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Immigration Department Offers Relief to Students Caught Up in the H1B...

The H1b quota is the congressionally-mandated 65,000 limit on the number of individuals who may be granted H-1B working visa status during each fiscal year. On April 14, 2008 the USCIS announced that they had received approximately 163,000 cap eligible applications from the first five days of the open quota season. Affirming that they would not accept further H1b applications for the remaining Fiscal year.

Attorney Darren B. Silver the Managing Partner of Darren Silver & Associates, Darren Silver & Associates (http://www.darrensilver.com) has opined that over 70,000 students and their current employers would be severely burdened by the Work Gap that the current Regulation imposes on H1B eligible Students. Mr. Silver has campaigned vigorously for a common sense solution to the Work Gap problem which has been recently approved by the USCIS.

Under the regulations, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1. Where that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start working under the approved H-1B employment is October 1. Consequently, F-1 students who are the beneficiaries of approved H-1B petitions with October 1 employment start dates, but whose periods of authorized stay including authorized periods of completion of Schooling and post-completion OPT (Optional Practical Training) and Work authorization expire before October 1, are in many cases required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, after October 1, 2008.

Under the prior regulations, when this Federal Register notice was published, the student's authorized stay was extended, but not the employment authorization. This meant the student could remain in the United States until October 1, when the approved H-1B employment began, but could not work until then.

On April 4, 2008, the UCIS announced a rule that would offer some relief to those students that are caught in the middle.

Under this new rule, the F-1 visa status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year with an October 1 employment start date filed on his/her behalf during the period in which H-1B petitions are accepted for that fiscal year. The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. If the H-1B petition filed on behalf of the student is selected, the student may remain in the United States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition. The student may benefit from this provision only if he/she has not violated his/her status.

As an additional showing of understanding, On April 18, 2008 the USCIS announced that they would also allow those students who have already filed their H1B's for Consular processing (as was the appropriate law at time of H1B filing) due to their upcoming status expiration to amend their petition.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice.

Mr. Silver can be contacted directly through his website Darren Silver & Associates (http://www.darrensilver.com). Darren Silver was a former Immigration Department Adjudications officer in Los Angeles California and has headed Darren Silver & Associates since 1997. Darren Silver & Associates is one of the Nations' preeminent Immigration Law Firms with a focus on Business and Employment Immigration law.

Darren Silver & Associates

3699 Wilshire blvd 6th Floor

Los Angeles CA 90010

213-384-1900 (tel)

213-384-8285 (fax)

info @ darrensilver.com (E-mail)

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