Tips for temporary visa holders for entering the U.S.

Each time foreign nationals re-enter the U.S. after temporary travel abroad, they should check their I-94 expiration date online at  https://i94.cbp.dhs.gov. Previously, U.S. Customs & Border Protection ("CBP") officers issued nonimmigrant air travelers a physical Form I-94 card (in the form of a small, white piece of paper) after conducting inspection.  Although physical I-94 cards are still completed at US land borders, CBP has been employing the electronic I-94 system for those traveling by air and sea since April 2013. Foreign nationals should always check their electronic I-94 records to ensure that their name, date of entry and expiration of stay has been properly entered into the U.S. Department of Homeland Security's database correctly to avoid any problems with future legal status in the U.S.  If a foreign national is unable to find her/his I-94 record online after entering their passport details correctly, or if the date displayed for period of admission is incorrect, the foreign national may return to the airport's international section and request to see a CBP officer at the Deferred Inspection office. Some CBP offices will entertain requests via email, while others only accept I-94 corrections in person with an appointment. 
 
With summer coming to a close and October approaching, many international students are returning to classes and soon many new H-1B visa holders will be arriving or looking to travel.  We remind F-1 students to always check with their school's international student office before undertaking any international travel, as they must have an up-to-date I-20, and if in their period of Optional Practical Training ("OPT"), proof they are maintaining their F-1 status by working (with an employment letter and/or paystubs) and not incurring more than the authorized number of days of unemployment. New H-1B arrivals should be reminded they can be admitted into the U.S. no earlier than 10 days before the start date listed on their I-797 approval notices. Those in other non-immigrant status (such as F-1, H-4, or L-1 or L-2), whose employers filed H-1B change of status petitions to take effect October 1 should remember to plan their next international trip carefully, ensuring that once they depart the U.S. they have made arrangements for obtaining a new H-1B visa abroad for re-entry into the U.S.

Reminder: STEM OPT extension deadline fast approaching

F-1 students on 17-month STEM OPT and their employers should be aware of the fast-approaching deadline for applying to extend STEM OPT to the new 24-month maximum. Eligible F-1 students with at least 150 days of OPT remaining have until August 8, 2016 to apply for the additional 7 months of work authorization permitted under the Department of Homeland Security's ("DHS") final STEM OPT rule. For further details about applying for this STEM extension, please visit our website.

Lengthy wait times for visa appointments in India

U.S. Consular Posts in India began reporting lengthy wait times for nonimmigrant visa interview appointments in June.  These substantial waiting periods continue and affect all nonimmigrant visa applicants other than B1/B2 visitors, F-1 students, and J-1 exchange visitors and their dependents.  Current wait times for appointments (as listed on the Department of State's website) for H-1B, L-1, O-1, and other affected nonimmigrant visa categories are:

• 82 days in Chennai;
• 118 days in Hyderabad;
• 96 days in Kolkata;
• 67 days in Mumbai; and,
• 90 days in New Delhi.

F-1 student visa appointments at some of the above-listed offices are taking as long as 36 days for scheduling. Accordingly, F-1 students should make visa appointments as early as possible to ensure timely visa processing for arrival to the U.S. for the fall semester.

The Department of State ("DOS") reports that demand for U.S. visas has increased by 80% since 2011 and DOS is currently requesting approval to add consular positions in an effort to decrease visa wait times. Until wait times subside, Indian nationals in the U.S. with expiring or expired visas should keep in mind the lengthy periods for obtaining an appointment and plan accordingly - perhaps even deferring international travel unless absolutely necessary to avoid extended waiting time abroad.  Although expedite requests are available for humanitarian issues and business emergencies, such requests should be made sparingly and with sufficient documentation to demonstrate the exigent circumstances. Additionally, visa applicants should also consider Third Country National (typically, Canada) processing (particularly for H-1B and L-1 visa holders) as a more efficient alternative.  Please note that Indian nationals require a Canadian visitor visa to enter Canada.

STEM OPT deadline

F-1 students on 17-month STEM OPT and their employers should be mindful of the upcoming August 8, 2016 deadline for applying to extend their STEM OPT to the new 24-month maximum. The Department of Homeland Security's ("DHS") final STEM OPT rule, published in March, allows many F-1 students with STEM degrees to take advantage of a two-year extension to their Optional Practical Training ("OPT"). As stated in the new rule, any 17-month STEM OPT Employment Authorization Document ("EAD") issued on or before May 9, 2016 will remain valid until the EAD's expiration date. However, students should keep in mind DHS will not automatically convert 17-month STEM OPT EADs to 24-month EADs. Instead, F-1 students with at least 150 days of OPT remaining have until August 8, 2016 to apply for the additional 7 months of work authorization permitted under the new rule. 

Eligible F-1 students, along with their employers, will need to complete and sign the new, required STEM OPT Training Plan when requesting the OPT extension from their schools' international student offices. Once students obtain the updated Form I-20 from their schools, they will then need to file a new Form I-765 with USCIS before the August 8, 2016 deadline.

Before signing the Training Plan, employers should be aware of the attestation and reporting requirements under the DHS's new rule. Please contact the attorneys at Iandoli Desai and Cronin by email at info@iandoli.com if you have questions regarding STEM OPT extension requests, the upcoming deadline, or the new employer reporting and attestation requirements.

Determining whether a bona-fide employer-employee relationship exists under the new STEM OPT regulations

The Department of Homeland Security's new 24 month STEM OPT rule went into effect on May 10, 2016. Employers and F-1 students should be aware of the major changes to the STEM OPT program.  In particular, some employers may no longer be able to hire F-1 STEM OPT students. In response to public comments concerning whether self-employed students, temporary staffing agencies, and start-up companies (formed and staffed by the F-1 student) would qualify as "employers" under the new regulations, DHS stated: 

Response. 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. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. 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. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03). (emphasis added)

A full copy of the new OPT STEM regulations is available on the Federal Register's website. If you have questions regarding whether your employer-employee relationship will qualify for the new 24-month STEM OPT extension, please contact an attorney at Iandoli Desai & Cronin P.C. at info@iandoli.com.

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

DHS announced major changes for employers and F-1 students on STEM OPT

On March 11, 2016, the Department of Homeland Security ("DHS") published its new rule on STEM OPT. Previously, F-1 students who came to the U.S. and graduated with a degree in a STEM field were eligible for a 17 month extension to the existing one year of work authorization for their period of Optional Practical Training ("OPT"). As a result of litigation over the 2008 rule that authorized STEM OPT, DHS published a new rule that includes significant changes for employers, F-1 students, and Designated School Officials ("DSOs") at U.S. colleges and universities. The new regulations include a 24 month extension to OPT, a new requirement for a training plan signed by employers, a requirement employers report wages offered to F-1 students on STEM OPT, and provisions for the transition period between now and the rule taking effect on May 10, 2016 for students currently on STEM OPT. To read a detailed summary of the new rules, visit our firm's website and click the News and Updates tab.

Breaking News: Major Changes for Employers & F-1 Students on STEM OPT

In the March 11, 2016 Federal Register, the Department of Homeland Security published its new rule entitled "Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students."  A full copy of the rule, effective May 10, 2016, can be found on the Federal Register's website. Not only are there major changes for F-1 students, but there are also significant new requirements for employers of F-1 students on STEM OPT and Designated School Officials (“DSO”s) at colleges and universities F-1 students attend.  

BACKGROUND INFORMATION

International students who come to the U.S. on F-1 visas to study at colleges and universities can participate in optional practical training (“OPT”), providing eligible students with one year of work authorization in the U.S. after completing their degrees, so long as their work is directly related to their fields of study. Under DHS’s 2008 regulations, students who completed a degree in science, technology, engineering or mathematics (“STEM”) were eligible for a 17-month extension to their OPT (referred to as STEM OPT), provided the employment was still related to their field of study and required all employers of F-1 students on STEM OPT to enroll in E-Verify.

In response to a lawsuit filed in 2015 that alleged DHS’s 2008 regulations violated the notice and comment provisions of the Administrative Procedures Act, DHS revised its STEM OPT regulations and published a new proposed rule on October 19, 2015. DHS received over 50,000 comments to its new rule. Due to the ongoing litigation concerning the 2008 regulations, DHS requested the federal district court hearing that case to allow the 2008 regulations to remain in place until May 10, 2016.  The federal district court granted DHS’s request and on Friday, March 11, 2016, DHS published its new final rule on STEM OPT in the Federal Register, scheduled to take effect May 10, 2016.

DHS’s new rules include many important changes for students, employers, and DSOs.  The regulations also address the transitional period for F-1 students currently on STEM OPT or who have recently applied for their STEM OPT and clarify travel provisions during cap-gap. Several major highlights of the new rules include:

FOR F-1 STUDENTS

• F-1 students who graduate from an accredited U.S. college or university with a STEM degree are now eligible for a 24 month extension to their OPT, provided the student and their employer take certain necessary actions.
• This rule opens up STEM OPT for F-1 students twice in their academic career in the U.S. Previously, a student could only seek one lifetime STEM extension to OPT, regardless of whether the student earned two STEM degrees (example, bachelors in engineering and then a masters in engineering, or a masters and then a Ph.D.). Now students will be eligible for 1 year of regular OPT after each degree level, plus 24 months of STEM OPT for each qualifying STEM degree, with a maximum of two STEM OPT extensions. 
• F-1 students can seek this extension based on their most recent degree or a previously earned STEM degree, provided that degree was earned within the past 10 years at a qualifying, accredited U.S. college or university. For example, if an F-1 student earned her bachelor's in engineering and then pursued an MBA, that student can seek a STEM extension to her OPT after completing her MBA, so long as the offered employment relates to the STEM degree. 
• The new rule increases the limits on unemployment during the STEM OPT period. During OPT a student is allowed a maximum of 90 days of unemployment and under the previous rule the STEM extension added 30 days of unemployment for a maximum of 120 days of unemployment. Under the new rule, the STEM extension adds 60 days for a total unemployment period of 150 days over the aggregate 3 years of OPT and STEM extension. 
• The rules update the degrees that qualify for STEM extension. The updated STEM Designated Degree Program List is available on U.S. Immigration and Customs Enforcement's webpage.
• In light of the required training program with employers, discussed below, self-employment is no longer permitted during STEM OPT. F-1 students must work a minimum of 20 hours per week with their STEM OPT employers. Students can still work for multiple employers but the employment at each job must meet the STEM OPT requirements, including the 20 hours per week minimum and training plans. Volunteering is also not permitted for satisfying the 20 hour per week minimum under STEM OPT.
• In order for a school's DSO to authorize a student for a STEM OPT extension, the student must provide the DSO with a formal training plan on Form I-983, signed by the employer and the student. The DSO can then authorize the period of STEM OPT on the student's Form I-20, which the student will need for filing his or her application for extending employment authorization with USCIS.

FOR EMPLOYERS OF F-1 STUDENTS ON STEM OPT

• E-Verify enrollment is still required for all employers who seek to hire F-1 students on STEM OPT.
• The new rule includes reporting and training requirements that students and their employers must undertake.  Most notably, a student must draft and an employer must sign a formal training plan on new Form I-983. The final form I-983 is now available on the Department of Homeland Security's Study in the States website.  
• The training plan will describe the training the student employee can expect to receive, how the training goals will be achieved, describe a performance evaluation process, disclose the wage the employee will be paid, and include several required attestations the employer must make, notably: 
• The employer has the resources and personnel to provide the F-1 student with the appropriate training; 
• The student employee will not replace a full or part-time, temporary or permanent U.S. worker; and, 
• The compensation to the student employee is commensurate to that provided to similarly situated U.S. workers, and if the employer does not employ or has not recently employed at least two other U.S. workers performing similar duties, the employer is obligated to obtain information about other employers offering similar employment in the same geographic area. 
• To remain in compliance for work authorization, the F-1 student employee is required to submit to his or her school's DSO a self-evaluation of progress towards the training goals 12 months into the employment and at the conclusion of the 24 months of OPT STEM employment, countersigned by the employer.
• The employer is required to report to the school's DSO a student's termination or departure of an OPT student within five business days if the termination or departure occurs prior to the end of the authorized period of OPT. Employers shall consider a student to have departed when the employer knows the student has left the practical training opportunity or has not reported to work for a period of five consecutive business days without the consent of the employer.
• To ensure compliance with all the details contained in the training plan, DHS may conduct site visits to employers upon providing 48 hours notice. If DHS receives any complaints or suspects non-compliance, it may conduct site visits without notice. 

 TRANSITIONAL PROVISIONS

• USCIS will begin accepting 24 month STEM OPT employment authorization applications (Form I-765) on May 10, 2016.
• Any F-1 student who has applied for STEM OPT and whose I-765 application is still pending as of May 10, 2016 will receive a Request for Evidence ("RFE") from USCIS providing the student the opportunity to amend his or her 17 month STEM request to the full 24 month STEM period without having to pay a new application fee.
• An F-1 student who receives this RFE who wishes to take advantage of the additional 7 months of STEM OPT must obtain a new I-20, endorsed on or after May 10, 2016, which will require the student to provide his or her DSO with a training plan on Form I-983, signed by the student's employer.
• A student who presently has a valid 17 month extension of STEM OPT has a limited window in which to timely file for a 7 month extension to obtain the benefit of the full 24 months of STEM OPT.  F-1 students who fall into this category must provide their DSO with a training program, obtain a new I-20 dated on or after May 10, 2016, must file on or before August 8, 2016 (90 days after this rule goes into effect) and at the time of filing the I-765 students must have at least 150 days left in their current 17 month STEM OPT period.

We expect USCIS will be providing additional guidance over the coming weeks to advise on a number of the changes in the new rule. Please check our website at www.iandoli.com/newsandupdates for the latest changes to the STEM OPT rules and any other immigration-related news

DHS set to publish new, final rule on OPT STEM this month

Last month we brought you news about the January 23, 2016 order from the U.S. District Court for the District of Columbia that allowed the Department of Homeland Security's ("DHS") 2008 regulations on Optional Practical Training ("OPT") and the available 17-month STEM extension to remain in effect through May 10, 2016. 

On February 5, 2016, DHS sent its final STEM OPT rule to the Office of Management and Budget ("OMB") for review before publication in the Federal Register. We expect the final rule to be published in the Federal Register this month in order for DHS to accommodate the May 10, 2016 vacatur date of the current rule (if the new rule is to be effective 60 days after publication). This new, final rule will include a number of important changes to the STEM OPT program. To review DHS's proposed (not final) regulations, click here.  To review our firm's re-cap of the ongoing litigation and view a copy of the most recent order, click here.

The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates. You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.

OPT STEM Update - Current STEM OPT rules stay in place until May 10, 2016

On Friday, January 23, 2016, the U.S District Court for the District of Columbia ordered the vacatur of the present STEM OPT rules be stayed until May 10, 2016.  This action comes as a relief to international students currently on F-1 OPT STEM extension or who are eligible for such extension, as well as their employers and their schools' international student offices.  Pursuant to this latest order, the current 17-month extension of OPT, available to students who graduated from a U.S. college or university with a STEM degree, will remain in place until at least May 10, 2016 while we await publication of the final rule on STEM OPT from the Department of Homeland Security ("DHS").

To recap, the Washington Alliance of Technology workers sued DHS last year, arguing that DHS had not engaged in proper notice and comment when it promulgated the 2008 regulations that enabled F-1 students to seek an 17-month extension of work authorization pursuant to their period of Optional Practical Training ("OPT")  after completing their studies in the U.S.  In August 2015, the U.S. District Court agreed with the Washington Alliance of Technology workers and ordered the current STEM OPT rules that allowed for a 17 month extension in work authorization be vacated as of February 12, 2016 unless DHS corrected its procedural deficiency.  In October 2015, DHS published the new proposed STEM OPT rule and received over 50,000 comments in response. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule.  This most recent order, dated January 23, 2016 and available to view here, allows DHS's motion and thus extends the existing STEM OPT program rules from 2008 through the spring.  

We expect DHS will publish its final rule in the coming months with a number of important changes to the STEM OPT program.  The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates.  You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.