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
The Immigration and Customs Enforcement (ICE) has announced on May 11, 2012, that they have expanded the list of Science, Technology, Engineering and Math (STEM) degree programs.
New STEM-Designated Programs
Until this revision, CIP degree codes ending in “99″ were not designated as STEM degree programs. The Department of Homeland Security (DHS) is now proposing that “99” codes be eligible STEM degree programs – but only those where every other degree in the immediate CIP code family qualifies as an eligible STEM field. DHS has acknowledged that since the publication of the 2008 STEM regulation allowing for 17-month Optional Practical Training (OPT) extension, students in new and important STEM degree programs in emerging fields classified under “99” CIP codes have not been able to take advantage of the OPT extension. This revision of the STEM-designated degree programs allows students in such emerging fields to be eligible for OPT extension.
STEM-Designation Has Great Benefits
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.
Is My Degree in 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 page 3 of a student’s SEVIS Form I-20.
Once the degree classification is determined, an F-1 or OPT holder should look at the updated list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.
We welcome ICE’s decision to add new degrees to the list of STEM-designated degree programs. We hope that the newly released updated STEM list would benefit some of the recent graduates in these new STEM programs; or, would allow graduates of such programs who may be nearing their 12-month OPT expiration date to obtain a 17-month STEM OPT extension. Please let us know if our office can be of any assistance.No comments
Created in 2002, the Student and Exchange Visitor Information System (SEVIS) is used to track and monitor foreign students (F-1 visa holders) and exchange visitors (J-1 visa holders), as well as their accompanying dependents (F-2 and J-2 visa holders). While SEVIS has streamlined many formerly cumbersome data reporting requirements and improved information accuracy, there are occasions where the data contained in a SEVIS record is either incorrect or in need of an update because of a student or visitor’s changing circumstances. A remedying correction or update is typically obtained through a SEVIS data fix.
When Is a Data Fix Needed?
Oftentimes, an error or change to a SEVIS record can be handled by the school’s Designated School Official (DSO). Many entries in the SEVIS system have a link located next to the information in the SEVIS record that allows as DSO to independently correct the error or make the appropriate change. When this particular function is not working, or if a change needs to be made for which there is not a link to make the correction, the DSO should contact the SEVIS help desk to request a data fix.
There are a variety of reasons a DSO may need to request a data fix, but the most frequent requests are in connection with a student’s employment eligibility. Common data fix requests include the following:
- A student needs a new Form I-20 to present for I-9 verification to begin employment.
- A STEM (Science, Technology, Engineering & Mathematics) student needs to apply for an extension o f his or her Optional Practical Training (OPT).
- A student eligible for “cap-gap” relief – i.e., the gap period between the expiration of a student’s F-1 status (and related employment eligibility) and the commencement of the student’s H-1B status – needs to apply for an extension of his or her status and work eligibility.
- A student has properly changed to another nonimmigrant or immigrant status and SEVIS needs to be updated accordingly.
How to Request a SEVIS Data Fix?
A SEVIS data fix can be requested by either calling the SEVIS Help Desk at (800) 892-4829, or by emailing SEVIS at SEVIShelpdesk@eds.com. Once the request is placed with the SEVIS help desk, the DSO will be issued a help desk ticket with a unique reference number. The help desk will then commence working on the data fix. SEVIS data fix processing times can vary depending on the nature of the information that must be changed or updated.
Can a Data Fix Requests be Expedited?
Placing a request with the Help Desk should be the DSO’s first step, regardless of the urgency of the matter, as the help desk ticket number is required to escalate any request. If a data fix is urgently required, the DSO should first email the SEVIS help desk to request a data fix, followed by an email to toolbox.SEVIS@dhs.gov to request an expedited fix. The help desk ticket number should be included in the email for tracking purposes.
If for any reason a student urgently needs a new Form I-20, and a data fix cannot be processed quickly enough, the student can use his or her most recent Form I-20 together with a letter from the DSO that explains that the student is in status, and that a more current Form I-20 will be provided upon the completion of the data fix.
The SEVIS system has been designed and subsequently upgraded to enable a DSO to resolve most errors or changes needed in a SEVIS entry. For those instances when outside assistance is needed, a data fix request to the SEVIS Help Desk is an excellent resource to efficiently correct a SEVIS entry.
Our office often assists F-1/J-1 holders whose SEVIS records have incorrect information and are attempting to obtain a certain F-1/J-1 benefit and most often the issue can be resolved either by the DSO directly or by requesting a data fix. Unfortunately, the procedure of correcting a SEVIS record is entirely controlled by the DSO and his or her schedule and responsiveness may affect the outcome of a particular situation. Please do not hesitate to contact us if we can be of any assistance with a situation relating to a SEVIS record – we may be able to provide assistance in making sure an issue is resolved quickly.No comments
The U.S. Department of State has announced that all U.S. embassies and consulates will expedite the processing of F-1 student visa stamp applications to ensure that qualified foreign students are able to begin their studies on time. According to the Department of State, the maximum wait for a student visa appointment (for all posts) is fewer than 15 days. Foreign students can apply for their visas up to 120 days before their academic programs begin.
F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.
We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days. Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S. We routinely file a number of such applications; however, this approach is not always perfect for everybody.
Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status). Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.
By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.
As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad. This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.
Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.No comments
As the new school year is underway at many colleges and universities across the U.S., it is interesting to share some statistics and profiles relating to the F-1 foreign student visa program. The data has been released from the Student and Exchange Visitor Information System (SEVIS) as of June 30, 2011. As of June 30, 2011, there were 10,364 SEVIS-approved schools and 784,481 active F-1 students.
Approximately 35% of all of the 10,364 SEVIS-approved schools were located within California, New York, Florida, Texas and Pennsylvania. Only eight schools have more than 5,000 active students, and out of the 10,364 SEVIS-approved schools, approximately 6,700 have less than 10 students (approximately 3,700 schools have no foreign students).
Among the top schools were the City University of New York with 10,000 active students, University of Southern California with 7,600 students, Purdue University with 7,000 students, University of Illinois with 6,700 students and Columbia University with 6,500 foreign students.
Country. China is the country with the highest number of active foreign students – 150,899. South Korea is second with 101,652 and India is third with 99,180.
Program of Study. Business Management, Marketing and related is the most common major – over 160,000 active F-1 students pursue it. Second is Engineering with 106,000 active students.
Degree. Over 69% of all active students are enrolled in Bachelor’s (234,465), Master’s (192,966) or Doctoral (116,372) degrees. The number of foreign students in English-language programs is 93,603 and the active students pursuing Associate degree are 73,504.
State of Study. More than half (55%) of all active students go to schools within seven states – California, New York, Texas, Massachusetts, Illinois, Florida and Pennsylvania.No comments