Visa Lawyer Blog

Articles Posted in F-1 Visa

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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It is that time of the week again! In this post, we bring you the latest immigration news from USCIS.

Texas Service Center Will Begin Processing Certain Cap-Exempt H-1B Petitions

On May 20, 2019, USCIS announced that the Texas Service Center will begin processing certain cap-exempt H-1B petitions filed on Form I-129 Petition for Nonimmigrant Worker.

What types of petitions may be processed by the TSC?

Cap-exempt petitions requesting:

  • A change in previously approved employment;
  • A change of employer;
  • Concurrent employment;
  • Amendments;
  • A continuation of previously approved employment without change with the same employer;
  • A change of status to H-1B; or Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).

Applicants must continue to refer to the direct filing address chart to determine where the I-129 Form should be filed. The workload for cap-exempt petitions will be distributed between the Texas Service Center, California Service Center, Vermont Service Center, and Nebraska Service Center to increase efficiency and prevent processing delays.

If your case is transferred, you will receive a transfer notice in the mail.

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If you are an F-1 student with an H-1B petition that remains pending with the United States Citizenship and Immigration Services (USCIS), and your “cap-gap” employment authorization is only valid through September 30, 2018, you may risk accruing unlawful presence if you continue to work on or after October 1, 2018.

What is a “cap-gap”

You are in “cap-gap” status if you are an F-1 student who is the beneficiary of a timely filed H-1B cap subject petition with USCIS, and you are seeking a change of status from F-1 student to H-1B on October 1st, October 1st being the requested start date of H-1B employment.

A “cap-gap” is used to fill the gap between the end of a student’s F-1 status and the beginning of potential H-1B status. To avoid any gap in status, USCIS extends the validity period of both the student’s F-1 status and current employment authorization, but only until September 30.

The “cap-gap” period begins when an F-1 student’s status and employment authorization expires.

Temporary Suspension of Premium Processing

USCIS has temporarily suspended premium processing services for cap-subject petitions to prioritize the adjudication of cap-gap petitions filed by students, however USCIS does not guarantee that it will adjudicate these petitions in a timely manner by October 1st. Students with a cap-gap H-1B petition that remains pending on or after October 1st are no longer authorized to continue working under the cap-gap regulations.

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A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.

In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.

However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).

New Policy

On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.

Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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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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