In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas. The rationale was that DHS did not follow the normal rulemaking process which includes public comment period. The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.
Reasons for Striking Down the 2008 17-Month STEM OPT Extension Rule
The main reason behind vacating the 2008 rule, according to the court, is that DHS did not follow the normal rulemaking process which includes notice of the proposed rule and a comment period for the public to comment on the proposed regulation. There are exceptions to the rulemaking process which allow agencies to implement rules without having to follow this process; however, the court took the position that none of the emergency rulemaking exceptions applies to the 17-month STEM OPT rule from 2008. As a result, the court took the position that the rule was improperly implemented and should be vacated.
Vacatur Stayed Until February 12, 2016
Having vacated the rule, the court then agreed to put a temporary stay on the vacatur in order to avoid chaos (our words, not the court’s) which would inevitably ensue if all of the thousands of F-1 STEM OPT holders find themselves with invalid work permit. To avoid a situation where thousands of recent F-1 STEM graduates will be left without work authorization (and possibly without status) and to avoid putting an undue burden on the employers who employ such workers, the court agreed to stay the vacatur until February 12, 2016, or six months from the date of the court order.
By leaving the rule in place until February 12, 2016, the court also intended to give DHS sufficient (but not too much) time to follow the normal public notice and comment rulemaking process.
The Rulemaking Process
At this time it may be helpful to remind our readers about the normal rulemaking process DHS will have to follow in order to reinstate the 17-month STEM OPT rule.
First, DHS will have to publish the proposed rule for the public to review for a specific period of time and during which period the public will have an opportunity to provide comments to DHS regarding the proposed rule. After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way. Only once the final rule has been released and published by DHS would the rule become final and effective.
As a result of this rulemaking process, it may be months before the proposed rule would go into effect. We do not know yet if DHS will submit the 17-month STEM OPT extension rule for public comment with any changes from their current form; it is likely that due to the limited time before February 12, 2016, DHS is not likely to amend the current rule substantially before they publish for public comment.
Are Current STEM OPT Holders Affected?
Certainly, they are affected in the sense that the government is about to engage in a process which may affect the STEM OPT program. At this time, immediately after the court order, and at least until February 12, 2016, the STEM OPT work permits should remain valid and unaffected by this court order.
Similarly, we expect that USCIS will continue to process and approve 17-month F-1 STEM OPT extensions over the next six months as the rule continues to technically continue to be valid.
The main question is what happens over the next several months and whether DHS will be able to implement the new rule without any gap on and after February 12, 2016. Ideally, DHS will be able to implement replacement rules (with same or similar substance) by February 12, 2016 and avoid any gaps in employment authorization or status to the thousands of F-1 STEM OPT workers.
However, it is not clear what would happen to the current F-1 STEM OPT workers if the rule is vacated on February 12, 2016 but the replacement rules are not effective at that time. We will certainly monitor developments and clarifications on this topic (which are sure to be coming) over the next weeks and months and share with our clients and readers.
Is the H-4 EAD Rule in Jeopardy as a Result of This Court Order?
We do not believe that this court order vacating the 2008 17-month STEM OPT rule suggests that the H-4 EAD rule challenge will be successful on the same reason. The H-4 EAD rule, unlike the STEM OPT rule, did follow the normal rulemaking process. The H-4 EAD challenge is still in its early procedural stages so we do not know what may happen in the future, but for now, the H-4 EAD rule remains unaffected by this court order vacating the STEM OPT rule due to rulemaking irregularities.
We understand that many F-1 STEM OPT holders may be alarmed by this court order. At this time, we hope and believe that DHS will be able to follow the normal rulemaking process and “fix” the rule in time by February 12, 2016. We expect that there will be a number of updates, clarifications and guidance on this topic over the next weeks and months and we will certainly monitor, share and analyze and such updated and developments.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with F-1 STEM OPT or related matters.No comments
Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota. This year’s number of filings (233,000) is at an all-time high, meaning that about 1 in 3 H-1B cap applications will be selected for review. As USCIS is starting to issue receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an overview of the alternative visa options for those H-1B employers and employees whose H-1Bs did not get selected under the H-1B cap lottery.
The H-1B Cap Season Numbers
This year there were 233,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 36% average chance than an application will be selected for processing under the H-1B cap. U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery. This 36% chance is significantly lower than last H-1B cap year’s 50% average chance of H-1B cap selection. As a comparison, there were 172,500 H-1B applications filed last year (which translates to 35% more H-1B cap applications filed this year compared to last year’s H-1B cap season).
As a result, many employers and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 7th or because their application was not picked by the H-1B lottery. We seek to describe some alternative visa options.
Alternatives to H-1B Cap Petitions
Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2015, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2016 is the earliest a cap-subject H-1B application can be filed under next year’s cap). We describe some of the most common H-1B visa alternatives. Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed. Our goal is to list some of the common options for the benefit of our clients and readers. We are happy to discuss individual cases as part of our initial consultation.
A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time. A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or (3) nonprofit research organization or a governmental research organization. A cap-exemption case may be made even if the actual H-1B employer does not meet these requirements but the placement of the H-1B worker will be at the location of a cap-exempt employer. Please see our cap-exempt H-1B employer guide. As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs. We are happy to help evaluate whether an employer can qualify to be cap-exempt.
O-1 or P-1 Extraordinary Ability Visas
O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B. In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency. Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.
L-1 Intracompany Transferee
The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office). This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad. Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa. An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.
TN for Canadian and Mexican Professional Workers
An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification. It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations. The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS. Please see more information on the TN visa classification.
E-1/E-2 Treaty Trader or Investor
The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa. See a list of treaty countries.
The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S. The employee must also have skills which are essential to the operation of the company trade. Dependents of E-1 visa holder are eligible for work in the U.S.
The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment. The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application. Dependents of E-2 visa holders are eligible to apply for work authorization.
F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training (CPT)
Many of the H-1B cap candidates are F-1 student visa holders who are already in the U.S. and for them there may be ways to continue to stay on F-1 status while having work authorization. OPT holders who have completed a STEM degree (See Which Degrees are on the STEM List?) are eligible to apply for a 17-month STEM OPT extension. There are certain requirements to qualify for the 17-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S.
Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training, CPT, program. Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow continued employment authorization.
File for a Permanent Residency/Green Card Directly
For some employers and their foreign workers filing for an employment-based green card may be viable option. Normally, employers seek to hire a foreign worker on H-1B status and then the employer does a green card sponsorship. However, it is also possible to do a green card directly, without going through the H-1B visa option. This option may work best for foreign workers who have a master’s degree OR a bachelor’s degree and five years of experience and are nationals of a country other than China or India. This option may work well even for holders of a bachelor’s degree from a country other than China or India. Unfortunately, this direct green card filing option may not work so well for India or China nationals because of the significant waiting time for a visa number to become available (4-5+ years).
For example, it may be possible to secure a PERM Labor Certification approval in 9-12 months. For many EB-2 (and even for some EB-3) candidates, the way the Visa Bulletin cutoff dates have advanced means that the second and third stages of the green card process (which also grants permission to stay in the U.S. and EAD permission to work) can be filed within a year (or possibly even less) after starting the green card process. While the foreign national will need to be able to maintain valid status in the U.S. during this time, the direct filing of a green card may be a good alternative to simply skip the H-1B work visa filing process. Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S. We are happy to provide a more personalized overview of this option – please contact one of our attorneys for more information.
H-1B Program Changes by Congress Possible, Although Timing is Uncertain
It has become a pattern that after every H-1B cap season ends, resulting in a high number of disappointed employers and employees who did not make it under the lottery, there is increased talk about raising the H-1B cap limit. There are proposals and much talk here in Washington, DC about this kind of a chance in the H-1B program; however, as of this time, there is no proposal or law which would become law any time soon. As we have done in the past, our office would continue to monitor and report on any developments relating to relief to H-1B employers and workers, so stay tuned.
Wait and File on April 1, 2016 for the FY2017 Cap
For some of our clients, waiting until April 1, 2016 to file a new cap-subject H-1B petition may be the best (or only?) option. The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible. As of now, and assuming any proposed immigration reform is not enacted by then, the FY2017 H-1B cap is expected to be the same as it was for the FY2016 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).
Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals. In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.No comments
The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B
Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned. On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.
Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options. In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.
Background on the H-1B Cap
The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA). Upon the creation of the H-1B visa type, INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.
H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model. Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers. H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).
There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap; H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.
What Is “Cap-Gap”?
The 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, and up to the start 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 F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students. For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).
How to Invoke the “Cap-Gap”?
Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student. This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized 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 OPT, and the 60-day departure preparation period, commonly known as the “grace period”).
Once a timely filing has been made, 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 under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT 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.
Is Proof of Cap-Gap Status Necessary?
A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their 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 an interim cap-gap I-20 showing an extension until October 1st. Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.
In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record.
Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?
For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.
Can Students Travel While Under Cap-Gap Extension?
The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she 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 presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.
The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations. Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap. While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window. In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.
If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.No comments
Many of our readers, and especially those foreign students on F-1 status who are in a technical field, are aware of the regulations which allow holders of Science, Technology, Engineering and Math (STEM) degrees to obtain an additional 17-month OPT work permit extension, in addition to the 12-month post-completion OPT work permit. Understanding the eligibility rules and especially understanding if one’s degree is a STEM degree is critical in planning for subsequent immigration steps, including whether to file for an H-1B petition.
The Immigration and Customs Enforcement (ICE) is the agency tasked with maintaining the STEM degree list and the list has been revised on a few occasions to add additional degrees. Most recently, on May 11, 2012, ICE announced the most recent expansion of the list STEM degree programs. Previously, some degrees were added in May 2011.
Current STEM-designated Programs
Please see the list of STEM-designated programs as of January 2015, as published by the Immigration and Customs Enforcement agency (which has jurisdiction over the Student and Exchange Visitor Program, SEVP). The list incorporates the 2011 and 2012 additions and is current as of the date of this article, according to ICE. We caution our readers to double-check the most current STEM-designated program list by contacting SEVP to ensure that their degree is STEM-designated before applying for or relying on STEM-designation and benefits. Our office can offer phone or in-person consultations to assist in this kind of analysis.
STEM-Designation Has Great Benefits
Why is a STEM designation so important? On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) 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. As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.
This is important for a number of reasons. Most importantly for many folks — the OPT holder has the chance to apply for a cap H-1B petition two, sometimes even three, times. In a time where the annual H-1B cap is oversubscribed and the available H-1B visas are distributed by lottery, having more chances to apply for an H-1B under the cap is certainly better. Additionally, eligible OPT holders have more time to obtain better skills and this provides greater flexibility in job hunting — employers are more likely to consider a candidate with more experience and longer work authorization term.
Is My Degree a STEM-Designated Degree Program?
The first step is to find the classification number of your degree. The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree. Also, the degree and its CIP code are often listed on the top of page 3 (“Primary Major” line) of a student’s SEVIS Form I-20.
Once the CIP classification of the degree is determined, an F-1 or OPT holder should look at the list of STEM-designated programs as of January 2015 and see if the CIP code of the degree is listed as a STEM-designated program. Finally, the F-1/OPT student should ensure that there are no STEM designation changes – perhaps by consulting SEVP, the university or an immigration attorney.
It should be noted, however, that in some situations the CIP code of the degree on the I-20 does not accurately reflect the degree which the F-1 student completed. Sometimes, there are slight degree variations and changes which may not be reflected in the I-20 record. If the student believes that there is a discrepancy between the actual degree obtained and the degree noted on the SEVIS I-20 form, the student should seek to correct any such discrepancy with the university’s designated school official (DSO) as soon as possible and definitely before filing a 17-month STEM OPT extension application.
The question whether a given degree is STEM-designated has a significant importance and our office handles many inquiries and consultations on this topic. We are hopeful that this article and the current list (as of the date of this article) we are sharing will allow many F-1/OPT students to evaluate their options with respect to 17-month OPT extensions and/or possible H-1B cap filings.
Our office has developed as a leading practice in F-1/OPT/H-1B matters so please do not hesitate to contact us if we can help you in any way. 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
This year’s busy H-1B cap season included many H-1B employee candidates who hold F-1 status and who are employed in the U.S. pursuant to F-1 optional practical training (OPT) status. Out of these F-1 visa holders, many rely on the OPT cap-gap rule to continue working in the U.S. after the post-April 1st expiration date of the OPT and for as long as the H-1B cap petition is not denied or rejected by USCIS. However, the OPT cap-gap rule allows OPT extension only until September 30th, leaving possibly some H-1B candidates in a period of unauthorized employment.
F-1 OPT Cap-Gap Employment Authorization Valid Only Until September 30th
Due to this year’s heavy H-1B visa demand, it is likely that USCIS may not be able to adjudicate all H-1B petitions by September 30th. As a result, there are likely to be many cases where the F-1 OPT holder is taking advantage of the OPT cap-gap rule to work after the post-April 1st OPT expiration date based on the pending H-1B petition. Many F-1 students in this situation, however, are not aware that the OPT cap-gap rule applies only until September 30th and if the H-1B cap petition remains pending beyond September 30th, the F-1 holder would no longer be eligible to work in the U.S. under the OPT cap-gap rule (stay in the U.S. is likely to be authorized for as long as the H-1B cap petition seeking change of status to H-1B remains pending).
Am I Affected By This Rule and Am I In Danger of Losing Employment Authorization?
The first step for an F-1 OPT candidate for an H-1B cap visa is to understand whether he or she is affected by this situation. If (1) the candidate’s F-1 OPT expiration date was after April 1st but before September 30th, if (2) H-1B cap petition is still pending decision with USCIS, and (3) if the H-1B cap petition was filed requesting change of status, then it is likely that the F-1 candidate may be in danger of losing OPT cap-gap work authorization if the H-1B petition remains pending beyond September 30th.
Early Premium Processing Upgrade May be Needed to Avoid Interruption of Employment Authorization
In those cases where the H-1B cap petition seeking change of status remains pending beyond September 30th, the F-1 OPT cap-gap rule does not permit employment and the F-1 holder will have to stop working as of October 1st and wait until the H-1B petition is approved (or risk violating his or her F-1 status by engaging in unauthorized employment).
To avoid the possibility of a period of lack of employment authorization and disruption at the workplace, we recommend that candidates and their employers consider a premium processing upgrade of their H-1B petition as soon as possible in order to force USCIS to make a decision within 15 days. Please note that USCIS may request additional evidence or RFE (especially if they have not already done so) on the H-1B petition in which case the employer would have to respond to the RFE and then the government would have another 15 days to provide a response.
It is September 30th and My H-1B Petition is Still Pending – What Should I Do?
Most importantly — stop working — because the OPT cap-gap employment authorization ends on September 30th if the H-1B petition is still pending as of that date. If a premium processing upgrade has not been done, it may be a good idea to do so in order to minimize the period without employment authorization and so that the candidate can get back to work as early as possible. Please also consider contacting us for a consultation.
For those affected by the OPT gap-cap rule with a pending H-1B petition we recommend premium processing upgrade as soon as possible to minimize periods without employment authorization and disruption of employment. A timely and properly-filed premium processing upgrade even in late August stands a good chance to allow uninterrupted OPT gap-cap, followed by H-1B, employment authorization.No comments
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
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
A very common question by the holders of visas which have employment restrictions is, “Can I engage in unpaid volunteer work under my visa?” We deal with this question on a daily basis when we are asked by clients whether someone who is in the U.S. (on a status which does not allow employment) can be a volunteer.
Obviously, the answer to this question depends on a number of factors including, most importantly, the visa type and the status of the person who is seeking to engage in a volunteer work. For example, an H-1B holder is authorized to work for the H-1B sponsor employer (or employers — if there are more than one) but the H-1B worker is not allowed to do any work for any other employer. Similarly, students on F-1 (who do not have a valid work permit – OPT, CPT) are not allowed to work for any employer (with certain very limited exceptions for work on campus).
Volunteer Work is Not License to Do Any Work
The answer to the question whether volunteer work is permitted depends on the type of unpaid volunteer work one is seeking to perform. The regulations state in broad terms that unauthorized work is prohibited. But to distinguish whether volunteer work is unauthorized, it is helpful to understand the government’s motives in setting up this regime. The USCIS’s goal is to prevent foreign nationals who have employment restrictions in engaging in work which could give them an advantage over U.S. citizens or which could drive down Americans’ wages or benefits. Therefore, it is not permitted to volunteer for a productive position which is usually paid. The rationale is that if you are offering to work without a pay in a job which would otherwise be filled by an American who would be paid, then you are subverting the employment authorization system’s goals and undercutting Americans’ job prospects and wages.
However, if the volunteer work you are seeking is for a true volunteer position then volunteering and working without pay would be legal. For example, volunteering at a non-for-profit organization such as a museum, a fire-station, a school or a church where there is no general expectation of compensation, or employment may be okay.
As a general rule of thumb, one should look at whether Americans would perform the same job without pay and under similar circumstances and if the answer is “yes,” then a foreign national in an employment-restricted status can volunteer and work without pay.
We should point out that any time there is any doubt as to whether a specific engagement as a volunteer may or may not be considered “work” we suggest consultation with us or another attorney who can go into the particular visa circumstances and the details of the proposed volunteer assignment. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments.No comments
It is only Tuesday and this week has already been full of immigration proposals. After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration. Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster. See the full text of the proposed bill.
Employment-based Nonimmigrant H-1B Visas
The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000. The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year). Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).
Employment-based Green Cards
The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past. Certain categories of applicants would be exempt from the green card numbers: dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category). The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost. Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.
Additional Fees to be Used for U.S. Training Programs
The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.
It should be noted specifically that this is simply a proposed bill, and not a law. This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law. Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.
We will certainly follow developments very closely and provide updates. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.No comments
In the past, USCIS had been somewhat flexible with student status and filing for employment optional practical training work authorization (OPT). More recently, USCIS has been closing those gaps and enforcing the eligibility requirements and filing deadlines more strictly. With this more stringent and literal implementation of the rules, it is imperative that foreign students, educational institution representatives, and employers of these students be aware of these tighter restrictions.
OPT Eligibility Requirements
Most foreign students are eligible for some form of Optional Practical Training (OPT) after completion of a certain educational degree. There are several types depending on the student’s visa status, educational focus, and anticipated program completion date.
Generally, some of the OPT eligibility requirements are:
- Must be a full-time student for at least 1 year prior to OPT;
- OPT can be filed no more than 90 days before the 1 year school mark, 90 days before program end date, or no more than 60 days after program end date;
- OPT may be full-time or part-time, but cannot extend beyond 1 full year of work (with certain exceptions for STEM students, who can benefit from the 17-month STEM OPT extension);
- The student must have valid and active status in SEVIS;
- The employment must be related to the student’s field of study;
- For post-program completion OPT, the employment application (Form I-765) must be filed with USCIS within 30 days of the date the school representative enters the OPT recommendation into the student’s SEVIS record. In addition, the employment application must include the student Form I-20 endorsed by the authorized school representative within the last 30 days or less;
- For STEM OPT, the employment application must be filed before any prior post-completion employment authorization expires; and
- For M visa students, they must apply before the completion of their educational program.
While previously USCIS may have issued a Request for Evidence (RFE) when some of these eligibility deadlines were not met, they are now denying applications which do not meet these required dates after accepting them for review and after holding on to the applications for weeks, or even months. In fact, an updated Form I-20 would no longer suffice to correct a delayed application for post-program completion OPT. The school representative must also correct the student’s SEVIS record before USCIS will approve OPT employment authorization. Because of this possibility of OPT application denial weeks or months after filing, it becomes important to not only file the OPT application well in advance (but within the required timeframes) but to anticipate and be prepared for a possible delay in work authorization.
USCIS Also Targeting Student Status Violations
In addition to adopting a more stringent approach towards reviewing and adjudicating I-765 OPT applications as discussed above, USCIS is also cracking down on student status violations. There are several common mistakes which may cause a student to violate their student status:
- SEVIS is not updated with changes to student’s status and/or program, including a change of address or change of employer (if working pursuant to practical training);
- The student does not monitor their immigration status and is unaware if the U.S. government has not been properly made aware of reportable changes; and
- Unexpected changes such as personal hardship, financial difficulties, medical emergencies, or family emergencies.
While USCIS allows reinstatement of student status in some cases, the student must be able to rectify their status relatively quickly. One of the most important (and often very difficult to overcome) requirements for filing a reinstatement of F-1 student status is that the student should not have been out of status for more than five months (or show exceptional circumstances otherwise). Other requirements for reinstatement of status include that the student must be or will be pursuing full-time student status and must have no history of prior violations, unauthorized employment, or lapse in status.
How Can Our Office Help?
If you are a student or educational facility representative needing assistance with these F-1 student status requirements, OPT processing or student status and reinstatement, please contact us. We would be happy to consult with you and analyze your options for filing or other alternatives, if available. Alternatively, we urge all foreign students and educational representatives to keep in mind that it is their responsibility to maintain visa status and visa sponsorship by following all relevant rules and regulations. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments
The U.S. House of Representatives passed yesterday (August 1, 2012) by a voice vote a proposed bill which seeks to restrict the ability of certain schools, colleges and universities to sponsor students’ F-1 visas. H.R. 3012 (bill tracker, text of bill) was introduced by Rep. Zoe Lofgren (D-CA) and seeks to amend the F-1 student visa program by restricting access to it by schools which are not accredited.
Details of the Proposed Bill
The bill is fairly simple — it amends the relevant section of the Immigration and Nationality Act (INA) by adding a requirement that only institutions which are accredited by an accrediting agency recognized by the Secretary of Education. As a result, institutions which are not accredited would not be able to continue to be part of the F-1 program and their students will not be able to obtain and retain F-1 status. There is a 3-year grace period after the (possible) passage of the bill.
Significance of H.R. 3120
Many F-1 students would not be affected by this bill as a vast majority of the F-1 sponsor institutions are already accredited (check your institution). However, a limited number of F-1 students may be affected negatively if their institutions is not accredited and if their institutions is unable to pass the accreditation process which can often be fairly rigorous.
Please note that H.R. 3012 is not law yet — it was passed by the U.S. House of Representatives but it must be passed in an identical form by the U.S. Senate and then signed by the President. Considering the limited Senate calendar and the upcoming election, it is possible that the Senate may not take up the bill for consideration for some time. It is also possible that the bill will not be taken by the Senate by the end of this Congress and may have to be reintroduced (and passed again) in the next Congress after the election.
Our office will continue to monitor developments surrounding H.R. 3120 and provide updates to our clients and readers. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments