Labor Immigration Law

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%.

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.

Holders of F (student), J (exchange visitor) or M (student) status in the U.S. are subject to certain requirements in order to maintain a valid status and be entitled to the benefits of their status (e.g. OPT, visa revalidation, etc.).  With the beginning of a new academic year, we have been advising a number of school officials and students with duties and responsibilities related to certain student or exchange visitor status.

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.

In many areas around the U.S. driving is as essential as being able to read.  In our practice we face constantly foreign nationals who have been denied (correctly or incorrectly) a driver’s license due to their inability to show a certain document.

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).

We have been receiving a number of inquiries from prospective clients who are interested in switching to F-1 student visa status using a Form I-20  issued by a English as Second Language (“ESL”) school or a community college.   In our experience, USCIS (if the change of status is requested from within the U.S.) or the Department of State (if the visa application is filed at a consulate abroad) have been very critical towards applicants admitted to attend ESL or a community college in the U.S.

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 Optional Practical Training (OPT) program allows foreign students on F-1 visa to work for 12 (or up to 29 months, for holders of STEM degrees).  The 12 (or 29) month period allows many students to apply for an H-1B work visa.  Many employers (and OPT holders alike) are unaware of what happens when the OPT document expires while the H-1B application is pending.  This guide seeks to provide some answers.

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.

The California Service Center (CSC) has issued guidance on what kind of documentation is satisfactory to show that an H-1B beneficiary has completed his or her degree requirements.  It is important to note that an H-1B visa application must be filed only after all degree requirements are met, even if the diploma has not been awarded yet.  The H-1B filing window opens on April 1 and will likely remain open only for a few days, in effect making it impossible for most May graduates to apply for H-1B because of failure to complete all coursework and meet all requirements as of the H-1B filing date.

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).

USCIS has released some numbers about the student and exchange visitor visa programs.  As of December 31, 2008, there were 1,046,468 active nonimmigrant students, exchange visitors and their dependents.  Out of this number, there were a total of 722,272 active F or M students and 94,027 dependents.  There were 179,408 J-1 exchange visitors and 50,761 J-2 dependents.

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.

The U.S. Department of State reported yesterday that it has issued a record high number of F, J and M visas for the fiscal year 2008 – 710,631 in total.  This represents a 9.1 percent increase in comparison to fiscal year 2007 and a 26 percent increase in comparison to fiscal year 2001.

Among some of the other interesting statistics related to student and exchange visitor visas – there was a 40 percent increase in student and exchange visitor visas issued to Chinese nationals over fiscal year 2007, which in itself, was 40 percent higher than fiscal year 2006.   Also, visas issued to nationals from Middle East countries increased by 26 percent in fiscal year 2008 in comparison to fiscal year 2007.

These statistics may suggest a reversal of the downward trend following the events of 9/11.  The student and exchange visitor visa numbers dropped significantly in the years following 9/11, but the trend seems to be correcting itsel and the significant increases seem to suggest that the U.S. still remains a desirable place to study and engage in cultural exchange programs.