USCIS Site Visiting and Its Efforts to Ensure Employers' H1B Compliant

Employer may Request Identification from Site Inspector: Site inspectors should have proper identification and USCIS credentials, and show these to the employer. Employers should always ask for the identification of any persons claiming to be acting on behalf of the government. The site inspectors will want to speak with the H1B petitioner (the individual who signed the H1B petition). If s/he is not available, the site inspectors will seek out an appropriate alternative who has authority within the company.

Employers should discuss the possibility of such visits with their human resources (HR) or other appropriate personnel. If an employer wishes to have an attorney present, the inspector should be informed and additional time requested, if needed.

Inspector's Observations on Employer's Bona Fides and Operation: The inspector will look at the public aspects of the employer's premises to determine if the address on the petition appears to be that of the petitioning organization. The signage will be examined for the name of the business. Neighboring businesses or residents may be asked to verify the location and existence of the business. The type of premises will be noted, and photographs may be taken.

With permission from an organizational representative, the site inspectors will tour the facilities. The purpose is to determine if the business appears to be legitimate and engaged in appropriate business activities.

Employer Questioned on H1B Employee, Job Duties, and Other Details: The site inspectors will ask the selected company representative general questions about an H1B foreign national. These questions will cover information taken from the H1B petition and will cover the position, duties, and terms of employment.

The site inspectors will attempt to verify whether the beneficiary is currently employed by the H1B sponsor. If the individual is employed with the company, the USCIS will ask for proof. If the individual is not employed by the company, the USCIS may inquire as to whether the employer has information about the foreign national's location and current employment. This is one of several reasons it is important for H1B employers to properly document employment terminations. However, employers are not responsible under the law for tracking their former employees.

Questions to H1B Employee Often Include H1B Work and H1B Filing Fees: The site inspectors will want to speak to the H1B beneficiary, who will be asked to show his/her identification. The purpose of this discussion is to determine if the H1B beneficiary's employment is consistent with the terms and conditions in the H1B petition. The H1B beneficiary will be expected to speak knowledgeably about her/his position and employment. There may be questions regarding the foreign national's educational background. The site inspectors also may inquire into payments made by the employee in connection with the filing of the H1B petition. http://www.greencardapply.com/news/news10/news10_0415.htm

USCIS New Q&A on Extension of Post-Completion OPT and F-1 Status

USCIS New Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under the H-1B Cap-Gap Regulations - Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of Oct. 1, 2010 under the Fiscal Year (FY) 2011 H-1B cap.

Questions & Answers

Q: What is the H-1B cap?

A: The cap is the congressionally-mandated limit on the number of individuals who may be granted initial H-1B status or visas during each fiscal year. For FY 2011, the cap is 65,000.

Not all H-1B beneficiaries are subject to the cap. Congress has provided that the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap. H-1B petitions filed on behalf of beneficiaries who will work at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from the fiscal year cap. Additionally, petitions filed on behalf of beneficiaries who will be performing work or services solely in Guam and/or the Commonwealth of the Northern Marianas Islands (CNMI) are exempt from the cap until Dec. 31, 2014. Generally, H-1B beneficiaries seeking to extend status and/or add employers are not subject to the cap.

Q: What do Current F-1/H-1B Extension Regulations Allow?

A: Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

Q: How does “Cap-Gap” Occur?

A: An employer may not file and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is Oct. 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are 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, for the dates reflected on the approved H-1B petition.

Q: Which petitions and beneficiaries qualify for a cap-gap extension?

A: H-1B petitions must be timely filed on behalf of an eligible F-1 student. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q: How does a student covered under the cap-gap extension obtain proof of continuing status?

A: A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st. Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Q: If a student was not in an authorized period of OPT on the eligibility date for the cap-gap extension; can the student work during the cap-gap extension?

A: No. For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date.

Q: If, after being granted the automatic cap-gap extension, a student’s H-1B petition is subsequently rejected, denied, or revoked is the student allowed the 60-day grace period?

A: Yes. The student will have the standard 60-day grace period before he or she is required to depart the United States. In such cases, the 60-day grace period will commence on the date that the rejection, denial, or revocation letter is post marked.

Please note that in cases where the H-1B petition is denied or revoked based on fraud, misrepresentation, or a status violation, the student is ineligible for the 60-day grace period and is required to leave the United States immediately.

Q: May students travel outside the United States during a cap-gap extension period and return in F-1 status?

A: No. The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q: Do the limits on unemployment time apply to students who have been granted an automatic cap-gap extension for F-1 status and post-completion OPT?

A: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q: What is a STEM OPT extension?

A: F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q: If the student is granted the automatic cap-gap extension of F-1 status and post-completion OPT, and his or her H-1B petition is denied or withdrawn, may the student apply for a STEM OPT extension?

A: Yes. However, such an application must be made within 10 days of the denial or withdrawal. See section 9 of SEVP’s OPT Policy Guidance.

Q: For Fiscal Year 2010, due to the availability of H-1Bs, not all employers requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?

A. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. A student may continue to work past October 1st on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending with the SEVIS Desk.

Q. An F-1 student whose period of post-completion OPT will extend beyond the effective date of his or her change of status to H-1B does not need the automatic cap-gap extension of his or her period of F-1 status and OPT. If the H-1B employer of such a student withdraws the H-1B petition before the change of status to H-1B becomes effective, can the student continue to use any remaining period of post-completion OPT?

A. Yes, but only if USCIS receives the withdrawal request from the H-1B petitioner before the change of status to H-1B becomes effective. Once the petition has been withdrawn, the student must provide his or her DSO with a copy of the USCIS acknowledgement of withdrawal (or notice of revocation). The DSO may then make a request to the SEVIS Help Desk for a data fix to the student’s record in SEVIS. Such students may continue to work pursuant to their unused period of OPT while the data fix remains pending because the student will still be in valid F-1 status.

If, however, USCIS does not receive the withdrawal request before the change of status to H-1B becomes effective, the student must file a Form I-539 to request reinstatement and may not work or attend classes until the reinstatement is approved.

Q. Are students considered to be in valid F-1 status after revocation of the H1B petition has occurred, but while the request to change the OPT end date remains pending?

A. Possibly. If the H-1B employer revokes the H-1B petition prior to October 1 and the student’s original OPT end date extends beyond the date of revocation, the student remains in valid F-1 status and may continue to work pursuant to the EAD received for OPT.

If the student’s original OPT end date expires before revocation of the H-1B petition has occurred, the student retains work authorization for a 10-day period following the date of revocation and enters the 60-day grace period on the date of revocation.

A student who was granted an automatic cap-gap extension that does not include an extension of OPT remains in valid F-1 status and enters into the 60-day grace period on the date of revocation.

Each of the scenarios above are based on the assumption that the student has maintained F-1 status up until the date of revocation.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States. http://www.greencardapply.com/news/news10/news10_0416.htm

The Social Security Benefits and U.S. Permanent Resident

Once a U.S. citizen or permanent U.S. resident leaves the country, then their social security benefits are subject to change. U.S. citizens abroad will still receive regular benefits as long as they are eligible for them. There are a couple of countries that the United States cannot send payments to like North Korea and Cuba, but will commence payment once that citizen relocates to another country.

For permanent residents, only those who are citizens of select countries will continue to receive benefits as long as that resident lived/worked in the United States for at least 10 years or earned 40 credits. Some of these countries include but are not limited to China, India, Taiwan, etc. All others will stop receiving benefits 6 months after departure from the United States, excluding those who meet certain exceptions.

Family members of permanent residents who lived and worked in the United States for at least 10 years and earned a minimum of 40 credits will also continue to receive benefits if they are citizens of select countries. For family members that leave the United States and survive the person whom benefits were based on, payments will continue so long as the family members lived in the United States for at least five years. In order to determine if you or your family members qualify for continued benefits upon departing the United States, please refer to this page.

As a permanent resident, up to 85% of your benefits are subject to taxation. If you are not a permanent resident or citizen and work in the United States, your benefits will also be taxed. If you work for an employer, 6.2% of your earnings are withheld. Your employer will deposit the withholdings, along with a matching contribution of 6.2% to the government for social security programs.

In 2009, once your earnings reach $106,800, the employee tax and employer matching contribution stop. In addition, 1.45% of your earnings are withheld for Medicare. Your employer will match this amount with a 1.45% contribution; all of your earnings are subject to Medicare tax, regardless of how much you make. If you are self-employed, you pay 12.4% of your taxable income to social security until your earnings reach $106,800. You also pay 2.9% of your taxable income to Medicare on all of your earnings.

If you leave the U. S. in the future, you may be reimbursed for all of your paid social security taxes and Medicare taxes by following certain procedures. However, bear in mind, that there are also exceptions to social security taxation; certain foreign countries do not tax benefits earned through work in the United States or charge a reduced rate. For example, Indian nationals do not have to pay this tax so long as they receive benefits based on their work with the U.S. government at a local, state, or national level.

For both U.S. citizens and permanent residents, the future of social security is uncertain. It has been estimated that by the year 2016, the amount of benefits owed to the public will surpass taxation. At this current rate, all social security funds will be exhausted by 2037. In order to maintain this system, as it provides valuable benefits to both non-citizens and citizens alike, social security will have to undergo further reform to meet the needs of the ever-changing American demographic.

Additional information about social security can be found on the official website. Please refer to this page if you have further questions or concerns. http://www.greencardapply.com/news/news10/news10_0424.htm

USCBP Questions for H-1Bs Entering the U.S.

1. CBP Questions Focus on H1B Work Location and Wage Computations:

Based upon the cases that we have seen, and reports of the incidents in Newark, NJ, the CBP's (U.S. Customs and Border Protection) questions were primarily aimed at determining the nature and location of the foreign national's work, and the manner of wage payment calculations.

The CBP asked about the location of the work. In the instances of expedited removal that came to our attention, the CBP asked questions about whether there was a contract between the H1B petitioner and the end client. Where there was not a direct contract, they appeared, at least in some cases, to misinterpret the concepts in the recent employer-employee relationship memo to arbitrarily determine that there was not valid H1B employment.

Other questions related to the manner of payment of the employee. The questions included whether anyone takes a cut or portion of the individual's pay. This can be a confusing question for some IT consultants who may think in terms of their billing rates and related bonus structures, rather than the required salary set forth in their H1B petitions.

2. Respond to CBP Questions Accurately and Based on Personal Knowledge:

It is necessary that any answers provided to a government official are correct. Individuals who are questioned at the POE should only give information based on direct, personal knowledge. Most employees do not have this type of information about the contracts entered into by their employers. These contracts are usually private, proprietary matters that are not freely divulged to employees. One should never guess or make assumptions when giving answers to any government official.

If an individual is being asked for information that s/he does not have, then it would be more appropriate for the CBP to contact the H1B employer. These concerns might be better addressed through a deferred inspection. This would allow for submission of proof that the worker is acting consistently with the H1B petition approval.

3. Difference between Wage Rate and Billing Rate for Consulting Companies:

The USCIS previously approved many H1B petitions based on employment arrangements that were questioned at the Newark POE. That is, the cases have clearly reflected employment at third-party worksites, and have included proof of the existence of mid vendors between the petitioner and the end client. The USCIS has uniformly insisted upon detailed proof of the nature of the position, including end client letters and related contracts in H1B petitions in recent years. The consulates that issue most H1B visas have been applying similar standards.