New 24-Month STEM OPT Extension Rule

The Department of Homeland Security’s (DHS) final rule regarding STEM optional practical training (OPT) extensions will take effect on May 10, 2016. Most notably, the new rule allows F-1 STEM students to extend the standard 12-month OPT period an additional 24 months, for a total of 3 years. It also allows F-1 STEM students who are currently on an approved 17-month extension to apply for an additional 7 months.

F-1 STEM OPT students who are currently on an approved 17-month extension may apply for an additional 7 months, provided they have at least 150 days remaining when the petition is filed with USCIS. Applications will be accepted from May 10 – August 8 only.

Individuals who receive the 24-month extension would have a total of three years of OPT status. In addition, individuals who earn a second STEM degree at a higher educational level are now eligible for an additional 12-month period of OPT plus another 24-month extension (for a total of 6 years of OPT status). F-1 students currently on a 12-month period of post-completion OPT based on a non-STEM degree are now eligible to use a prior STEM degree as the basis for a 24-month extension—as long as both degrees are from accredited institutions and the OPT employment is directly related to the previously obtained STEM degree.

The new regulations carry additional requirements for employers, who must provide compliant training plans and complete regular validation reports. There are also new obligations for OPT extension employees, who must submit annual self-evaluations.
Under the new rule, the DHS may conduct worksite visits. The DHS is required to provide 48 hours’ notice, unless the employer is non-compliant or if the visit is triggered by a complaint. As with the prior rule, employers must be enrolled in E-Verify and comply with reporting requirements.

Please contact us with any questions on how the new STEM OPT rule impacts you or your employees.

Annual H-1B Cap – 236,000 Received

Today U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to meet the annual cap of 65,000, along with the additional 20,000 H-1B petitions reserved for the advanced U.S. degree cap.

For the filing period beginning April 1, 2016, USCIS received over 236,000 H-1B petitions, including those filed for the master’s cap. USCIS is using a computer-generated lottery process to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the master’s cap exemption. They will reject and return all unselected petitions with their filing fees. We expect that this process will take several months.

USCIS conducts the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the lottery for the 65,000 limit.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. Receipt notices for premium processing cases have already begun to be issued.

Petitions that are exempt from the cap will still be accepted and processed. This includes H-1B extensions and amendments, as well as petitions for change of employer.

We will stay apprised of developments related to the annual H-1B cap and will issue updates as they become available. Please contact Graham Adair with any questions.

DHS Proposes New STEM OPT Extension Rule

The U.S. Department of Homeland Security is expected to publish new proposed STEM OPT regulations on October 19, 2015. There would then be a 30-day comment period after which the comments would be reviewed and a final rule will be published in the Federal Register. The proposed regulations will allow for a 24-month extension of OPT status for F-1 students who have a designated STEM degree. This 24-month STEM OPT extension will replace the previous 17-month extension that was available until the regulations allowing the extensions were vacated by a Federal Court in August of this year. The proposed rule would also include the previous H-1B Cap Gap provisions that would allow individuals in the U.S. in F-1 OPT status to remain work authorized when their OPT status expires and they have a pending or approved H-1B application that will become effective on October 1st of the same year, so long as their H-1B application was filed and pending at the time their OPT status expires.

The new regulations should go into effect before the current STEM OPT extension regulations are set to be revoked in February 2016.

Federal Court Vacates OPT 17-Month STEM Extension Rule

Optional Practical Training (OPT) allows certain graduating F-1 students to obtain twelve months of employment in areas related to their academic field of study. The STEM OPT extension allows an F-1 student to extend his or her OPT employment for an additional 17 months if the student’s F-1 program degree was in an appropriate Science, Technology, Engineering, or Mathematics (STEM) field, and if the student has a job or job offer from an employer registered in the USCIS’s E-verify program.

On August 12, 2015, the US District Court for the District of Columbia held that the Department of Homeland Security’s 2008 interim final rule implementing the 17-month OPT STEM extension was invalid, because the Department of Homeland Security (DHS) implemented the rule without proper notice and comment. (Washington Alliance of Technology Workers v. DHS). However, the court also found that vacating the rule immediately would cause substantial hardship for both F-1 students on STEM OPT extensions and US employers in the technology sector. Therefore, the court ordered that the 2008 interim final rule not be vacated until February 12, 2016, and that during this time, DHS may choose to submit the rule for proper notice and comment.

Graham Adair will provide updates as they become available. Should you have questions, please contact your assigned attorney or paralegal.

– By Dena Neese

H-4 Spouses Can Get Work Authorization

The USCIS announced today that it will begin to extend employment authorization to certain H-4 visa holders.  USCIS will begin to accept H-4 employment authorization applications on May 26, 2015.  In order to be eligible for an H-4 Employment Authorization Document (EAD) an individual must meet one of the following criteria:

H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This is great news for clients who have an approved I-140 but are unable to submit an Adjustment of Status application because of priority date retrogression.  We will continue to monitor developments on this change and will begin preparing H-4 EAD applications for clients as we get closer to the May 26, 2015 filing date.

H-1B Cap Filing Tips

With the high demand for the limited H-1B numbers in recent years, it has become very important to avoid having USCIS return a case due to incorrect filing.  USCIS must accept new H-1B cases during a 5-business day window starting on April 1st.  However, if a case is returned due to improper filing, it will miss the filing window.
The following are some recommendations to be sure an H-1B case is in a position to be accepted by USCIS for processing.

 

LCA: H-1B petitions require a properly executed LCA.

 

Signatures: Original signatures are required on the forms, LCA and company letter.

 

All Questions Answered: It is important to be sure all questions have been answered and that information provided is consistent throughout the entire petition.

 

Correct Service Center: Each case will have a specific regional service center it must be mailed to, which is based on the location of the job opportunity.

 

Checks: Verify that correct check amounts are being included with each case.  Most H-1B petitions require multiple filing fee checks.

 

Supporting Documents: Each H-1B petition must include documentation about the company and beneficiary to support the case.

 

While it is also important to file complete cases to avoid requests for evidence, it is most important to file a case that will be accepted and receipted by USCIS.  Issues that lead to a request for evidence will not impact a case’s acceptance for purposes of receiving one of the limited H-1B numbers.

More H-1B Numbers Coming?

While this new congress is only days old, there has been much speculation on whether new immigration reform for 2015 might benefit companies who employ highly skilled workers.  Senator Orrin Hatch (Utah – R) has been sworn in as the President Pro  Tempore of the Senate and he has given indications over the past several weeks that he looks forward to passing immigration legislation in early 2015 that would increase the number of visas available to highly skilled workers.  There seems to be a good chance that Hatch will reintroduce the 2013 Immigration Innovation act (I-Squared) which would dramatically increase the number of H-1Bs available from the current 85,000 to 115,000.  The act also contained provisions to increase the number of available H-1Bs up to 300,000, depending on economic circumstances.

I-Squared could carry necessary bipartisan support and in 2013 garnered significant support from the CEOs and leaders of Apple, Google, Yahoo, Facebook, Cisco and others.  These are good indications that we could see a much needed increase in H-1B availability in the next several months.  Graham Adair continues to monitor these discussions closely and will provide updates as they become available.

Big Changes in U.S. Immigration

Last night, President Obama announced some significant changes to U.S. immigration policy that will take effect in coming months.  Some of the items announced, such as suspending deportation proceedings for certain groups of people, will go into effect immediately.  Other aspects of the plan will require input from U.S. Citizenship and Immigration Services, the State Department, and Immigration and Customs Enforcement, among others, and will likely require changes to the current regulations.

 

The biggest takeaways, from a business immigration standpoint, from the President’s speech include:

1. ICE will work to “expand and extend the use of optional practical training (OPT) for foreign students.”

2. The USCIS will provide clearer guidance on adjustment of status (I-485) portability so that individuals with pending applications have greater career and job flexibility during the green card process.

3. The USCIS will look to provide EAD work cards and advance parole travel authorization to those who have approved I-140s with retrogressed priority dates.

4. The USCIS will allow H-4 spouses to seek Employment Authorization Documents if the H-1B holder is “on the path to lawful permanent resident status.”

5. The USCIS will issue more clear guidance with respect to what qualifies as “specialized knowledge” in the L-1B context in an effort to improve consistency and reinvigorate employers’ confidence in the visa status.

6. The USCIS and State Department are seeking a method and means to modernize the Visa Bulletin and allocation process to ensure that backlogs are reduced and the process is workable and usable for all intending permanent residents.

7. The USCIS will enhance the National Interest Waiver process to allow greater flexibility in adjudications and permit foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

8. The USCIS will create a parole system for “eligible inventors, researchers and founders of start-up enterprises who do not yet qualify for a National Interest Waiver, but who: (1) Have been awarded substantial U.S. investor financing; or (2) Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

Graham Adair will monitor the development of these policies and changes in regulation as they work their way through the various government agencies.

November 2014 Visa Bulletin: India EB-2 Retrogression

As expected, increased demand in EB-2 category for India required the retrogression of the cut-off date from May 1, 2005 to February 15, 2005. In contrast, potential visa availability is expected for other employment-based categories in the upcoming months.

 

For example, EB-2 China’s cut-off date is expected to have a 3-5 week forward movement. EB-3 China, with a cut-off date of January 1, 2010 is expected to have a rapid forward movement.  The rapid advance of the cut-off date may result in a significant increase in demand for visas.  Meanwhile, EB-3 India has little movement at all.  Lastly, EB-3 Philippines is currently at the worldwide cut-off date of June 1, 2012, but increased demand may require “corrective” action later in the fiscal year.

 

For more information on the November 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html

 

If you have any questions about the visa bulletin or other immigration matters, please feel free to contact us at info@grahamadair.com.

October 2014 Visa Bulletin: Imminent Retrogression of EB-2 India

In the October 2014 visa bulletin, the cut-off date for EB-2 India is May 1, 2009. However, given current demand, the cut-off date for EB-2 India may retrogress as early as November. It is possible that the cut-off date may retrogress from May 1, 2009 to a date in early 2005. A major factor to the anticipated retrogression is attributed to the large volume of EB-3 to EB-2 upgrades in the preceding months.

 

Following our September 2014 Visa Bulletin alert, the maximum number of available EB-2 immigrant visas for India for FY 2014 was reached. EB-2 visas for India are “unavailable” until October 1, 2014. USCIS may accept and process EB-2 India cases with priority dates earlier than May 1, 2009. However, the cases cannot be acted upon until October 1, 2014.

 

In contrast, demand for employment-based and family-based visas for the Philippines continues to decrease. As a result, cut-off dates continue to advance in these categories. For October 2014, the EB-3 Philippines cut-off date is October 1, 2011.

 

For more information on the October 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html

 

Graham Adair will notify our clients as soon as the new cut-off date for EB-2 India is released. If you have any questions about the visa bulletin or other matters, please feel free to contact us at info@grahamadair.com.

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