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

H-1B filing deadline - Act Now!

The Fiscal Year 2017 H-1B visa filing deadline is fast approaching. Given the annual high demand for H-1B visas, H-1B petitions must be filed during the first five business days of April: Friday, April 1, 2016 through Thursday, April 7, 2016. If you are considering filing an H-1B on behalf of a valued employee, we urge you to contact us now to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for recent graduates and professionals. 

Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

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.

National Interest Waiver category & recent court decision affecting physicians

The Administrative Appeals Office ("AAO") decided an important case last month for physicians applying for immigrant visas (commonly referred to as "green cards") in the National Interest Wavier category. In its decision in Matter of H-V-P-, the AAO rejected the Texas Service Center's ("TSC") attempt to change a longstanding agency interpretation based upon a single decision. In most categories of employment-based immigrant visas, applicants usually need a job offer from a U.S. employer. In this recent decision, however, the AAO recognized that the law requires USCIS to waive the job offer requirement for both primary and specialty care physicians who work full-time in an area with a shortage of health care professionals (and meet other requirements not at issue in this case). The AAO concluded TSC's narrow interpretation of the regulation as requiring a specific specialty care shortage certification was inconsistent with past USCIS practice and would "frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas." 

If you have questions about the National Interest Waiver category or visa options for physicians, please contact the attorneys at Iandoli Desai & Cronin P.C. at  info@iandoli.com.

More changes to Visa Waiver Program are now in effect

Last month we informed you of changes to the Visa Waiver Program, including the prohibition of certain individuals from using Visa Waiver if they had traveled to Iran, Iraq, Syria or the Sudan in the past five years, or if they are dual nationals of those countries. On February 18, 2016, DHS announced that it was adding Libya, Somalia, and Yemen as three countries of concern, and limiting the Visa Waiver Program travel for certain individuals who have traveled to these countries. DHS did not make any additional changes regarding dual nationals of Libya, Somalia and Yemen and left open the possibility of adding more countries of concern in the future.

The Visa Waiver Program is administered through the Electronic System for Travel Authorization ("ESTA"), which has made changes to its online application in response to the changes in the Visa Waiver Program. Customs and Border Patrol ("CBP") announced on February 23, 2016 the revised online application contains additional questions to address the travel eligibility requirements discussed above. CBP also noted that an updated ESTA application with additional questions on travel to Libya, Somalia and Yemen will be released in the spring and will also address exceptions for diplomatic and military-related travel.

You can read last month's update on the Visa Waiver Program here.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

Justice Antonin Scalia's passing and what it means for President Obama's Executive Action on Immigration

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016 impacts one of the most high-profile cases before the Court this year: whether President Obama's Executive Actions on Immigration overstepped the bounds of his authority. In November 2014, President Obama announced a bold series of Executive Actions, including expanded Deferred Action for Childhood Arrivals ("DACA") and a newly created Deferred Action for Parents of Americans ("DAPA"). His executive actions sought to expand the existing DACA program to include more individuals who were brought to the U.S. as children and who presently do not have status in the U.S., and to create a new program to allow parents of U.S. citizens and permanent residents to remain in the U.S. and work without fear of deportation.

Shortly after President Obama announced his Executive Actions, seventeen states (with Texas as lead plaintiff) filed lawsuits claiming the President's proposed actions exceeded his authority. On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. On January 19, 2016, the U.S. Supreme Court agreed to review in the case, known as United States v. Texas, with formal hearings set for April of this year. 

With eight justices presently serving on the Supreme Court, a 4-4 tie in the case is possible. A tie among the justices in United States v. Texas would preserve the lower court's decision, effectively placing a permanent injunction on the program. However, most legal experts agree there is clear precedence that permits a President to take executive actions related to immigration. Accordingly, immigration advocates are calling on the Supreme Court to continue hearing the case this April. We will continue to bring you news related to the hearings on United States v. Texas and any other DACA and DAPA related news on our website at www.iandoli.com/newsandupdates

DOL announces OFLC Emergency Processing Initiative for Backlogged H-2B Applications

The U.S. Department of Labor's ("DOL") Employment and Training Administration's Office of Foreign Labor Certification ("OFLC") is presently experiencing significant delays in processing employers' H-2B temporary labor applications. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary, non-agricultural jobs. OFLC's adjudication delays are the result of several factors, including a seventeen-day pause at the Chicago National Processing Center earlier this year to enable OFLC to implement changes to the revised H-2B prevailing wage and certification standards. As a result of these delays in the certification process, employers seeking to hire foreign workers to fill temporary, non-agricultural jobs pursuant to the H-2B program are experiencing significant delays. These delays can create instability for a number of small businesses that depend on temporary and seasonal workers. To address the needs of these businesses, DOL is implementing emergency processing initiatives to assist in the alleviation of the applications backlog. For more details on these emergency processing initiatives visit DOL's website.

H-1B filing deadline and delays with iCERT

The Fiscal Year 2017 H-1B visa filing deadlines are fast approaching and employers should plan accordingly.  USCIS will accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2016 through Thursday, April 7, 2016. Therefore, we urge employers to contact us as early as possible to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for professionals and recent graduates. 
 
Part of the reason behind the urgency is the Department of Labor's Office of Foreign Labor Certification ("OFLC") announcing on January 27, 2016 the agency was experiencing technical network problems supporting its iCERT visa portal system, resulting in delays in the processing of Labor Condition Applications with the Department of Labor ("DOL"). Before an employer can file an H-1B visa application with USCIS, the employer must first obtain a certified Labor Condition Application from DOL via its online iCERT system. While processing through iCERT typically takes 5 - 7 business days, the announcement from OFLC did not provide employers with a timeframe or expected delay time estimate as a result of the performance issue "significantly impacting" OFLC's ability to process applications.
 
Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

Changes to Visa Waiver Program are now in effect

At the end of 2015 and in the wake of the recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("VWP"), which was created in 1986 and allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. In the U.S. this program is administered through an online portal called the Electronic System for Travel Authorization, commonly referred to as ESTA.  Previously eligible persons are now prohibited from using visa waiver if they have traveled to Iran, Iraq, Syria and Sudan since March 1, 2011, or if they are dual nationals of these countries.  There are limited exceptions (for example, travel to one of the countries on the list to carry out military service or official government business with a VWP participating country) which can be disclosed on the new ESTA application due to be released later this month.

On January 21, 2016, U.S. Customs and Border Patrol ("CBP") announced that affected individuals began receiving emails notifying them they are no longer eligible to use ESTA. Those foreign nationals will be required to seek a B-1 or B-2 visitor visa at a U.S. consulate or embassy abroad if they wish to travel to the U.S. in the future.

CBP published a new set of Frequently Asked Questions on its website concerning the changes to the VWP and ESTA.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

TPS update: Sudan, South Sudan, Yemen and proposal for adding several Central American countries

Secretary of Homeland Security Jeh Johnson has announced several important designations and deadlines related to Temporary Protected Status ("TPS") for nationals from Sudan, South Sudan, and Yemen: 

• On January 25, 2015, DHS announced it was extending TPS for nationals of Sudan.  Current TPS Sudan beneficiaries who wish to extend their TPS status must re-register during a 60-day period that runs from January 25, 2016 through March 25, 2016.
• On that same day, Secretary Johnson announced redesignation and extension TPS for nationals from South Sudan. Current TPS beneficiaries from South Sudan have until March 26, 2016 to re-register, and new applicants for TPS from South Sudan must apply by July 26, 2016 and prove they are either South Sudanese nationals or persons without nationality who last habitually resided in South Sudan with continuous residence in the U.S. since January 25, 2016 and continuous physical presence in the U.S. since May 3, 2016.
• Yemen was designated for TPS on September 3, 2015 and the registration period runs through March 1, 2016, so applicants from Yemen have less than a month remaining to apply. 

Also on January 25, 2016, a group of 273 civil rights, labor rights, faith-based, immigrant, human rights, humanitarian, and legal service organizations sent a letter to President Obama and Secretary Johnson requesting DHS designate El Salvador, Guatemala, and Honduras for TPS.  These three countries, known as the Northern Triangle, have experienced a period of escalating violence that has been visible in the U.S. in light of the huge numbers of refugees (particularly minor children) fleeing the Northern Triangle countries.  Iandoli Desai & Cronin P.C. will post news and updates from the White House or DHS regarding this request and any agency action on this page: www.iandoli.com/newsandupdates.