New Public Charge Rule Effective Soon

The Department of Homeland Security (DHS) issued the final public charge rule last month, and it will go into effect this coming Tuesday, October 15, 2019. With this new change, individuals who are likely to rely on public benefits while in the U.S. could be denied either admission to the country or an adjustment of status to lawful permanent resident...
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Back to School: Tips for International Students

As summer break comes to an end for many F-1 international students, it is important to keep in mind a few tips for a smooth entry into the U.S. for the upcoming school semester. When you re-enter at a U.S. Port of Entry, you should carry the following documents: your valid passport...
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Understanding OPT Cap-Gap

The H-1B visa allows employers to temporarily employ a foreign national, who possesses at least a bachelor’s degree, in a specialty occupation. The H-1B employment period generally begins on October 1, the start of the federal government’s fiscal year.  There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap.” This is because it is intended to fill the gap between the date the optional practical training (OPT) period would otherwise expire and the date that the new H-1B employment authorization starts. The 60-day grace period may not be enough to cover the “cap-gap” period until H-1B status begins. However, USCIS offers an OPT cap-gap extension if three conditions are met: An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. (Exception: Petitions requesting consular processing which do not qualify);  The H-1B petition asks for an October 1 start date; and  The student’s status, including any applicable grace period, ends between April and September 30. Situations […]
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DHS Publishes Final Rule Adjusting Student and Exchange Visitor Program Fees

On May 22, 2019, the DHS has reported that the fees charged by SEVP (the Student and Exchange Visitor Program) to international students, exchange visitors and SEVP- certified schools will be increased beginning June 24, 2019. SEVP does not receive any funding from Congress and solely relies on fees to continue operations; therefore, the increase is necessary to continue to provide oversight of international students and SEVP-certified schools. The increase will affect the following: The I-901 SEVIS Fee for F and M international students (from $200 to $350). The I-901 SEVIS Fee for J exchange visitors (from $180 to $220). Except: exchange visitors in the au pair, camp counselor, and summer work travel program participant categories. The SEVP school certification petition fee for initial certification (from $1,700 to $3,000). Also, SEVP will charge new fees for the following: A petition for recertification filed by SEVP-certified schools ($1,250). A form I-290B “Notice of Appeal of Motion” filed by schools ($675). A change of physical location or adding a new physical location or campus to Form I-17 “Petition for Approval of School for Attendance by Nonimmigrant Student” by a SEVP-certified school ($655). If you are an international student or exchange visitor and […]
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Court Enjoins USCIS from Enforcement of Unlawful Presence Memo Impacting Students and Exchange Visitors

A Federal Judge has enjoined USCIS from enforcing a policy memorandum issued in August 2018 relative to the accrual of unlawful presence for nonimmigrant student or exchange visitors. The ruling found that the policy memorandum amounts to a “legislative rule” in violation of the Administrative Procedures Act because the government did not publish in the Federal Register or allow for a period of public comment on the rule.  A person can accumulate unlawful presence by (1) entering the U.S. without inspection; (2) overstaying their period of lawful status in the U.S.; or (3) violating their immigration status. Previously, for students and exchange visitors, accrual of unlawful presence began only when DHS or an immigration judge made an out-of-status determination and notified the individual of the same. Pursuant to the USCIS policy update, a determination of retroactive violation is made and can result in the denial of a green card application and bar the individual from entry for a period of three years (if the violation occurred before August 9, 2019) or 10 years (if after August 9, 2019). The Court’s decision in Guilford College v. USCIS prohibits the USCIS from enforcing the policy outlined in its August 2018 memorandum.  If […]
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F-1 ‘Cap-Gap’ Status and Work Authorization Only Valid Through Sept. 30, 2018

F-1 students who have an H-1B petition that remains pending after October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1, 2018 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30, 2018. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS has not been able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.  USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the […]
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USCIS Explains that STEM OPT Offsite Employment is Allowed

On August 17, 2018, U.S. Citizenship and Immigration Services (USCIS) updated its website to reflect changes to the Optional Practical Training Extension for STEM Students (STEM OPT). Importantly, the Department of Homeland Security (DHS) clarified that participants of this program can participate in training experiences that take place at offsite locations. Training experiences that are at locations other than an employer’s principal place of business are permissible so long as all training obligations are met, such as demonstrating that the employer maintains a bona fide employer-employee relationship with the student.  DHS will review and confirm whether there is a bona-fide relationship between the parties signing the Training Plan on a case-by-case basis. DHS will also verify that the employer that signs the Training Plan is the same entity that employs and provides training experience.  USCIS also updated reporting procedures regarding STEM OPT. These reporting changes have been made to ensure that DHS can properly oversee the program. Students and employers must submit a modified Form I-983 to the Designated School Official (DSO) reporting any material changes at the earliest opportunity. In addition, employers must report a student’s termination or departure to the DSO within five business days. Students, on the […]
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