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Immigration Law

News Excerpts From the April 1, 2016, Bender’s Immigration Bulletin

H-1B FY 2017 Cap Season Begins April 1|

USCIS will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap on April 1, 2016. The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than 65,000 petitions during the first five business days of this year’s program. If an excess of petitions is received during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

In order to prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 16, 2016. For more information, visit the H-1B FY 2017 Cap Season Web page, > Working in the United States > Temporary Workers > H-1B Specialty Occupations and Fashion Models, or call the National Customer Service Center at 800-375-5283 or 800-767-1833 (TDD for the hearing impaired).

DHS Publishes Final OPT STEM Rule

On March 11, 2016, the Department of Homeland Security published a final regulation allowing students with degrees in science, technology, engineering, and math to extend their period of Optional Practical Training (OPT) by 24 months.

Previously, students with STEM degree could extend their one-year OPT period by 17 months. The rule only authorizes such extensions for students of employers who participate in the E-Verify program. The rule is partially reproduced at Appendix A (public comments and regulatory requirements omitted).

In conjunction with the issuance of the new rule, ICE’s Student and Exchange Visitor Program (SEVP) created on online hub with resources and frequently asked questions. The online hub is available at:

Two BIA Members Announce Retirements

On March 9, 2016, the Executive Office for Immigration Review (EOIR) announced the forthcoming retirements of David Holmes and Neil Miller from the Board of Immigration Appeals.

Holmes was appointed to the Board by former Attorney General Janet Reno in 1995 and served as Vice Chairman of the Board from 2003 to 2005. He previously served as an attorney advisor at the Board from 1977 to 1981 and as chief attorney examiner from 1981 to 1995.

Miller was appointed to the Board by Reno in 1999. He previously served as an attorney advisor from 1980 to 1987 and as deputy chief attorney examiner from 1987 to 1995.

The last day in office for both Holmes and Miller was March 31, 2016.

DOJ Criticized for Characterization of Immigration Judges in FOIA Lawsuit

On March 10, 2016, the National Association of Immigration Judges (NAIJ) issued a statement criticizing the Department of Justice for its characterization of immigration judges as “low-level employees” in a pending lawsuit under the Freedom of Information Act.

A Justice Department attorney likened immigration judges to FBI agents and assistant U.S. attorneys to justify the government’s refusal to disclose the names of immigration judges accused of misconduct in response to a FOIA request filed by the American Immigration Lawyers Association.

“Immigration Judges work at a high level of independent fact-finding and decision making, like other trial judges in courts across the United States,” the NAIJ said in its statement. “To label them as lower level DOJ employees is a gross mischaracterization of the independent functioning and decision making of an Immigration Judge.”

The case is the American Immigration Lawyers Association v. the Executive Office for Immigration Review, No. 15-5201 (D.C. Circuit).

USCIS Launches Known Employer Pilot Program

On March 4, 2016, U.S. Citizenship and Immigration Services announced the launch of a pilot program for employers who regularly file petitions for immigrant and nonimmigrant workers.

If USCIS determines that an employer meets certain requirements, the employer may file petitions or applications for specific employees without having to resubmit company information.


ICE—U.S. Immigration and Customs Enforcement announced that it would begin sending notices of intent to terminate on April 1, 2016, to nonimmigrants who failed to comply with the directive involving Form I-515A, “Notice to Student or Exchange Visitor.” An explanation of the termination procedure is reprinted at Appendix B.

 Bender's Immigration Bulletin

[This is an excerpt from the April 1, 2016, issue of Bender's Immigration Bulletin.]

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