Posts Tagged ‘H1-B’

H-1B Cap Reached

Friday, June 15th, 2012

On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory H-1B cap for FY 2013. On June 7, 2012, it received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will now reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013. Employers wishing to hire first-time, cap subject H-1B workers will have to wait until April 1, 2013 to file their cases for work that will begin no earlier than October 1, 2013, the first day of FY 2014. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions as well as Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

Connecticut District Court Protects H-1B Employee from Wrongful Arrest; Holds Regulation That Extends Work Authorization Implicitly Extends Authorization to Remain in U.S. During Pendency of Timely Filed Extension Request

Friday, June 3rd, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.”  Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

USCIS Restores H-1B Cap Exemption to Most Non-Profit Entities Affiliated with Institutions of Higher Education

Friday, May 27th, 2011

On March 16, the day before residency match positions are announced within the medical community, USCIS restored, as an interim policy, the H-1B cap exemption status for nonprofit entities that are related to or affiliated with an institution of higher education, provided the institution received a cap exemption after June 6, 2006. While the interim policy affects all institutions and their H-1B employees, it positively and disproportionately affects thousands of foreign national physicians, including medical residents and fellows. USCIS emphasized that cases must be filed with proof that a cap exemption was previously granted by filing copies of petitions and approval notices. It also stressed that these measures will only remain in place on an interim basis while the entire policy is being reviewed.