H-1B Questions
Can you list clear guidelines for us to follow when an amended H-1B petition needs to be submitted to INS. What specifically constitutes a change in previously approved employment? A person has been granted H status but receives a promotion and we find out about it a month after the fact. How does that effect their H status. Please walk us through an example of how your office looks at amended H petitions and when universities should file them.
8 CFR 214.2 (h)(2)(E) states "Amended or new petition. The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the beneficiary's eligibility as specified in the original approved petition. An amended or new H1-A, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application." [Underline added]
It's difficult to state all the reasons for an amended petition. However, some of the more common ones we see at CSC are (1) for companies who have changed their names because of mergers or other reasons, (2) for beneficiaries who will be working in a different location than originally indicated on the approved petition and (3) significant change in position duties.
In the scenario listed above regarding the promotion, if the new position is one that is still a specialty occupation and still covered by an approved LCA, there will be no change to the beneficiary's immigration status.
To answer the question of when should a university file an amended petition, we will refer you back to the regulations. Whenever there are "any material changes in the terms and conditions of employment or training or the beneficiary's eligibility as specified in the original approved petition" the university should file an amended petition.
What is the status of the H1-B1 application processing with so many waiting for Oct. 1? What is the processing time for an application submitted in Sept to begin in Jan (example)? What is the best way to follow up on pending extension applications? What is the processing time for an extension application?
All H-1B applications are to be adjudicated within 60 days. This includes both the initial petitions and the extensions. As you know, once the CAP has been reached in a fiscal year, all CAP specific H-1B applications are held until the new numbers are released. These petitions are still worked by the Service, they will just be held until they can be updated under the new fiscal year's numbers or under an adjustment of the current year's numbers.
A longer answer is as follows:
The petitions are adjudicated in a first in, first out manner. Because of the cap issues, the H-1Bs are watched very carefully to ensure that we are adjudicating the oldest petitions first. However, things can happen to petitions along the way that can throw them out of the flow. For instance, bounced checks, fee waivers, rejected by the Contractor and the most common, requests for evidence from the officer.
(a) If a check bounces, the file is pulled out of order and listed as rejected until the fee issue has been resolved.
(b) If the petition is accompanied with a fee waiver request, this petition can be delayed from one day to several depending upon the reason for the fee waiver request. At the minimum, the fee waiver request will have to be decided upon by an officer and then have a supervisor's signature. At the other end, if the fee waiver request is based upon another petition filed previously, the earlier file may have to be pulled and reviewed. All these steps add time to the petition. Once the fee waiver issue has been decided, then the petition is sent to Data Entry and allowed to continue through the normal workflow process.
(c) Many times, a petition is rejected by the Contractor because of some missing pertinent information. This rejection will add days and sometimes weeks to a petition's original date.
(d) Finally, the most common reason for a file to be pulled out of the workflow order is the officer's request for evidence. If there is information the officer needs to complete the adjudication, an RFE is sent out and the file movement is stopped until that RFE has been answered or until the file is returned to the officer for an abandonment denial because no answer has been received by the officer.
Regarding the waiver of 212(e), If an H-1B petition has been submitted with a Dept. of State letter stating that it recommends a waiver, will CSC go ahead and process the I-612 and the H-1B application simultaneously?
The Waivers and No Objection Letters are processed by Division III while the H-1B petitions are processed by Division II. After much review, the following has been decided. When a Division II officer receives an H-1B petition that has a pending 212(e) waiver or a pending No Objection Letter that officer will contact a Division III supervisor and alert them that there is a pending I-129 petition and "request" that Division III pull the pending Waiver or No Objection Letter and adjudicate it. Because this is a cross-divisional issue, we can only request this accommodation from another division.
When an H visitor is terminated within his/her first year in H status, do we notify CSC? Does the H get added back into the number of visas available for that fiscal year?
Yes, all organizations should notify INS immediately upon termination of any H beneficiary. And no, unless termination is in the same visa year, the number is not added back to the number of available visas. For further information, review 8 CFR 214.2(h)(11).
Optional Practical Training
In regards to the question of whether part time CPT can be deducted from the total time of OPT, we would like to know what has been decided, so we can better advise our students.
CPT is NOT deducted from OPT. If the student works CPT full-time for 12 months or more, the student is ineligible for OPT.
If a student is denied OPT because of a mistake made by INS, and the decision is being appealed, can she stay in the US the entire time it is pending?
There is no appeal from this decision. However, a motion may be filed within 30 days. Filing a motion does NOT sustain status.
In the last few months, when the Optional Practical Training (OPT) has been approved, the EAD is valid from what appears to be the approval date to the recommended date for the OPT. Example: I recommend OPT from the date of completion: June 9, 2000 to June 8, 2001. When OPT has been approved, the EAD is valid from July 28, 2000 until June 8, 2001. Even though the application for OPT was filed on March 12, 2000, a "timely" application, the student is not getting his/her full twelve months of OPT. Why has CSC changed their policy? It is not the fault of the student that the adjudication procedure is lengthy.
CSC has not changed its policy. There were many factors that caused many problems for many students. Factors such as the first SWIP audit, front-end scanning problems, back-end scanning problems, server problems and an inherited backlog created during the reorganization and consequent training of officers to work a new application type.
In July, the ACD of Division III sent out a notice that was slightly revised on September 5, 2000. It reads: "(A) Students filing an I-765 application may file up to but not more than 90 days prior to reaching nine-months in (student) status to ensure timely adjudication of the EAD. This means that the student will not have to meet the nine-month time in status requirement at 'time of filing.' However, the nine-month time in status will have to be met before issuance of the EAD. (B) Officers will have the discretion to go beyond the time listed on the I-20 or I-538 up to the fourteen-month limit to ensure that the student receives the maximum amount of OPT available as long as the DSO or other school representatives notates the I-20 or I-538 in the following manner: 'From date to date* *Or later, not to exceed 14 months.' If this note is not on the application, it will be assumed by the officer that the student wants the EAD only until the actual 'To' dated listed on the I-20 OR I-538."
If the above example of adjudication of OPT is a CSC error. How does the CSC plan to make the corrections? My students have been advised that their EAD's will be corrected, but as of today, I have not seen one correction.
If there is a legitimate CSC error, the NAFSA representatives should alert the Division III student officers at [email protected] to alert the Division III officers of the discrepancy. Once the file is reviewed, the officer can make the determination and contact the NAFSA representatives with further instructions as to returning the EAD.
A student submitted her application for OPT. It was approved but apparently was lost in the mail. The student was able to get temporary authorization, but it is not for the full year. She was able to contact a person in Laguna Niguel who told her that her card has already been sent. What can she do to get her remaining authorized work time?
EADs that cannot be delivered through the U.S. Postal Service are returned to the California Service Center. The CLAIMS system is then updated to show that the EAD has been returned and listed as "undeliverable." If the EAD is listed as "undeliverable", the NAFSA representative should notify the Division III student officer at [email protected] and ask for advice on a case by case basis. If the EAD is not listed as "undeliverable," the student should file for a replacement card and include a new fee. Make sure the student checks the box "Replacement."
A student is applying for OPT. He attended undergraduate school, did OPT, changed visa status for 2 years, changed back to F-1 status and is now graduating from a graduate program. On the I-538 form in section 4, should he enter the first date granted F-1 at the undergraduate school, or the date he was approved for the change of status back to F-1? Is it a help or hindrance for the DSO to include a cover letter explaining the student's circumstances in these cases?
Enter the date he was approved for COS back to F1 and include full documentation. Yes, a cover letter would be helpful. Submit all copies of all previously issued I20s and I538s if the student has not been issued a new visa from abroad.
Clarify the CSC's present policy on student's using the school's address on the I-765 form. Which address should the student use if planning to move out of the area and doesn't yet have a new address?
8 CFR 103.2(b)(19) states that cards must be sent to the student's mailing address. It is up to the student (and/or the university representatives) to determine the exact definition of "student's mailing address." Attorneys or representatives are not to be considered the "student's mailing address."
A student is graduating in December and applies for OPT on September 25. The card does not get adjudicated before he wants to travel to his home country to celebrate the holidays with his family, and then return in January to participate in OPT. Can he leave the U.S. while the I-765 application is in process or does leaving the country cancel his OPT application?
If the student leaves the country before receiving the EAD, the application is deemed abandoned.
Can a student cancel their OPT application or OPT work permit? And re-apply at a later date? Is there a different way to cancel it if the EAD has already been issued than if the application is still pending? What if it has been approved but the EAD has not been issued. And, if so, do the student and DSO still need to fill out the " EAD Cancellation Notice" and the I-538? Can they cancel because INS took too long in sending the work permit (loss of time)?
Yes a student can withdraw the I-765 application providing it has not been adjudicated. If the application has been approved or denied, it cannot be withdrawn.
On May 22, 2000 Division III ACD Ron Johnson clarified the issue further. He stated: "There are three separate issues involved with this proposal (I-765 Cancellation policy….They are)
'Failure to complete a course of study' is not a valid reason for cancellation of an I-765 or EAD issued for optional practical training. Students who fail to complete a course of study are not eligible for optional practical training. If we are notified that a student has failed to complete a course of study and the I-765 has not been adjudicated, we will deny the I-765. If we are notified after adjudication of the I-765, we will revoke the EAD. Intent to Revoke notices and Notices of Revocation will be addressed directly with the applicant.
'Loss of job offer' is not a valid reason for cancellation of an I-765 or EAD issued for optional practical training. If we have not adjudicated the I-765, the application may be withdrawn and we will close the case. If we had adjudicated the I-765 and the card has been issued, the period of optional practical training will have commenced and will continue to toll.
'Acceptance to a new program' is a valid reason for cancellation of an I-765 but not cancellation of an EAD issued for optional practical training. Cancellation may occur up to the issuance of the EAD card. Once the EAD has been issued, time tolls."
Processing Times
What is the processing time for an I-765?
Division III has changed how it stores pending I-765s by consolidating from 10 categories to 3 categories. As applications under the old storage arrangement are completed, the old categories will disappear. The three categories under the new arrangement, will be 30-day cases, 90-day cases and special projects.
The 30-day category will contain asylum related initial (c)(8) EAD cases, which by regulation must be completed with 30 days. This category will also include cases which HQ dictates are to be completed within 30 days as a matter of policy, such as "special student" (c)(3)(iv).
The 90-day category will contain all other I-765s for initial EADS and all I-765s for extension or replacement EADs except special project related I-765s. At this time, the Special Project category contains only the Hurricane Mitch related TPS I-765s.
I-539 change of status?
Normally, these should be processed within 180 days. However, because of the Commissioner's Targeted Priority Goals and the Service Center Adjudication's Priorities that were created to meet those goals, these applications were placed on hold. We are currently addressing ways to alleviate this backlog.
I-102 replacement I-94?
Again, the Service Center understands there is a backlog in this application. Given the Commissioner's priorities, we are adjudicating these as resources allow.
A response to RFE when requested information has been sent?
Once the response to the Request for Evidence has been received by the officer, normal adjudication time is 30 days. However, there are often time lags between the mailroom and the actual delivery of the evidence to the officer. The way you can help the California Service Center with this is to clearly mark all the documentation you submit to us and to use the blue cover sheet provided. The best way you can help the California Service Center is to take that extra time discussed in an earlier H-1B answer to ensure that your application or petition is complete BEFORE you send it in to CSC.
What is the policy on expedited requests for H's, for EADs, for COS and for replacement I-94s?
At this time the policy for expedites on all the applications and petitions at the California Service Center can be found on page 7 of the CSC Guidelines dated 11/8/99. On page 7 it states:
"EXPEDITES
Expedited processing will be granted on a case-by-case basis. Expedite requests will be considered under the following criteria:
1. Significant public health concerns.
2. Significant environmental concerns.
3. Significant loss of revenue by the petitioner.
4. Compelling national or regional interest.
5. Significant job creation or loss.
6. Extraordinary industry specific circumstances.
7. Significant humanitarian concerns.
8. When an expedite is determined to be in the best interest of INS.
Reason for the expedite request must be stated on the optional expedite work sheet and should include a one page support letter.
Mark the envelope with a red dot and use the street mailing address. Send via bonded courier or other overnight delivery service to addresses noted under 'Mailing Addresses' of this publication. Petitions and supporting documentation should be submitted in duplicate. PLEASE NOTE: only those cases marked with a 'red dot' will be considered for an expedite. NO EXCEPTIONS.
Expedites will only be granted for emergent reasons. Expedites are only approved by ACDs and will be granted infrequently. Please remember that poor planning does not warrant expedite processing. Also the volume of expedite requests will be tracked by the Center. Cases that are not clearly approvable will not be expedited. Incomplete petitions will also be denied expeditious processing.
Resubmission of a returned application/petition, appeal/motion, I765/I-817, or non-direct mail application/petition may be handled as an expedite if one of the criteria of 1 - 8 above are met.
If no expedite response is received within 72 hours, the request has been denied. Normal processing will occur. There is no appeal from the denial of an expedite request. Follow-up faxes or telephone calls will not be entertained."
CSC Procedures
Are there plans to improve communication? It is impossible for students to get through, and very often it is very difficult for us (DSO's), too.
California Service Center representatives are always looking for innovative ways to offer improved customer service to its applicants and petitioners.
Under the reorganization that began in April 2000, a separate Customer Service Division (Division V) was created. This new division, with designated management and specifically assigned officers, has improved the efficiency of the IIO counter and the telephone inquiry lines.
In May 2000, Division II created an emailbox specifically for NAFSA representatives to contact Division II's student officer. (This pilot project has proven so successful that the California Service Center has since opened other emailboxes for other groups such as NACARA, TPS, etc.) Through this emailbox, the Division II student officer has been able to send out notices of events that impact the NAFSA community. Events such as the SWIP audit, changes in I-765 policy, etc., have been emailed to NAFSA representatives currently on record in the CSC.Schools address list so the information can be shared on the NAFSA website and via email to other interested parties.
In September 2000, Division III created an emailbox specifically for NAFSA representatives to contact Division III student officers to request information on EADS and Waivers.
In October 2000, the California Service Center held its first official "NAFSA/CSC SCHOOL DAY". It is our hope this will be such a productive day of information sharing that it will become an annual event.
As we mentioned at the beginning of this section, the California Service Center is always interested in hearing good ideas on how we can provide more effective and efficient service for our applicants and petitioners. If we have the resources to try your suggestion and believe it to be a good one, we may give it a try. We are definitely open to new avenues during this new millennium.
What is the best way to request CSC to review a decision when we believe an error was made?
If you feel a decision was made in error, you may appeal or motion the petition and motion the application.
Minor errors that can be corrected without a major file review may be submitted to the PC Fax line at 949/389-3197. If there is no response from the PC Fax line in 10 days you have the option of sending a fax to the division ACD and then on up to the director's office. However, I would suggest sending a fax to the PC fax line and if there is no answer in 10 days (and it's a Division II or Division III error), send an email to the student officer at [email protected] or [email protected].
Regarding withdrawal of applications, what is the correct procedure for withdrawing applications in process? Are there different procedures for different kinds of withdrawals, e.g., H petitions, I-539's, I-765's? How can a student cancel the OPT before the beginning date since he would not have the EAD card to return? Is there a way to cancel before it has been adjudicated?
A letter with the WAC number and petitioner's or applicant's signature requesting the withdrawal should be mailed to the same address as the original application or petition. Please see the information in the I-765 question above for information about EADs and OPT.
Regarding address changes, how does CSC want to be notified of changes of address?
According to Page 5 of the CSC Guidelines dated 11/8/99, "For all other applications (not N-400s) submit a letter or U.S. Postal change of address form notifying the INS of an address change." Our personal preference of the above is a letter but both forms are acceptable.
Regarding I-765 signature cards, the four service centers have different policies regarding whether the card itself (not the signature) has to be an original or photocopy, e.g.: Nebraska accepts photocopies, Vermont does not require signature cards, and CSC requires originals (don't know about Texas). Does INS have plans to make policies among the service centers more consistent about this and other services?
Questions about creating consistencies among all the Service Centers are probably best sent to your Washington DC NAFSA representative for discussions during their meetings with our Headquarters representatives. Each Service Center is unique because the areas that we service are unique.
10/18/00