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Immigration Newsletter
Winter 2011 - Volume 3, Issue 1
In This Issue
Ask RS
Recent Immigration News
In the News: What's Happening at RS
Ross Silverman LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
Attorneys at RS

Ellen F. Driver

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As some of you know, we are at a unique time of year - the H-1B cap for Fiscal Year (FY) 2011 was recently reached, and the new H-1B visas for FY2012 will be available starting on April 1 (for an October 1, 2011 start date).  We'd like to take this opportunity to address some commonly asked questions about the H-1B program and cap in the Ask RS section below.  Additionally, we'd like to remind you of the new Export Control attestation requirement which applies to all H-1B, L-1, and O-1 petitions filed after February 20, 2011 (including petitions for extension of stay).  Please see our November News Flash (copied in the Recent Immigration News section below) regarding this requirement for further details, and feel free to contact our office if you would like to be referred to an export control expert to consult on this issue.


















Ask RS


Q: Now that the H-1B cap for FY2011 has been reached, can I still hire someone on an H-1B?

A: Yes, in some cases. If the individual already has an H-1B with another employer who is subject to the cap, then s/he can "port" to your company - you would still need to file a complete H-1B petition for the individual, but the petition would not be subject to the cap. However, if the individual has an H-1B with a cap-exempt employer and has never been counted against the cap, the only way you could hire him/her prior to October 1 would be if s/he works concurrently for you and the cap-exempt employer. You should call our office to discuss your options if you encounter such a situation. Please note that common cap-exempt employers include universities and affiliated hospitals and research organizations.

Keep in mind that individuals are typically only eligible for six years in H-1B status, unless they have reached a certain point in the permanent residency process, so you should be aware of how long the person has already spent in H-1B status prior to making an offer. If they are in the 4th year of H-1B status or later, we recommend that you contact our office to discuss your options prior to making an offer, as you would likely need to start the permanent residence process for such an individual very early on in their employment with your company.  

Q: Can I still extend a current employee's H-1B?

A: Yes. If someone is already working for your company in H-1B status, s/he has already been counted against the H-1B cap and is therefore eligible for extensions of status, up to the maximum initial period of 6 years. If you wish to extend an H-1B holder's status beyond the initial 6 years, please contact our office to discuss beginning the green card process.  

Q: What about other options for hiring foreign nationals - can I hire a student? If so, for how long?

A: Once a student in F-1 status completes a degree program, s/he is typically eligible for one year of Optional Practical Training (OPT) to work for a U.S. employer and gain work experience related to the degree field. If you hire someone on OPT, this gives you the opportunity to see the individual's work product before deciding whether to sponsor him/her for an H-1B. There is no immigration-related cost to the employer to hire someone on OPT.

Some OPT holders are eligible for an additional 17 months of OPT - this is known as the STEM extension and is available to individuals with approved degrees in Science, Technology, Engineering or Math who are working for employers that are registered for the USCIS E-Verify program. If you have an employee or potential employee who you think may be eligible for this extension, please contact our office to discuss this further.  

Q: Are there any other visa options to get someone started with our company before October 1?

A: Depending upon the candidate's country of birth and background, there may be other visa options, as there are some country-specific work visas available (e.g. to certain individuals from Canada, Australia, Singapore and Chile). If you have a candidate and are unsure whether there may be a visa option available to them prior to October 1, you should contact our office.  

Q: With regard to the FY2012 cap, do you expect that it will be reached sooner this year than last year?

A: Unfortunately, there is really no way of knowing as this is largely dependent upon the economic recovery. For FY2011, the cap was not reached until January 26, 2011, and for FY2010 it was reached on December 21, 2009. Prior to that, the cap was reached on April 1 for several years in a row. That said, while it is not expected 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 within the first months of availability, we are still advising our clients to file their petitions as soon as practicable to reduce the likelihood of "missing out" on a cap number for FY2012.  

Q: Other than potential new hires, whom among my current employees may request or require an H-1B visa?

A: In addition to potential new employees, the primary employees who may request or require H-1B visas in the next fiscal year are those who currently hold F-1 Optional Practical Training (OPT), L-1, or TN status. You may want to change your L-1 employees to H-1B because that would allow them to extend their nonimmigrant status beyond the statutory period allowed for L-1s, should you chose to employ them for a longer period of time or sponsor them for permanent residency. Those employees in TN status who wish to apply for permanent residence should also switch to H-1B status because TN status may not be compatible with an ongoing permanent residency application.

Note that, in reviewing your personnel records, you should earmark any individuals with OPT, L-1, or TN status that expires before October 2012 as employees who should be considered for H-1B sponsorship during FY2012.  

Q: I have an employee whose F-1 OPT expires in June 2011. Since we can only get her an H-1B to start on October 1, what happens in the interim? Will I have to take her off payroll or can she keep working during that time?

A: The good news is that this employee can continue to work for you until her H-1B status becomes effective on October 1, 2011. This situation, commonly knows as the "cap gap", has been resolved through regulations. Where an F-1 student's OPT expires after a petition for change of status to H-1B is filed, but before an H-1B is available for that fiscal year, 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, 2011. If the H-1B petition is denied, the individual's work authorization will cease immediately; however, the individual has a 60-day grace period after the denial or rejection date (or the end of the original OPT authorization, if that is later) in which to depart the country or obtain a different status. 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. Additionally, there may be some travel restrictions for the employee during this period. Please note that students will be required to submit evidence of their H-1B petitions to the international student advisor at their college or university and will receive an updated SEVIS I-20 record. You can use this record to re-verify the students' I-9 records for the cap gap period.  

If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at



Recent Immigration News


USCIS Announces FY2011 H-1B Cap Reached


U.S. Citizenship and Immigration Services (USCIS) announced that, as of January 26, 2011, it received sufficient petitions to reach the statutory cap for Fiscal Year (FY) 2011.  USCIS applied a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that are received after January 26, 2011. 


FY2012 H-1B Cap Petitions:  As noted above, the new H-1B visas for FY2012 will be allocated as of October 1, 2011; petitions for these H-1B cases can be received by USCIS beginning April 1, 2011.  In anticipation of the new cap numbers coming available in April, we suggest that you review your personnel records to identify nonimmigrant workers that may need or want to change status to H-1B (e.g. those employees who are currently holding F-1 Practical Training, TN or L-1 visas).  Please also identify any other potential employees who may require a new H-1B visa, and notify our office of any employees you have identified so that we can advise you about the timing of their H-1B filings.  Although the H-1B cap has not been reached in the past two years until December or January, there is no guarantee that this will be the case again in the coming year.  Therefore, we recommend that you file H-1B petitions for any identified employees as early as possible to avoid missing out.  Please keep in mind that once this cap is reached, there will not be any additional H-1B visas available until October 2012.  Therefore, you will need to file under the FY2012 cap for anyone who may need H-1B status prior to that time.



USCIS adds an attestation regarding U.S. Export Controls to the Form I-129


In November, USCIS released a new version of Form I-129, which is used to file petitions for H-1B, L-1, O-1, and TN statuses.  There are a number of changes to this form, primarily in the way USCIS asks us to report certain information.  Significantly, however, the form includes a new attestation, that must be signed by the employer (beginning February 20, 2011), as follows:


"With regard to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that: (1) A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or (2) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary." (emphasis added)


Background:  The export of certain technology and technical data is controlled by the U.S. government, in that some exports are prohibited entirely while others are prohibited without first applying for a license.  Most controlled technologies are considered "dual-use" (e.g., they have both civilian and miliatry uses), or are related to the defense or nuclear industries.  These technologies are controlled by different Federal departments, including the Departments of Commerce, State, and Energy.


More specifically, the attestation on the new Form I-129 is referring to a concept known as "deemed export."  Under this concept, the release of controlled technology to a foreign national within the United States is considered an export of that technology to the foreign national's home country.  Therefore, if the export of the technology to that country is prohibited, the release of the technology to the foreign national is prohibited.  Likewise, if an export license is required prior to the export of the technology to the foreign national's home country, then a license must be obtained from the appropriate government official prior to the release of the technology to the foreign national in the U.S.


Some important points to keep in mind: (1) Generally, these rules apply to all nonimmigrants, including holders of the following visas: H-1B, L-1, B-1/B-2, TN.  They do not apply to U.S. permanent residents or protected persons, including asylees or refugees;  (2) The concept of the "release" of technology is complex.  In some contexts, it can happen simply through a visual inspection or be relayed orally, and in other contexts it may require a person to be more actively involved in the technology's design and/or implementation;  (3) Not all technology is controlled by the government and, even if a certain technology is controlled, there may be a license-exception available; (4) The new Form I-129 attestation does not create or alter existing deemed export rules - these rules have been in place for years. 


Conclusion:  As stated above, the Form I-129 requires employers to confirm that they have reviewed the relevant export regulations and have determined that either a license is not required or that, if a license is required, one will be obtained prior to the release of technology to the foriegn national beneficiary.  This is a complex area of of law, and we recommend that you talk to your in-house or outside corporate counsel to determine the extent to which your organization's technology is covered by these regulatory regimes, if at all.  Should you determine that a license is required for a current or future nonimmigrant employee, please let us know and we can assist you and your counsel as you determine the next steps. 



Government Increasing I-9 Compliance Actions


As you may have seen in news reports in the Fall, the Federal government, including ICE, USCIS, and DOL, continues to increase the rate of its enforcement actions.  These actions take many forms, including: I-9 audits; Wage and Hour audits; and H-1B anti-fraud visits.  In particular, the government has been focusing on inspections or audits of companies' I-9 records.  Although the stated intent of these audits is to uncover workers who are unauthorized to work in the United States, the government quite often levies significant fines for paperwork violations.  Here are a few examples of recent stories:


11/15/2010:  The Boston Globe reports that "Federal immigration officials are increasingly imposing thousands of dollars in fines on New England companies."  


11/10/2010:  The Department of Justice reports that Hoover Inc. has agreed to a fine of more than $10,000 for discriminatory practices related to I-9 completion.  The company was mistakenly asking permanent residents to present I-9 documentation that was not required by law.  


09/28/2010:  Immigration and Customs Enforcement (ICE) reports that Abercrombie & Fitch was fined more than $1 million dollars after an I-9 audit.  Significantly, the fine was primarily based on "technological deficiencies" based on the company's electronic I-9 verification system - no instances of unauthorized employment were found. 


As a reminder, Ross Silverman provides a wide range of services related to I-9 compliance, including conducting audits of your I-9 records and a full review of your I-9 processes and procedures.  In addition, we can provide training to you and your staff regarding any issues that may arise as a result of our analysis.  Furthermore, we can assist you with other immigration-related compliance obligations, including conducting audits of your H-1B public access file records to help ensure that those records are in order in the event of a DOL Wage and Hour audit.  Please visit our website for more information about the services we can provide in this regard.


In the News: What's Happening at RS

New Associate Attorney:  Ross Silverman is excited to announce the addition of a new Associate Attorney, Ellen F. Driver.  Ellen has been working with the firm since August 2009 as an Attorney Law Clerk, and she handles primarily asylum, deportation, and family-based cases.  To learn more about Ellen, visit her bio on our website. 


Membership:  Recently, Rhonda Tietjen joined the International Medical Graduate Task Force, part of the National Healthcare Access Coalition.  The Task Force strives to educate national and state policymakers, administrative officials, and the American public on the need for fair and reasonable laws for allowing international medical graduates to become licensed as physicians and to begin or continue their medical careers in the United States.  It works on behalf of universities, teaching hospitals, medical centers, and clinics of all sizes.  Currently, the Task Force is working on issues relating to H-1B cap-exemption and the Conrad regulations.


March 4, 2011:  Heidi Snyder will speak about L-1 visas on a panel entitled, "Alternatives to the H-1B in a Down Economy" and Howard Silverman will speak on the EOIR panel at the 8th Annual American Immigration Lawyers Association (AILA) New England Law Symposium in Boston. 


March 18, 2011:  Howard Silverman will give an EOIR presentation on Motions to Reopen. 


April 8, 2011:  Howard Silverman will be a speaker on the ICE panel, along with representatives from ICE headquarters, at AILA's Spring Conference in Washington, D.C.


June 16-17, 2011:  Sharryn Ross will speak on a panel entitled, "Understanding the Four Levels of Prevailing Wage," and Howard Silverman will speak at the ICE Open Forum at AILA's Annual Conference in San Diego, CA. 



This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.