Labor Immigration Law

We wrote in June about the lawsuit challenging the 17-month OPT extension for STEM students.  The lawsuit was brought by  the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenged the administration’s decision to extend the work period for students under the OPT program and argued that the OPT extension is just a way to go around the H-1B cap limit.  The argument was based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

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

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

The recent OPT 17-month extension which went into effect in early April 2008 has been challenged in the U.S. District Court in Newark, N.J. by the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenges the administration’s decision to extend the work period for students under the OPT program and argues that the OPT extension is just a way to go around the H-1B cap limit.  The argument is based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

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 United States Immigration and Customs Enforcement (ICE) has released a map of SEVIS-approved schools in the U.S.  The map is useful tool for foreign students hoping to come to study in the United States or to transfer to a new school as it lists schools authorized to issue F-1 visas and other education-related immigration benefits.

The map can be located here.

The USCIS announced late last week that it would permit F-1 students who have properly filed H-1B petitions in April and have their petition selected during the random lottery to request a change of status processing in lieu of consular notification.

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

Over the past few days we have been asked on numerous occasions – what happens to my OPT when my H-1B is approved? Can I withdraw my H-1B?
Background.  This question is prompted mainly by the new OPT extension rule which went into effect recently.  (See our previous posts for more details as we wrote extensively on this topic.)  Many OPT holders applied for their H-1B visas this April and are eagerly awaiting the outcome.  However, for many OPT holders, the April 2008 OPT rule extends their OPT duration by as much as 17  months.  Thus, some have asked us what are their options.

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.

We have received many inquiries in connection with the OPT extension to 29 months for holders of STEM degrees (non-STEM degrees also get some relief under the new OPT rule).  One of the questions asked most often is, “How do I know if my degree is a STEM degree?”

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 wrote earlier about the F-1 Visa OPT extension proposal.  We are happy to report that the OMB review has been complete and that the rule is expected to be published in the Federal Register during the week of April 7, 2008, at which time of publication the rule becomes effective. The new OPT rule brings great relief to many students or OPT holders who are in a difficult position because of the timing of the H-1B filing season and the expiration of their OPT.

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.

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.

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.