The U.S. Department of State (DOS) recently released its May 2010 Visa Bulletin. As with the Visa Bulletins for the past few months, the May 2010 Visa Bulletin continues to advance most of the employment-based immigrant visa categories. The most significant advancement in the May 2010 Visa Bulletin is in the EB-3 World category. The DOS has advanced this category by more than two months to April 22, 2003. However, the DOS has made the EB-3 Mexican national category Unavailable because it is indicated that all of the available numbers for fiscal year 2010 (October 1, 2009 through September 30, 2010) have already been allocated. Therefore, this category will remain Unavailable until the beginning the government’s next fiscal year on October 1, 2010. The following is a comparison of the priority date forward and backward movement since the beginning of the retrogression in October 2005:

Click here to see table.

Additional information about the priority date retrogression and advancements will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Provides H-1B Cap Gap Guidance to Employers

The U.S. Citizenship and Immigration Services (USCIS) recently issued Frequently Asked Questions (FAQs) reminding employers that certain of their employees for whom they have filed H-1B quota petitions may qualify for H-1B Cap Gap relief.

H-1B Cap Gap relief is available to eligible F-1 students who were maintaining valid F-1 status when the petition was finally filed with the USCIS who have had an H-1B quota subject petition filed on their behalf. The automatic cap gap extension begins when the student's employer files an H-1B quota subject petition requesting a change of status from F-1 classification to H-1B classification and such petition is accepted under the quota. The cap gap relief will continue until either the petition is denied or if the petition is approved, the relief will continue until the H-1B status becomes effective on October 1, 2010. The relief provides, at a minimum, that the student may remain in the United States until his/her H-1B status becomes effective. Additionally, if the student's post-completion Optional Practical Training (OPT) expires on or after April 1, 2010, the student's employment authorization will also be automatically extended until October 1, 2010. Students should contact their school in order to have their SEVIS Form I-20 updated to reflect the cap gap relief. If the students' post-completion OPT is extended, the updated SEVIS Form I-20 will indicate the automatic extension of the employment authorization and may be used in conjunction with the Employment Authorization Document (EAD) as a Form I-9 Employment Eligibility document.

The USCIS reminded students and employers of the following technicalities of H-1B Cap Gap relief:

  1. F-1 students may not travel internationally after their EAD cards expire and reenter the United States using an F-1 visa. If a student travels internationally after the EAD card expires, the earliest that he/she could reenter the United States would be September 22, 2010 using an H-1B visa to commence his/her H-1B employment on October 1, 2010.  
  2. The USCIS confirmed that if an H-1B petition is denied or withdrawn, an F-1 student may still apply for Stem OPT within ten (10) days of the withdrawal or denial. The Stem OPT program allows for a 17 month extension of regular post completion OPT for certain F-1 students who qualify.  
  3. The USCIS confirmed that an F-1 student may continue with his/her valid OPT on or after October 1, 2010 if his/her employer requests the withdrawal of the H-1B quota subject petition requesting a change of status from F-1 to H-1B classification prior to October 1, 2010. However, if the employer does not request the withdrawal prior to October 1, 2010, the foreign national would be required to apply to change his/her status from H-1B to F-1 status or apply for F-1 reinstatement if the student is no longer maintaining a valid nonimmigrant status.

Additional information about the H-1B quota and the USCIS' continued implementation of H-1B Cap Gap relief will be contained in our firm's future Immigration Updates when it becomes available.