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Didn’t Make the H-1B Lottery? Certain Employers May Find Relief in STEM Extension

Dilip Patel


With only 85,000 visas available for the 172,000 H-1B petitions received by USCIS, those unlucky employers and their foreign national workers who were not selected in the lottery must seek alternative work authorization strategies. One alternative may be enrolling in E-Verify, the free, Internet-based program that enables employers to electronically verify the employment eligibility of new employees, in order to obtain a 17-month work permit. The additional 17 months is available to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, and who have received an initial grant of post-completion OPT related to such a degree. But, the employer must also participate in E-Verify. The additional 17-month work authorization could provide some breathing room to pursue alternative strategies for longer-term employment; moreover, the extension gives U.S. employers another chance to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for another H-1B petition. Participation in E-Verify, however, includes a number of pros and cons, not the least of which are administrative burdens and additional obligations and potential liabilities. While obtaining additional work authorization for employees not selected in the H-1B lottery may be appealing, eligible employers should carefully weigh the advantages and disadvantages of E-Verify participation before signing up.

USCIS Announces Expansion of L-1 Site Visits

USCIS recently announced an expansion of its Administrative Site Visit and Verification Program, which conducts unannounced site visits to the offices of U.S. employers who have filed H-1B — and now L-1 — visa petitions. The program is implemented by the USCIS Fraud Detection and National Security Directorate (FDNSD). Until recently, site visits targeted locations where H-1B workers were employed and verified compliance with the terms and conditions set forth in the H-1B petition filings. This expansion corresponds to a report on the L-1 visa category recently released by the Office of Inspector General, which specifically recommended that USCIS complete a site visit before approving extensions of new office L-1 petitions. It is anticipated that extensions of new office L-1 petitions will be the primary target of L-1 site visits initially. Whether the program will be expanded to longer-established companies that file L-1 petitions remains to be seen; in all likelihood, that too can be expected.

I-94 Arrival and Departure Records Now Available for Five Years

The Customs and Border Protection (CBP) website that nonimmigrant travelers access for their arrival record now allows such travelers to access arrival and departure records going back five years from the request date. The availability of the five-year record may obviate the need for a nonimmigrant to submit a FOIA request for his or her travel records, but the five-year record also reveals some potentially significant problems. Here’s one problem: a foreign national first schedules, then cancels or reschedules international travel but his name remains on the airline’s original flight manifest. This can result in CBP removing the current I-94 record from the website portal and also recording on the portal that the foreign national departed the United States.

In a recent exchange with CBP officials, CBP provided the following explanation why this could occur. CBP registers foreign nationals’ departure through information reported in the Advance Passenger Information System (APIS). If APIS shows that a foreign national is named on a flight manifest, the I-94 is removed from public access on the Web portal; the foreign national also may be identified on the public access website as departing the U.S. It appears that APIS is not automatically updated under these circumstances — the airline is responsible for the departure information in APIS and the airline is supposed to report the update. What happens when the airline does not update its information? While USCIS can determine from the APIS records that the person was in fact a “no board” and did not depart, the non-availability of the I-94 record on the CBP website can be an issue for the individual needing that information, such as in the context of changing or adjusting status.

Nonimmigrant travelers are well advised to regularly check their automated I-94 record and, now, their five-year history whenever they travel in and out of the United States.

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