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James Levine

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New rule extends US work authorization for certain foreign students

STEM image Professional

Important new US Department of Homeland Security (DHS) regulations allow F-1 foreign student visa holders with degrees from American universities in science, technology, engineering and math (STEM) to extend optional practical training (OPT) for 24 months beyond the 12-month period generally available to F-1 students on OPT. This 24-month extension effectively replaces the 17-month STEM OPT previously available. The new rule is effective May 10, 2016.

Requirements

To qualify:

  1. The employer must be enrolled in the voluntary e-verify program (see USCIS website)
  2. The student must have completed a bachelor’s, master’s or doctoral degree in a STEM field
  3. The job offered must directly relate to the student’s STEM degree

Transition rules

Pending STEM OPT extension applications adjudicated prior to May 10, 2016, will only be valid for 17 months. Beginning on May 10, US Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months—perhaps one of the few times when lengthy government processing times will benefit students.

The new rule gives students with pending applications the option to withdraw now and file a new application with a 24-month request, but with the important reminder that a student can only file for a STEM OPT extension if post-completion OPT has not expired prior to government receipt of a new STEM OPT application.

Also, students who already have received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.

Background

An August 2015 blog post offers background about F-1 OPT, STEM OPT extensions and the litigation that called into question the validity of the old 17-month rule.

We also addressed this issue in October 2015, when DHS first published the proposed rule to address the litigation.

The new rule was expressly written to resolve the defects found in the administrative procedures used to pass the old rule. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity make the validity period even longer. This is certainly not the result desired by those who challenged the original rule in an attempt to limit executive authority to grant US employment authorization to foreign nationals.

Further information

The complete text of the DHS notice of the new rule is available at the Federal Register’s website. Furthermore, DHS has opened a website that contains more information on the new STEM rule.

Dentons lawyers help employers obtain and maintain E-Verify status, as well as regular and STEM OPT employment authorization document applications, employment eligibility verification I-9 records and visas to authorize employment in the US and in the more than 50 countries around the world where Dentons has offices.

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New rule extends US work authorization for certain foreign students

H-1B blast off countdown 2016

T minus 72 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2016, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. The exemption for petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands expired on December 31, 2015.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7.  Approximately 233,000 new petitions were received, as compared to 172,500 in the prior year.  As the regulations mandate, officers then selected—at random—which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2016 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The countdown begins now (download dates directly into your Outlook)

launch

T minus 72 days (January 19):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2016

New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

freedom

Every month, the US State Department publishes the Visa Bulletin, an online publication that summarizes the availability of US green cards. The Visa Bulletin indicates when green cards subject to statutory quotas are available for issuance to prospective immigrants based on the type of green card being pursued, the alien’s country of birth and the alien’s “priority date” (the date that a permanent labor certification application or an immigrant petition was filed on the alien’s behalf).

On September 9, 2015, the State Department announced new procedures for determining green card availability.  These new procedures go into effect on October 1, 2015. The Visa Bulletin will now include two critical dates: a “filing date,” which determines when individuals may file their green card applications, and a “final action” date, which reflects when the USCIS or a consulate may make a decision on the applications. This change will allow aliens to file green card applications (including applications for Employment Authorization Documents or “EADs”) earlier than before, although it will not expedite the actual issuance of their green cards which is based on quotas established by law.  For more information about this development, please see the USCIS website.

For example, the October 2015 Visa Bulletin’s “Application Final Action Dates for Employment-based Preference Cases” shows that a decision to approve a green card may be made in October to an Indian-born advanced degree professional with an employment-based second preference priority/filing date of May 1, 2005.  That same Bulletin shows that the USCIS will accept applications to adjust status to permanent resident (I-485) for this same type of individual, but with a priority date of July 1, 2011.

This is a very significant change that is likely to benefit many.  This change will allow many employment-based immigrants and their accompanying family members to obtain EAD and advance parole (AP) international travel authorization card many years sooner.  Allowing spouses and children to work is an important benefit for many families.  This change will also give employers the option to rely on the EAD/AP card to employ the foreign professional without the cost and recordkeeping required to extend their nonimmigrant visa status, which represents a significant cost savings.

Last, and most certainly not least, this change will impact the ability of immigrant workers to change jobs faster and with greater ease.  In general, most employers and immigrant workers must intend to do the job originally designated when the employer originally applied to the Department of Labor for the alien employment certification. This limits the ability of employers and immigrants to make career changes, both with the same employer (e.g., promotions, demotions, change of job site) and for a change of employer (e.g., layoffs, mergers and acquisitions, new job opportunities).  Back in 2000, US law was changed to allow immigrant workers to continue to immigrate notwithstanding such a change, but only if certain requirements are met.  A key requirement is that the I-485 must be pending for at 180 days or more (additional details are available from the USCIS).

This change in how the US government uses the Visa Bulletin will make it much easier for immigrant workers to change jobs faster, giving them greater security.  It will likely have a detrimental impact on US employers seeking to retain these workers, while at the same time aiding US employers seeking to recruit these workers.  The result will somewhat change the dynamic between US employers and immigrant workers.

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New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

Student employment authorization for certain foreign students in the US could be jeopardized

DC of Columbia

Employment authorization for student visa holders could be jeopardized because the USCIS failed to properly publish its April 2008 rule with the required notice and comment.

The US District Court for the District of Columbia vacated the USCIS STEM extension rule in an August 12, 2015, decision.  The court stayed the ruling until February 12, 2016, to give the USCIS opportunity to correctly publish the rule with proper notice and comment; however, until that date, USCIS will accept STEM extension applications and already approved STEM extensions will not be affected. The USCIS is expected to act before the deadline.

In general, F-1 foreign student visa holders are eligible for 12 months of employment authorization, called Optional Practical Training (OPT), after graduation.  In 2008, an “extension” of 17 months of employment authorization became available to F-1 visa holders who graduated from American universities with a degree in Science, Technology, Engineering or Math (STEM).  In addition, STEM employment authorization is limited to employers enrolled in the voluntary e-Verify program.

The case is Wash. Alliance of Tech. Workers v. DHS.

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Student employment authorization for certain foreign students in the US could be jeopardized

When the location of an H-1B employee changes, does the employer need to file an amended H-1B petition?

H1B photo

In 2003, USCIS informally communicated that a change of location does not require an amended H-1B petition, so long as the employer filed a Labor Condition Application (LCA) for the new location, posted the required Notice of Filing at the new location and otherwise complied with wage and hour laws before the employee was moved.  On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions for many changes of locations.

In May 21, 2015, USCIS issued a guidance document on this issue, which it finalized on July 21, 2015 (click here to read the Memorandum.)  According to the final guidance, employers must file an amended H-1B petition if the H-1B employee has been or will be moved outside the Metropolitan Statistical Area (MSA) or “area of intended employment” (defined as the area “within normal commuting distance” of the location of employment), covered by an approved H-1B petition.  If the employee is moved within the MSA or “area of intended employment,” then the employer must post the original LCA at the new worksite.  Certain short-term placements (a new job location for up to 30 days, and in some cases 60 days) and moves to “non-work locations” do not require an amended H-1B petition.  USCIS has imposed deadlines for filing amended H-1B petitions based on the date of the change of location.

We strongly advise employers to review the locations of their H-1B employees as stated on their approved H-1B petitions and LCAs for the employees and confirm that the employees are still located at those locations and not others.  If the employees have been relocated or will be relocated, your immigrant counselor may provide specific advice about the requirements relevant to you.

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When the location of an H-1B employee changes, does the employer need to file an amended H-1B petition?