STEM OPT: New Rule

The Department of Homeland Security (DHS) is amending its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education.

Specifically, the final rule allows such 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 (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. The rule also increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify.

The rule also includes the “Cap-Gap” relief for any F-1 student with a timely filed H-1B petition and request for change of status. This rule is effective May 10, 2016. A copy of the DHS final rule is available below. Stay tuned for more details.

 
** This post has been updated to include a copy of the final rule published on March 11, 2016.
 


Update On Visa Waiver Changes

Travelers planning to visit the United States are already facing surprises based on the new restrictions of the Visa Waiver Program (VWP) that were implemented as part of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act.

Based on the new restrictions, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by DHS as supporting terrorism or “of concern”) at any time on or after March 1, 2011, are not eligible to participate in the VWP. The new law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. U.S. officials have identified about 1,600 individuals who traveled to these four countries but for now, will not be revoking these ESTA clearances. The United States will wait until these individuals arrive at ports-of-entry to process them and will determine at that time, whether these individuals qualify for an exemption.

The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. Nationality typically depends on the laws of the designated country, so it is important to note that an individual may be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country. For example, a UK citizen with a UK passport who was born in Iran, is now likely unable to use the Visa Waiver Program. In fact, on Tuesday, January 19, 2016, a BBC journalist with dual British-Iranian citizenship was prevented from boarding a plane traveling from London to New Jersey. U.S. officials have confirmed that it has identified about 16,000 individuals with ESTA clearances who have dual nationality. Those individuals will be sent emails revoking their ESTA clearance. Most came from the following countries: Germany, France, UK, Sweden, Australia.

In addition, individuals who are no longer eligible for the VWP will have the opportunity to apply for a waiver at a port-of-entry, but only if DHS finds that it would be in the law enforcement or national security interests of the United States.

Individuals impacted by these changes would now have to apply for a traditional B-1/B-2 visa at a U.S. embassy or consulate in their home country.

For more information, please see the U.S. Customs and Border Protection (CBP) Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions.

“240-Day Rule” Expansion, H-1B & L-1 Filing Fees, Visa Waiver Changes & More

E-3, H-1B1 and CW-1 Nonimmigrants are Now Eligible for “240-Day” Rule

On January 13, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it has amended its regulations to provide relief for nonimmigrants in H-1B1 (specialty occupations from Chile, Singapore), E-3 (specialty occupations from Australia) and CW-1 (transitional workers in the Commonwealth of the Northern Mariana Islands) visa classifications, who file an extension of status in a timely manner. This is great news!!

Current regulations provide most nonimmigrant visa classifications (H-1B, L-1, O-1, TN, etc.), with an automatic 240 days of continued work authorization when an extension petition is filed before the nonimmigrant visa expires. This means that as long as the extension with the same employer is “timely filed” and pending, the nonimmigrant employee may continue to work for his or her employer after the current status expires, for up to 240 days or the date of denial, whichever is earlier. Unfortunately, this “240-day” rule did not apply to H-1B1, E-3 and CW-1 categories until now. Before this amendment, extensions for nonimmigrants in these classifications had to be approved before the expiration date in order to continue working. This often created hardship for employers and foreign nationals as USCIS often takes 3-5 months to adjudicate extension petitions. In the past, employers had to take foreign nationals off payroll. Unfortunately, there is still no option to use the premium processing service in these categories.
 

New Law Increases H-1B and L-1 Petition Fees

On January 12, 2016, USCIS also announced that there will be an increase in filing fees for certain employers filing H-1B and L-1 visa petitions in accordance with the Consolidated Appropriation Act, 2016, signed by the President on December 18, 2015. Below is an outline of this new requirement.

  • Type of petitioners: Employers who employ 50 or more employees in the United States and with more than 50% of those employees are in H-1B or L-1 nonimmigrant status
  • Nonimmigrant Visa (NIV) classification: H-1B or L-1A or L-1B
  • Type of petition: Initial petition by the employer (change of status, consular processing, and change of employer)
  • Required fee: $4,000 for H-1B petitions and $4,500 for L-1 petitions
  • When to submit: At the time of filing (For those cases filed, between December 18, 2015 and February 11, 2016, that do not include the required fees, USCIS will issue a Request for Evidencd (RFE) to determine whether the additional fee applies to the petition. USCIS advises that petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.)
  • Effective date: December 18, 2015 through September 30, 2025. (This new rule applies to petitions filed or postmarked on or after December 18, 2015.)

 

Visa Waiver Updates

In addition, the new law also includes provisions that add certain restrictions to the Visa Waiver Program (VWP). Among other things, the foreign traveler must:

  • have an electronic passport as of April 1, 2016
  • not have traveled to Iran, Iraq, Sudan or Syria or other other country designated to have been supporting acts of terrorism
  • not be a National of Iran, Iraq, Sudan or Syria or any other country designated to have been supporting acts of terrorism (even if a National of another VWP country)

VWP travelers who have traveled to Iran, Iraq, Sudan or Syria or other countries designated to have supported acts of terrorism will have to apply for a traditional B-1/B-2 visitor visa at a U.S. embassy abroad.
 

EB-1 Outstanding Professors / Researchers Update

In the same January 15, 2016 revised regulation, employers filing Outstanding Professor or Researcher petitions in the EB-1 category may now submit “comparable evidence in petitions and are not limited to the specific criteria.

USCIS Backtracks and Modifies Revised Visa Bulletin Procedures

The U.S. Citizenship and Immigration Services (USCIS) announced today that beginning with the Visa Bulletin for November 2015, USCIS will make a determination each month on whether there are more immigrant visas available for the fiscal year than there are known applicants for such visas. If immigrant visas are available, applicants may use the “Dates for Filing Visa Applications” chart as the basis for filing their I-485 adjustment of status applications. Otherwise, the “Application Final Action Dates” chart will be used in determining when individuals may file their adjustment of status applications. USCIS will make such determination available to applicants every month within one week from the publication of the new Visa Bulletin by the State Department, through the new Visa Bulletin information web page.

This latest instruction is in contrast with USCIS’ original announcement on September 9, 2015, which revised the immigrant visa application procedures and instructed applicants to use the “Dates for Filing Visa Application” chart as a priority date reference when filing I-485 adjustment of status application.
 


Court Denies Relief Sought In Visa Bulletin Lawsuit

On October 6, 2015, a Federal Court in Washington denied the emergency motion for Temporary Restraining Order (TRO) filed on September 28, 2015 in a class action lawsuit. The lawsuit came after the U.S. Department of State (DOS) published a revised Visa Bulletin for October 2015 a few days before October 1 — when the Visa Bulletin becomes effective.

The court rules:

When considering the balance of equities and the public interest in this matter, the Court finds Defendants’ arguments the more persuasive. Plaintiffs essentially reiterate their case, arguing that Defendants actions were abrupt and unlawful, that “the government cannot claim to suffer any hardship,” and that “the government’s actions in this case threaten to permanently undermine the regulated community’s ability to rely on the Visa Bulletin.” In Response, Defendants argue “[t]he public interest favors applying federal law correctly,” that “it is contrary to the public interest and the law to require an executive agency to act in a manner that exceeds its statutory authority,” and that “should a temporary restraining order be granted and should the Government then succeed in litigation, it would have to incur the substantial cost and burden returning applications.” Most persuasively, however, is Defendants’ argument that “it is in the public’s interest that the agency has the authority to update its guidance when necessary.” Id. Given the claim that the Revised Visa Bulletin corrected a statement contrary to statutory authority, the Court finds that the public interest lies in denying this Motion and that Plaintiffs fail to meet their burden on this element.

While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.

Accordingly, the Court hereby finds and ORDERS that Plaintiffs’ Motion for Temporary Restraining Order is DENIED.

All Embassies and Consulates Will Be Closed on October 9, 2015

On Friday, October 9, 2015, consular operations at all embassies and consulates will be closed to the public due to a planned consular systems upgrade. Application Service Centers (ASCs) connected to certain posts may also be affected by the systems upgrade. Individuals who have an appointment scheduled for that date will be contacted to reschedule. Instructions for emergency requests for appointment will be provided by individual posts. Please make sure to check individual post websites for additional information.

Lawsuit Seeks to Reinstate the Original Visa Bulletin for October 2015

On September 28, 2015, a class action lawsuit was filed against the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) over last minute changes to the Visa Bulletin for October 2015.

In Mehta v. DOS, plaintiffs have asked the court to strike down the revised September 25, 2015 Visa Bulletin and to compel USCIS to accept I-485 adjustment of status applications based on the original September 9, 2015 Visa Bulletin. The lawsuit states:

This case is about what happens when thousands of law-abiding, highly skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency’s binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably, and arbitrarily reneged on its promise.

The table below shows the “Dates of Filing” affected by the revised Visa Bulletin for October 2015.

CATEGORY ORIGINAL FILING DATE
(SEP 9, 2015)
NEW FILING DATE
(SEP 25, 2015)
DIFFERENCE
EB-2 China 1 MAY 2014 1 JAN 2013 1 year, 5 months
EB-2 India 1 JUL 2011 1 JUL 2009 2 years
EB-3 Philippines 1 JAN 2015 1 JAN 2010 5 years
FB-1 Mexico 1 JUL 1995 1 APR 1995 3 months
FB-3 Mexico 1 OCT 1996 1 MAY 1995 1 year, 5 months

 


Government Miscalculation Leaves Many Visa Applicants Feeling Cheated

We are disappointed to report that many applicants will continue to face lengthy waits before they can submit their I-485 adjustment of status applications for permanent residence.

On September 25, 2015, the U.S. Department of State (DOS) published a revised Visa Bulletin for October 2015, rolling back the “Dates for Filing” for several visa categories. This “Revised September 25, 2015” Visa Bulletin supersedes the previous Visa Bulletin for October 2015, which was originally published on September 9, 2015.

Please note that the following “Dates for Filing” have changed:

CATEGORY ORIGINAL FILING DATE
(SEP 9, 2015)
NEW FILING DATE
(SEP 25, 2015)
DIFFERENCE
EB-2 China 1 MAY 2014 1 JAN 2013 1 year, 5 months
EB-2 India 1 JUL 2011 1 JUL 2009 2 years
EB-3 Philippines 1 JAN 2015 1 JAN 2010 5 years
FB-1 Mexico 1 JUL 1995 1 APR 1995 3 months
FB-3 Mexico 1 OCT 1996 1 MAY 1995 1 year, 5 months

 
Therefore, individuals who fall under the above-referenced categories will only be permitted to file for adjustment of status in the month of October if they have a priority date that is earlier than the NEW Filing Date listed in the revised September 25, 2015 Visa Bulletin.

According to a statement released by the President of the American Immigration Lawyers Association (AILA):

For people who have been patiently waiting in line and are stuck in the long visa backlogs emblematic of the U.S. legal immigration system, this is yet another huge letdown. So many people spent time and money getting their applications ready to file and now they are told, due to government miscalculation, that they can’t file after all. This mistake affects real people: individuals who have already made important life decisions based on previously released information published by the government two weeks ago. They now, once again, face extended delays before they can get travel documents and employment authorization. In the long run, the announced changes to the visa bulletin are improvements to the system that will eventually help thousands of families and individuals to plan and get on with their futures, but in the short run this miscalculation has serious consequences. Frankly, they deserve better, and the Administration should be ashamed and embarrassed at the harm this mistake has caused.

A full comparison of the September 9, 2015 dates to the September 25, 2015 dates is available here.
 


Immigration Alert: Possible DOL Shutdown

The U.S. Congress continues to negotiate on the FY2016 budget, but if no agreement is reached, or if a Continuing Resolution is not passed, or no other stopgap method implemented, we may have another government shutdown on October 1, 2015.

If the government shuts down, the U.S. Department of labor (DOL) employees will be placed in furlough status which means that it will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts. Also, DOL would not have a functioning mailroom and would not be able to receive or process PERM audit responses or other applications received in the mail. This has a significant impact on H-1B, H-1B1 (Singapore/Chile), E-3 and PERM applications. While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again.

To date, other government agencies have not outlined any contingency plans due to the possibility of a government shutdown on or after October 1, 2015. It is reasonable to believe that in the event of a government shutdown, contingency plans will mirror plans during the last government shutdown in 2013. For example, many of the U.S. Citizenship and Immigration Services (USCIS) functions (with the exception of E-Verify) will continue, since they are primarily funded through user fees. USCIS also accommodated late filing of cases that were affected by the shutdown. Similarly, the U.S. Immigration Customs Enforcement (ICE) SEVP (SEVIS) continued operations because it is also a fee-funded program and does not receive any government-appropriated funds. In 2013, the U.S. Department of State (DOS) continued as many normal operations as possible based on existing funding. All U.S. Customs and Border Protection (CBP) ports of entry remained open, as well as all global entry enrollment centers.

A Continuing Appropriations Resolution has been introduced, which if passed, would fund the federal government through December 12, 2015.

Loke Walsh Immigration Law, PC will continue to monitor the situation and provide updates as they are received.
 


USCIS Suspends Processing of Employment-Based Adjustment Applications

The U.S. Citizenship and Immigration Services (USCIS) announced today that it will suspend final adjudication of employment-based Form I-485 applications because the Department of State reports that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015. This suspension applies to all employment-based adjustment applications pending with USCIS for the next six days through September 30, 2015 (the remainder of FY2015).

USCIS will continue to accept adjustment of status applications that are filed when the foreign national’s priority date is earlier than the cut-off date published in the September Visa Bulletin for his or her preference category and country of birth/chargeability.

USCIS will resume final adjudication of all employment-based adjustment applications beginning October 1, 2015, when visa numbers are again available.