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Immigration Newsletter
February 2009 - Vol 1, Issue 1
In This Issue
In Case Your Missed It: Recent Immigration News
In the News: What's Happening at RSL
Ross, Silverman & Levy LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
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Welcome to the inaugural edition of RSL News!  Rather than a typical newsletter detailing every new immigration-related development in the past month or two, we hope that this newsletter will offer constructive information on issues that are relevant to our readers, including a Q&A section with answers to questions that may interest many of you. 

We intend to use this space in future newsletters to discuss, among other things, trends that we have been seeing that may be of general interest.  Over the past several months, one of the most concerning new trends relates to L-1B petitions.  USCIS recently began reviewing L-1B petitions much more closely, with a focus on the descriptions of the duties of the positions, the specifics about the beneficiary's specialized knowledge, and concerns about the validity of details provided in the petitions.  In fact, Adjudicating Officers at USCIS have at times applied a largely new (and we believe, incorrect) standard of the rudimentary factors that qualify a position and beneficiary for an L-1B visa.  We, along with our colleagues within the American Immigration Lawyers Association (AILA), have received extremely detailed Requests for Evidence (RFEs) for petitions that previously would have been approved without a hitch. 
While AILA is working with USCIS to try to resolve this situation, as an acknowledgement of the L-1 paradigm shift, we will now be requesting much more detailed information regarding job duties and specialized knowledge elements in L-1B cases.  Where the foreign national will work offsite, we will also now want to better investigate the individual's and company's role at the offsite location during our preparation of an L-1B petition.  By so doing, we hope to alleviate USCIS' concerns on the front end in order to obviate the cost and hassle that would accompany an RFE.  As the saying goes, an ounce of prevention is worth a pound of cure.  
Immigration in an Uncertain Economy Seminar 
Due to a snowstorm in the Boston area, our seminar entitled, "Immigration in an Uncertain Economy" which was slated to be held on January 28 was postponed until Thursday, February 26, 2009 from 9am to noon.  For more information or if you are interested in attending, please email Sally Penney at, or call her at (617) 542-5111.  
Ask RSL 
In future newsletters, this section will be devoted to questions received from our readers regarding a full range of immigration issues that may be of interest to our general readership.  Please feel free to forward any immigration-related questions you may have (general or specific) to Sally Penney at
As we enter into H-1B cap season, this is an ideal time to address some common questions about H-1B visas.  The new H-1B visas for Fiscal Year (FY) 2010 will be allocated as of October 1, 2009.  USCIS has instituted a five business day filing window for H-1B petitions, meaning that all petitions received by USCIS between April 1 - 7, 2009 will be entered into a computerized lottery for selection under the H-1B cap for FY 2010.  Once the cap is reached, there will not be any additional cap-subject H-1B visas available until October 2010 (for FY 2011).  Following are some general Q&As about H-1B visas and related topics:
Q:  Given the state of the economy, do we have an increased chance of getting an H-1 for our employee under the cap? 
A:  This is mere speculation, but given reports and communications through the grapevine, it appears that there will be fewer H-1B filings this year, and therefore a greater likelihood of any one petition being approved.  That said, it is still anticipated that all 65,000 H-1B visas and all 20,000 visas available to individuals with advanced degrees from U.S. institutions will be used on the first day of filing (which for our purposes will be filings that reach USCIS within the first 5 business days of April).
Q:  I've heard that a new Labor Condition Application (LCA) form might be released soon, and that it will take at least 7 days for the new LCA to receive certification by the DOL.  Will we have to use this new form in the filing of this year's H-1B cap cases?
  No.  The Department of Labor (DOL) recently announced that the new LCA form will not be available until April 15, and that the old form can be used until May 14.  Therefore, the current LCA form will be used for this year's H-1B cap cases.  After May 14, all H-1B filings (initial petitions, amendments, and extensions) will need to include the new LCA form, which will likely lengthen the preparation time for H-1B petitions.  
Q:  Why would it be to my advantage to apply for an H-1B under the Premium Processing program?
For a fee of $1000, the USCIS Premium Processing Service guarantees that USCIS will process the petition in 15 days or less; otherwise, the fee is returned.  Advantages to the premium processing service are as follows:
  • It allows us to directly contact USCIS with questions or concerns about the case; and
  • Using the premium processing service generally provides for faster resolution of a case and you will find out more quickly whether the case has been accepted via the H-1B cap lottery. 

Please be advised, however, that use of the premium processing service does not increase the likelihood that the petition will be accepted under the cap; it simply increases our firm's ability to contact USCIS about the case, and speeds up the notification process so that you will learn more quickly about the status of the petition after filing.  Also, should a case be filed via regular processing and a problem arise, it is possible to convert a case to premium processing by sending the relevant form and a check in the amount of $1000.
Q:  Can I increase my chance of obtaining an H-1B under the cap by submitting multiple H-1B petitions?
 No, you cannot.  In fact, the filing of multiple petitions on behalf of the same individual by the same employer within a given fiscal year will lead to the denial of all petitions by the employer on the individual's behalf.  If USCIS fails to discover that multiple petitions were filed until after one or more was approved, the approved petition(s) may be revoked.
This is true whether or not the petitions are duplicative.  That is, an employer may not file more than one petition for the same individual even where the petitions relate to different positions.
Q:  I have a candidate who is an F-1 student applying for Optional Practical Training (OPT) beginning in the Summer of 2009.  He mentioned something about applying for 29 months of OPT.  Does everyone now qualify for 29 months of OPT?  Should I still try to obtain an H-1B visa for him this Fiscal Year?
  Last year, the Department of Homeland Security (DHS) instituted a new rule to extend the period of Optional Practical Training (OPT) from 12 to 29 months for certain F-1 nonimmigrant students.  To be eligible for the 17 month extension of OPT, an F-1 student must:

  • Be actively participating in a 12-month period of approved post-completion OPT;
  • Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) from a college or university certified by the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program;
  • Work for a U.S. employer in a job directly related to the student's major area of study;
  • Work for, or accept employment with, an employer enrolled in the U.S. Citizenship and Immigration Services' (USCIS) E-Verify program.; and
  • Properly maintain F-1 status.

Note that the foreign national, the employer and the school from which the foreign national graduated have reporting responsibilities in the event of termination, change of address (by foreign national or employer), and in other circumstances.
In reply to the second portion of the question, you may want to apply for an H-1B visa for the individual this year regardless of qualification for a 29-month OPT.  Given that there are limited numbers of H-1B visas available each year, and that approximately one half of applicants over the past 2 years have been granted an H-1B visa, it may be prudent to take the opportunity for two bites of the apple, rather than one.
Q:  I have an employee whose F-1 OPT expires in June 2009.  If she is granted an H-1B visa this year, will she qualify for an automatic extension of F-1 status and employment authorization until her H-1B goes into effect in October?
 The same policy that existed last year will be implemented in 2009.  Where an F-1 student's status and OPT expires before he or she can begin employment pursuant to an H-1B visa - often referred to as the "Cap Gap" dilemma - the individual's OPT will be extended automatically.  The extension will carry through, while the H-1B is pending and after approval, until the change of status is effectuated on October 1, 2009.  If the H-1B petition is denied, the individual's work authorization will cease immediately.  The automatic extension will only be granted to those individuals who request (and are granted) a change of status from F-1 to H-1B, not to those petitions which request consular notification. 
Q:  I've heard that if someone has an H-1B with a college or university then we can apply for an H-1B at any time.  Is that true?  Do they have to keep working for the University the whole time they are working with us?
That is correct.  If an individual already possesses an H-1B visa to work with a cap-exempt employer, such as a university or college, he or she can obtain another H-1B visa to work concurrently with a cap-subject employer (e.g. a private company) without obtaining a visa number under the H-1B cap.  The concurrent employment can be full- or part-time with each employer.  Cap-exempt employers include institutions of higher education; nonprofit organizations or entities related to or affiliated with institutions of higher education; and nonprofit research organizations or governmental research organizations. 
Furthermore, USCIS issued a memo in 2008 which indicates that, should the cap-exempt employment end, the foreign national can continue on an H-1B with the cap-subject employer until the end of the visa validity period.  However, the H-1B beneficiary will not be eligible to extend the cap-subject employment without first obtaining a visa number under the H-1B cap.
As a side note, it is also possible for an individual to obtain an H-1B visa to work with a cap-subject employer if he or she will (a) work at a cap-exempt institution; and (b) perform duties that directly and predominantly further the normal, primary, or essential purpose and objectives or function of the qualifying institution (e.g. higher education or nonprofit or governmental research).

In Case You Missed It: Recent Immigration News
New Form ETA-9035, Labor Condition Application (LCA)
On February 2, 2009, the U.S. Department of Labor (DOL) announced that it will begin accepting the new LCA Form ETA-9035 for processing on April 15, 2009.  DOL will continue to accept the current version of the form through May 14, 2009.  After that date, the old system will only be accessible to view and withdraw previously-filed forms; new forms will not be able to be filed, even if previously drafted.
New PERM Form ETA-9089

DOL also announced that it will be implementing the new PERM Form ETA-9089 for processing on July 1, 2009.  DOL will continue to accept the current version of the form through July 31, 2009.  After that date, the old system will only be accessible to view and withdraw previously-filed forms; new forms will not be able to be filed, even if previously drafted. 
New I-9 Form (effective April 3, 2009)
U.S. Citizenship and Immigration Services (USCIS) has announced the creation of a new I-9 form which narrows the list of acceptable identity documents and disallows use of expired documents as forms of identification.  On January 30, USCIS announced that implementation of the new form has been delayed by 60 days.  Therefore, employers must use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization as of April 3, 2009.  The new Form I-9 is now downloadable from the USCIS website at  The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) will be updated to reflect the changes and will be included on the USCIS website in the near future.

Lawful Permanent Residents (i.e. Green Card Holders) Now Subject to the US-VISIT Program
The United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) was established by the Department of Homeland Security (DHS) in 2003 to verify the identities and travel documents of foreign nationals.  Under US-VISIT, foreign nationals may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival to the United States.  To date, only individuals attempting to enter the United States on nonimmigrant visas, or those traveling without a visa as part of the Visa Waiver Program, have been subject to US-VISIT requirements (with limited exceptions).  Effective January 18, 2009, nearly all foreign nationals, including lawful permanent residents (LPRs), are now subject to US-VISIT requirements.  Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas.
In the News: What's Happening at RSL
Tuesday, January 27, 2009: Sharryn Ross spoke on a Boston Bar Association panel entitled, "PERM: Filings in Today's Economy Using Tomorrow's Form."
Tuesday, February 3, 2009: Rhonda Tietjen participated as an expert in the AILA New England Chapter's New Member's Division Ask the Expert series.
Wednesday, February 11, 2009: Howard Silverman spoke at a brown bag lunch for AILA New England chapter members on asylum issues.
Friday, March 6, 2009: All of our Partners will be participating in the 6th Annual AILA New England Spring Immigration Law Conference in Boston, entitled, "Advanced Immigration Practice."  Sharryn Ross will be participating in a panel regarding "Advanced Business Immigration Issues," Howard Silverman will be participating in a roundtable panel regarding "Case Law and Strategy," and Jason Levy will be moderating a panel entitled, "Immigration and the Workplace."
Friday, March 20, 2009: Howard Silverman will be participating in a panel with representatives from Immigration and Customs Enforcement (ICE) at the AILA Spring Conference in Washington, DC.  The panel will discuss Bonds/Transfers, Detention/Electronic Monitoring, Prosecutorial Discretion, Fugitive Operations and Worksite Enforcement.
Monday, April 6, 2009: Jason Levy will be participating in a panel on PERM for Small Businesses at the Massachusetts Continuing Legal Education (MCLE) Intermediate/Advanced Immigration Seminar in Boston.
Please contact us by e-mail or by phone if you have questions about any of the topics discussed here or any other immigration or naturalization questions you may have. Also, please remember this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.