1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Matt Schulz

Phone: +1 650 798 0361

READ MORE

Graduation: Time to request post-graduation work permission for foreign students

It’s April. Graduation is just around the corner. International students who are in F-1 status must consider their post-graduation plans. Now is the time to work with foreign student advisors and the USCIS for those seeking to work and gain practical training after graduation.

Optional Practical Training (OPT) is a period of temporary employment in the US that is directly related to an F-1 student’s major area of study. An F-1 student may be authorized 12 months of OPT after completing a degree from a US university. Eligible students must apply within 30 days of the foreign student advisor (known to USCIS as the “designated school official” or “DSO”) for OPT into the Student and Exchange Visitor Information System (SEVIS) record system.

The application time window is only open from 90 days before to 60 days after completing the degree. The latest possible start date for the OPT is 60 days after completing the degree. F-1 students must make sure to submit their applications, with application fee, within the time window. OPT will start after USCIS approves the Form I-765 and issues an employment authorization document (EAD).

An employer is not required when OPT is requested, but the student will need to find work soon or OPT will be lost and the student will need to leave the US if he or she is without work for more than 90 days after OPT is granted. F-1 students on OPT must report employment status to their DSOs, who will then update their SEVIS records. The reporting is important because a student with approved OPT but without current employer information in SEVIS is considered unemployed. This can have serious ramifications on the student’s future immigration opportunities. We are seeing an increasing number of requests from USCIS regarding OPT employment information when the student later applies for the H-1B work visa that is widely used by F-1 students to work in the US beyond OPT.

OPT can be extended by 24 months for F-1 students who graduate with a bachelor’s or higher degree in an eligible science, technology, engineering or mathematics (STEM) field from an SEVP-certified school accredited by an accrediting agency recognized by the US Department of Education. Eligible students must apply before the end of the OPT as indicated on the EAD.

During the STEM OPT period, the permitted unemployment period is 60 days. Unlike the initial OPT, where employer involvement is minimal, STEM OPT requires that the employer enroll in USCIS’ E-Verify employment eligibility verification program. Dentons lawyers guide employers on the E-Verify registration process and advise on compliance issues.

Also, the employer must agree to employ the student for a minimum of 20 hours per week and to provide the student with formal training and learning objectives. To fulfill this requirement, the student and the employer must complete and sign Form I-983, which must explain how the training opportunity has a direct relationship to the student’s qualifying STEM degree. Dentons lawyers assist employers in developing STEM OPT-compliant training programs.

During the STEM OPT extension period, students must report to their DSOs every six months and supply updated information regarding their employment. If an employer terminates a student’s employment or if the student leaves the job, the employer has to report in either situation to the relevant DSO within five business days. STEM OPT students must submit annual self-evaluations and report to their DSOs regarding the progress of their training. Both student and employer must report to the relevant DSO any material changes to the training plan. Reporting and record-keeping are important in case the student applies for H-1B later.

For more information about STEM OPT, please contact your Dentons lawyer and see the USDHS website for additional information.

, , , , , , , ,

Graduation: Time to request post-graduation work permission for foreign students

EB5 immigrant investor visas are available again


EB5 immigrant visas of all types are once again available to investors who create job opportunities for American workers. The Omnibus Spending Bill signed by the president on March 23 included the extension of the US immigrant investor EB5 regional center program to the end of September 2018.

The US State Department’s April 2018 Visa Bulletin will be revised soon to show that EB5 regional center immigrant visas are immediately available for all countries of birth, except mainland China, which is expected to have the same waiting period as the EB5 non-regional center program.

Media around the world has been warning readers of the demise of the EB5 regional center program. The US Embassy at Hanoi, Vietnam, announced on March 20 that no EB5 regional center immigrant visas would be issued after March 23. Now that advisory is no longer effective and immigrant visa appointments will continue to be scheduled at US embassies and consulates.

EB5 refers to the US employment-based fifth preference immigrant visa category. EB5 allows an investor, spouse and unmarried children under the age of 21 to obtain resident status in return for creating at least 10 full-time equivalent jobs for American workers through a business investment. The EB5 non-regional center program considers only jobs for workers directly employed at the business investment, while the EB5 regional center program also counts the larger number of indirect and induced jobs created as calculated by government-approved economic models.

Both types of EB5 generally require a US$1,000,000 investment, but a US$500,000 investment can qualify if the business is located in a targeted employment area. Such areas either have an unemployment rate 150 percent above the national average or meet the legal definition of rural.

There are proposals to raise these EB5 target investment levels, which have not changed since being set in 1990. Most experts expect substantial increases, along with other changes to EB5 regulations, but no one knows when this will happen. As a result, immigrants may want to act quickly to invest and file their EB5 immigrant visa petition as soon as possible. They should especially be sure to do so before September 30, 2018, when the EB5 regional center program is next set to expire.

, , ,

EB5 immigrant investor visas are available again

Green card processing times for employment-based immigration expected to increase

 

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

In a press release dated August 28, 2017, USCIS stated that the agency plans, effective October 1, 2017, to begin interviewing employment-based immigrants. This will impact employer-sponsored professionals, skilled workers, executives, manager, and outstanding professors and researchers, as well as individually sponsored immigrants with extraordinary or exceptional ability.

The press release states: “Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.”

This statement is inaccurate. In fact, the agency used to personally interview all immigrants. Decades ago, the policy changed and employment-based immigrants were only interviewed if a review of the application showed a need for an interview or as a random, quality-control measure. The primary reason for the change was to devote agency resources to more important tasks, after the agency determined the incidence of fraud detected by in-person interviews was not significantly greater than for applications processed without interviews. In addition, waiving the interview process allowed the agency to consolidate processing at regional centers where government workers were better trained in the special requirements for such immigration. Finally, remote processing at regional centers without direct public contact minimized the inconsistent processing experienced at local offices, as well as the incidence of fraud and corruption by government workers in direct contact with the public.

As Sir Winston Churchill famously stated: “Those who fail to learn from history are doomed to repeat it.” Local interview processing times vary, but the new policy is likely to increase by more than four months the time it takes USCIS to process applications for adjustment of status and maybe much longer where local offices with significant immigrant populations, such as Silicon Valley, are doing the processing.

By the way, the State Department has always interviewed all immigrants. Although going this route is more costly in terms of travel and lost US work days, more immigrants and their employers may want to consider this option if USCIS processing times spiral out of control.

The full text of the agency’s press release can be found at the USCIS website and the Executive Order can be found at the White House website.

, , , ,

Green card processing times for employment-based immigration expected to increase

New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

, , , , , , ,

New Form I-9 and E-Verify User Manual for US employers

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked President Trump’s revised executive order suspending US entry by foreign nationals from six, rather than the previous seven, mostly Muslim countries. However, the Court carved out an exception for foreign nationals who have a “bona fide relationship” with a person or entity in the United States,” raising such questions as “What is a bona fide relationship?” and “What is an entity in the US?” that will likely be the subject of further court action.

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked Executive Order No. 13780, signed by President Donald J. Trump in March 2017 (EO-2), banning travel to the US for citizens of six countries. The Supreme Court scheduled a full hearing of the case for October 2017.

“Bona fide relationship” exception

The Supreme Court found that the preliminary injunction shall remain in place and the travel ban will not impact foreign nationals who have a “bona fide relationship with a person or entity in the United States.” Further, refugees will continue to be allowed to enter the US, subject to the 50,000 person cap on refugee admissions, except that the cap cannot be used as a means to bar an individual with a bona fide relationship with the US.

The Supreme Court defined “bona fide relationship” as either (with respect to individuals) “a close familial relationship” or (with respect to entities), a relationship that is “formal, documented, and formed in the ordinary course.” What constitutes a sufficiently close familial relationship is likely to be the subject of further court action.

As for what constitutes a sufficiently established relationship with an entity, the Supreme Court provided three examples:

  • Students admitted to attend university in the US
  • Workers who have accepted an offer of employment from a US company
  • Lecturers invited to the US for a speaking engagement

The travel ban will apply to individuals whose relationship with an entity was formed to purposefully circumvent the ban.

It is worth noting that EO-2 in its original form applies only to the new issuance of visas, and not the US entry of individuals who have already been issued visas, green cards or asylum/refugee status.

Also, there is a chance that the Supreme Court will not have to hear the case in its entirety in October. If EO-2 goes into effect as scheduled by the Trump administration, the 90 day temporary ban will conclude at the end of September, several days before the Supreme Court begins its term. This would, then, remove any controversy over the legality of that piece of the order.

Citizens from these countries impacted

Citizens from the following countries are detrimentally impacted:

  • Iran
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

EO-2 does not apply to citizens of other countries who merely visited the listed countries. Further, it does not apply to citizens of these six countries who are dual citizens and use the passport of a non-affected country to apply for a visa and enter the US.

When does the ban start?

In a June 14 memorandum, President Trump directed the Department of Homeland Security (DHS), the Department of State and other relevant agencies to wait 72 hours from the release of the Supreme Court decision before banning refugees and travelers from the six affected countries to “ensure an orderly and proper implementation” of the changes.

Background

During his first six months in office, President Trump signed two travel ban executive orders. The first, Executive Order 13797 (EO-1), issued on January 27, 2017, took a number of steps, including:

  • Suspending for 90 days the entry of foreign nationals from seven mostly Muslim countries identified as presenting heightened concerns about terrorism and travel in the US [1]
  • Suspending for 120 days the United States Refugee Admissions Program (USRAP), during which an adequacy review is to be undertaken
  • Reducing to 50,000 per year the total number of refugees that could be admitted to the United States, starting in fiscal year 2017
  • Suspending indefinitely admission of refugees from Syria

EO-1 was quickly blocked  by the US District Court for the Western District of Washington, which issued a nationwide temporary restraining order. The US Court of Appeals for the Ninth Circuit denied an emergency motion by the US government to stay the district court order pending appeal. In response, the government rescinded EO-1 and went back to the drawing board.

On March 6, 2017, President Trump signed EO-2, which closely mirrored the directives in EO-1, but was intended to correct some its perceived errors, including:

  • Reducing the reach of the 90-day temporary suspension of entry to foreign nationals from six (rather than seven) mostly Muslim countries, with Iraq no longer included [2] and with a case-by-case waiver of the entry bar.
  • Directing the Secretary of DHS to undertake a 20-day global review of whether foreign governments provide sufficient information about nationals applying for visas.

EO-2 was immediately challenged in court, which challenges led to prompt nationwide preliminary injunctions by the US District Court for the District of Maryland and (as stated above) the Western District of Washington, which were then appealed to the US Courts of Appeal for the Fourth and Ninth Circuits, respectively.

The Fourth Circuit concluded that the EO-2 ban on entry from the six named countries was primarily motivated by religious considerations and, as such, violated the First Amendment. In that case, the preliminary injunction only applied to the suspension of entry of foreign nationals from particular countries. The 120-day ban on USRAP and the quota on total refugee immigration would still be in force.

The Ninth Circuit, meanwhile, found that EO-2 exceeded the president’s authority under the Immigration and Nationality Act (INA) and, on that basis, upheld the injunction with regard to the entirety of EO-2.

The federal government appealed both decision to the Supreme Court, certiorari was granted, and the two cases were consolidated and oral argument scheduled for October Term 2017. The Supreme Court, meanwhile, heard the government’s application to stay the aforementioned injunctions.

Dentons will continue to issue further information as it becomes available.

[1] Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

[2] Iran, Libya, Somalia, Sudan, Syria and Yemen

, , , , , ,

Supreme Court allows travel ban

Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

May 25, 2017
1:00 PM – 2:00 PM EDT
Webinar

Our Employment and Labor team marked the passage of President Trump’s first 100 days with a webinar on May 25, 2017 that looked at whether the president’s budget proposal backed up his prior public statements about wanted changes to employment, benefits and immigration regulations, as well as the impact on employers of the spending bill passed by Congress to prevent a government shutdown. By “following the money,” you can better prepare for future compliance demands and enforcement risks. For your convenience, the program can be viewed in it’s entirety and to register to the webinar by visiting the event page.

We hope you are able to join the program.

, , , , , , , ,

Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

USCIS begins return of unselected H-1B petitions

The United States Citizenship and Immigration Services (USCIS) announced on May 3, 2017 that it completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in its computer-generated random selection process, and that it began returning all H-1B petitions that were not selected.

The agency did not provide a definite time frame for returning these petitions, but the unselected FY 2017 H-1B petitions were returned by the end of June 2016. The same timetable seems likely this year.

Petition approvals for selected cases have already started being sent. Because of the large volume, processing times vary greatly and petition approvals are likely to continue through the summer and even into the early fall, as was the case in prior years.

For the full text of the USCIS announcement can be found at the USCIS website.

, ,

USCIS begins return of unselected H-1B petitions

‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

, , , , , ,

‘Hire American’ executive order

New H-1Bs for 2018 are gone

 

US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

, , , , , , ,

New H-1Bs for 2018 are gone

Q. Do US border inspectors demand passwords and inspect phones and laptops?

US Customs and Border Protection (CBP) searched 14,993 electronic devices during the six-month period between October 1, 2016 and March 31, 2017, according to an ‘agency press release issued on April 11, 2017. The press release did not reveal how many of those devices, if any, were seized as evidence.

The CBP’s numbers constitute a dramatic increase compared to the 19,033 searches of electronic devices conducted during the 12-month period commencing on October 1, 2015, and ending on September 30, 2016 (up from 8,502 searches during the prior 12 months).

The CBP’s border search authority is considered by the agency to require no warrant, a position that has been upheld in federal appellate courts. The CBP has stated that it adjusts the level of search activity to align with current threat information regarding terrorist activity, child pornography, violations of export controls and intellectual property rights and visa fraud.

“These searches, which affect fewer than one-hundredth of one percent of international travelers, have contributed to national security investigations, arrests for child pornography and evidence of human trafficking,” stated John Wagner, Deputy Executive Assistant Commissioner, Office of Field Operations. “CBP officers are well trained to judiciously conduct electronic device searches and to protect sensitive information that may be encountered.”

The CBP has an information sheet, titled “Inspection of Electronic Devices,” which agents provide to travelers whose property is being searched detailing the various reasons individuals are selected for a search, including:

  • Travel documents incomplete
  • Does not have proper documents or visa
  • Previously violated one of the laws the CBP is charged with enforcing
  • Name matches that of a person of interest in one of the government’s enforcement databases
  • Randomly selected

The CBP advises that the agent retain a device, along with copies of any documents or information in the possession of the person who was searched relating to immigration, customs or other enforcement matters, only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if after reviewing the information, there exists no probable cause to seize it, the CBP states that the agency return the device and not retain copies of any documents seized.

The information sheet explains:

“If CBP determines that the device is subject to seizure under law—for example, if the device contains evidence of a crime, contraband or other prohibited or restricted items or information—then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties and Forfeitures Office.”

The information sheet also addresses privacy and civil liberties protections during the conduct of border searches.

The full text of the April 11 press release is available at the US CBP website and the published agency’s information sheet can be found here.

, , ,

Q. Do US border inspectors demand passwords and inspect phones and laptops?