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
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
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
We have many confirmed reports that yesterday, July 28, 2011, the University of Northern Virginia’s (UNVA) campus in Annandale was raided by Immigration and Customs Enforcement (ICE) and Federal Bureau of Investigations (FBI) agents, seeking and seizing documentation relating to UNVA’s issuance of F-1 foreign student visas and UNVA’s compliance in the F-1 visa program.
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.
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.No comments
We have written in the past about the Tri-Valley University and how it affected a high number of F-1 international students by engaging in alleged unlawful practices and immigration fraud. The Tri-Valley University story is worth following because it highlights, from the perspective of the foreign students and nationals, the importance of maintaining good immigration compliance and records, not only with respect to F-1.
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.No comments
Updated: February 16, 2011
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.No comments
A recent report by Open Doors, a member of the Institute of International Education provides some numbers and statistics about the foreign students currently in the U.S.
According to the report, there are more than 670,000 foreign students in the U.S. – an increase of about 8% over the past academic year. This rate of growth has not been seen since 1980s.
Distribution by Country
According to the report,
[There were] increases in foreign student enrollments from seven of the ten leading places of origin, and 19 of the top 25, with increases of more than 20% from four countries. India remains the leading place of origin for the eighth consecutive year, increasing by 9% to 103,260. Students from China, once again the second leading sender, increased 21% for a total of 98,510. South Korea, in third place, increased 9% to 75,065. Canada, the only non-Asian country in the top five, rose to fourth place with an increase of 2% to 29,697, surpassing Japan, now in fifth place after students declined for the fourth consecutive year, decreasing by 14% to 29,264. Taiwan remained in sixth place, with 28,065 students, a 3% decline. The number of students from Mexico, the seventh-leading sender, remained flat this year, with a total of 14,850.
Distribution by University Location
Universities in California hosted the largest number of foreign students with 93,124, up 10%, followed by New York with 74,934, up 7%, and Texas with 58,188, up 12%. The New York City area continues to be the top city for international students, with 59,322 enrolled in area schools, up 8%. The Los Angeles metropolitan area is in second place with 42,897 international students, up 11%.
Distribution by Field of Study
The report also focused on the field of study. Business and Management remains the most popular field of study for international students in the United States, increasing by 12% and comprising 21% percent of the total, followed by Engineering with an 11% increase and comprising 18% of the total. Math and Computer Science also increased significantly in 2008/09, up 10% from the prior year. After a 15% increase in 2007/08, Intensive English Language showed a slight decline in popularity, decreasing by 1%.No comments
The increasing unemployment rate inevitably affects foreign nationals living and working in the U.S. on a work visa. We have been happy to help many clients over the past months who have either been laid off or have decided to seek a better opportunity to attend school by changing their status to F, J or M while they are in the U.S.
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.No comments