Sunday, May 8, 2016

Understanding, and transitioning to, a 24-month OPT STEM extension

On May 10, 2016, the optional practical training (OPT) extension for those in a science, technology, engineering or mathematics ( STEM) field changed in several important ways. These changes affect those who will be applying for an extension on or after this date. However, the changes also are important to those who, on that date, are still awaiting a decision on their STEM extension. They also are important to some of those who, on that date, will still be within an already-granted, 17-month STEM extension.

Changes to OPT STEM extension
The most important changes to the STEM extension are the following:

-          24 months of extension time
An OPT STEM extension now is 24 months rather than 17 months. Therefore, following a program completion, a person could have, with a STEM extension, 36 months of OPT time rather than 29 months.

-          The ability to rely on a previous STEM degree for a STEM extension
Under the pre-May 10, 2016 rules, a person who wanted a STEM extension had to rely on the degree that immediately preceded the person’s original OPT period. Under the rules now, a person can file for, and potentially be approved for, an STEM extension based on a previously obtained STEM-eligible degree. In fact, that degree could have been earned as far as ten years in the past.

Suppose, for example, a person earns a STEM bachelor’s degree in 2015. This person then receives a non-STEM master’s degree, and later begins a one-year “regular” OPT based on that master’s degree. During this regular OPT, the person gets an offer for a job related to the STEM bachelors’ degree. Assuming the job and the person were otherwise eligible, this person then could apply, after May 10, 2016, for a STEM extension based on that previously-obtained bachelor’s degree, and the extension, if approved, would last for 24 months.
-          Two lifetime STEM extensions

Under the rules now effective May 10, 2016, a person is eligible for up to two lifetime STEM extensions, rather than only one.
Continuing our previous example: suppose this person returns to school immediately following the earlier STEM extension. The person then obtains a Ph.D. degree in a non-STEM subject. This person then can have one year of OPT in a job related to the major field. However, this person then can apply for a second STEM extension, and this extension is possible because of that earlier bachelor’s degree.

Employer responsibilities
An employer who offers a STEM extension job to an F-1 student now must abide by several conditions. They include the following:

-          Enrollment in e-Verify (note that employers already had to comply with this requirement under the pre-May 10, 2016 STEM rules)

-          Preparation and agreement with a training plan for the student

-          Providing supervision and training for the student by qualified staff

-          Providing compensation and benefits commensurate with similarly situated US workers

-          Non-displacement of any US workers in order to accommodate the STEM student

-          Providing a job that matches the STEM degree and which will achieve the objectives of the student’s training plan
Student responsibilities

Major responsibilities of students include the following:
-          Ensuring and certifying that the student’s job be directly related to the qualifying STEM degree. In addition

-          Keeping the designated school official (DSO) informed of issues related to compliance with the training plan or any material changes to the plan

-          Complying with STEM extension unemployment limit of  150 days maximum

Eligibility for 24 month STEM extension
Three types of F-1 students could be eligible for this 24-month STEM extension. They are

-          Students who file for a STEM extension on or after May 10, 2016

-          Students with a STEM extension request  that is pending on May 10, 2016

-          Students who currently are in a STEM extension at May 10, 2016
If you are filing for a STEM extension on or after May 10, 2016, and you are approved, your extension will be for 24 months.

If your STEM extension request was pending at May 10, 2016, then you will be receiving a request for evidence (RFE), and it will inform you of the option to convert your 17-month STEM extension to a 24-month extension. It also will tell you the information you and your employer must provide, for example the training and mentoring plan.  If you respond to the RFE and your responses are satisfactory, and if you are approved, then you will receive a 24 month extension. If you do not respond, or if your responses are unsatisfactory, then if you are approved for any STEM extension at all, it will be for only 17 months.
If, at May 10, you already were in a 17-month STEM extension, then you might be eligible to convert it to a 24-month extension. In order to do so, you and your employer must agree to the additional requirements. Furthermore, you must have, at the time you file for the additional seven months, at least 150 calendar days remaining on your original STEM extension.  You also must file for these additional months by a certain deadline, which is the EARLIER of

-          August 8, 2016, or

-          Sixty days from when your advisor enters your recommendation for the seven month extension into SEVIS
If you are in this last group, i.e. you already are in a STEM extension and you qualify for the additional seven months, please note that you must pay an additional filing fee for those extra months.

The above information does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, attorney at law
215-983-3723
csun@calvinsun.com
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Monday, January 25, 2016

Postponement, to May 10, 2016, of the deadline for new STEM OPT extension regulations

A Federal court has given the U.S. Department of Homeland Security (DHS) additional time to implement, properly, regulations concerning optional practical training (OPT) STEM extensions and F-1-to-H-1B “cap gap” extensions. The original deadline was February 12, 2016. The new deadline is May 10, 2016. This extension is important because a DHS failure to meet the deadline would mean an end to these two aspects of F-1 status.

In 2008, DHS announced regulations that allow for 17-month STEM OPT and H-1B cap-gap extensions.  However, due to circumstances at the time, DHS failed to give sufficient official notice of these regulations.
This failure led to a lawsuit, against DHS, by the Washington Alliance of Technology Workers (WashTech), a union of computer professionals. The lawsuit challenged the legality of OPT STEM extensions. On August 12, 2015, the court issued its ruling. The court upheld the validity of these extensions, but at the same time held that DHS did not follow the correct steps in implementing the regulations. Ordinarily, the court would have invalidated the regulations immediately. However, recognizing the significant negative impact on students and employers, the court gave DHS until February 12, 2016 to announce and implement properly new regulations. That is, the court delayed, by six months, the effect of its order to invalidate the regulations. The court said that should DHS properly implement new regulations in time, those new regulations would continue. Here is the court’s decision, referencing the February 12 date: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-43

On October 19, 2015, DHS did announce new OPT STEM regulations. The most significant change was the increase of STEM extensions to 24 months rather than 17 months. As required by law, DHS gave official notice and specified a time for interested parties to offer comments. Here is a link to the proposed regulation: https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and
In January 2016, DHS asked the court to extend the original February 12 deadline. Its reason for doing so was the large number of comments it received. DHS argued that the number of comments meant that DHS needed more time to consult with interested parties, such as employers and universities, about the new regulations.

On January 23, 2016, the court agreed, giving DHS until May 10, 2016, to implement the new regulations properly. Here is the court’s memorandum opinion: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-51
Therefore, if you currently are working under a STEM extension that ends after February 12, 2016, that work authorization will continue even past this original deadline. Furthermore, if your original STEM authorization extends past the second deadline of May 10, 2016, then your ability to continue working will depend on whether or not DHS implements its new regulations properly by that time, and for the regulations to survive any legal challenges. If so, you would not only be able to continue working, but also possibly could extend your authorization for the additional time provided by those new regulations.

Please keep in mind that the regulations in dispute involve more than just OPT STEM extensions. They also involve the ability of certain H-1B beneficiaries to get an OPT cap-gap extension. Therefore, such persons also should be interested in seeing that DHS implements these new regulations properly and on time.

The above information does not constitute legal advice and does not form an attorney-client relationship. Unless otherwise stated, this information assumes a person is maintaining the conditions of his or her status.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun
www.avvo.com/attorneys/19301-pa-calvin-sun-1935383.html

 

 

 

Sunday, January 10, 2016

H-1B resolutions for the new year

If you are in F-1 status, either in finishing your studies or in optional practical training, then you may be thinking about H-1B status, in order to work lawfully in the U.S. At the same time, many people make resolutions for the new year. Therefore, may I suggest several resolutions for you with regard to H-1B status. Please keep in mind, however, that not all of these resolutions may apply to you.

·         Collect your immigration and related documents
The documents that are especially important are the following:

o   Passport

o   F-1 visa stamp

o   I-94 admission document

You might not have received a hardcopy I-94 when you entered the U.S. Instead, your I-94 might have been stored, in electronic format, on the web site of U.S. Customs and Border Protection (CBP). If so, you can download it from www.cbp.gov/i94

o   I-20

o   Employment authorization document (EAD), if applicable (e.g. if you have OPT)

o   Current resume

·         Collect evidence of any previous academic degrees
Even though you might be currently enrolled in an academic program, you still might want to get evidence of prior degrees even from several years ago, for several reasons. First, your most recent degree might not be the best match for the offered H-1B job, whereas an earlier degree might. Second, you might not be able to earn, in time for the April 1 beginning of filing period, a degree from your current program.

If you do not have such evidence with you right now, keep in mind that getting it could take time, particularly if the academic institution is outside the U.S., or if Mom or Dad must look for it at home. 
In any event, the academic transcript you submit should be an official one. That is, it should come from the office of the academic institution (typically the registrar) in charge of grades. It should also carry the insignia of that institution. Only in rare cases will you need to submit the transcript in a sealed envelope. Most other times, the transcript can be a photocopy. An unofficial transcript (e.g. a “print it yourself” transcript from your academic computer portal system) is unacceptable.

·         Request a credentials evaluation of non-US degrees
 If you choose to, or if circumstances require that you, rely on a non-U.S. degree, then you will need a credentials evaluation of that degree. The purpose of such an evaluation is to show that your degree is the equivalent of at least a U.S. bachelor’s degree.

One company that provides credentials evaluations is Educational Assessment, Inc. Their web site is www.educassess.com and their telephone is 706-613-0336.
·         Get certified translations of non-English documents

Any non-English document you provide must be translated into English, and be certified. With respect to the translation, you may, but are not required to, do any of the following:

o   use a professional translation service

o   have the translation notarized

o   have another person translate the document into English
That is, if you wish, you could translate the document yourself into English. Then, you can have someone other than yourself review the translation for accuracy. That person then should certify the translation, by signing a statement, on the translation, with wording such as the following:

I certify that I am fluent (conversant) in both the English and ______________ languages, and that the above/attached English document is an accurate translation of the document that is in the above-named non-English language.  This document is a/n __________________________________________(English description of document)
             Signature          _________________________________

Printed Name________________________________
             Address _______________________________________

Date: __________________
With respect to any document you provide, the chances are small that you will need to supply an original version. That is, you probably will be OK if you submit a photocopy of that document. Needless to say, of course, neither the original document nor the copy should be altered. Please be aware that the government does have the right to request an original version.

I hope this information is helpful to you.

The information above does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

Monday, December 28, 2015

Understanding the “change of status” portion of the H-1B process

If you are reading this post, then perhaps you have F-1 student status. If so, you probably hope to later gain H-1B status and to do so without have to leave the United States.  In this case, the information below may be important and useful to you.

This process of going to H-1B from F-1, while remaining in the United States, is called a “change of status.” Many students who are in F-1 status prefer the change of status to the alternative of leaving the United States, gaining an H-1B visa and re-entering the United States with that visa. This latter method, called “consular processing,” is generally more time consuming and expensive due to the travel involved.

The employer of an H-1B person is supposed to indicate, on the H-1B petition, if the F-1 beneficiary (that is, the person who seeks H-1B status) wants a change of status to H-1B. If so, then the best result for that person is that in addition to getting an approval of the H-1B petition itself, the person also gets an approval of the request to change status.

Please note that these two approvals involve separate issues. The approval for H-1B status depends in large part on the complexity of the job and the qualifications of the beneficiary. The approval for change of status from F-1 to H-1B depends in large part on the person’s eligibility for such change of status. Many times, a person will be approved for both H-1B status and for a change of status. On the other hand, a person might be approved only for H-1B status but be denied the request for change of status.  Such a result can be serious, and a person in this situation might want to consult an attorney to discuss its implications.

To reduce the chances of a denial of change of status, a person should make sure of the following:

-          Maintain the conditions of F-1 status

The immigration regulations state that a person who has failed to maintain the conditions of his or her current status is ineligible to seek a change of status. With respect to an F-1 student, the following actions, among others, constitute a failure to maintain status:

o   engaging in unauthorized employment

o   failing to maintain a proper course load

o   failing to make academic progress

o   exceeding, during optional practical training, the allowable unemployment period

In other words, avoiding these actions will improve your chances of being approved for a change of status.

-          Avoid abandoning the request for change of status

A person should also be careful of doing anything that will cause the government to declare that you have abandoned your application to change status. In particular, a person who leaves the United States during the time his or petition is being reviewed is deemed to have abandoned the application to change status. This situation applies even if the person later returns to the US on his or her F-1 visa prior to the decision on the petition. Therefore, such a person might want to consider remaining in the U.S. while the petition is being reviewed.

At this point, you may be wondering how a person knows about the approval, or not, of the application to change status. The result generally will come along with the decision on the H-1B petition itself. If both the H-1B status and the application to change status are both approved, then the I-797 approval notice will say so.  On the other hand, if the H-1B status is approved, but the change of status is denied, then the I-797 notice will refer only to the former, and omit the latter. In addition, the employer will receive a separate “notice of decision” which explains the reasons for the denial of the change of status.

Maintaining current F-1 or other status is critical for approval of a change of status to H-1B.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

Wednesday, October 28, 2015

DHS verifications may delay a driver license or renewal

If you, a non-U.S. citizen, seek a new or renewal driver’s license, and you meet all requirements, including documents, then you might be successful on your first visit to your state’s driver license center. However, be aware that you might need to return a second time.

In most if not all states, driver licenses are available to non-U.S. citizens, provided that such persons have all required documents and meet other requirements. The Pennsylvania Department of Transportation (PennDOT), for example, publishes a chart that identifies, by type of status, documents required for licenses. http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Publications/pub195nc.pdf

 Please be aware that each state has its own specific requirements. That is, what is true for Pennsylvania may not necessarily be true for another state, and vice-versa.

More importantly, please be aware that having all required documents still might not be enough. A client of mine, who is seeking adjustment of status, recently went to a Pennsylvania driver license center to renew her license. She had all the documents she was supposed to have, after consulting the above chart. However, the driver license center staff told her that she was “not recognized” by the system. After I made inquiries to a department official, the matter was cleared up. It turned out that my client, at the time, had not been verified by the U.S. Department of Homeland Security (DHS), and thus could not get the renewal at that time. However, this official personally followed up on this verification, and later my client did get her renewal.

Be aware that something similar may happen to you. If you go to get your license or renewal, and your state’s licensing bureau is able to verify your status with DHS, then you may be able to get your license then and there. On the other hand, if the verification cannot immediately occur, you might have to return to the center a second time. In Pennsylvania, once verification occurs, the person will receive a letter stating that he or she now is eligible. My client received such a letter, but for her it was unnecessary because she already had been verified through the PennDOT official.

Your own state most likely has similar procedures for verifying information with DHS.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat calvin_t_sun

Thursday, October 22, 2015

The issues and uncertainty about OPT STEM extensions might be resolved

The recent uncertainty about the continued availability of OPT STEM extensions might be resolved. The result, in fact, could be even better than the current STEM extension provisions.

A few days ago, the U.S. Department of Homeland Security (DHS) announced a proposed rule regarding the OPT STEM extension program. One major change involves an increased length of the extension, from the current 17 months to 24 months. In other words, a STEM-eligible OPT participant, under the new rule, could have an total OPT period of as long as 36 months, as opposed to the current maximum 29 months.

As important as this increased length for STEM OPT is, however, an even MORE important aspect is the fact that DHS has proposed this rule in the first place. Their doing so addressed a key concern of the Federal judge who, a few months ago, struck down the OPT STEM extension program while delaying the effect of the striking down until February 2016.  The judge actually had no problems with either OPT or the OPT STEM extension themselves. Rather, she was unhappy because DHS failed to follow the proper procedure when originally setting up the OPT STEM extension option. The judge delayed the effect of the striking down in order to give DHS time to fix this earlier mistake—that is, to give DHS time to create a regulation and to do it properly.

The advertising in the Federal Register is the first step toward properly creating a rule, and should encourage those of you who have been concerned over the future of the OPT STEM extension. No one knows the future, of course. However, barring any unforeseen developments or problems, and specifically, assuming the judge finds no issues with the new rule or the process, the OPT STEM extension should continue, this time with an even longer period than before.

For further details of the proposed rule:
https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and

The information above does not constitute legal advice and does not create an attorney-client relationship.
Calvin Sun, attorney at law
215-983-3723
csun@calvinsun.com (note: you may get a Spamarrest challenge message in response)
We Chat: calvin_t_sun

Friday, September 25, 2015

“Is my employer ‘large enough’ for H-1B?”


Michael: “If anything in this life is certain--if history has taught us anything--it’s that you can kill anyone. Rocco?”

Rocco: “Difficult, not impossible”

This statement by Rocco Lampone, in “The Godfather: Part II,” to answer Michael Corleone about a planned assassination, comes to mind whenever someone asks me about H-1B at a “small” employer.  That person has identified an employer that potential could petition for H-1B status for the person, but the person has concerns about the size of the employer and if it prevents H-1B.
In answering this question, the first thing I say is that I have gotten approvals for H-1B petitions for employers with as few as two people. Several more approvals have gone to employers with three people. Overall, I estimate that 35% of my approvals have involved employers with fewer than 10. I wish that I could guarantee that I will get you an approval even though your employer is small, but I can’t. I can, however, offer some perspectives on this situation, and how to improve your chances.

Please be aware that no law or regulation mandates a minimum employee number or minimum revenue for an employer in order to qualify for H-1B. On the other hand, a small employer could well receive a request for evidence (RFE) that references the size of the employer. In such a case, usually, the immigration service is concerned about three things. First, is the employer financially strong enough to pay you? Second, will you, as an H-1B person, be relatively free of non-H-1B tasks? Third, does the employer really require your position? Let’s consider each point in turn.
-          Financially strong?

A condition of H-1B status is that the employer pay you “enough”—in legal terms, that the company pay you at least the “H-1B required wage.” Therefore, an employer with a small number of employees, and especially one with low revenue numbers, could cause concern. Overcoming this issue will require the employer to show sufficient financial resources, or strong potential future business. In fact, while I don’t recommend this practice, one H-1B employer a few years ago actually refused to disclose revenue and income figures on the H-1B petition, requiring me to use alternate means of showing financial strength. This petition ultimately was approved, though I wasn’t happy about the process.
-          Free of non-H-1B tasks?

A key requirement of H-1B status is that your job be sufficiently complex. The immigration service doesn’t want an H-1B person, therefore, to be spending significant time doing non-H-1B type work. For example, they probably don’t want an H-1B person to be spending all or most of his or her time sweeping the floor, sorting mail in the mailroom or answering the main company telephone number as a receptionist. The immigration service believes, rightly or wrongly, that such things have a greater likelihood in a smaller company. Therefore, you and your employer must show that such is not the case.
-          Is the position really required?

If an employer is small, then the service may question whether the job is really necessary at all for that employer. This issue is particularly relevant for the person who works only with people inside the employing organization, rather than for customers or clients.  An employer of only three or four people, therefore, might have trouble justifying the hiring of an internal accountant. On the other hand, that same employer might have an easier time if it were an accounting firm, and the person is being hired to be billed out to do accounting for external clients. Therefore, make sure your employer has sufficient workload to justify your hiring.
If you have an H-1B opportunity from a small employer, I wish you success. Remember, getting approval is difficult, not impossible.
 

The information above does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun