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H-1B Developments of Interest to Employers and Foreign National Employees

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H-1B Developments of Interest to Employers and Foreign National Employees

April 8, 2008

Cap is Reached as of April 8, 2008; New Regulation Addressing Cap-Gap for H-1B Lottery Winners whose Practical Training runs out before October 1, 2008 and Permitting 17-Month Extension of Optional Practical Training for Certain Foreign Students

· H-1B Cap News

Today the USCIS announced that it received enough H-1B petitions to meet the FY 2009 65,000 cap and the 20,000 additional visas for holders of U.S. advanced degrees. As we have advised previously, the Service confirmed that it will first perform data entry, and eliminate duplicate filings, and then conduct the random selection process. The Service will place those eligible petitions not selected for the 20,000 advanced degree exemption limit into the lottery for the 65,000 visas. We do not anticipate receiving notifications from the Service for at least another 3 weeks.

· "Cap-Gap" Solution for Students who Become H-1B Lottery Winners

The government published an interim final rule in today's Federal Register which would allow students who are H-1B beneficiaries on petitions the Service randomly selects for processing and then approves to remain in this country even if their practical training work authorization expires before October 1, 2008.

· 17 Month Extensions of Student Practical Training Possible for Certain Employees for Employers Participating in Government's E-Verify Program

The new regulation also offers certain work authorization benefits for employers hiring students under the Optional Practical Training (OPT) program who have completed their degrees in science, technology, engineering or mathematics (known as "STEM1"), but only if the employers enroll in the government's E-verify Program, the government's electronic system of employment authorization, for ALL of its new hires. The decision whether or not to participate involves privacy concerns, employment law considerations and immigration consequences.

The government's enticement of a 17-month extension more than doubles the standard OPT period. Employers may be pressured by their student foreign national employees to participate. A benefit to employers is that it allows employers either to delay filing H-1B visa petitions or have "two bites" at the H-1B lottery apple. For example, if a petition is not randomly selected the first fiscal year, the employer could file another petition the next fiscal year.

Enrollment in the E-Verify program mandates the employer signing a Memorandum of Understanding with the government that may have significant negative ramifications for the employer, including delays in hiring until E-Verification is attained, a waiver of the employer's rights to keep certain records private from multiple governmental agencies, and additional anti-discrimination considerations. On an administrative level, E-Verify enrollment may require employers to change their internal Human Resources and I-9 related systems.

Evaluating whether to enroll in the E-Verify program requires careful analysis from your General Counsel, Employment Counsel and Immigration Counsel. While the 17-month OPT extension is certainly desirable for most employers, the pill employers must swallow in exchange has many side effects. We'll be sharing data this next year on whether the pill is, in fact, poisonous.

We hope this information is helpful. Please contact us if you have any questions.

1 Eligible STEM fields found at

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