Articles Posted in F-1

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Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) published policy guidance regarding the responsibilities of F-1 students who are employed based on Optional Practical Training (OPT) and STEM OPT.  ICE reminds these students that they are responsible for providing a description of how their job relates to their major area of study to the Designated School Official (DSO) at their college or university.

OPT permits up to 12 months of temporary employment for certain foreign national students.  Science, technology, engineering and math (STEM) OPT permits an additional 24-month period of temporary employment with qualified employers of foreign national students who have graduated with degrees in approved STEM fields.

The DSO must review the student’s description, and determine whether there is a direct relationship between the job and the student’s major area of study.  The decision should be made on a case-by-case basis, and the DSO can request additional documentation if he or she has concerns.  The DSO must retain the description of the direct relationship and monitor and update the student’s records in the Student and Exchange Visitor Information System (SEVIS), the ICE web-based system that maintains information on foreign national students and exchange visitors in the U.S.

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Forbes reports that Immigration and Customs Enforcement (ICE) is conducting on-site inspections at worksites of students working on STEM OPT.  Science, technology, engineering and math (STEM) Optional Practical Training (OPT) employment is a 24-month period of temporary training for certain foreign national students, which directly relates to the students program of study in an approved STEM field.  Although this is a new practice, under the regulations ICE has the authority to conduct these compliance site inspections.

According to the Department of Homeland Security’s Study in the States website, the site inspection will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites.  The website states the following:

Site [inspections] will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

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The federal judge presiding over a court case that challenges United Sates Citizenship and Immigration Services’ (USCIS) policy regarding unlawful presence calculations for student visa holders, has issued an injunction permitting the two student plaintiffs to remain in the U.S. so that they can continue to participate in the case.

The case, Guilford College et al. v. Nielsen et al., challenges USICS’ May 2018 policy that changes how unlawful presence is calculated for foreign citizens studying in the U.S. under F student, J exchange visitor, or M vocational student status. Under the new policy, USCIS considers unlawful presence accrual to begin from the date in which a student initially falls out of status, rather than from the date when USCIS formally concludes that there has been a violation and notifies the student.

According to the legal news service Law 360, the policy “could carry heavy penalties for students who inadvertently or unknowingly accrue unlawful status including re-entry bars after 180 days of unlawful presence that would prevent the students from returning to the U.S. again for years.”

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The U.S. District Court struck down the STEM Optional Practical Training (OPT) Extension rule because according to the court, the Department of Homeland Security (DHS) failed to follow the procedures required for a new rule. The court, however, allowed the rule to remain in place through February 12, 2016 in order to give the DHS sufficient time to properly reauthorize the STEM OPT rule.

In compliance with the court’s order, the DHS recently republished the STEM OPT Extension rule and sent it to the Office of Management and Budget. The proposed rule should soon be published in the federal register and stakeholders will be given at least 30 days to submit written comments. The DHS will then review and consider these comments prior to making a final decision on the proposed rule.

DHS is proposing to amend its F-1 nonimmigrant student visa regulations on OPT to allow certain F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months.

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On May 12, 2011, U.S. Immigration and Customs Enforcement (ICE) published an expanded list of science, technology, engineering, or math (STEM) degree classifications. F-1 students with STEM designated degrees are eligible for a 17 month extension of optional practical training (OPT). To be eligible for the OPT extension, the student must have received a degree included on the STEM-Designated Degree Program List. The last version of the list was published in April 2008 and the newly revised list with the additions indicated in bold print can be found at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf.

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The cap of 65,000 H-1B petitions for FY2011 has been reached. As a result, one must wait to apply for H-1B status under the new quota for FY2012, starting October 1, 2011. The earliest an H-1B petition can be filed for the new fiscal year is April 1, 2011, requesting an October 1st start date. For certain F-1 students, this interim period creates what is termed the “cap gap” as their status may lapse before their H-1B status can commence on October 1st. Current regulations provide relief to students by allowing an extension of F-1 status and work authorization for those students who are the beneficiaries of a pending or approved H-1B petition.

Upon the submission of a timely filed H-1B petition, the automatic cap gap extension will apply and the F-1 student will continue to maintain valid duration of status until the effective date of the H-1B approved status. Individuals under post-completion OPT at the time of filing will also receive extended work authorization through September 30th under the cap gap provisions. F-1 students with H-1B petitions that remain pending beyond October 1st are allowed to legally remain in the U.S. but their work authorization will cease. Please note that students who are within the 60 day grace period and have already completed their OPT by the April 1st filing date will also benefit from the automatic extension of their duration of status, but will not receive extension of their work authorization. For example, F-1 students whose OPT expires in February 2011 will qualify for an extension of their F-1 status while their H-1B petition is pending, but will not qualify for an extension of their work authorization as their OPT will have expired prior to April 1, 2011. However, F-1 students whose OPT is valid until July 2011 will qualify for both an extension of their F-1 status and extension of their work authorization until September 30, 2011.

For more information on filing a timely H-1B petition on April 1st and qualifying for F-1 extension of status and work authorization under the “cap gap,” please contact our offices.

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During the 2009-2010 academic year, the number of international students in the U.S. increased by 3 percent to 690,923. The increase was largely due to a 30 percent increase in Chinese student enrollment, accounting for more than 18 percent of the total international student population. As such, China tops the list with the greatest number of foreign students in the U.S., followed by India, Korea, Canada, Taiwan, Japan, Saudi Arabia, Mexico, Vietnam and Turkey. For more details, see http://www.state.gov/r/pa/prs/ps/2010/11/150933.htm

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The USCIS published questions and answers that address the automatic extension of F-1 student status in the U.S. (known as, “cap gap relief”) for certain students with pending or approved H-1B change of status petitions (from F-1 to H-1B) under the Fiscal Year (FY) 2011 H-1B cap (i.e. petitions requesting a start date of Oct. 1, 2010). If you have questions about whether you or someone you know is eligible for this type of extension, please see the USCIS’ Q&A webpage at this site: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=b56db6f2cae63110VgnVCM1000004718190aRCRD.