Visa Lawyer Blog

Articles Posted in F-1 Visa

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In this post, we bring an important reminder to the attention of F-1 Students with Optional Practical Training. F-1 students who transfer to another school or begin their studies at another educational level, such as a master’s degree program after completion of the bachelor’s degree, will have their OPT automatically terminated, as well as the corresponding employment authorization document, also known as a work permit.

F-1 students who transfer schools or begin studying at another educational level, will not be otherwise affected, so long as they comply with all of the requirements necessary to maintain their student status. F-1 students must not work with a terminated/expired EAD. Doing so violates U.S. law, and will result in serious immigration consequences, such as the removal of the foreign national from the United States or barring the foreign national from re-entering the United States, in addition to other serious consequences such as the accrual of unlawful presence.

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that may soon change the way the accrual of unlawful presence is calculated for individuals currently in the United States on an F, J, or M non-immigrant visa type, as well as their dependents accompanying them in the United States.

The new policy proposes that F, J, and M nonimmigrants who fail to maintain their nonimmigrant status before August 9, 2018, will begin accruing unlawful presence on that day.

Generally, F, J, and M nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, will begin to accrue unlawful presence the day after they abandon their course of study or authorized activity, or engage in an unauthorized activity.

Current Policy

Since 1997, it has been USCIS policy to begin calculating the accrual of unlawful presence, for a F or J nonimmigrant admitted to the United States in duration of status (D/S), one day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

F, J, and M nonimmigrants admitted for a specified date (not D/S) began to accrue unlawful presence on the day their Form I-94 expired, on the day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

DHS recently conducted a study to determine the number of nonimmigrants in F, J, or M status who have overstayed. For FY 2016, DHS calculated that out of a total of 1,456,556 aliens in F, J, and M nonimmigrant status expected to change status or depart the United States, 6.19% of F nonimmigrants, 3.80% of J nonimmigrants, and 11.60% of M nonimmigrants actually overstayed their status.

This minuscule percentage has caused USCIS to revise its policy and change how the accrual of unlawful presence is calculated for this demographic.

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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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Yesterday, October 8, 2017, the United States and Turkey announced the mutual suspension of all non-immigrant visa services, putting a damper on travel between the two nations, following the arrest of a Turkish citizen, employed at the U.S. Embassy in Ankara, on suspicion of espionage.

A statement released by John Bass, the U.S. ambassador to Turkey, explained the reasons for the United States government’s decision to suspend non-immigrant visa processing for Turkish citizens. According to the ambassador the suspension will allow the United States, “to minimize the number of visitors to our embassy and consulates while we assess the commitment of the Government of Turkey to the security of our diplomatic facilities and personnel.” He continued, “last week, for the second time this year, a Turkish staff member of our diplomatic mission was arrested by Turkish authorities. Despite our best efforts to learn the reason for this arrest, we have been unable to determine why it occurred or what, if any, evidence exists against the employee. . . our colleague has not been allowed sufficient access to his attorney.”

The actions taken by the government are thus in response to Turkish hostility toward U.S. consular employees and an ongoing rift between the two countries regarding U.S. support for Kurdish fighters in Syria, accusations of U.S. involvement in a coup against President Erdogan, and the U.S. government’s refusal to extradite former Turkish minister Fethullah Gulen, accused of masterminding the Turkish coup.

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In 2013, as a Polish citizen who worked in Ireland, I started very seriously considering going to the United States to become a student and receive education to excel at my job. Little did I know how difficult it could actually be to cross the doorstep of the US embassy and go through the interview process. My heart broke when I experienced denial. I remember walking out of the building crying and then running through the rain towards the bus station. It felt like some horrific movie scene. 

I wanted to give up and never try again. I went back to work and tried my hardest not to think about it. Within a few days, however, my friend and I, found Jacob Sapochnick’s website. I looked up reviews instantly, and I became very excited about the idea of talking to him and his team about my situation. 

My consultation was over the phone, but Jacob did a marvelous job outlining details, and, in fact, his prognosis was very positive. I couldn’t believe that I could still be able to fulfill my dreams and, perhaps, reapply. In 2014, while I was visiting the US on a tourist visa, I met with Jacob and his team in person and decided to file a change of status application. I didn’t think twice, and we gave it a go. Everyone did an incredible job filling out all the necessary paperwork. Whenever I was worried or felt down, I could call them and get a prompt calming answer. I still remember talking to Inese, one of Jacob’s employees, and hearing how positive she was about the outcome of my case.  

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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We would like to inform our readers that a new development has been occurring in recent months involving Form I-539 change of status applications filed by prospective students. Students applications wishing to change their status from a B-2 visa classification to F-1 must proceed with caution. USCIS has recently been issuing denials for such change of status applications that request a change of status from a B-2 nonimmigrant visa classification to F-1 student status. These denials have been issued, despite the fact that applicants have seemingly filed their application in a timely and proper manner with USCIS. To submit an application in a timely manner, it is required that the applicant file an I-539 change of status application with USCIS, prior to the expiration of their underlying B-2 status, as indicated on the applicant’s I-94 arrival/departure record. An additional problem that has been occurring involves the delayed adjudication of these applications with the California Service Center. In delaying the processing of these applications, designated school officials (DSO) have been forced to defer student program start dates that appear on the SEVIS form, before adjudication of the applicant’s change of status application has been completed. The unfortunate cause of these delays has resulted in a discrepancy between the deferred program start date and the ending B-2 visa status or the date USCIS adjudicated the I-539 application to change status.

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14604464454_ab9f59b1e0_zA new lawsuit has been filed in federal court challenging the Department of Homeland Security’s authorization of the Optional Practical Training (OPT) for STEM students in the United States. The Washington Alliance of Technology Workers is seeking an end to the STEM OPT program because they claim the program is putting American technology workers at a competitive disadvantage. As previously reported, the Washington Alliance of Technology Workers had been battling the Department of Homeland Security in court for the past year asking a federal judge to invalidate 17-month OPT extensions granted to STEM students, because DHS violated the notice and comment requirements of the Administrative Procedure Act (APA).

In response, the federal judge had ordered the Department of Homeland Security to publish a new final OPT rule to allow certain F-1 students with degrees in science, technology, engineering, or mathematics to obtain employment authorization. DHS published the final rule earlier this year, replacing the previous 17-month STEM extension rule that had been in place since 2008. The new rule published by DHS allows certain F-1 students to apply for 24-month extension of their optional practical training program (OPT) in order to continue working in the United States following the completion of their studies. This new rule went into effect on May 10, 2016. The same plaintiffs who challenged DHS are coming forward yet again, this time questioning DHS policy, and alleging that the STEM OPT program is putting businesses first instead of protecting American technology workers.

The Washington Alliance of Technology Workers is a labor union that represents the interests of American technology workers, who they claim are losing out on jobs to foreign workers because of guest worker programs. The Immigration Reform Law Institute (IRLI) and the labor union are working together to dismantle the program which they say circumvents American labor protections in favor of cheap labor. In a recent statement the IRLI claims that the DHS exceeded its authority by allowing the STEM OPT program to exist. According to them, “not only does the OPT program create more competition for suitable unemployed and underemployed American workers, but it creates a tax incentive for unscrupulous employers to hire foreign labor over American workers because aliens on student visas and their employers do not have to pay Medicare and Social Security taxes.”

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Did you know that if you fail to provide USCIS written notice of a change of address, within 10 days of moving to your new address, you may be convicted of a misdemeanor crime?  If you currently have a case pending with USCIS, and you fail to provide written notice of a change of address to USCIS, within 10 days of moving, you could face a fine of up to $200, imprisonment up to 30 days, or both if convicted. If you are an alien (non U.S. Citizen) you could also face removal from the United States for non-compliance (INA Section 266(b)).

It is extremely important for applicants to notify USCIS immediately upon moving to a new address. Filing a change of address with USCIS is easy and it’s free. Applicants may change their address online by visiting the USCIS website and completing Form AR-11 online. In order to file a change of address online, you must know the Receipt Number (appearing on the Notice of Action) associated with your application, if your application is currently pending with USCIS. A Receipt Number is also known as the case number, identifying the petition submitted. The Receipt Number typically begins with three letters and is followed by ten digits.

The first three letters of the Receipt Number indicate the USCIS service center which is processing the petition, as follows:
– EAC – Vermont Service Center;
– WAC – California Service Center;
– LIN – Nebraska Service Center; and
– SRC – Texas Service Center

If you have filed more than one petition with USCIS (as in cases of adjustment of status for spouses of U.S. Citizens) you must provide the receipt number of each petition you have filed, when submitting the change of address online. If you do not have your receipt notice or have lost it, you should contact USCIS National Customer Service Center by telephone for assistance:

Our number is: 1 (800) 375-5283
Our TTY number is: 1 (800) 767-1833

If you are outside the United States and have filed an application or petition with a USCIS Service Center, you can call 212-620-3418 to check the status of your case.

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a free consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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