USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011

The U.S. Citizenship & Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011.  Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap for FY 2012 is 65,000.  Of the 65,000 H-1Bs available, 6,800 are annually set aside for the H-1B1 program for Chile and Singapore.  Unused H-1B1 visas will be added back to the regular cap.  The following H-1B petitions are exempt from the FY 2012 cap:

1.       The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s or higher degrees.

2.       Petitions filed on behalf of individuals who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014.

3.       Petitions for new H-1B employment if the beneficiaries will work at:

a.       Institutions of higher education or related or affiliated nonprofit entities;

b.      Nonprofit research organizations; or

c.       Governmental research organizations.

4.       Petitions filed on behalf of current H-1B workers who have been counted previously against the cap.

5.       Petitions filed on behalf of current H-1B workers who are seeking to extend, amend or work concurrently in a second H-1B position.

USCIS will notify the public of the date when the cap for FY 2012 is reached. This date is known as the final receipt date.  USCIS will subject H-1B petitions received on the final receipt date to a computer-generated random selection process.

E-Verify Self-Check

Effective March 21, 2011 the E-Verify Self Check (“Self-Check”) service will be available for individual users to check their own work authorization status prior to employment, and to facilitate the correction of potential errors in federal databases that feed into the E-Verify process.

Important Facts About Self-Check:

·         Self-Check is part of E-Verify, a Department of Homeland Security (DHS) program administered by the United States Citizenship & Immigration Services (USCIS) in partnership with the Social Security Administration (SSA).

·         It is a free internet based application and it can only be used by an individual user who is over the age of 16, and who wishes to check his/her employment eligibility status on a voluntary basis.

·         While E-Verify is available to U.S. businesses, Self-Check is available to individuals users.

·         The initial pilot program is only available to users who maintain an address and are physically located in Arizona, Colorado, Idaho, Mississippi, or Virginia.

The Self-Check Verification Process Involves Four Steps:

1.       Self-Check Overview: Offers basic program information.

2.       Identity Assurance: Self-Check generates knowledge based questions using personal information provided by the user.

3.       Employment Eligibility Verification: A user’s employment eligibility information is gathered and checked through by E-Verify against DHS and SSA records.

4.       Serf Check Results: The user is notified of the Self-Check results and if applicable, receives guidance on how to correct any data mismatches in SSA or DHS records.

Q&A

Q: Can a current or potential employer require a user to request verification of a positive Self-Check result?

A: No, it is unlawful for a current or potential employer to request the same.

Q: How is the user’s privacy protected?

A: In order to protect the user’s privacy and personal information, Self-Check is designed to require the user to authenticate his/her information before the user is allowed to access the information Self-Check has about the user. 

Q: Does USCIS retain all the user’s information collected via Self-Check?

A: No. After the user enters basic information (name, date of birth, social security number and address), the information is forwarded to an independent, secure, third party identity assurance service to generate knowledge based questions. Upon completion of the quiz and if DHS receives sufficient information to verify the user’s identity, the user will return to Self-Check to complete the employment eligibility check.  Neither DHS nor any of its component agencies will have access to the answers provided by the user.  In addition, all information entered in Self-Check will be deleted at the end of the user’s session.

Q: Can a user verify someone else’s work eligibility?

A: No

Q: Is a DHS or SSA mismatch notification an indication that the user lacks valid work authorization?

A: No, the user may still be authorized to work and will be provided instructions on how to address the mismatch.

Q: What alternatives options are available if Self-Check returns a mismatch notification?

A: The user has the following options:

(1) visit a SSA office to request further investigation (Self-Check will generate a SSA inquiry letter when the user chooses this option);

(2) contact the DHS to request further investigation (Self-Check will generate a DHS inquiry letter when the user chooses this option); or

(3) decline to contact SSA or DHS – this means that if the user is hired by an employer that participates in the E-Verify program, the user is likely to get an E-Verify DHS Tentative Non-Confirmation (TNC). At that time, the user will have the opportunity to contest the TNC by contacting DHS to correct any errors that may exist in the user’s records. If the user chooses not to contest the TNC, or if the user is unable to resolve the problem with his/her records, the user may be terminated by the employer.

The USCIS is releasing Self-Check in phases so it may test and improve the program. The expansion of Self-Check to other states will be based on the success of the pilot program.

JSBarkats PLLC lawyers have extensive experience dealing with employment eligibility verification issues and are available to assist you.  Please contact Eva Frecker at 646.502.7001 or by email at efrecker@jsbarkats.com.

Japan Earthquake and Tsunami Updates

Relief for Japan and Other Nationals from the Pacific Stranded Due to the Earthquakes and Tsunami

The United Stated Citizenship & Immigration Services (USCIS) has issued the following advisory for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation in the Pacific. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

-  If you are at an airport, contact the U.S. Customs and Border Protection office at the airport.

-  All others, please visit the local USCIS office.

Visitors traveling under a nonimmigrant visa:
-  Visit the local USCIS office.

-  Bring your passport, evidence that you are stranded

Limited Emergency NIV Appointments at U.S. Embassy, Tokyo

The U.S. Embassy in Tokyo advises individuals to reschedule nonimmigrant visa appointments set for this week.  Emergency NIV appointments will be available under very limited circumstances. The Embassy’s first priority at this time is assisting U.S. citizens who may be injured or missing.

H-1B Cap Exemptions Based on Relation or Affiliation

In the past few months, the United States Citizenship & Immigration Services (USCIS) has issued decisions which narrow and challenge the long standing H-1B cap-exempt status of numerous teaching hospitals which are affiliated with medical schools or other institutions of higher education. Such decisions jeopardize the ability to attract and sponsor foreign medical graduates and other professionals who provide much needed healthcare services to our communities.  As a result of the uncertainty faced by many teaching hospitals, USCIS issued the following update on March 16, 2011:

“U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap.  However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption.  Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.”

While we welcome the efforts being made by USCIS to review its policy and address the public’s concern, the above referenced update does not provide clarification for employers who have never previously sought to claim the H-1B cap exemption based on relation or affiliation.  Until USCIS provides further guidance or its adjudicators return to the longstanding practice of granting H-1B cap exempt status to teaching hospitals that are affiliated with medical schools or other institutions of higher education, the petitioner and beneficiary must proceed with caution.

JSBarkats PLLC lawyers  have extensive experience dealing with these issues and are available to assist you.  Please contact Eva Frecker at 646.502.7001 or by email at efrecker@jsbarkats.com.

Eva Frecker is the head of the immigration practice at the law firm of JSBarkats.  JSBarkats is based in New York City and provides legal advice to corporations and individuals with respect to nonimmigrant and immigrant visa options.  We have extensive experience representing clients from the healthcare and academic sectors and securing temporary and permanent visas for foreign medical graduates, scholars, scientists, and allied healthcare professionals.