17-Month EAD Holders Seeking Full 24 Months under New STEM OPT Rule Must be Quick

The Department of Homeland Security’s final rule on optional practical training (OPT) work authorization for foreign nationals in F-1 status with science, technology, engineering, or mathematics (STEM) degrees from U.S. institutions will go into effect on May 10, 2016. The U.S. Citizenship and Immigration Services (USCIS) then will begin accepting applications to extend an initial 12-month period of OPT work authorization for an additional 24 months — a welcomed increase from the old rule’s 17-month extension period.

Qualifying STEM graduates in their initial OPT period can therefore apply for a 24-month extension beginning May 10, 2016, assuming they meet the new rule’s eligibility and timing requirements.

But what about foreign nationals with 17-month STEM OPT extensions already approved under the old rule? The new rule clarifies that a 17-month STEM OPT employment authorization document (EAD) issued before May 10, 2016, will remain valid until the EAD expires or is terminated or revoked. Significantly, it also provides a limited window for certain F-1 students with these STEM EADs to apply for an additional 7 months of OPT, allowing them to benefit from the new rule’s full 24-month period. To qualify for this additional 7-month period, the student must:

  • 1) Properly file a Form I-765, Application for Employment Authorization, with USCIS (along with all required fees and supporting documentation) between May 10, 2016, and August 8, 2016. The I-765 must be filed within 60 days of the date the student’s Designated School Official (DSO) recommends the 24-month STEM OPT extension in the student’s SEVIS record.
  • 2) Have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT EAD at the time the I-765 is properly filed(i.e., receipted) with USCIS.
  • 3) Meet all the requirements under the new rule for the 24-month STEM OPT extension, including submission of the Training Plan on Form I-983 to his or her DSO.

Due to the limited three-month application window and strict eligibility requirements, F-1 students seeking to benefit from the 7-month balance should file their applications with USCIS as soon as possible. Before a student can file with USCIS, he or she must first submit a Form I-983 Training Plan to his or her DSO and obtain an endorsed Form I-20 with the DSO’s recommendation for the 24-month STEM OPT extension period. Students are encouraged to work with their employers and school officials as soon as possible to ensure they can obtain the proper documents and file their applications with at least 150 calendar days remaining before their STEM OPT EADs expire.

Supreme Court’s Decision on Future of DACA and DAPA

Supreme Court argument has taken place in United States v. Texas, a high-stakes, hotly contested case on the Administration’s executive programs that deferred possible deportation of millions of undocumented individuals. The Court’s expected June decision is likely to have far-reaching implications for employers.

In 2012, the Obama Administration introduced through executive action Deferred Action for Childhood Arrivals (DACA), a program which deferred deportation of certain individuals who arrived to the United States unlawfully as minors. DACA allowed these individuals access to employment authorization. In late-2014, the Administration, again through executive action, expanded DACA, in part, by increasing the available periods of employment authorization for DACA beneficiaries from two years to three years, and introduced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA is a program which deferred deportation of and created a basis for employment authorization for parents who, as of November 20, 2014, had a child who was a U.S. citizen or green card holder.

In February 2015, the U.S. District Court for the Southern District of Texas concluded the 2014 DACA expansion and DAPA creation were unconstitutional and enjoined the 2014 executive action. The U.S. Circuit Court of Appeals for the Fifth Circuit upheld the lower court’s injunction later that year. The Administration appealed that decision to the U.S. Supreme Court.

The case raises the threshold issue as to whether states have the right to bring such an action and carries with it broad implications for the limits on and use of executive power. The case is important for employers because hundreds of thousands of individuals have obtained employment authorization through DACA’s 2012 guidelines and more than 100,000 more received three-year employment authorization approvals through the 2014 expansion before the district court’s injunction.  It was expected that many individuals would continue to apply for three-year employment authorization under the DACA expansion and DAPA creation.  Since February 2015 and until the Supreme Court renders a decision, only individuals qualifying under the original 2012 DACA guidelines may obtain employment authorization, limited to two-year increments.  If the Supreme Court agrees with the Fifth Circuit, then the DACA expansion and DAPA program will be nullified.  Whether the pre-2014 DACA program and guidelines would survive a Supreme Court decision affirming the Fifth Circuit’s ruling is unclear.

Contributing to the interest in and speculation about this case is the vacancy on the Supreme Court created by Justice Antonin Scalia’s recent death. Should the Supreme Court’s deliberations end in a 4-4 tie, the lower court’s ruling  would remain intact and undisturbed, thus foreclosing the ability of individuals who would otherwise be qualified for employment authorization under DACA expansion and DAPA to receive employment authorization as the 2014 executive action intended.  However, because an affirmance by an equally divided 4-4 Court would be non-precedential, the issues could be raised again in another case, after a ninth justice was seated on the Court.

There will be great interest in the outcome of this case as the end of the current term approaches, and Jackson Lewis will monitor developments and ramifications for employers.

“University of Northern New Jersey” Visa Fraud Sting Operation Shutdown after Arrest of 21

Immigration and Customs Enforcement (“ICE”) announced on April 5, 2016, that the “University of Northern New Jersey” (“UNNJ”) had been a sting operation for the past two-and-a-half years. Run by Homeland Security Investigations Newark, UNNJ had a plausible website and an address in Cranford, New Jersey. Twenty-one persons, characterized as brokers, recruiters, and employers, were arrested and charged with conspiracy to commit visa fraud and alien harboring. Over 1,000 foreign students had been enrolled at UNNJ.

ICE’s Student and Exchange Visitor Program (“SEVP”) announced that it was terminating the initial and active student records of nonimmigrant students enrolled at UNNJ. The records of approximately 60 former UNNJ students who have transferred to other schools also will be terminated. SEVP will notify students of their termination by letter. Terminated students may have the option of applying to U.S. Citizenship and Immigration Services (“USCIS”) for reinstatement. Students who decide not to apply for reinstatement, or whose reinstatement applications are denied, may be required to leave the United States immediately or seek other relief. Students can obtain additional information from the SEVP Response Center at 703-603-3400, which is staffed from 8:00 a.m. to 6:00 p.m. (Eastern Time) from Monday to Friday, except holidays. The Center is closed from 12:45 to 1:30 p.m. every Wednesday for system maintenance.


Overseas Travel Considerations for Employees on OPT During Cap-Gap Period

What if an F-1 student must travel outside the U.S. during the cap-gap period?

OPT employment authorization and Duration of Status (D/S) are extended automatically for an F-1 student who is the beneficiary of a timely filed H-1B petition requesting change of status with a start date of October 1st. This permits an F-1 student to remain in status and continue working until the H-1B is approved and the H-1B employment begins. If the H-1B petition is denied, rejected, or withdrawn, the cap-gap extension terminates.

If a student must travel outside of the U.S. during the cap-gap period, he or she should have a valid EAD (Employment Authorization Document), along with a valid passport, F-1 visa, signed I-20, and employer letter to present upon re-entry. Entry into the U.S. will not be granted based only on the cap-gap extension if the EAD is expired.

Whenever an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry. U.S. Customs and Border Protection (CBP) makes such determinations after inspecting the applicant for admission. If an individual must travel during the cap-gap extension period, he or she should be prepared to apply for an H-1B visa outside the U.S. and adjust return travel plans accordingly. Under the H-1B regulations, entry to the U.S. is permitted only up to 10 days prior to October 1st.

USCIS Proposes Changes to Form I-9, Instructs Current I-9 to be Used Beyond Expiration Date

The current Form I-9 Employment Eligibility Verification is set to expire on March 31, 2016. On the eve of the form’s expiration, USCIS has announced that employers must continue to use the current version until the proposed I-9 is in effect.

On March 28, 2016, USCIS published proposed changes to Form I-9 in the Federal Register. The public has 30 days to comment on the proposed changes.

Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website.

Key changes to the form include validations on certain fields to ensure the information is entered correctly, additional spaces to enter multiple preparers and translators, and embedded instructions for completing each field. The proposal also requires in Section 1 that an employee provide only other last names used, rather than any other names used, and removes the requirement that aliens authorized to work provide both their Form I-94 number and foreign passport information.

After the 30-day comment period and public comments are considered, USCIS may make further changes which OMB will need to review and approve. USCIS will post the newly revised form with instructions on its web page for use by the public.

Jackson Lewis will offer free webinars on the new I-9 once it is finalized.

USCIS ‘Same or Similar’ Occupations Memo Finalized

U.S. Citizenship and Immigration Services has released the final version of its “same or similar” policy memo, which provides guidance to individuals with pending permanent residency applications who hope to change positions or jobs. The 21-page Policy Memorandum, released on March 18, is a mixed bag for employers.

The Department of Labor uses Standard Occupational Classification (SOC) codes that have been used historically when analyzing the similarity of jobs. The Policy Memorandum continues to rely in part upon the SOC codes, explaining that, identical SOC codes likely will result in a favorable determination under the preponderance of the evidence standard, although all relevant evidence should be considered,. The DOL cautions, however, that sometimes two jobs are described within the same broad SOC, but are not similar. For example, Political Scientist (19-3094) and Geographers (19-3092) both are found within the broad occupational code for Misc. Social Scientists (19-3090), but these occupations are very different and would not support portability.

The DOL discusses how “Career Progression” and other variations affect the analysis under the totality of the circumstances review. It remains to be seen how heavily USCIS weights an exact match of SOC codes in determining whether a job is “same or similar.” A narrow interpretation of the Policy Memorandum could change adjudications from mostly favorable to denials, as we have seen in other types of cases.

It is no longer business as usual for job changes. A professional evaluation is recommended prior to acceptance of that new position.

Department of Homeland Security Issues Final Rule for Additional Period of Work Authorization for STEM Graduates

The U.S. Department of Homeland Security has issued a final rule that allows foreign graduates of Science, Technology, Engineering, and Math (“STEM”) programs from U.S. universities an additional 24 months of F-1 Optional Practical Training (“OPT”) work authorization.

The new rule will be published in the Federal Register on March 11, 2016. It will not go into effect until May 10, 2016.

The new rule allows foreign students holding F-1 status and graduating with STEM degrees to extend their period of OPT from an initial period of 12 months to a total of 36 months. The new 24-month period was increased from a 17-month period. OPT allows F-1 students and graduates to work in the United States either during their schooling or after they graduate.

Currently, in order for F-1 students to be eligible for the STEM extension, they must be employed by employers who participate in E-Verify. Under the new rule, employers also will be required to implement formal training plans and add wage and other protections for STEM OPT students and U.S. workers.

See Proposed New OPT Rules: Up to 3 Years OPT for STEM + Cap-Gap Relief for more information.

DHS Seeks to Lighten Employer Load with Pilot Program for Employment-Based Visa Cases

Employers can request that USCIS predetermine that they meet the requirements for certain nonimmigrant and immigrant employment-based visa categories under a new pilot program announced by the Department of Homeland Security (DHS) on March 3, 2016.

The agency’s stated purpose of this program is to streamline the visa process by reducing costs, paperwork, and delays in case processing.

The program would allow a select group of employers to create profiles in the web-based “Known Employer Document Library” (KEDL) and upload documents relating to the relevant requirements. USCIS officers will review the profiles to determine if the employer meets the requirements for certain visa classifications. If the USCIS approves the Known Employer for filings under the specified visa classification, then the Known Employer can proceed with filing individual employee petitions without having to resubmit all of the company information. Documents uploaded into the KEDL also will be available for review by CBP and DOS officers in support of their own adjudications.

The program also will strive to promote consistency in the adjudication of employment-based petitions and provide greater support to CBP and DOS for greater efficiency and consistency at ports of entry and consular posts.

The employment-based visa categories included in this program are:

Nonimmigrant Work Visa Categories:

  • H-1B
  • L-1B
  • L-1A
  • TN

Employment-Based Immigrant Visa Categories:

  • EB-1(B) – Outstanding Researchers and Professors
  • EB-1(C) – Multinational Managers and Executives

Currently, the following five employers have confirmed participation in this limited, invitation-only program.

Jackson Lewis will continue to monitor the progress of this program. If you have any questions about streamlining your company’s immigration case filings and minimizing paper and costs, please contact one of our Jackson Lewis Immigration attorneys for more information.

March H-1B Madness

The H-1B visa category is the most popular nonimmigrant work visa category in the U.S. under which employers sponsor skilled, professional workers for employment. This is largely because it allows foreign graduates in the U.S. for university undergraduate and graduate education to work in the U.S. after graduation. H-1B regulations stipulate that to qualify for an H-1B visa, the employer must have a professional position that requires at least a Bachelor’s degree (or equivalent) in a specific field, and that the candidate meets that requirement.

Approximately 65,000 H-1B visas are available each year, and an additional 20,000 are available to foreign nationals who have graduated from a U.S. Master’s program, or any other U.S. graduate degree program (e.g., Ph.D. and M.D.). For the last several years, more petitions have been filed than H-1B visa numbers have been available, and a regulated, mandatory lottery was applied to determine which, cases would be accepted for H-1B processing.

In 2015, just over a third of H-1B cases filed under the visa cap for fiscal year 2016 were accepted for processing. Nearly 150,000 cases were rejected under the lottery. No improvement is expected this year.

Unfortunately, the situation can get worse. Over the last five months, members of both houses of Congress have proposed legislation to tighten H-1B regulations. These bills propose to:

  • reduce the number H-1B visas available each year (from 65,000 to 50,000);
  • bar employers from using the H-1B program to sponsor foreign workers within two years of a layoff, furlough, or employees strikes;
  • bar employers from using the H-1B program to bring foreign workers to the U.S. for training, then transfer them overseas and lay off the U.S. workers who trained them; and
  • require employers to make a good-faith effort to recruit U.S. workers before filing H-1B petitions to hire foreign workers.

One bill also proposes to eliminate the Optional Practical Training program, which allows foreign nationals who graduate from a U.S.-degree program to work in the U.S. for up to one year after graduation.

The fiscal year 2017 H-1B visa filing window opens on April 1, and USCIS will accept all cases filed until April 7, 2016. During April, USCIS will conduct the lottery for all Master’s Cap cases, and then for all remaining H-1B cases filed. Cases that are rejected for processing will be returned. Any foreign national graduate working on OPT and awaiting change to H-1B status may continue working, even after the OPT work authorization expires, until a decision is made on his or her H-1B case.

Form I-9 Strikes Again: Hotel Executive Pleads Guilty for Knowingly Hiring Unauthorized Worker

The Immigration and Reform Control Act (IRCA) requires all employers to complete a Form I-9 for all employees hired after November 6, 1986. The law prohibits an employer from knowingly hiring or continuing to employ an unauthorized alien. The severity of the consequences awaiting employers who violate this law was evident recently in two cases in Nebraska federal court. U.S. v. Younes and U.S. v. Kearney Hospitality Inc.

A hotel operator, Paul Younes, has pled guilty to charges that he knowingly hired and continued to employ an individual who was not authorized to work in the U.S. The employee was a housekeeping supervisor who quit one of the hotels owned by Mr. Younes to avoid a social security investigation. The government claimed she began working for a second, related hotel under another false identity with the assistance of Younes. Younes reclassified the housekeeper as an “independent contractor” for payroll purposes (skirting the need for Form I-9), though she was the only person in the housekeeping department who worked under that status.

Younes and his company were each charged with and pled guilty to violating the prohibition on knowingly hiring or continuing to employ an unauthorized alien. Younes now faces up to six months in prison and a $3,000 fine; the company is looking at five years’ probation and a potential fine of $500,000.

A “knowingly hiring” violation can be based on an employer’s actual or constructive knowledge. Therefore, if an employer has knowledge of facts that would lead a person exercising reasonable care to know about the employee’s unauthorized status, it may be said to possess the constructive knowledge needed to support a violation. While any number of known facts could establish constructive knowledge, the most fundamental (and the first listed in the regulations) is when an employer fails to properly complete an Employment Eligibility Verification Form, I-9. Simply, employers invite trouble by ignoring their obligation to complete I-9s. With the government clamping down on misclassification of employees as independent contractors, employers cannot avoid the I-9 verification requirement without risking wage and hour, IRS and civil and criminal immigration consequences. At the end of the day, one little two-page form has a lot of power.