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The new STEM OPT regulation will take effect May 10. The regulation allows F-1 students with degrees in approved STEM (science, technology, engineering and math) fields to extend their Optional Practical Training for an additional 24 months (instead of the current 17-month extension) beyond the initial one-year OPT period. Students may be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level. The regulation also imposes several new reporting requirements and other obligations on students, designated school officers and employers, including a formal training plan signed by the employer and student.
Additional key points:
The updated Student and Exchange Visitor Information System (SEVIS) will be released May 13, and DHS has developed workarounds for the SEVIS issue to ensure students are able to file on time.
An FAQ released by U.S. Customs and Immigration Enforcement is available here.
BAL Analysis: Employers who need assistance and guidance with STEM Employment Authorization Document extensions may contact their BAL professional for specific advice. Given the short deadline for filing the seven-month extensions, special note should be given to these cases. Once on the new STEM Employment Authorization Document, employers will want to set up processes to notify BAL if an F-1/OPT employee’s job conditions change or if DHS contacts the employer to perform a site visit.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Diversity Visa lottery winners for fiscal year 2017 will be announced Tuesday, May 3.
Key dates and procedures:
Background: The Diversity Immigrant Visa Program provides 50,000 green cards per year to individuals from countries with historically low levels of immigration to the U.S. Entries for the 2017 fiscal year were accepted from Oct. 1 to Nov. 3, 2015.
BAL Analysis: Entrants are reminded that the Entrant Status Check webpage is the only source for instructions on how to proceed with the application process. They must use the official website to find out if they have been selected in the lottery and to check for the date of their immigrant visa appointment, as the U.S. government does not directly notify entrants of this information. The State Department also instructs entrants to keep their confirmation numbers until at least Sept. 30, 2017.
The U.S. State Department has directed consular officials abroad to prudentially revoke nonimmigrant visas for visa holders who have been convicted or arrested on a charge of driving under the influence.
The change was implemented Nov. 5, 2015. Anecdotal evidence suggests that an increasing number of visa holders have indeed had their visas revoked after receiving a DUI in the U.S. In a written Q&A with the American Immigration Lawyers Association, the State Department said the new policy reflects how serious the department is about DUI offenses.
“It is both a public safety issue and evidence of a possible visa ineligibility,” the State Department said.
Consular officials have been required since 2007 to refer visa applicants with a DUI conviction in the past five years or two or more in the past 10 years to a physician who is charged with determining whether the applicant should be ineligible for a visa under a provision barring applicants classified as having a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.” These guidelines reflect CDC Panel Physician technical instructions on alcohol abuse.
Granting consular officials authority to prudentially revoke visas is a shift in workload from the State Department’s visa revocation unit to consular posts. In the AILA Q&A, the State Department said that while DUIs have been addressed in the visa application process in the past, there had been “no consequence” for DUI arrests after visas were issued, and in some cases, DUI arrests were not addressed until the time of a subsequent visa application.
BAL Analysis: The State Department is taking DUI arrests and convictions seriously. BAL is aware of instances where visa holders who have traveled abroad have encountered trouble re-entering the U.S. because of DUIs. Visa holders are strongly urged not to drive under the influence. Those who are arrested on a DUI charge should contact BAL as soon as possible to discuss the possible visa consequences.
U.S. Citizenship and Immigration Services announced today that it will begin premium processing for H-1B cap-subject petitions May 12.
Employers should expect to receive decisions on premium processed petitions by the end of May, regardless of the date on the receipt notice reflecting the date USCIS received the premium processing fee. Premium processing is an expedited service under which USCIS guarantees that it will issue an approval notice, request for evidence, or denial within 15 calendar days.
Regular petitions that did not request premium processing will take longer to process, and employers can expect to wait until summer to receive decisions in those cases.
Background: USCIS received 236,000 H-1B cap-subject petitions in the first five business days of the filing period, April 1-7. The agency conducted a lottery April 9 to select petitions for adjudication under the 85,000 numerical caps, and has begun issuing receipt notices for the petitions that were selected and returning those that were not.
BAL Analysis: The May 12 start date for premium processing is consistent with the agency’s projection last month that it would begin premium processing no later than May 16. USCIS has recently taken steps to redistribute resources among service centers to handle the workload, and BAL expects the agency to be on track in completing premium processing cases within the 15-day time frame. Employers should expect to receive decisions by the end of May in cases submitted with premium processing requests.
The Supreme Court heard arguments Monday in a case challenging President Barack Obama’s programs to allow millions of undocumented immigrants to stay in the country and apply for work authorization.
At issue in the widely watched case is not only whether Obama exceeded his authority, but also whether the court should decide the case on the merits or find that the states that brought the lawsuit lack standing. Obama’s proposed program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would protect, among others, parents of children who are born in the United States. The lawsuit also challenges the planned expansion of the existing Deferred Action for Childhood Arrivals (DACA) program.
“DAPA is an unprecedented unlawful assertion of executive power,” said Scott Keller, solicitor general of Texas, who argued the case on behalf of Texas and 25 other states challenging the administration.
The Obama administration argued that the president, faced with limited resources, is exercising lawful discretion to allow parents of U.S. citizens and permanent residents to remain in the country and apply for work permits, provided they meet certain eligibility requirements, including having lived in the country since 2010, and do not have criminal records.
“This class of aliens is the lowest (deportation) priority,” said Solicitor General Donald Verrilli. “And there is a pressing humanitarian concern in avoiding the breakup of families that contain U.S. citizen children.”
Verrilli also argued that the court should reverse the lower court’s decision for lack of standing, claiming that the states do not face a redressable harm. The case reached the Supreme Court after a three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld a district court’s ruling to stop Obama’s immigration plans from taking effect.
The justices appeared split Monday.
Verrilli faced sharp questioning from Chief Justice John Roberts and Justice Samuel Alito on the standing question as well as the legal basis for allowing people to work who are not lawfully present. Keller, meanwhile, was challenged by Justice Sonia Sotomayor on his claim that the Obama program is a sweeping plan that lacks congressional assent. Sotomayor noted that a 1986 regulation allows deferred action recipients to apply for work authorization, and she pointed to a 1990 executive action that protected 40 percent of the undocumented population at the time – a larger proportion than the Obama plans would cover.
BAL Analysis: The litigation does not affect the administration’s policies on high-skilled immigration, but the case represents one of most significant legal battles over immigration in years. If the court rules in favor of the administration, the Obama administration would have several months to begin implementing the expanded DACA and DAPA programs before the president leaves office. The vacant seat on the court means that if the eight sitting justices are divided evenly, the lower court ruling will remain in place, blocking the programs from being implemented. A decision is expected by the end of June.
U.S. Citizenship and Immigration Services has confirmed that in May 2016 it will only accept employment-based adjustment-of-status applications according to the Application Final Action Dates chart.
The Dates for Filing chart, published in the State Department’s May Visa Bulletin, will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine if they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in May.
Family-based immigrants may use the Dates for Filing Visa Applications chart applicable to family-sponsored applicants, as provided in the May Visa Bulletin.
Final Action Dates for Employment-Based Preference Cases:
IMPACT – HIGH
What is the change? Due to resource constraints and construction work, the U.S. Consulate in Toronto will limit petition-based visa renewal services to Canadian-resident third-country nationals during June, July and August. Individuals who already have visa appointments scheduled may keep them.
What does the change mean? All other U.S. consular posts in Canada will have slots available for third-country nationals, i.e., nationals of countries other than Canada or the U.S., who are seeking to renew their nonimmigrant petition-based U.S. visas in Canada.
Background: Consistent with the two previous summers, the U.S. consular posts in Canada will prioritize petition-based visa renewals for third-country nationals who are Canadian residents, according to a U.S. State Department official. At this time, the U.S. Consulate in Toronto is the only consulate that will limit petition-based visa renewal services to Canadian residents. All other U.S. consular posts in Canada will have appointments available for third-country nationals who are not Canadian residents.
BAL Analysis: Foreign nationals in the U.S. who plan to travel to Canada to renew their petition-based nonimmigrant U.S. visas in the coming months should be aware that the U.S. Consulate in Toronto will not provide these services from June through August to those applicants who are not Canadian residents. While other U.S. consular posts in Canada will have appointment slots available, applicants should schedule their appointments as early as possible.
U.S. Citizenship and Immigration Services closed its Houston Application Support Centers and Asylum office Monday because of flooding.
Applicants with appointments should check the agency’s rescheduling page to determine if their appointments will automatically be rescheduled or if they need to take steps to reschedule them.
The Houston area experienced more than a foot of rain Monday, causing floods and power outages as well as school closures and suspension of public transit services. More rain is predicted in coming days. Today’s USCIS announcement did not include a reopen date, but USCIS regularly provides updates regarding office closings here.
Application Final Action Dates for nationals of the Philippines in the EB-3 category will advance three months to Aug. 8, 2008, according to the State Department’s May Visa Bulletin.
Other categories show little or no movement. India EB-2 will advance by two weeks to Nov. 22, 2008 and the India EB-3 category will advance by approximately three weeks to Sept. 1, 2004.
The cutoff dates for China EB-2 and EB-3 will not move, remaining at Sept. 1, 2012 and Aug. 15, 2013, respectively. All other EB-2 categories besides India and China will remain current. All EB-1 categories will remain current.
A new column for El Salvador, Guatemala and Honduras has been created due to oversubscription in the EB-4 and Certain Religions Workers categories for those countries. The priority dates in the other preference categories for El Salvador, Guatemala and Honduras will remain the same as the April Visa Bulletin.
The State Department also released its Dates for Filing chart for May 2016. Those with priority dates earlier than the dates listed for their category may be eligible to file for adjustment of status in May. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing chart does not take effect unless U.S. Citizenship and Immigration Services confirms via a web posting in the coming week.
Dates for Filing of Employment-Based Visa Applications:
U.S. Citizenship and Immigration Services announced today that it received more than 236,000 cap-subject H-1B petitions during this year’s filing period. The agency also said it has completed the computer-generated lottery to determine which petitions will be eligible for processing.
This was the fourth consecutive year that the H-1B cap was reached within the first week of filing. Caps are set at 65,000 visas for individuals with undergraduate or equivalent degrees and 20,000 visas for individuals with a master’s degree or higher from U.S. universities.
While the number of petitions was once again significantly higher than the cap, it marked only a slight increase over last year, when USCIS received nearly 233,000 petitions.
The lottery, which USCIS said it completed Saturday, took place in two phases: first, 20,000 petitions were drawn from those holding master’s degrees or higher; second, 65,000 petitions were then drawn from a pool consisting of those not selected from the first draw and undergraduate-degree holders.
Employers whose petitions were selected will receive receipt notices and, if approved, employees will be eligible to begin work in H-1B status beginning Oct. 1, the start of the 2017 fiscal year. Petitions subject to the cap that are not selected or that were received after the filing period closed will be returned along with their filing fees.
USCIS will continue to accept H-1B petitions that are exempt from the cap, as well as petitions to extend the amount of time a current H-1B worker can stay in the country, to change the terms of employment for an H-1B worker, to allow H-1B workers to switch employers, or to allow H-1B workers to accept concurrent employment in a second job.
BAL Analysis: As expected, the number of H-1B filings greatly exceeded the H-1B cap again this year. Given the relatively low odds of success in the lottery, companies should consider alternative visa options or overseas assignments for high-skilled employees. Please consult with a BAL professional for advice regarding alternatives to the H-1B visa category and other strategic options to fulfill workforce needs.