Labor Immigration Law

United States Labor Immigration Law News and Analysis

EAD Articles

USCIS Reverses OPT Extensions Denied Due to Volunteering or Unpaid Work

Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs.      After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.

The USCIS Announcement

USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error.     The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:

“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”

STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions.    As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.

Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?

USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground.   The student should contact the Service Center which issued the denial decision.   Specific instructions are below:

If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.

  • California Service Center: CSC.StudentEAD@uscis.dhs.gov
  • Vermont Service Center: VSC.Schools@uscis.dhs.gov
  • Texas Service Center: TSC.Schools@uscis.dhs.gov
  • Nebraska Service Center: NSC.Schools@uscis.dhs.gov

Conclusion

We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and  has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application.      Unfortunately,  for many affected individuals this kind of announcement and relief may come too late.   For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.

Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial.  Please contact us for an evaluation of your case.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

No comments

Immigration Relief Options for Foreign Nationals Impacted by the Recent Hurricane Sandy

After the recent devastation throughout the U.S. east cost caused by Hurricane Sandy, our office is receiving a number of inquiries by foreign nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for foreign nationals who are impacted by the Hurricane Sandt.   The relief may be available to all foreign nationals if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Foreign nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.  Normally, an application to change or extend status filed after the period of authorized stay has expired would be denied.  In this case, the delay can be excused if it is caused by the disaster.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, foreign students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain foreign nationals who are impacted by Hurricane Sandy and the widespread destruction.  Our office stands ready to assist affected foreign nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

No comments

USCIS to Issue Redesigned Employment Authorization Document (EAD) Cards

USCIS has announced that effective October 30, 2011, it would issue redesigned Employment Authorization Document Cards (also known as “EAD” or “work permit” cards )   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Design

Samples of the front and back are shown below:

No Changes to Application Procedures

Even though the design is changing, the procedures for applying for and obtaining an EAD card remain the same.   We have written extensively in the past on the delays associated with obtaining EADs of  more than 90 days and we hope that the new design would, at least, not make these EAD production delays even worse.  As a result, we continue to urge our readers and clients to apply for their EADs 90-120 days in advance of either current EAD expiration or in advance of anticipated employment start date.

Our office can help you with the EAD filing application – please contact us.

No comments

Immigration Relief Options for Japanese Nationals Impacted by the Recent Disaster

After the recent earthquakes and tsunami in Japan, our office is receiving a number of inquiries by Japanese nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Japanese nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Japanese nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Japanese students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Japanese nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Japanese nationals who are impacted by the earthquake and the tsunami.   Our office stands ready to assist affected Japanese nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

No comments

Delays in EAD/AP Processing – What To Do?

It is not a secret that USCIS’ processing times of I-765 work permit documents (“EAD”) and I-131 advance parole travel documents (“AP”)  have increased over the past few months.  Our office has experienced some of these delays and our office is increasingly approached by EAD/AP applicants who have either expiring EADs or need to travel urgently abroad and whose EAD/AP applications have been pending for substantial period of time.

As a preliminary matter, we always recommend that EAD/AP renewal applications be filed 90-120 days between the expiration of the document to be renewed.  Unfortunately, often this is not possible and the government has provided some options.  Also, it is important to note that unlike renewal of nonimmigrant work visas (such as H-1B), the filing of an EAD application does not permit employment until the EAD is actually approved.

Expediting I-765 EADs Pending for Extended Period of Time

By regulation, USCIS is required to produce the EAD cards within 90 days; however, current processing times are starting to approach that deadline (75 to 80 days is now frequent).  This can be especially difficult for foreign nationals who do not have an underlying nonimmigrant work status (such as H-1B) and who need to continue their employment pursuant to an expiring EAD.  The Nebraska Service Center (“NSC”)  recognizes that the processing times have increased substantially and that this is creating a hardship for many individuals who whose employment authorization is expiring.  NSC is working on improving the processing times of I-765 EAD applications; in the meantime, there are circumstances under which EAD processing can be expedited.

If the I-765 application has been pending more than seventy-five (75) days, applicants (or their attorney) can notify NSC through NCSCFollowup.Nsc@dhs.gov.   It is important to note that normally USCIS requires the applicant (or the attorney) to call the 1-800 number and make a case inquiry.  In this case (and only for this issue), however, the requirement to first call the 1-800 number for the National Customer Service Center (NCSC) is waived.   The email inquiry must include the following details: the name of the applicant, the receipt number, the date filed, and the date of the prior EAD expiration.

If the I-765 application has been pending for more than sixty (60) days, the current EAD will expire within the next two weeks, AND the individual will lose their job (a leave of absence is not considered a loss of the job), an inquiry can be made directly to NSC though NCSCFollowup.Nsc@dhs.gov, after sixty days.   In addition to including the information mentioned above, applicants (or their attorneys)  should provide appropriate evidence to demonstrate that the applicant meets these criteria.

Expediting I-131 APs Pending for Extended Period of Time

USCIS currently follows its regular expedited processing procedures with respect to APs.   Additionally, it should be noted that foreign nationals who depart the U.S. without an approved AP, or valid H-1B, H-4, L-1, L-2, K-3, K-4, or V status, may be subject to an abandonment of their I-485 Adjustment application under 8 C.F.R. 245.2(a)(4).

How Our Office Can Help You?

Initially, by strongly urging you to file your EAD/AP application as early as possible, and in the best case, at least 90 but not more than 120 days before the expiration of the underlying document.  If this is not an option, our office can help you expedite an already filed document or we can file the application and then, at a later time, help you seek expedited processing.  Please do not hesitate to contact us if our office can be of any help.

No comments

F-1 OPT/H-1B Cap-Gap Guide for Employers

The Optional Practical Training (OPT) program allows foreign students on F-1 visa to work for 12 (or up to 29 months, for holders of STEM degrees).  The 12 (or 29) month period allows many students to apply for an H-1B work visa.  Many employers (and OPT holders alike) are unaware of what happens when the OPT document expires while the H-1B application is pending.  This guide seeks to provide some answers.

The Cap Gap

If the employer employs an F-1 nonimmigrant student on post-completion (OPT) and that student is the beneficiary of a pending or approved H-1B petition, the student may be able to continue working beyond the expiration date on his or her employment authorization document (EAD).   In recent years, the number of H-1B petitions filed per year has exceeded the annual cap. Due to demand, the annual cap of 65,000 H-1B visas has been met during the initial filing period, beginning on April 1. All  cap-subject petitions filed during this initial filing period indicate a requested start date of October 1 (the start of the government fiscal year). In the past, F-1 students who were the beneficiaries of an H-1B petition often had their F-1 status expire before their H-1B status began on October 1 –- a period known as the cap gap. The most common situation occurred when a student’s OPT ended in the spring or early summer, and the student’s F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1.

The OPT Interim Final Rule

On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The changes made by this rule became effective upon publication of the rule.

One provision of the rule applies to F-1 students who are the beneficiaries of a pending or approved H-1B petition that is subject to the annual cap. The IFR automatically extends the F-1 status and, for students in a period of approved post-completion OPT when the H-1B petition is filed, the OPT employment authorization.

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization.  However, this automatic extension of an F-1 student’s duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student’s behalf.

Student’s Obligations

A student who is eligible for the cap-gap extension must work with a designated school official (DSO) at the student’s school to receive an updated Form I-20. If a student is eligible for the cap-gap extension of OPT, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

Employer’s Obligations

To assist a student in obtaining an updated Form I-20, the employer may need to provide the student with an I-797 receipt or approval notice issued by USCIS for the H-1B petition filed on the student’s behalf.  This receipt notice serves as proof of filing the H-1B petition and may need to be submitted to SEVP in order to update a student’s Form I-20 to show eligibility for the cap-gap extension.

No comments

New Nebraska I-765 EAD Expedited Procedures

The Nebraska Service Center (NSC) announced updated I-765 expedite policy pursuant to which NSC will accept requests to expedite processing of Form I-765, Application for Employment Authorization,  if the application has been pending for 75 days or more.  NSC had previously announced that it would accept an expedite request for an I-765 that was pending more than 60 days, but has revised that threshold to 75 days.

The fax number for submitting these requests to NSC has changed – the new fax number is 402-219-6344.  The fax should include a cover sheet identifying the case and the filing date and requesting expedited processing; it will be helpful to attach a copy of the I-765 receipt notice.   NOTE: This fax number is limited to expedites for I-765 pending for 75 days or more, and should not be used for any other purpose. Other letters, requests or documentation sent to the NSC via this fax number are more likely to be discarded than routed to the proper file.

Please contact us if you would like our assistance in expediting your pending Form I-765 with the Nebraska Service Center.

No comments

EADs Pending for More than 90 Days

By statute (8 CFR § 274a.13), USCIS is required to adjudicate all EAD applications within 90 days from the date of USCIS receipt of the application.  However, the spike in employment-based green card applications during the summer of 2007 has brought a somewhat expected wave of backlogs – in the EAD processing.

USCIS allows an EAD application to be filed 120 days before expiration, unfortunately, given current EAD processing delays of 90-120 days, many green card applicants who have used their EADs to switch employers and have their EADs expire are now forced to either reapply for a new H-1B visas and incur a substantial expense or stay out of work until their EAD is renewed.

Here’s what a person whose EAD application has been pending for more than 90 days can do:

Step One.  Call USCIS National Customer Service Center (NCSC) at (800) 375-5283 and record the time/date of he call and the name/number of the customer service representative:

  • Explain to the customer service representative that your EAD has been pending more than 90 days and ask for a “service request.” You should receive a response to your service request within a week.
    OR
  • Ask the customer service representative to request an interim card for you. You should receive an EAD or response within a week.

Step 2.  If you choose to visit a local USCIS office, schedule an INFOPASS appointment to visit that office on www.infopass.uscis.gov. At the appointment, ask to apply for an interim EAD. Note that USCIS local offices no longer issue interim EADs. The local office can review your case and determine eligibility. The local office will forward your request to the USCIS service centers. You should receive an EAD or response within a week.

Step 3.  If you have tried both Step 1 and Step 2 and have still not received your EAD or an interim card, please email the USCIS ombudsman at cisombudsman.publicaffairs@dhs.gov with the details of your efforts.  Please include the date and time of your call to the NCSC and the name of the customer service representative. If you visited a USCIS office, please provide that information. The Ombudsman Office has committed to look into such cases and review how they may be of assistance.

Please do not hesitate to contact our office if you need assistance with EAD renewals or you need any additional information.

No comments

Updated List of SEVP Schools

The first step which must be taken by an F-1 student who wishes to apply for OPT renewal pursuant to the 17-month extension rule is to ensure that his or her school is on the list of SEVP schools which are authorized to issue 17-month OPT extensions.

The Immigration and Customs Enforcement (ICE) has released an updated list of SEVP schools.

No comments

New I-9 Form Released

USCIS has released a new version of the Form I-9, Employment Eligibility Verification.  Employers should start using the revised form (it has Rev. 06/16/08 in the bottom right corner) effective immediately because USCIS will no longer accept older versions.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

  • The Certificate of United States Citizenship (Form N-560 or N-561);
  • The Certificate of Naturalization (Form N-550 or N-570);
  • The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card’”);
  • The Unexpired Reentry Permit (Form I-327); and
  • The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

No comments

Next Page »