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USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a revised final Policy Memorandum related to unlawful presence after considering feedback received during a 30-day public comment period that ended June 11, 2018. F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the non-national (“alien”) had already started accruing unlawful presence.

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Please do note, F-1 students are eligible for Practical Training (OPT/CPT/STEM OPT) under F-1 visa status if the eligibility criteria for practical training is met. F, J, M students also have 60 days and 30 days grace period, respectively, after completion of study program or after the completion of Practical Training in case of F-1.

Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS had posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised final memorandum published today supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

Foreign students who are no longer properly enrolled in school are violating the terms of their student visa would incur unlawful presence ground of inadmissibility. For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.

An F-2, J-2, or M-2 nonimmigrant’s period of stay authorized ends when the F-1, J-1, or M-1 nonimmigrant’s period of stay authorized ends. In addition, an F-2, J-2, or M-2 nonimmigrant’s period of stay authorized may end due to the F-2, J2, or M-2 nonimmigrant dependent’s own conduct or circumstances.

 

In addition, the revised final policy memorandum references to the Board of Immigration Appeals (BIA) issuing orders of removal in the first instance.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Practice Alert: STEM OPT at a Third-Party Location by a consulting company

In April 2018, USCIS updated the page on its website relating to Optional Practical Training Extension for STEM Students (STEM OPT) which seems to indicate its view that F-1 students in the STEM OPT program are not permitted to engage in OPT at third-party locations. Of particular concern is the following statement: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” However, this is directly contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. According to the Preamble of the March 11, 2016 STEM OPT Final Rule:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

In addition, in response to an FAQ relating to its policy on placement agencies, ICE states:

STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However:

  • All STEM OPT regulatory requirements must be maintained, and
  • The staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless:
    • The staffing/placement agency is an E-verified employer of the student, and
    • The staffing/placement agency provides and oversees the training.

At the USCIS Open Forum at the 2018 American Immigration Lawyers Association (AILA) Annual Conference, USCIS reiterated its concern that if the training takes place at a third-party site, the “employer” who signed the training plan would not be the one to supervise the student.

Nevertheless, it appears that the change in language on the USCIS website is overreaching, and that a STEM OPT employee could be placed at the worksite of an employer’s client or customer, as long as the STEM OPT student is a bona fide employee of the employer signing the training plan, and the employer that signs the training plan provides the practical training experience. In addition, “staffing agencies” may provide a training opportunity as long as they are an E-Verify employer and they directly employ the student and oversee the student’s training.

AILA has received reports (as recent as June 2018) of third party STEM placements being approved after responding to a request for evidence (RFE) where the bona fide employer/employee relationship was thoroughly documented. At the same time, AILA has received reports of RFEs on change of status to H-1B petitions seeking “a detailed explanation and evidence why the beneficiary is working at a different location than the STEM employer’s place of business.”

Lastly, one should note that if the new unlawful presence memo becomes effective on its terms on August 9, 2018, there is a risk that a finding that the employer was not properly supervising the student’s training could lead to a status violation determination, which would result in the retroactive accrual of unlawful presence.

 

(Source: American Immigration Lawyers Association (AILA) )


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Cap Gap Extension for F-1 student for whom H-1B was timely filed with start date of Oct. 1

There is a limit, or “cap,” on the number of individuals who can receive H-1B status every fiscal year. For purposes of the cap, each fiscal year begins on Oct. 1 of the prior calendar year. Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. This means that once USCIS reaches the cap in one fiscal year, employers must wait until April 1, which is six months before the start of the next fiscal year, before filing H-1B petitions again.

A. International Students and H-1B Status

Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). An F-1 student’s current or prospective employer may petition USCIS for H-1B status on their behalf. If you are an M-1 student, your prospective employer may petition H-1B status on your behalf if your employment does not relate to your M-1 program of study.

B. F-1 Status Gap

Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program or post-completion OPT, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. However, because the change to H-1B status does not occur until Oct. 1, an F-1 student previously had two or more months following the 60-day period with no legal status. Prior to 2008, in these instances, an F-1 student would have to leave the United States or apply for H-1B status at a U.S. consulate or embassy, and then seek readmission to the United States.

C. Cap Gap Extension

To deal with this situation, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. This is called “cap gap extension”.

The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap gap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.

Cap Gap Extension Eligibility

This means an F-1 student filing for H1-B status on April 1 or later with a benefit start date of Oct. 1 may qualify for an extension of status and/or employment authorization. The general eligibility requirements for the cap gap extension are listed below, but please understand that your individual case may be different and you should always talk with an immigration attorney or your designated school official (DSO) about whether you would qualify for a cap gap extension. Additionally, always maintain regular contact with your potential employer to receive updates on the status of your H-1B petition, should they file one for you.

As an F-1 student, you may be eligible for an extension of your F-1 status through Sept. 30 if you meet the following requirements:

  • Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

You may be eligible for an extension of your F-1 status and authorized period of post-completion OPT (including STEM OPT) in the following circumstances:

  • Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • You are in an authorized period of post-completion OPT (including the STEM OPT extension) on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

If you are eligible for the cap gap extension, your proof that you are still in F-1 status and that you may continue OPT (if applicable) is a note on your Form I-20, “Certificate of Eligibility of Nonimmigrant Student Status.” Obtain an updated Form I-20 from your DSO when the Cap Gap extension begins with a note indicating that your F-1 status and, if applicable, your OPT authorization will continue, typically until Sept. 30.

If your H-1B petition is denied, withdrawn, revoked or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.

Traveling on the Cap Gap Extension

Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status (COS) petition, USCIS will deem the petition abandoned. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B COS petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions.

Specifically, you may travel abroad and seek readmission into the United States if you are an F-1 student on the cap gap extension and meet the following criteria:

  • Your H-1B petition and request for change of status has been approved by USCIS.
  • You seek readmission before your H-1B employment begins (normally such employment begins at the start of the fiscal year, i.e., Oct. 1).
  • You are otherwise admissible (e.g., you have all proper documentation including a valid, signed Form I-20 and an F-1 visa).

You will not need to provide an Employment Authorization Document (EAD). This requirement does not apply because during the cap gap period your EAD card will have already expired, and USCIS will not renew the EAD card during the interim period.

As with all other international arrivals at a U.S. port of entry, the final decision on whether to grant admission into the United States lies with U.S. Customs and Border Protection (CBP) officers.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

 

If you want to learn more about Cap Gap, other immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com