Articles Posted in Student Visas

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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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On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

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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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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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In what seems like déjà vu, today, March 20, 2018 the United States Citizenship and Immigration Services (USCIS) formally announced that the agency will be temporarily suspending premium processing service for all fiscal year 2019 cap-subject petitions, including petitions that seek an exemption for individuals who possess a U.S. master’s degree or higher. The suspension is expected to last until September 10, 2018. Based on similar announcements made by USCIS in the past, we expect premium processing service to remain suspended until at least September 10.

As some of you may remember, USCIS suspended premium processing in a similar fashion during April of last year for fiscal year 2018 cap-subject petitions, and lifted the suspension until September 18 of 2017.

Petitions not subject to FY 2019 Cap

Premium processing requests will continue to be accepted for H-1B petitions NOT subject to the FY 2019 cap. USCIS will make an announcement as we get closer to September notifying the public regarding any decision to resume premium processing for cap-subject H-1B petitions. In previous years, USCIS lifted the suspension in July for beneficiaries who were exempt from the cap, because of their employment at a qualifying cap-exempt institution, organization, or entity. We expect USCIS to follow a similar pattern in July of this year, with the temporary suspension for cap-subject petitions being lifted sometime in early September.

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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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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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