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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Crucial Changes to Unlawful Presence Regulations

The Foreign Affairs Manual (FAM) and the Foreign Affairs Handbooks (FAHs) are the comprehensive and authoritative sources for the U.S. Department of State’s (DOS) organization structures, policies and procedures. These resources convey codified information to DOS staff and contractors, so they can carry out their duties in accordance with statutory, executive and Department mandates. Recently the section of FAM discussing unlawful presence was revised. These revisions highlight the recent changes to F, J and M nonimmigrant visas and unlawful presence.  According to these updates, a foreign national would generally begin to accrue unlawful presence upon the first occurrence of any of the events described: when the foreign national entered the United States without inspection; the day after the expiration date marked on Form I-94 plus any extension or period of re-parole for aliens admitted until a specified date; the day after a foreign national’s period of authorized stay expires for an alien admitted in J, F or M status; the day after DHS denied a request for an immigration benefit for the applicant, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit; or the day after […]
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USCIS Taking Steps to Improve Integrity of F-1 and OPT Programs

USCIS aims to improve the integrity of the F-1 and Optional Practical Training (OPT) programs by implementing an updated process that ensures consistency between Student and Exchange Visitor Program (SEVP) and USCIS systems and informs students of the potential consequences of working with a terminated employment authorization document (EAD).  Under current regulations, F-1 students in the United States on OPT face automatic termination of their OPT if they transfer to another school or begin studying at another educational level. In addition, a student’s corresponding EAD will be automatically terminated as well. While transfer to another school or commencement of study at another educational level automatically terminates OPT authorization, F-1 students who continue to comply with all requirements to maintain their status will not otherwise be affected. One such requirement is not working with a terminated EAD, since a terminated EAD results in a lack of authorization to work in the United States. Failing to comply with this and other requirements carries significant penalties such as removal or bars on reentry to the U.S. Under the Immigration and Nationality Act, there is an additional set of penalties for those remaining in the U.S. in violation of lawful nonimmigrant status who accrue […]
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Could You be Unlawfully Present in the US? USCIS to Issue New Unlawful Presence Policy for F, J and M Nonimmigrants

If you’re currently in the U.S. as an F (student), J (exchange visitor) or M (vocational student) nonimmigrant, it is important to understand how USCIS determines and tracks the accrual of unlawful presence, because current methods are about to change.  Current Policy According to the current USCIS policy, foreign students and exchange visitors (F and J nonimmigrants) who were admitted to the U.S. for the duration of their course of study, also known as duration of status, start to accrue unlawful presence on:  The day after USCIS formally finds a nonimmigrant status violation; or  The day after an immigration judge orders the nonimmigrant excluded, deported or removed. Alternatively, foreign students, exchange visitors and foreign vocational students (F, J and M nonimmigrants), who were admitted until a specific date, start to accrue unlawful presence on: The day after their Form I-94 expires; The day after USCIS formally finds a nonimmigrant status violation; or The day after an immigration judge orders the nonimmigrant excluded, removed or deported. It is important to note that the current policy went into effect in 1997. It was drafted years before the creation of modern technology that is now being used by DHS to monitor the status […]
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