Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations Questions and Answers

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 October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.
Questions & Answers

Q1. What is “Cap-Gap”?

A1. 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 through the start date 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 the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?

A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more 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 cap-subject 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 October 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.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?

A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
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Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student’s authorized F-1 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 Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, 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 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program 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.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?

A4. The student should go to their Designated School Official (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 a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, 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 for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?

A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?

A9. 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.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?

A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always 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?

A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

* The student finds employment appropriate to his or her OPT
* The period of OPT is unexpired; and
* The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?

A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

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.

FROM THE USCIS WEBSITE – Last updated:04/01/2011

CANADIAN IMMIGRATION UPDATE: New LMO Forms Coming!!!

As though the LMO application system was not already onerous enough, Human Resources and Social Development Canada (“HRSDC”) and Citizenship and Immigration Canada (“CIC”) have announced that effective March 25, 2011, the online Labour Market Opinion (“LMO”) application system will be unavailable until a new secure online Web system is installed in June 2011. During this period, all employers can still submit LMO paper application forms by mail or fax to the appropriate Service Canada Centre. The Live-in Caregiver Program online application process will continue to be available without interruption.

In addition, new LMO application forms will be available as of March 25, 2011. These new forms will be specific to each stream under the Temporary Foreign Worker Program such as the Live-in Caregiver Program, the Seasonal Agricultural Worker Program, etc. My staff and I can’t wait to see the impact of the new forms on an already arduous system.

Completed LMO applications received by Service Canada by March 31, 2011, will be processed in accordance with the standard Program requirements. As of April 1, 2011, any LMO request received must be made using the new LMO application forms and will be processed in accordance with the new amendments to the Immigration and Refugee Protection Regulations.

For more information about the LMO and Work Permit process in Canada, please contact our office: veronique_malka@visaserve.com

USCIS’ Online Tool Allows Workers to Check their Own Employment Authorization Status.

On March 21, 2011, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) announced the launch of E-Verify Self Check—an innovative service that allows individuals in the United States to check their employment eligibility status before formally seeking employment.

E-Verify Self Check is the first online E-Verify program offered directly to workers and job seekers. This voluntary, free, fast and secure service was developed through a partnership between DHS and the Social Security Administration (SSA).

As of March 21, 2011, E-Verify Self Check is available to users who maintain an address in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia.

E-Verify Self Check and Workers.
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E-Verify Self Check gives individuals in the United States access to their employment eligibility status and gives them an opportunity to submit corrections to their DHS and SSA records, if necessary, before applying for jobs.

The E-Verify Self Check process consists of four steps:

1. Users enter identifying information online (such as name, date of birth and address).

2. Users confirm their identity by answering demographic and/or financial questions generated by a third-party identity assurance service.

3. Users enter work eligibility information such as a Social Security number and, depending on citizenship status, an Alien Registration number.

4. E-Verify Self Check checks users’ information against relevant SSA and DHS databases and returns information on users’ employment eligibility status.

The information that users provide to E-Verify Self Check and the results of an E-Verify Self Check query are never shared with users’ employers or prospective employers.

The results of a Self Check query do not replace the results of an employer E-Verify query. An individual’s status or information may change between the time they use Self Check and when an employer uses E-Verify. Accordingly, if E-Verify Self Check confirms that an individual is authorized to work in the United States, it does not necessarily mean that a future E-Verify query will find the same individual to be employment authorized.

If Self Check it is unable to confirm employment authorization, individuals are provided with instructions on how to resolve a potential data mismatch in their SSA or DHS records. These instructions are available in English and Spanish.

In addition to E-Verify Self Check, individuals have several ways to confirm their employment eligibility and correct their government records if necessary.

They may:

1. Wait until an employer checks their employment eligibility through E-Verify. If issues arise, employers will inform individuals of the next steps.

2. Request a Social Security Statement from SSA. This statement includes the individual’s full name, date of birth and the last four digits of his or her Social Security number as they appear in SSA records.

Verifying the statement’s accuracy may prevent mismatches during an E-Verify query. To learn more about Social Security Statements and to request a statement, visit www.ssa.gov/mystatement or
contact the USCIS National Customer Service Center (NCSC) at 800-375-5283, TTY 800-767-1833.

Self Check will not affect a user’s credit score. Users viewing their credit reports after using Self Check will see a record of a “soft hit” or “soft inquiry” in the report. Soft hits are not shown to businesses and are not used to calculate credit scores.

Individuals cannot be required to use E-Verify Self Check to prove work authorization. Individuals who are asked by employers or anyone else to run a Self Check query to prove that they are authorized to work in the United States, or who believe they are victims of any other type of discrimination or unfair labor practice related to Self Check, should notify the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices at 800-255-7688.

For general inquiries about Self Check, contact the E-Verify Employee Hotline at (888) 897-7781.

E-Verify Self Check and Employers.

E-Verify Self Check is expected to reduce the number of data mismatches employers experience when using E-Verify and, as a result, will decrease the amount of time and resources they spend resolving those mismatches.

E-Verify Self Check is not for employer use. Employers may not require workers to use Self Check or show Self Check results.

E-Verify employers must continue to run an E-Verify query on each new hire (or existing employee, if applicable), even if the new hires have previously verified their employment status through Self Check. The results of a Self Check query do not replace the results of an E-Verify query.

Employers may not accept the results of a Self Check query as a document to fulfill the requirements of Form I-9, Employment Eligibility Verification. Only documents on the Form I-9 List of Acceptable Documents may be used to complete Form I-9.

Privacy and Security.

E-Verify Self Check uses an identity assurance process to ensure that an individual can perform an employment eligibility check only on him- or herself. Before allowing anyone to check his or her employment eligibility status, E-Verify Self Check confirms that the person attempting to run a check is who he or she claims to be with an independent, secure identity assurance service that generates an identity assurance quiz based on key information provided by the user.

The questions and answers included in the identity assurance quiz are not shared beyond the user and the independent identity assurance service; DHS is only notified that a user’s identity is verified.

Self Check purges all personal information used in the identity assurance process at the end of the user session and maintains a record of personal information only as long as necessary. For example, users’ addresses are only stored by Self Check until users complete the identity assurance process, as they are not needed later in the process.

The independent identity assurance service stores users’ personal information for one year as required by the Fair Credit Reporting Act (FCRA). That information is never shared, except where required by law.

Self Check will be unable to generate an identity assurance quiz if:

1. A user enters information incorrectly, preventing the independent service from locating any records on the individual;

2. A user has recently attempted to take the identity assurance quiz too many times;

3. A user lacks a sufficient financial record because he or she recently entered the country or the U.S. workforce;

4. A user, typically a victim of identity theft, has reported certain fraud alerts to the state or a credit bureau; or

5. A user has placed a security freeze on his or her credit report.

Individuals may still be authorized to work in the United States even if Self Check is unable to generate an identity assurance quiz or if an error prevents users from successfully completing the identity assurance quiz. You can contact the USCIS National Customer Service Center (NCSC) at 800-375-5283, TTY 800-767-1833 for further assistance.

Additional privacy and security protections built in to the Self Check service include:

Defenses to prevent phishing attacks and attempts to circumvent the identity assurance process;

Safeguards to block IP addresses and deny service to anyone attempting to access Self Check from outside the continental United States and to block usage by hackers who attempt to attack the service;

Measures to prevent imposters from running a stolen identity through Self Check in cases where an individual has reported identity theft to a credit bureau and placed a “fraud lock” on his or her identity; and

Ongoing and active monitoring by USCIS to prevent misuse.
Additional Facts About E-Verify Self Check:

USCIS partnered with SSA to identify one state in each of SSA’s regions to participate in the first launch phase of this new service. Additionally, the District of Columbia was chosen to enable USCIS headquarters to access the service for training, evaluation and system improvements.

Following the initial release and review of the service, USCIS will work to expand Self Check’s availability as quickly as possible, with the goal of expanding nationwide within 12 months.

USCIS estimates that Self Check users will generate about 850,000 to 1 million queries in the first year, with approximately 8 million queries per year after the program is expanded nationwide. The servers that house E-Verify databases have been tested and are capable of handling these additional queries.

E-Verify is administered by USCIS in partnership with SSA. For more information about E-Verify, please visit www.uscis.gov/everify. For more information on E-Verify Self Check, visit at www.uscis.gov or call the E-Verify Employee Hotline at (888) 897-7781.

This page was last reviewed/modified on March 21, 2011.

FOR MORE INFORMATION ABOUT THE E-VERIFY SELF-CHECK, SEE THE CIS BLOG AT:

http://blog.uscis.gov/2011/03/introducing-e-verify-self-check-online.html

THE DHS BULLETIN: WEEKLY UPDATE

The DHS Bulletin: Weekly Update provides an in-depth summary of both the current and the previous week’s events and initiatives throughout the Department of Homeland Security on which the news media is focused.

ISSUES IN THE HEADLINES MARCH 22, 2011

SECRETARY NAPOLITANO ANNOUNCES LAUNCH OF E-VERIFY SELF CHECK
Secretary Napolitano and U.S. Citizenship and Immigration Services Director Alejandro Mayorkas yesterday announced the launch of E-Verify Self Check – an online tool that allows individuals in the U.S. to check their own employment eligibility status before formally seeking employment.

“E-Verify is a smart, simple, and effective tool that allows us to work with employers to help them maintain a legal work force. The E-Verify Self Check service will help protect workers and streamline the E-Verify process for businesses.” (quote by Secretary Napolitano – DHS press release)

“Put simply, Self Check gives workers fast and secure access to their employment eligibility information before they apply for jobs. In this way, workers are able to identify whether there are any inaccuracies in their Social Security Administration or DHS records before they seek employment, and submit corrections for any inaccuracies ahead of time.” (quote by USCIS Director Alejandro Mayorkas – The Blog @ Homeland Security)

Read more about E-Verify Self Check.

SECRETARY NAPOLITANO IS TALKING ABOUT: SCIENCE AS PUBLIC SERVICE
Inside Higher Ed published an op-ed by Secretary Napolitano this week emphasizing the important role of science and engineering experts in helping America prepare for and respond to a wide range of ever-evolving threats.

“We have tremendous scientific resources in this country. We lead the world in scientific and technological innovation. We must, therefore, engage our best scientific talent in support of our common security. By doing so, we can build on past success, amplify our current efforts, and greatly accelerate our future progress toward a more secure and resilient America.” (quote by Secretary Napolitano – Inside Higher Ed)

URBAN SEARCH AND RESCUE TEAMS RETURN FROM JAPAN

This past weekend, two Urban Search and Rescue (US&R) teams safely returned home after a nine-day mission to support search and rescue efforts in response to the earthquake and tsunami in Japan. FEMA provides funding and program development support for these locally managed US&R teams. Check the FEMA Blog for more details on the US&R teams.

Weekly Update FOR THE WEEK OF
MARCH 14, 2011

SECRETARY NAPOLITANO HIGHLIGHTS U.S.-MEXICO PARTNERSHIP AT CONGRESSIONAL BORDER ISSUES CONFERENCE

Secretary Napolitano delivered remarks Thursday at the Annual U.S.-Mexico Congressional Border Issues Conference – highlighting the continued partnership between the U.S. and Mexico to ensure our mutual security while facilitating trade and travel along the Southwest border.
“Security and prosperity are mutually reinforcing, and the United States and Mexico are closely linked by a common interest in robust security and growing economies,” said Secretary Napolitano. “We are committed to continuing to work with Mexico to foster a safe and secure border zone, while facilitating the legal trade and travel that helps our border regions prosper.”

In her remarks, Secretary Napolitano underscored the Obama Administration’s unprecedented efforts to strengthen security along the Southwest border, which include increasing the number of Border Patrol agents from approximately 10,000 in 2004 to more than 20,700 today; doubling the number of personnel assigned to Border Enforcement Security Task Forces; and deploying approximately one quarter of all U.S. Immigration and Customs Enforcement personnel to the Southwest border region – the most ever.

SECRETARY NAPOLITANO ANNOUNCES NEW “IF YOU SEE SOMETHING, SAY SOMETHING™” PARTNERSHIPS
Last Thursday, Secretary Napolitano announced a new partnership between the Department’s “If You See Something, Say Something™” public awareness campaign and the National Collegiate Athletic Association (NCAA) that will help ensure safety and security during the NCAA March Madness college basketball tournament and all 88 NCAA championship games and tournaments.
The “If You See Something, Say Something™” campaign – originally implemented by New York City’s Metropolitan Transportation Authority and now licensed to DHS for a nationwide campaign – is a simple and effective program to engage the public and key frontline employees to identify and report indicators of terrorism, crime and other threats to the proper transportation and law enforcement authorities.
The “If You See Something, Say Something™” campaign partnership with the NCAA launched last Thursday during the NCAA March Madness men’s and women’s basketball tournaments, and will feature both print and video materials – including an “If You See Something, Say Something™” public service announcement featuring Secretary Napolitano and NCAA President Mark Emmert that will play at all tournament games and future NCAA events, which can be viewed here.

On Tuesday, March 15, Secretary Napolitano traveled to Denver where she met with state and major urban area fusion center leaders and announced the expansion of the “If You See Something, Say Something™” campaign to the state of Colorado. And on Monday, Secretary Napolitano joined Massachusetts Lieutenant Governor Tim Murray and Massachusetts Bay Transportation Authority (MBTA) officials to launch a new partnership with the MBTA on the “If You See Something, Say Something™” campaign.

HOMELAND SECURITY ON THE HILL

Last week, senior leaders from across the Department – including FEMA Administrator Craig Fugate, Assistant Secretary for Health Affairs Alexander Garza, Deputy Under Secretary for the National Protection and Programs Directorate Philip Reitinger, Assistant Transportation Security Administration (TSA) Administrator for the Office of Security Technology Robin Kane, Assistant TSA Administrator for Security Operations Lee Kair, Under Secretary for Science and Technology Tara O’Toole, Domestic Nuclear Detection Office Director Warren Stern, Coast Guard Prevention Policy Director Rear Admiral Kevin Cook, Customs and Border Protection (CBP) Assistant Commissioner for Technology Innovation and Acquisition Mark Borkowski, U.S. Border Patrol Chief Michael Fisher, and CBP Assistant Commissioner of Air and Marine Michael Kostelnick – testified before Congress.

On March 17th, FEMA Administrator Craig Fugate testified before the Senate Homeland Security and Governmental Affairs Committee on how FEMA is working to improve its preparedness for the next catastrophic disaster through the “Whole Community” framework, which includes cooperation with FEMA’s federal, state, local, tribal and territorial governmental partners; non-governmental organizations like faith-based and non-profit groups and the private sector; and individuals, families, and communities.
Assistant Secretary for Health Affairs Alexander Garza testified before the House Homeland Security Committee, Subcommittee on Emergency Preparedness, Response, and Communications, on the Office of Health Affairs’ (OHA) fiscal year 2012 budget request, highlighting OHA’s perspective on health “through the prism of national security,” providing medical, public health, and scientific expertise in support of the DHS mission to prepare for, respond to and recover from all threats.

On March 16th, National Protection and Programs Directorate Under Secretary Philip Reitinger testified before the House Committee on Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies on the current cyber security environment, the Department’s cyber security mission, and DHS’s coordination with public and private sector partners to address the cyber threat to critical infrastructure and the economy.

Assistant Transportation Security Administration (TSA) Administrator for the Office of Security Technology Robin Kane and Assistant TSA Administrator for Security Operations Lee Kair testified before the House Committee on Oversight and Government Reform, Subcommittee on National Security, Homeland Defense, and Foreign Operations, on TSA’s use of Advanced Imaging Technology at airport security checkpoints, emphasizing the effectiveness and safety of the technology as well as upcoming improvements to enhance passenger privacy.

On March 15th, Under Secretary for Science and Technology (S&T) Tara O’Toole testified before the House Committee on Science, Space, and Technology on S&T’s strategic direction and top priorities, as well as some of the challenges facing its research and development organization in supporting the third largest federal agency.
Warren Stern, Director of the Domestic Nuclear Detection Office (DNDO), testified before the House Committee on Science, Space, and Technology Subcommittee on Technology and Innovation, about DNDO’s research and development programs as it strives to improve the nation’s capability to detect and report unauthorized attempts to import, possess, store, develop, or transport nuclear or radiological material for use against the nation, and to further enhance this capability over time.

Coast Guard Prevention Policy Director Rear Admiral Kevin Cook testified before the House Transportation and Infrastructure Committee, Subcommittee on Coast Guard and Maritime Transportation, on the Coast Guard’s efforts to counter global piracy.

Finally, Customs and Border Protection (CBP) Assistant Commissioner for Technology Innovation and Acquisition Mark Borkowski, U.S. Border Patrol Chief Michael Fisher, and CBP Assistant Commissioner of Air and Marine Michael Kostelnick testified before the House Committee on Homeland Security, Subcommittee on Border and Maritime Security, on the future of technology at the Southwest border, noting CBP’s efforts to secure the nation’s borders while facilitating the flow of lawful people and goods entering the U.S.

READ ABOUT THE PROGRESS DHS HAS MADE ACROSS OUR KEY MISSION AREAS

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United States Attorney’s Office
Central District of California

Thom Mrozek – Public Affairs Officer

(213) 894-6947

thom.mrozek@usdoj.gov

Return to the 2011 Press Release Index
Release No. 11-039

March 21, 2011

GOVERNMENT ATTORNEY SENTENCED TO NEARLY 18 YEARS IN PRISON FOR TAKING HUNDREDS OF THOUSANDS OF DOLLARS IN BRIBES FROM IMMIGRANTS SEEKING STATUS IN U.S.

LOS ANGELES – A senior attorney with U.S. Immigration and Customs Enforcement (ICE) was sentenced this morning to 212 months in federal prison for taking nearly one-half million dollars in bribes from immigrants who were promised immigration benefits that would allow them to remain in the United States.

ICE Assistant Chief Counsel Constantine Peter Kallas, 40, of Alta Loma, received the 17⅔-year sentence from United States District Judge Terry J. Hatter Jr.

In addition to the prison term, Judge Hatter ordered Kallas to pay $296,865 in restitution after fraudulently receiving worker’s compensation benefits.

“Mr. Kallas has received one of the longest sentences ever seen in a public corruption case,” said United States Attorney André Birotte Jr. “Mr. Kallas took in hundreds of thousands of dollars in bribes – money he obtained by exploiting his knowledge of the immigration system. The lengthy sentence reflects the seriousness of the crimes, which were a wholesale violation of the public trust.”

Following a three-week trial, a federal jury in April 2010 convicted Kallas of three dozen felony counts – conspiracy, six counts of bribery, two counts of obstruction of justice, seven counts of fraud and misuse of entry documents, three counts of aggravated identity theft, nine counts of making false statements to the Department of Labor, four counts of making false statements to obtain federal employee compensation, and four counts of tax evasion.

“This case presents an epic display of a public official’s greed,” prosecutors wrote in a sentencing memorandum filed with the court.

“As a corrupt prosecutor, [Kallas] calculatingly terrorized the idea of justice and the concept of public service,” the memorandum continued. “[Kallas] carried out his crime scheme through elaborate forms of manipulation, lies, and obstructive conduct.”

Kallas has been in a federal jail since August 2008, about two months after he was arrested by special agents with the Federal Bureau of Investigation at the San Manuel Indian Bingo and Casino in Highland, California. Kallas was arrested after he took a $20,000 bribe from an immigrant during an incident that was captured on casino surveillance cameras and shown to the jury.

The June 2008 bribe was the last in a series of incidents in which Kallas and his wife, Maria, told illegal aliens that Kallas was an immigration official – either an immigration judge or some other type of high-level immigration official – and that Kallas could obtain immigration benefits for the aliens in exchange for bribes.

Steven Martinez, Assistant Director in Charge of the FBI in Los Angeles, stated: “Today’s lengthy sentence fits the significant crimes committed by Mr. Kallas and will undoubtedly deter others planning to abuse government power. Mr. Kallas was entrusted to help immigrants abide by the law, but instead he enabled them in breaking the law, by greedily taking advantage of their desperation.”

During a five-year period that ended with his arrest, the Kallases accepted payments from aliens that totaled at least $425,854.

Kallas took bribes from some illegal aliens who were offered “jobs” at companies Kallas and his wife had set up. As part of the scheme, Kallas filed fraudulent labor condition applications with the Department of Labor that falsely claimed the companies had offered employment to the aliens.

On December 16, 2006, Kallas appeared in Immigration Court and, without any authorization, used his position as an immigration prosecutor to ask a judge to dismiss removal proceedings against an immigrant.

Kallas misused the identities of several real persons by, among things, putting their names on fraudulent documents or on nominee bank accounts used to hide money from the Internal Revenue Service.

In some cases, Kallas attempted to solve immigrants’ problems by simply making their files disappear. When investigators searched the Kallas residence in June 2008, they discovered a hidden floor safe that contained more than $177,000 in cash and two dozen official immigration files.

Kallas also illegally obtained more money through workers compensation fraud and tax evasion, claiming total disability and zero income, even as he was conducting the elaborate bribery and fraud scheme.

Daniel R. Petrole, Acting Inspector General, United States Department of Labor, said: “Today’s sentencing highlights our efforts to investigate fraud against the Department of Labor. The defendant, who is a former Immigration and Customs Enforcement attorney, used shell companies to falsely petition aliens for employment visas. Moreover, he filed for full federal disability benefits for work-related injuries, yet was receiving thousands of dollars in income from his employment scheme. My office and our law enforcement partners remain committed toward combating these types of crimes.”

According to court documents, the bank records for the Kallases showed that, beyond his salary, approximately $950,000 had been deposited into the couple’s bank accounts since 2000.

“Corrupt public officials are disgraceful and reprehensible,” noted Leslie P. DeMarco, Special Agent in Charge of IRS – Criminal Investigation’s Los Angeles Field Office. “The crimes committed by Constantine Kallas – including bribery, tax evasion, obstruction of justice, false statements to government agencies, identity theft and workers compensation fraud – violated the trust placed in him as a public official. Today’s sentencing of Mr. Kallas to 212 months in federal prison, a significant sentence by any measure, demonstrates IRS – Criminal Investigation’s resolve to bring our financial expertise to bear and vigorously investigate public officials who set aside their duty for their own personal financial gain.”

Terri Tollefson, Special Agent in Charge for the ICE Office of Professional Responsibility, West, stated: “This sentence serves as a sobering warning about the consequences of violating the public’s trust. ICE played a pivotal role in the investigation that led to these criminal charges, and we will continue to hold our employees to the highest standards of professional conduct. Guarding against illegal or unethical behavior is not an option; it is an obligation we have to the people we serve.”

Maria Kallas, 41, also of Alta Loma, pleaded guilty to conspiracy, bribery and conspiracy to commit money laundering in November 2009. United States District Judge Robert J. Timlin is scheduled to sentence her on May 2.

Kallas joined ICE’s predecessor agency in June 1998, and he has been on unpaid leave since January 2007.

The case against the Kallases was investigated by ICE’s Office of Professional Responsibility, the Federal Bureau of Investigation, IRS – Criminal Investigation, and the United States Department of Labor’s Office of Inspector General.

#####

Release No. 11-039- Return to the 2011 Press Release Index

March 18, 2011

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:

*Institutions of higher education or related or affiliated nonprofit entities;

*Nonprofit research organizations; or

*Governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to process petitions filed to:

*Extend the amount of time a current H-1B worker may remain in the United States;

*Change the terms of employment for current H-1B workers;

*Allow current H-1B workers to change employers; and

*Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.

Last updated:03/18/2011

USCIS: Relief for Japan and Other Nationals from the Pacific Stranded due to the Earthquakes and Tsunami

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation in the Pacific. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

If you are at an airport, contact the U.S. Customs and Border Protection office at the airport.

All others, please visit the local U.S. Citizenship and Immigration Services office.

Visitors traveling under a nonimmigrant visa:

Visit the local U.S. Citizenship and Immigration Services office.
Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record.

For additional immigration relief options, please visit the Special Situation page at the USCIS website at www.uscis.gov.

Q: Where is the export control question on the new Form I-129 and what does it say?

Part 6 of the new version of Form I-129 states: “With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration
Regulations (EAR) and the International Traffic in Arms regulations (ITAR) and has determined
that:

On November 23, 2010, USCIS released a new version of Form I-129, Petition for a Nonimmigrant Worker, that included a new Part 6, “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.”

Federal law prohibits the “export” of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either (1) a license is not required to release the technology to the beneficiary, or (2) a license is required and the petitioner will prevent the beneficiary’s access to the technology until the petitioner has secured a license or other authorization.

Petitioners who are seeking H-1B, H-1B1, L-1 or O-1A classification on behalf of an employee or potential employee are required to answer the questions in Part 6 beginning February 20, 2011.

“In an effort to push more and better data out to the public, the OFLC is now making available quarterly disclosure files covering employer applications processed under the PERM, H-1B, H-2A, and H-2B visa programs. Additionally, the OFLC is publishing a new set of case level data covering employer requests for prevailing wage determinations processed by the OFLC National Prevailing Wage Center, which opened in January 2010 in Washington, DC. Historical data files cumulated on a Federal Fiscal Year reporting cycle will continue to be available in easily accessible formats for the purpose of performing more in-depth longitudinal research and analysis.”

DOL, Feb. 14, 2011.