizenship and Immigration Services (USCIS) move to suspend premium processing will adversely impact many classes of specialized workers either currently working or seeking to work under H-1B status.

The biggest impact will be for the Cap-Gap International students whose work authorization will end at the end of this month and who will not be able to work if the pending H-1B petition is not approved before October 1st.

Below are some of the sections of employees impacted by the suspension of premium processing starting September 11, 2018.

– All “Cap-Gap” international students in F-1 status who have a pending H-1B petition are impacted.

– All employees under H-1B status currently seeking to transfer to a new employer are impacted. This is potentially more of an issue if the I94 or H-1B Visa of such employees is about to expire, and the employee has a need to travel abroad.

– All employees under H-1B status who are currently working on H-1B but requiring an amendment filed due to material changes in their approved petition will be impacted. This is potentially more of an issue if such an employee has travel plans needing visa stamping.

– However, employees working under H-1B status who are seeking an extension and whose extension filings are continuation of previously approved employment without change will not be impacted. The key thing to note is that such an extension request must be a continuation of previously approved employment without change.

Cap-Gap refers to the period between the time the international students’ student status ends after filing of an April cap-based H-1B petition and before the approval of such petition (specifically if OPT expires between April 1st to October 1st). Strict rules apply to employees working under Cap-Gap status.

Specifically, employees whose H-1B petition is picked in the lottery and currently awaiting adjudication can work even after their Employment Authorization (EAD card end date) ends as long as the employment authorization ends after April 1st and the employee has still not received their H-1B approval with a change of status.

Below are some of the important things to note for any student/employee working under Cap-Gap.

– Working under Cap-Gap status is permitted only if the EAD card expires after April filing of the H-1B petition and the April filing has been filed with a Change of Status request.

– Working under Cap-Gap status is permitted only till October 1st. Starting October 1st, the employee working under Cap-Gap should stop working till the H-1B is adjudicated.

– An employee in Cap-Gap status is permitted to stay in the country till the H-1B is adjudicated.

Further it is highly essential that every student who has received an H-1B approval check their approval copy to ensure that “Change of Status” request has been approved and an I-94 issued along with the H-1B approval.

Lately USCIS has been approving H-1B petitions but denying the “Change of Status” part of the classification and such an adjudication would require an employee to immediately depart the country for visa stamping at the consulate.

Options for Cap-Gap employees/students after October 1:

It is common to see many employees working under Cap-Gap who do not receive an H-1B approval by October 1st to join a school to maintain their F-1 status. Further many employees/students specifically join a school for the Day 1 CPT.

Students should exercise caution while joining a school offering Day 1 CPT as there are many factors which may potentially cause an issue. Joining a school to pursue a degree program is not an issue but joining a degree program for the purpose of working from Day 1 could be an issue based on other facts of each specific case.

Specifically, USCIS has been issuing numerous RFE’s for pending H-1B filings for those who have participated in the Day 1 CPT asking about various specific facts regarding such programs.

Day 1 CPT program refers to the programs that allow a student to work in the industry on F-1 status from the very first semester. USCIS has very strict rules about Day 1 CPT and all students should exercise caution to ensure that F-1 regulations are fully followed and adhered to without taking any chance.

Further USCIS has been looking specifically at those cases where students have taken CPT in the same DEGREE level after the completion of a degree in same degree level (for example taking CPT in the same degree level but second or subsequent MASTER’S degree) and after the completion of their OPT period. Care should be taken to ensure that USCIS regulations regarding working on CPT after the completion of OPT be strictly adhered to.

It is also important to note that starting August 9, 2018 USCIS has issued a revised memorandum on the calculation of unlawful presence in United States. Pursuant to this guidance it is even more essential that all regulations of F1 program be strictly adhered to and one should ensure that F-1 Status is never violated.

Other Important Updates impacting Immigration:
– Starting October 1, 2018, the premium processing for any cases (I140, I129 etc.) is increased to $1410 instead of $1225 (Refer to https://www.uscis.gov/news/news-releases/uscis-adjusting-premium-processing-fee).

– USCIS will start implementing its new policy on issuance of RFE’s and NOID’s starting this week. On September 6, 2018 the Office of CIS Ombudsman held a stakeholder teleconference on this new USCIS policy on issuance of Requests for Evidence and Notice of Intent to Deny.

USCIS will also post new checklists as an operational tool to public regarding what initial evidence is required for a particular immigration benefit which are to be used in combination with the other existing regulations and statutes as well as form instructions.

If the filing contains initial evidence, the expectation is that the adjudicator will review the evidence and issue an RFE if clarification is needed. RFE’s will still continue to be issued where direct denials are not appropriate.

From the context of H-1B an example of a direct denial would be where the beneficiary’s education or experience documents are not submitted with the initial filing.

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