As of 1/26/11, USCIS had received H-1B cap-subject petitions to fill the the 65,000 possible slots. Additionally, all 20,000 petitions for the Master's cap had been received some time in December 2011. 

If you missed this year's H-1B cap, the new H-1B year is right around the corner!  You can start filing for the new Fiscal year starting April 1, 2011 for a start date of October 1, 2011.

Please contact an attorney at Challa Law Offices today to take care of this important need.

In this age of distance learning, what does a student in the U.S. on an F-1 student visa need to do to maintain legal status? Although the requirements are many, this article will focus on enrollment. The Tri Valley case made quite a stir within the Indian community.  In fact, the Tri Valley case is just the tip of the iceberg. Academic institutions trying to circumvent the immigration requirements will be rudely awakened when the "Iceman" comes knocking on their door bearing gifts for their foreign students, such as a notice to appear (NTA) before an immigration judge. The NTA has similar function to that of a court summons. The Iceman does not come to the party alone; he also brings friends who carry indictments.

It is imperative that all parties involved in the student immigration process, including and most importantly the student understand the requirements.

How does a U.S. college and university obtain authorization to admit foreign students?

The president, owner, or head of an academic institution submits a petition, including form I-17, to the International Student and Exchange Visitor Program (SEVP) to seek approval to enroll F-1 students into their institution. The SEVP School Certification Branch (SCB) is responsible for evaluating Form I-17 to determine whether academic institutions meet the minimum eligibility requirements to be approved by the Department of Homeland Security (DHS). When an institution's petition is approved, the institution is SEVIS certification and is able to issue Forms I-20 (Certificate for Eligibility for Nonimmigrant Student Status) in order to enroll nonimmigrant students in an F-1(student) or M-1(vocational) visa classification.

The Code of Federal Regulations, specifically 8 C.F.R. 214.3, outlines the criteria considered in reviewing an institution's eligibility for SEVIS certification. To be considered for approval, an institution must be:

· A bona fide school;

· An established institution of learning or other recognized place of study;

· In possession of the necessary facilities, personnel, and finances to conduct instruction in recognized courses; and

· Engaged in instruction of those courses.

This means before an institution applies, it:

· Must have already opened its doors and begun instructing students in the courses/programs for which it is seeking approval;

· Must have the necessary facilities conducive to teaching and educating, have qualified personnel, and adequate finances to operate;

· Must meet all state requirements to operate as an institution of learning or be exempt from all such state requirements;

· Must provide instruction to students to fulfill a professional, educational, or vocational objective, or pursuing a degree; and

· Will have had to graduate students before applying or be accredited by a nationally recognized accrediting agency (recognized by the U.S. Department of Education).

Certain institutions are not eligible for approval:

· Home schools;

· Pre-school (Pre-K) and/or day care institutions;

· Public elementary or junior high schools (grades K-8);

· Schools whose programs are primarily distance education or online (i.e. Internet based);

· Adult education program, if the adult education program is funded in whole or in part by a grant under the Adult Education and Family Literacy Act, or by any other federal, state, county or municipal funding;

· Flight schools not Part 141 or Part 142 certified by the Federal Aviation Administration;

· Programs that are recreational and/or avocational in nature; and

· Short-term programs, weekend programs, or summer programs.

SEVP issues certification based on the representation and documentation presented by the petitioning academic institution.  Furthermore, SEVP conducts site visits to ensure that those representations are accurate. 

What are the enrollment issues students need to know about maintaining status?

·         Enrollment in non-SEVIS certified institution:  To reiterate, it would be a failure to maintain status if you are enrolled in the institution not eligible for approval.

·         Online classes:  For F-1 students enrolled in classes for credit or classroom hours intending to take online courses, the rule is as follows: no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study if the class is taken on-line or through distance education.  In addition, the course must not require the student's physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, or satellite, audio conferencing, or computer conferencing.

·         Language study program:  If the F-1 student's course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student's full course of study requirement.  

Special issues to be answered in our next article:

·         Academic institutions that primarily offer degrees in English language study

·         Curricular Practical Training-when is it appropriate?

·         What happens when a school's SEVIS is terminated?

·         What about reinstatement of F-1 status?

"Deemed Export Rule"

The Department of State has released the March Visa Bulletin, its projection of immigrant visa availability for the coming month. In March, priority date cut-offs for backlogged employment-based preference categories will continue to advance by a few weeks to several months for most countries, with some exceptions.

In the employment-based second preference (EB-2) category for China and India, priority date cut-offs will remain the same next month, at July 8, 2006 and May 8, 2006 respectively. In the third preference (EB-3) subcategory for professionals and skilled workers, priority dates will advance by three weeks for China and India, six months for Mexico, and three months for all other countries. In the EB-3 "other worker" subcategory, priority dates will advance by three to six weeks for most countries, but will remain unchanged for China and Mexico.

Due to continued demand, the family-based second preference category (F-2A) for spouses and children under 21 of lawful permanent residents will retrogress by one year, to January 1, 2007 for most countries, though Mexico will advance by nine months. The F-2A category had seen sizeable priority date advancements as recently as November 2010, when the priority date cut-off was June 1, 2010 for most countries. However, demand for family-based immigrant visas has increased sharply in recent months, leading to the retrogressions. The State Department has suggested that priority dates could advance, albeit slowly, if retrogression succeeds in slowing the demand for family-based immigrant visa numbers in the coming months.

In March 2011, priority date cut-offs for employment-based immigrant categories will be as follows:

EB-1
 Current for all countries.

EB-2
 China - July 8, 2006
India - May 8, 2006.
All other countries - current.

EB-3 Professionals and Skilled Workers
 China - January 22, 2004
India - March 15, 2002
Mexico - January 8, 2004.
All other countries - July 1, 2005.

EB-3 Other Workers
 China - April 22, 2003
India - March 15, 2002.
Mexico - May 1, 2003.
All other countries - June 15, 2003.

EB-5
 Current for all subcategories and countries.