F-1 STEM OPT Students Working at Third-Party Sites

June 29th, 2018

In April 2018, USCIS updated its website regarding the employment of F-1 student and it appears to bar F-1 students in the STEM optional practical training (OPT) program from working at third-party locations. In particular, it states: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” However, as noted by American Immigration Lawyers Association (AILA), this is contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. The preamble to the March 11, 2016 STEM OPT Final Rule provides:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

In addition, US Immigration and Customs Enforcement (ICE) has stated in response to an FAQ that F-1 STEM OPT students may use staffing/placement agencies to find work training so long as that agency provides and oversees the training.

USCIS is concerned that the employer who is required to sign the training plan would not be able to supervise the F-1 student at a third party site. However, remote supervision of the F-1 student is certainly feasible and USCIS’ most recent website guidance is overreaching. Also, “staffing agencies” may also provide sufficient supervision and training of the F-1 student.

The good news is that AILA has received reports (as recent as June 2018) that the placement of F-1 STEM OPT students at third party sites has been approved after employers of third party STEM placements have responded to a request for evidence (RFE) for an H-1B petition.

Finally, it should be emphasized that the new unlawful presence memo becomes effective on August 9, 2018, which now subjects F-1 students to the three and ten-year bars to reentry in a broader range of circumstances. One of these circumstances would be if USCIS denies such third party placement of an F-1 STEM OPT student and makes a finding that the F-1 student violated the terms of his or her status, which would result in the retroactive accrual of unlawful presence.

 

 

USCIS Revises Requirements for Employment of Certain F-1 STEM OPT Students

May 15th, 2018

In April 2018, USCIS revised its website page for Optional Practice Training for STEM students that appears to bar F-1 students working pursuant to their STEM OPT (optional practical training) to be situated at third party sites. The website page states: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.”

However, according to the preamble to the March 11, 2016 STEM OPT Final Rule:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ‘’temp’’ agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

Based on this preamble, USCIS is improperly restricting the workplace of F-1 students working pursuant to STEM OPT. So long as there is a genuine employment relationship between the STEM employee and the employer, and both parties have complied with and signed the Form I-983 training program, which includes an obligation for the employer to provide practical training to the employee, then the employer should be allowed to place the F-1 student at the end client. Congress and USCIS are aware of this issue and hopefully we will receive favorable clarification on it.

 

USCIS Issues Policy Memo on Accrual of Unlawful Presence for F, J and M Nonimmigrants

May 13th, 2018

USCIS has published a draft of a policy memorandum substantially broadening its definition of unlawful presence for F, M and J nonimmigrants and their dependents, and thereby potentially subjecting far more nonimmigrants to the three or ten-year bars to reentry into the US after their departure.

The US immigration laws impose a three or ten-year bar on certain nonimmigrants who overstay or otherwise violate the terms of their status and accrue unlawful presence and then depart the US. If a nonimmigrant with a certain date of expiration on her I-94 card overstays that date by more than 180 days and then departs the US, then she cannot reenter for three years.  If she overstays for more than one year, then she cannot reenter for 10 years. In addition, individuals who have accrued more than one year of unlawful presence in the US, whether in a single stay or during multiple stay in the US, and who reenter or attempt to reenter the US without being admitted or paroled are permanently inadmissible. Also, a nonimmigrant who does not overstay the expiration date but has a formal finding against her by USCIS or an immigration judge that she has violated the terms of her status will be subject to the same bars if more than 180 days or one year elapses since the determination of the status violation.  It should be emphasized that only a departure from the US triggers the bar.

Only with a waiver can foreign nationals reenter the US within this period of inadmissibility. A waiver for a nonimmigrant visa entry (for a temporary period) is available to any foreign national (INA §212(d)(3) waiver).  The 212(d)(3) waiver requires a weighing of at least three factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration law, or criminal law violation, if any; and (3) the nature of the applicant’s reasons for wishing to enter the United States. However, a waiver for an immigrant visa (or legal permanent residency) is available only to those foreign nationals who can show extreme hardship to a parent or spouse who is a legal permanent resident or US citizen.

Students in F-1 and M status and exchange visitors in J-1 status, and their dependents, are not given a precise date of expiration on their Forms I-94, but rather a designation of “duration of status” or  “D/S.”  Before USCIS’ policy change, unlawful presence did not apply to those with a designation of duration of status on their Form I-94s who overstayed or otherwise violated the terms of their status, unless an immigration judge or USCIS made a formal finding of a status violation against them.   Unlawful presence would be start to be counted from the date of the finding of the status violation and once more than 180 days or one year elapsed since the order, then only after departing the US would the foreign national be subject to the three or ten-year bar to reentry.

Therefore, under the old rules, if an F-1 student overstayed for more than one year after her authorized status expired, including the completion of her studies, the completion of any optional practical training, and the 60-day grace period, she would not incur any unlawful presence or trigger the three or ten-year bar to reentry upon her departure from the US.

It is important to distinguish between unlawful presence and maintenance of lawful status in the US. Not all violations of lawful status are unlawful presence, triggering the three and ten-year bars to reentry.  For example, an H-1B worker who works without status during the validity period of his H-1B visa petition may be violating the terms of his status but he is not accruing unlawful presence.  Only when a formal finding by USCIS or an immigration judge has been made against him for such violation would it trigger the bars.

Under the new policy memorandum, USCIS will calculate unlawful presence much earlier for these F, M and J nonimmigrants by finding that it will start upon a status violation, even one that is not the subject of a formal finding by an immigration judge or USCIS. Under the memo, the following rules apply:

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

 

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

 

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

 

Such a change on unlawful presence calculation is highly unfair to the foreign national, who may unknowingly violate the terms of her status. Immigration policy is highly variable and it is challenging even for immigration attorneys to always be apprised of the latest developments in immigration policy and law.  For example, USCIS has recently stated that it may find that F-1 STEM optional practical training (OPT) status may not allow the F-1 student to be placed at a third party site.

Also, the current policy of only triggering unlawful presence once a formal status violation finding has been made against the foreign national provides her with notice of the violation and an opportunity to rebut an incorrect finding, either by contesting a USCIS determination or having a hearing before an immigration judge. Even H-1B workers who violate the terms for their status but otherwise do not overstay the expiration date on their Form I-94 are not deemed to have started the clock for unlawful presence.

The public has until June 11, 2018, to comment on the memo and it will take effect on August 9, 2018. Please email all comments to publicengagementfeedback@uscis.dhs.gov.

 

 

New STEM OPT Extension Training Plan

June 6th, 2016

Under the latest STEM optional practical training (OPT) extension rules that came into effect on May 10, 2016, and which  increase the OPT extension program from 17 to 24 months, USCIS added additional requirements.  One of the most important of these is the training plan that is to be filed on the Form I-983.

Before applying for a STEM OPT extension, a STEM OPT student must complete, sign and submit the Form I-983 Training Plan to the DSO of the school for its recommendation of OPT extension.  The STEM OPT student and the prospective employer must collaborate to complete the form.  The student must complete the first “Evaluation of Student Progress” portion of Form I-983 within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, the student must conduct a second, final assessment.  Once the evaluations are complete, the student must obtain signatures from his employer and return the form to the DSO.

The content of the Plan shall include the following:

  • Identification of goals, including knowledge, skills or techniques imparted;
  • An explanation of how goals achieved;
  • A description of the evaluation process;
  • A description of the methods of supervision; and
  • An explanation of how training directly related to STEM degree.

The Plan also imposes obligations on employers intended to protect the terms and conditions of employment for U.S. workers. The following are the attestations on Form I-983:

  • The student’s practical training is directly related to the STEM degree that qualifies the student for the STEM OPT extension and the position offered to the student achieves the objectives of his participation in the training program;
  • The student will receive on-site supervision and training, consistent with the Plan, by experienced and knowledgeable staff;
  • The employer has sufficient resources and personnel to provide the specific training program set forth in the Plan and the employer is prepared to implement it;
  • The STEMP OPT extension student will not replace a full- or part-time, temporary or permanent US worker.
  • The terms and conditions of the STEM practical training opportunity – including duties, hours and compensation – are commensurate with the terms and conditions applicable to the employer’s similarly situated US workers; or if the employer does not employ and has not recently employed more than two similarly situated US workers in the area of employment, the terms and conditions of other similarly situated US workers in the area of employment; and
  • The training conducted pursuant to the Plan complies with all applicable Federal and State employment requirements.

The key aspects of these obligations are that the employer pay the F-1 student wages commensurate with similarly situated US workers and that no self-employment or volunteering is allowed.  Although more restrictive than before regarding the wage equity component of the plan, the new rules does not require the employer to comply with the prevailing wage requirements of the H-1B petition.  However, some employers may find the absence of a bright line rule on wages disconcerting and hopefully USCIS will provide more guidance in the future.

 

New STEM Optional Practical Training Rules

May 17th, 2016

The new STEM (science, technology, engineering, math) OPT (optional practical training) extension is a 24-month period of temporary training that directly relates to an F-1 student’s program of study in an approved STEM field, and replaces the 17-month STEM OPT extension previously available to certain STEM F-1 students. The 17-month STEM OPT regulations remained in effect through May 9, 2016. The 2016 final rule’s STEM OPT 24-month extension has been effective since May 10, 2016.

 

 

Students with Existing 17-Month STEM OPT EADs on May 10, 2016

 

Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. Also the student’s DSO must continue to abide by all the terms and conditions that were in effect when the EAD was issued.

 

Transition Plan

 

As a transitional measure, from May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must show the following:

 

  • Have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Form I-765 employment authorization application is filed, and they must otherwise meet all requirements of the 24-month STEM OPT extension;
  • Properly file a Form I-765 with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, (i.e., 90 days after May 10, 2016); and
  • File the I-765 within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record.

 

Whom the Transition Plan Does Not Cover

 

Students whose 17-month STEM OPT extension expired prior to May 10, 2016, or who have fewer than 150 days remaining on their 17-month STEM OPT extension EADs on the date that they are able to properly file their STEM OPT extension are not covered under the transition plan.

 

To become eligible for the 24-month STEM extension, students who are not covered under the transition plan would first need to earn another qualifying STEM degree at a higher educational level.

 

 

Other Terms of the New STEM Extension Rule

 

As under the old rule, the employer must participate in the E-Verify program, a U.S. government internet-based system for verifying employment eligibility, and the field of study must be on a list compiled by Immigration and Customs Enforcement (ICE) and available on ICE’s website. Other important changes in the new rule include:

  • The school that granted the degree must be accredited by an organization included in a U.S. Department of Education database.
  • There is a 24-month extension, instead of the former-17 month extension and the possibility of a second 24-month extension after completing a higher level degree and meeting certain requirements.
  • The 24-month extension may be based on a degree completed within the past 10 years at a U.S. institution in the US that is accredited at the time the extension application is filed and the training must be directly related to the STEM field.
  • Additional fields of study are included in the list of STEM degrees acceptable for extension.
  • A training plan is now required in order to obtain the school official’s recommendation of the OPT extension. The training program imposes obligations on employers intended to protect the employment of US workers.

Furthermore, the new rule creates hurdles for students who are entrepreneurs, since they can no longer be self-employed. The training program must be signed on the employer’s behalf by someone other than the student, and there must be an employer-employee relationship. This resembles USCIS’s policy prohibiting self-employment since 2008 for H-1B visa holders. The employer-employee requirement also bars volunteering. In addition, although USCIS maintains that even “start-ups” can participate, because of the onerous requirements of the training program, it may be difficult for smaller employers to comply.

 

USCIS Announces New Policy on STEM Optional Practical Training (OPT) Extensions for F-1 Students

October 28th, 2013

On October 6, 2013, USCIS announced in a policy memorandum a clarification of its guidelines on eligibility requirements for a 17-month extension of Optional Practical Training (OPT) for F-1 foreign students enrolled in programs in the STEM (science, technology, engineering or math) fields.  It has decided that F-1 students engaged in OPT are eligible for a 17-month STEM extension even if they have not completed the thesis requirement or equivalent for their STEM degree.

The employment authorization afforded F-1 students through OPT is usually their only way to work legally in the US after they have graduated.  They are granted OPT for one year following their graduation so long as they are obtaining practical training that directly relates to their major area of study.  However, F-1 OPT students who completed a course of study in a bachelor’s degree or higher in one of the STEM fields are eligible for a 17-month OPT extension.  During this 17-month extension, F-1 students are eligible for the H-1B cap gap extension of their OPT but are also subject to the unemployment restrictions (allowing students only certain periods of unemployment before losing their F-1 OPT status).

US ICE Announced Expanded List of STEM Degree Programs

May 19th, 2011

US Immigration and Customs Enforcement (ICE) has published an expanded list of science, technology, engineering and math (STEM) degree programs that qualify F-1 Optional Practical Training (OPT) students to extend their OPT for another 17 months. Under the OPT program, foreign graduates may obtain up to one year of post-graduation work authorization in the US for up to 12 months, and if they qualify under the STEM program and their employers participate in E-Verify, then they may apply for an additional 17-month period. This STEM extension was instituted to address shortages of talented foreign students in the STEM fields in the US. The expanded list includes fields such as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design.

Proposal to White House to Extend Student Work Status

March 28th, 2008

According to Computerworld, H-1B visa supporters have asked the Bush administration to extend the time that foreign graduates of U.S. universities can work pursuant to the optional practical training (OPT) of their F-1 student visas from one year to 29 months.  This plan would not increase H-1B numbers but ultimately increase their chances of obtaining an H-1B visa for the following year.

Currently, there are only 85,000 H-1B visa numbers available each year (65,000 for those with a bachelor’s degree and 20,000 for those with a master’s degree from a US institution).  Last year, the bachelor’s cap was reached on the first day that the government allowed the H-1B petition to be filed (April 1st).  It is anticipated that the cap will be reached on the first day this year as well. 

USCIS has announced that it will consider petitions filed within 5 business days of the final receipt date (the day that the cap is reached) to be included within the random selection process for the H-1B cap.  If April 1st is the anticipated receipt date, then this would mean that April 7th would be the last day this year for those seeking an H-1B visa number to file the petition.