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.

Conclusion

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.

Schools

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.

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.

According to reports, federal agents seized significant amount of boxes with paper, hard drives from administrative computers and even waste baskets.    ICE confirmed the UNVA raid in a statement, “Today, officials from ICE’s Student and Exchange Visitor Program (SEVP) served UNVA with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. UNVA students should call the SEVP Response Center at 703-603-3400 for guidance.”

Similarity to TVU Raid

The UNVA raid of yesterday is very similar to the raid federal agents conducted on Tri-Valley University (TVU) earlier this year.   We have written in the past about TVU’s story and the importance of maintaining good “F-1 practices” both by the school and by the foreign students whose status and ability to remain in the U.S. is affected by the closure of their school.    Some of our readers may remember that after TVU was raided, all of its F-1 foreign students were deemed to be out of status and the TVU president was indicted on a number of federal offenses.   While there are no charges filed, the UNVA raid bears similarities to the TVU raid and subsequent closure.  It is important to note, however, that as of now, UNVA continues to operate normally and students can continue to attend classes.

UNVA F-1 Students May Need to Seek Alternatives

While it is very early in the investigation process, indications are that ICE would seek to revoke UNVA’s ability to participate in the SEVP program, which would mean that all F-1 students currently enrolled in UNVA would be out of status.   If ICE takes the same approach as it did with TVU and if ultimately UNVA is closed down, it is possible that current UNVA students may have very difficult time even transferring their I-20 to a new school.

There are approximately 2,400 or so F-1 international students enrolled in UNVA and the U.S. government has indicated that those UNVA F-1 foreign students who are not attending classes and are out of status and must leave immediately.  Students who are attending UNVA and are in full compliance with their F-1 status (i.e. attending classes and not otherwise violating the terms of the F-1 program) should be still considered to be in valid status, at least for now and for as long as UNVA’s ability to sponsor F-1 visas is not revoked.   As of now, UNVA F-1 students should also be able to transfer their SEVIS I-20 record to another school.

Conclusion

It the TVU story provides any history and a roadmap to ICE’s approach, it is likely that if ICE/FBI find irregularities of the kind found at TVU, then UNVA’s ability to admit foreign students would be revoked and the 2,400 or so foreign students’ status would be terminated.    Our office will continue to monitor developments on this case as it may affect a very high number of individuals and will continue providing updates on our website and through our weekly newsletter.

We have also committing the resources to providing individual phone consultations to allow affected F-1 students to assess their options.   We offer fast and secure online booking of legal consultations. We also offer same-day urgent phone consultations.

New STEM-Designated Programs

The new STEM-designated programs come as a direct result of the current administration’s efforts to address shortages in certain high-tech sectors of the U.S. economy.   A number of agricultural degree programs have been added to the list (CIP codes 01.XXXX), in addition to Neuroscience (26.1501), certain Physical Sciences (30.XXXX), Psychology (42.XXXX), Forensic Science (43.0105), Geographic Information Systems (45.0702), certain Pharmaceutical degrees (51.20XX) and Management Science/Business Statistics (52.1301, 52.1302).

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.

Conclusion

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.

As a result, we continue to provide updates on the Tri-Valley University story.

Tri-Valley University President Indicted

A federal grand jury has indicted earlier this week the President of Tri-Valley University, Susan Xiao-Ping Su.     To be clear, an indictment is simply a charge by the government and until proven guilty, Ms. Su is presumed innocent.

She is accused of engaging in a two-year scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University’s applications to admit foreign nationals on student visas. The indictment further alleges that after obtaining such approvals, Su fraudulently issued visa-related documents to student aliens in exchange for “tuition and fees.”

The indictment alleges that in carrying out the scheme, Su is accused of making multiple false representations to DHS through Tri-Valley University’s use of the Student and Exchange Visitor Information System (SEVIS), which the U.S. government uses to monitor the “F-1″ student visa program. Through her false representations, Su was able to unlawfully obtain and issue F-1 visa-related documents without regard to the students’ academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.

According to the indictment, Su admitted and maintained foreign students in exchange for tuition and other payments. In furtherance of the F-1 visa scheme, Su also allegedly harbored multiple Tri-Valley University student-employees to assist her in making the false representations to SEVIS. The indictment further alleges the defendant engaged in multiple money laundering transactions totaling more than $3.2 million using proceeds she derived from the visa fraud scheme.

The 33 counts contained in the indictment carry maximum penalties ranging from one to 20 years imprisonment. The charges include wire fraud; mail fraud; visa fraud and conspiracy to commit visa fraud; use of a false document; making false statements to a government agency; alien harboring; unauthorized access to a government computer and money laundering.

Many of our readers are aware of the story about Tri-Valley University (recent Google News) and how it was shut down by federal authorities for allegedly defrauding students and helping them obtain F-1 student visas in violation of immigration laws.

University Allegedly Committed Fraud and Violation of U.S. Immigration Laws

According to a recently released Notice of Intent to Withdraw, Tri-Valley University issued I-20 documents allowing foreign national students to come (or remain into) to the U.S. and authorized Curriculum Practical Training (CPT) to a number of its students.  While CPT is perfectly legitimate form of employment while on F-1 status, the government alleges that Tri-Valley did not meet a number of the requirements for participation on the F-1 program.

Specifically, Tri-Valley is alleged to have listed a few hundred of its 1,613 active F-1 students as residing at a two bedroom apartment in California, in violation of F-1 rules.  Additionally, Tri-Valley is alleged to have circumvented the requirement that F-1 students cannot take more than one course (or three credit hours) per semester online.  The rest of the enrolled courses must be taken at a brick-and-mortar location of the university.  According to the government, none of the F-1 students took courses at a physical location.

Additionally, Tri-Valley is alleged to have issued CPT work authorization for students in a program not directly related to his or her program of study.  Under F-1 regulations, CPT can be authorized only if it is related to a student’s course of study and the work must be in such field.

Tri-Valley University is also alleged to have allowed students to carry less than the minimum allowed course load under the F-1 regulations.

The list of alleged violations does not end here.  Tri-Valley University is alleged to have employed F-1 students as faculty, to have been sloppy with F-1-related paperwork and reporting requirements, among others.  As a result, the government seeks not only to revoke its ability to issue F-1 visas but also to shut it down permanently.

What Happens to the 1,600+ Students Enrolled in Tri-Valley University?

The initial reaction by USCIS and CBP was that these students are in violation of their F-1 status and should be subject to removal proceedings.  There are stories that some of these students were given tracking bracelets so that the government can track their movements, criminal defendant-style.    Since most of the F-1 students in Tri-Valley are Indian nationals, the Indian government issued a strong reaction to the heavy-handed treatment and, as a result, the U.S. immigration authorities seem to be backing down.

Recent communications from USCIS indicate that they may consider the possibility of reinstating the the F-1 student status by filing of Form I-539.  Initial indications, as of now, are that USCIS would consider reinstatement of F-1 status applications on a case-by-case basis, as opposed to reinstating F-1 status to the entire Tri-Valley student population.

Reinstatement of F-1 Status Requirements

Generally, the eligibility requirements for reinstatement of F-1 status are as follows:

• The student must be currently enrolled or intend to enroll for a full-time course load;
• Can establish that the violation of status resulted from circumstances beyond his/her control;
• Has not engaged in unauthorized employment;
• Has not been out of status for more than 5 months;
• Can document sufficient financial resources to pursue a full-time course load;
• Does not have a history of repeated violations; and
• Is not deportable from the US on any other grounds.

In an extraordinary case such as Tri-Valley University, some of its students may run into difficulties meeting all of the eligibility requirements.  Specifically, the requirement of not being out of status for five months is likely to affect many of the students if the government considers the violation of status to have occurred earlier in their CPT employment.  We believe that this is one of the reasons that USCIS has indicated that they would accept and review F-1 reinstatement application on a case-by-case basis.

Importance of Good F-1 School Practices

The Tri-Valley University case illustrates how important it is for an F-1-authorized school and to an F-1 student to maintain proper F-1 practices.  While it is true that some students at Tri-Valley University were not aware of the school’s alleged misdeeds, it is plain to see how, according to the government’s allegations, some students were fully aware of the F-1 program violations committed by the school but continued nonetheless because Tri-Valley offered them an opportunity to work under CPT.

Unfortunately, there are other universities whose F-1 practices, based on anecdotal evidence, may be borderline improper.  A few of the red flags are: the school authorizes full load of online courses (only one per semester is permitted), the school authorized CPT in employment unrelated to the student’s degree, the school issued I-20 knowing that the student would not reside within driving distance of the school’s campus.

In light of this Tri-Valley University investigation, it is possible that other schools may be subject to increased scrutiny and investigation.  We are happy to have a phone consultation to help you evaluate your F-1 status terms and help you understand your options in case you have doubts.

Update:  Tri-Valley’s Response

Tri-Valley University, acting through its president, has responded to the SEVP notice.  A copy of the response and the university’s justifications can be accessed here.

How Our Office Can Help?

If you are a student affected by the Tri-Valley University shutdown, please contact us.  We would be happy to consult with you and analyze your options for filing for reinstatement of F-1 status, among other alternatives, if available.   Alternatively, we urge all F-1 students to keep in mind that it is also their responsibility to maintain F-1 status by following all relevant rules and regulations.

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 FY2011 starting on October 1, 2010.

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 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B 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 H1B 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 F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions 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 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 and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and 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 June 1st.  Students whose approved period of OPT already extends beyond June 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. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

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.

In light of the Form I-539, Application to Change of Status, processing timelines (~2-3 months),  a very frequent question which arises in such situations is “Can I start school while my I-539 application to change status is pending?”  The answer is that it depends on the status from which the applicant is changing.  Generally, if the person’s current status allows study then the person is allowed to start study while the change of status is pending.  Some of the most frequent cases are discussed below.

Changing From H-1B/H-4 (Or Another Status Which Allows Study) To F-1/M-1 Status

The regulations provide that  H-1B and H-4 holders are allowed to study while they maintain valid H-1B/H-4 status.  As a result an H-1B/H-4 holder who files timely I-539 Change of Status application to F-1 or M-1 is allowed to start school while the application is pending.  It is important to note that the regulations provide that starting school before filing an application to change status to F-1 or M-1 does not, by itself, make the applicant ineligible for the requested F-1 or M-1 status (this is not the case for B-1 or B-2 holders).

Changing From B-1/B-2 (Or Another Status Which Does Not Allow Study) to F-1/M-1 Status

Due to the fact that B-1/B-2 holders are not allowed to study, even if the file a timely application to change status to F-1 or M-1, such B-1/B-2 holders cannot start studying until the F-1 or M-1 application to change status is approved by USCIS.  Also, it is important to note that B status holders who do not have the “prospective student” notation on their I-94 card may be ineligible to apply to change status to F-1 or M-1 from within the U.S.

F-1 Students

Students present in the U.S. on F-1 status (and their F-2 dependents) must:

• Maintain the requisite F-1 documentation: valid I-20, valid passport, and valid I-94 card marked “Duration of Status” or “D/S”;
• Pursue a full course of study (with limited exceptions) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the U.S. and make normal progress towards completing the course of study;
• Update by providing information to the designated school official (DSO) current address, legal name, or major field of study within 10 days of a change;
• Remain in the U.S. for no longer than 60 days after completing the full course of study (the so-called “60-day grace period”), unless prior to that time the student has followed procedures for applying for optional practical training (OPT), changing educational levels, transferring to another approved school, or changing status;
• Refrain from engaging in unauthorized employment (please see a related article on what constitutes “work”).

As a side note, F-2 dependents are prohibited from engaging in employment or a course of study, except that F-2 children may enroll in elementary or secondary school (K-12).

M-1 Students

Students present in the U.S. on M-1 (and their M-2 dependents) status must:

• Maintain required documentation: valid I-20, valid passport, and valid I-94 card. M-1 students are admitted for one year or for the period necessary to complete their course of study, whichever is less, plus 30 days thereafter to depart (the so called “30-day grace period.”);
• Pursue a full course of study (with certain exceptions) at an established vocational institution or other recognized nonacademic institution and make normal progress towards completing the course of study (full-time study may differ from school to school);
• Update by providing information to the designated school official (DSO) current address, legal name, or major field of study within 10 days of a change;
• Refrain from engaging in unauthorized employment.

Similarly to F-1, as a side note, M-2 dependents are prohibited from engaging in employment or a course of study, except that M-2 children may enroll in elementary or secondary school (K-12).

J-1 Exchange Visitors

Exchange visitors present in the U.S. on J-1 (and their dependents on J-2) status must:

• Maintain required documentation: valid DS-2019, valid passport, and valid I-94 card marked “Duration of Status” or “D/S”;
• Engage only in approved activities at the authorized location for which the DS-2019 was issued;
• Update by providing information to the responsible office (RO) current address, legal name, or major field of study within 10 days of a change;
• Maintain medical insurance required for J-1 visa holders;
• Remain in the United States for no longer than 30 days (the so called “30-day grace period”) after completing J-1 program; and
• Refrain from engaging in unauthorized employment.

Note that J-2 spouses and children are eligible to apply for an employment authorization document (EAD), but there is no regulation restricting J-2s from enrolling in a course of study.

The U.S. Immigration and Customs Enforcement (“ICE”) division has released a guide targeted to holders of F, M and J visas with respect to obtaining drivers licenses and answers to some of the most common questions.

Lead times.  It is important to note that some foreign nationals on F, M or J status who are recent arrivals into the U.S. must plan in advance their application for a drivers license as some states have requirements for social security numbers (which application can take a few days) or other documents which require some preparation time.

F-1 holders in cap-gap extension.  In addition, from our practice we have encountered some F-1 holders who are subject to the cap-gap automatic extension of status have run into difficulty extending their driver’s license beyond the expiration date of their employment authorization document (“EAD”).  The ICE guidance provides some specific instructions in such cases and instructs the Designated School Official (“DSO”) to issue an updated I-20 to the F-1 holder or to make certain notations on the I-20 form.

Problem resolution contact.  In cases where the DMV refuses or is unable to issue a driver’s license, ICE has encouraged the DSO to contact directly SEVP  for assistance at sevis.source@dhs.gov and provide certain information (please see the attached guidance sheet, p. 6).

The guidance sheet is helpful in not only describing in more detail what happens when an OPT F-1 holder is a beneficiary of an H-1B petition.  Normally, when USCIS receives an H-1B petition it enters the information into its mainframe called CLAIMS.  This update automatically updates the SEVIS system and which automatically should reflect the cap-gap extension for the F-1 holder.    If this process does not work (due to time constraints, mainly), SEVIS allows the Designated School Official (“DSO”) to enter manually that the student is in valid status pursuant to cap-gap into SEVIS.

This functionality also allows DSOs to enter gap-cap information in cases where the H-1B application has been filed but it has not yet been processed by USCIS.  The guidance notes, however, that the “manual” update of cap-gap status by the DSO should not be done unless in cases where the student’s OPT may expire before USCIS can receipt the H-1B petition (and therefore enter the H-1B petition in CLAIMS).

We have seen USCIS deny change of status to F-1 applications on seemingly due to the lesser-known name of the college.  Similarly, U.S. consulates abroad have been denying F-1 visa applications where the foreign student wishes to study at a lesser-known college.  In a specific response to these situations, the Department of State has issued a note which is aimed to remind consular officers that “attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education.”

What this means is that the F-1 visa or change of status applicant must show an educational plan which may include an ESL or a community college but which must, at some point, indicate that the student would transfer to a four-year college or another more advanced school.  According to the Department of State, “a plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.”

Considering this guidance, it becomes even more important for the F-1 applicant to be able to tell a story and present an educational plan as part of his or her F-1 visa application process.  This educational plan must be as detailed as possible and must present a clear picture of the applicant’s educational goals and where and how they would be achieved.  Please contact us if we can help you prepare your F-1 visa application.

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.

However, in cases where the requirements are met prior to filing but the diploma is not yet awarded, CSC has advised that it would accept the following:

• a final transcript; or
• a letter from the Registrar; or
• a letter executed by the person in charge of the records of the educational institution where the degree was or will be  awarded (with proper documentation that such person is in fact authorized to issue such letters).

Among the countries with the highest number of foreign students, South Korea leads the list with 110,083 students, India is second with slightly below 100,000 students and China is a close third with approximately 90,000.   The leading major continues to be Business with 145,873 international students, followed by Engineering.

From our own practice and from statistics released by the government, it is clear that more and more employers are signing up for E-Verify, some in response to federal or state regulations, some on their own effort to maintain a compliant workforce.  However, as more and more foreign nationals are being screened through the system, we are starting to notice some of the less obvious quirks of the system.

One of those quirks is the fact that F-1 students who have are working under CPT, which is employment that is part of a student’s specified degree curriculum. The Designated School Official (DSO) authorizes CPT for students before they can begin wok by annotating their I-20 in accordance with the 8 CFR 214.2(f)(10)(i). Unlike Optional Practical Training (OPT), no employment authorization from USCIS is needed.

The problem has two parts.  First is the requirement that all E-Verify employers conduct checks on all of ther employees, including students on CPT. The second part is the fact that E-Verify is not connected to SEVIS, the system which maintains the foreign students’ records, including CPT authorizations.  As a result,  E-Verify always sends a CPT student to secondary verification.

The USCIS has responded that even though students on CPT are always sent to secondary verification, such secondary verification should occur within 24 hours, assuming the student’s record can be located in the SEVIS system.    Despite USCIS claims, we urge students on CPT and employers who employ such students to be aware of this quirk in E-Verify and allow extra time for E-Verify screening.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

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

We do not have a copy of the complaint at this hour to comment on the sufficiency of the legal arguments and whether it has actual merit as opposed to  its PR value.  However, we will monitor this lawsuit and report on any significant developments related to the OPT extension program.  Feel free to subscribe to our  electronic newsletter to receive updates on this and other immigration law-related stories.

Update: August 5, 2008, ruling against the plaintiffs.

The map can be located here.

The Problem
On April 8, 2008, USCIS announced a rule which would automatically extend the F-1 status of students who are beneficiaries of approved H-1B petitions so that the cap between the F-1 status expiration and the employment start date of October 1 would be automatically covered under F-1. However, the rule was published after the filing period for FY 2009 H-1B had closed and as a result, many F-1 holders who applied for H-1B visas calculated that their F-1 status would expire before October 1 and therefore they would have to leave the U.S. and requested consular notification on their H-1B application.

The Fix
As a result of the timing of the new rule, USCIS exacerbated a problem which the new rule aimed to solve. To its credit, USCIS released guidance that it would allow F-1 holders whose H-1B petitions were randomly selected to receive H-1B visa number for FY 2009, to now request a change of status processing, if such requests are received within 30 days of the issuance of the H-1B receipt notice.

Procedure To Request Change of Status
The procedure to request a change of status in lieu of consular notification, petitioners (or authorized representative) should send an email with the request to the USCIS service center where the H-1B petition is pending within 30 days of the issuance of the receipt notice. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 number, and SEVIS number.

The e-mail addresses for requestig change of status are:

• Vermont Service Center
  • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
  • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
• California Service Center
  • Premium Processing cases: CSC.ppcapgap@dhs.gov
  • Non-Premium cases: CSC.nonppcapgap@dhs.gov

Answer.  The answer is, if you would like to stay on OPT longer you must withdraw your H-1B application.  It is important to note that once the H-1B application is approved and if it was filed as a “change of status,” then your OPT is cancelled automatically.  Therefore, prompt action may be necessary.  Another important note is that only the employer may submit withdrawal of the H-1B application since the application is technically filed by the employer.

If you need professional assistance with your OPT/H-1B visa applications please contact us.

The first step is to find the classification number of your degree.  We are providing a link to the Classification of Educational Programs, provided by the Department of Education.

Once the degree classification is determined, an F-1 or OPT holder should look at the list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.  We are reprinting the DHS list below:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 27.xxxx
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 40.xxxx
• Science Technologies: NCES CIP Codes 41.xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

If your degree’s classification is listed above, then your degree is STEM.

We have obtained an advance copy of the DHS rule and we are providing a PDF of the rule as well as detailed analysis below.

Summary and Analysis of the New OPT Rule

29 Month OPT for STEM Students.  The 12 month limit on F-1 OPT is extended by 17 months for a total of 29 months  for holders of degrees in certain Science, Technology, Engineering and Mathematics (STEM) areas.  Eligible degrees are:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 1 1 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 2 7 . m
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 4 0 . m
• Science Technologies: NCES CIP Codes 41 .xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

Additional Requirements.

• Student must be currently participating in a 12-month OPT and must be working for a U.S. employer in a job directly related to the student’s major area of study (which, of course, must be one of the areas listed above)
• Student must have successfully completed a bachelor’s, masters, or doctoral degree from a SEVIS-certified educational institution.
• The student has not previously received a 17-month OPT extension.
• The Designated School Official (DSO) must recommend the 17-month OPT extension after verifying that the student otherwise qualifies for the extension.
• Employer must be E-Verify registered.
• Employer must agree to report the termination/departure of the student to the DSO.

Application.  Students who qualify and wish to extend their OPT by 17 months must file form I-765 and attach the applicable fee.  Students who timely file their OPT extension application will be allowed to continue employment until the final decision of the I-765 form or 180 days, whichever comes first.  Under the new rule, students can file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after the program’s end date.

Non-STEM Students

There is substantial relief for non-STEM degree students whose OPT are set to expire.  Under the new rule, duration of status and work authorization will be extended for a student on OPT who is the beneficiary of a timely-filed H-1B petition requesting an employment with starting date of October 1.  This applies to all students, not just STEM students.  This renewal terminates automatically upon the rejection, denial, or revocation of the H-1B petition.

On March 31, 2008, the U.S. Immigration and Customs Enforcement submitted to the Office of Management and Budget (OMB) for review an interim final rule entitled “Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students.”

Details on the proposed rule are scarce at this point and we will provide updates as we receive them, but the important point is that the government is listening to the concerns of U.S. businesses and foreign students who find themselves in a difficult position when they are unable to apply for H-1B visa post-graduation in May (because the H-1B visas are already used by May) and out of OPT status during the following year and before being able to transfer to H-1B visa.

As a matter of procedure, OMB has up to 90 days to review the proposed rule and either approve it for publication in the Federal Register, at which point it becomes active, or send the rule back for revision.

Please stay tuned on more details on this important rule.

Update 1 (Apr 3; 4:50 pm): Some readers have inquired about the conflicting reports of 29-month time period for OPT instead of 17. In our opinion, this is due to accumulating the possible time on OPT. Currently, OPT can be used once, for 12 months, after obtaining a Bachelor’s degree and subsequently one more time, for 12 months, after obtaining a Master’s degree. We think that the proposed rule will extend only one of these OPT windows to 17 months while the second OPT will be limited to 12. This rationale would explain the 29-month OPT reports. Note that this is not an official rule or interpretation of it, it is just a speculation at this point.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.