Visa Lawyer Blog

Articles Posted in Student Visas

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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As previously reported, the STEM Optional Practical Training (OPT) rule that had been in place since 2008, was invalidated following a court order requesting the Department of Homeland Security to issue a new replacement rule. The court gave the DHS until February 12, 2016 to come up with a replacement rule in order for the STEM OPT program to continue. In order for a new replacement rule to be put in place, DHS was required to publish the final rule 60 days before its effective date, according to procedural rules established by the Administrative Procedures Act. In order to meet such a deadline, DHS needed to have published the final rule by December 14, 2015 in order for it to be enforced by the February deadline. Luckily, the government filed a motion to extend the stay of the court order—to May 10, 2016, thus requesting an additional 90 days for the government to implement a final rule. In order for the motion to be successful the government must establish that exceptional circumstances warrant such relief to be given. The government has argued that there is an unprecedented amount of comments that cannot be reviewed and analyzed by the February deadline. During the comment period, DHS received over 50,000 comments that it must review, revise, and finally publish a final rule. The court is not expected to rule on the motion until early 2016. Meanwhile the plaintiffs of the original suit have filed an appeal before the DC Circuit Court arguing that the OPT program is not within the authority of the DHS.

If the motion is unsuccessful, the government may file a motion at the district court level or request a stay of the court’s injunction at the circuit court level. In any case, those affected should be aware that the government still has several avenues through which relief may be granted: (1) the Judge may grant the government its requested 90-day delay on the present motion; (2) the Judge may later grant a complete stay pending appeal of the injunction; or (3) the DC Circuit may stay the Judge’s injunction while it considers the merits of her rulings in the underlying case.  CIS has not yet released official correspondence explaining whether students affected will be granted a STEM extension after the February deadline.

For more information please contact us.

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By Yingfei Zhou, Esq. 

Last week, attorneys Yingfei Zhou, Esq. and Marie Puertollano, Esq. from our office attended the 28th AILA California Chapter Conference on Immigration Law held in San Diego, California. Together, they brought our audiences the latest updates on various issues discussed at the government open forums.

  1. USCIS I-797C Receipt Notices or I-797B Approval Notices without I-94 attached are not accepted by DMV as Proof of Legal Residence
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On August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the Department of Homeland Security’s 17-month STEM OPT Extension program that has been in existence since 2008. But because an immediate vacatur of the STEM OPT program would cause “substantial hardship” to thousands of F-1 students and create a “major labor disruption” for technology employers, the court allows the program to stay valid till February 12, 2016 and gives DHS in the next 6 months to issue a new rule and complete its notice and comment obligations by providing the public an opportunity to comment on any proposed rule.

For now, F-1 students with an approved STEM 17-month OPT extension remain eligible to work and USCIS should be still accepting and adjudicating STEM extension applications throughout the court’s stay of its ruling.

Any guidance or further action taken by the DHS and USCIS, we will update you via our blog.

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President Obama’s executive action announced on November 20, 2014 fell short in many ways than one for many people residing in the United States—both legally and illegally. Though a marginalized few have been allowed to come out of the shadows, some of the world’s best and brightest have been completely ignored by the executive action altogether. The United States would be quite a different place without our hard working immigrant population and without our foreign born innovators, movers, and shakers.

Obama’s announcement on November 20th notably left out any indication that the creation of a more expedient and efficient system would be considered— through which highly skilled and highly capable foreign workers would be able to more easily attain permanent residency and visas. Industry leaders in areas such as the Silicon Valley, seeking to employ such highly skilled and highly capable foreign workers for their startup companies, have expressed their concerns, forming groups such as FWD.us, albeit with the knowledge that Congress must act in order for an all-encompassing solution to be reached.

Though Obama’s speech shed little light on the topic, a memorandum released by the U.S. Department of Homeland Security following the speech is much more informative. The memorandum announces that inventors, researchers, and founders of start-up enterprises who do not qualify for a national interest waiver, but who have been awarded what is considered ‘substantial’ financing by a U.S. investor OR who ‘hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research’ can attain parole authority under section 212(d)(5) of the INA,6 on a case-by-case basis after being assessed by the DHS. Possessing parole in this situation would authorize extraordinary inventors, researchers, or start-up entrepreneurs to temporarily conduct their research or development of innovative ideas or their business while in the United States.

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By Ekaterina Powell, Esq.

Our office has received a few inquiries on the subject of volunteer work while on OPT and consequences of unemployment, and we have decided to address these issues in further detail for our readers.

Conditions of Employment while on OPT

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Guidance following the Courts Decisions on Same Se Marriage continue to be released. The latest is regarding Student Visas.

The Department of State, Bureau of Consular Affairs has advised consulates that their officials may issue derivative visas based on same – sex marriage if the marriage is “recognized in the place of celebration.” That is, if the country where the couple married recognizes same – sex marriage as legal, then the U.S. government will recognize the union as legal for visa issuance, irrespective of where the couple plans to reside.

So from now on School DSOs and other officials may issue I-20 to same sex spouses of F1 and M1 students. These are ground breaking changes and we are excited. See the email below with the announcement.

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Great commnets by Mr. Brent Renison, Member of the AILA Media-Advocacy Committee, he calls on the Obama Administration to grant OPT extensions to recent graduates with job offers who did not win the H-1B lottery. The feeling is that International students come to the US spend good money on education, and can stay to contribute to advance our country. But instead of a welcome note, they get the Boot every time.

During the first week of April, 2013, the U.S. Citizenship and Immigration Services (USCIS) received approximately 124,000 petitions for H-1B work visas, more than the yearly limit of 85,000. That not only means that all the H-1B slots for the entire fiscal year 2014 running from October 1, 2013 to September 30, 2014 are used up already, but that 39,000 applicants were rejected. The rejection notices came via returned petitions during the middle of May.

For foreign students at U.S. colleges and universities who have job offers from U.S. employers following graduation, this has meant being forced to give up, pack up, and leave the country. Take Joanita Bora, for example. She graduated from Willamette University in Oregon with a Master’s of Business Administration, and was offered a job in her field following graduation. She was able to work under a one-year work permit under the Optional Practical Training (OPT) category, post graduation. Her employer filed an H-1B petition on her behalf, but Joanita was one of the unlucky thousands whose petitions were not selected in the random lottery for the slots. Her OPT ended in May, and without an H-1B petition in place, she was given just 60 days to leave. Now she has returned to India, but has started a facebook page to express her frustration.

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My office received a few concerned calls from family members of Aristotle University Students. The University is in a center of a heated media investigation into the legitimacy of this Institution to provide education and issue student visas.

Questions have been raised by students for some time about this school. They say the school’s academic program and its operators seem more concerned about collecting fees than providing education.

Many students unconvinced the school is providing the kind of instruction and course work it advertised on its website. That website was taken down last week as questions about the school began to mount.

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Quick update from AILA, President Obama signed the Iran Nuclear Threat Reduction Bill on August 10, 2012. Section 501 directs DOS to deny visas and DHS to exclude from the United States, any Iranian citizens seeking higher education in the United States to prepare for a career in Iran’s energy, nuclear science and nuclear engineering sectors, as well as related fields. This provision applies to visa applications filed on or after the date of enactment of this Act.

As such, Iranian applicants in the United States wishing to change status to F-1 to pursue post-secondary studies in the energy, nuclear science, nuclear engineering or related fields, will be denied by DHS.

Similarly, consular posts will deny F-1 visa applications from Iranian applicants wishing to pursue post-secondary studies in the energy, nuclear science, nuclear engineering or related fields.

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