Tuesday, August 27, 2013

Understanding the OPT STEM extension

If you are studying in the US in F-1 status, you probably know about optional practical training (OPT). It is normally a one-year period that follows the completion of your academic program, during which you may work in a job related to your field of study.

You also may have heard that certain F-1 students may extend this one year by an additional 17 months, thus giving them a total of 29 months of OPT time. In this blog post, I will discuss important aspects of this available extension of OPT time.

Such an extension is commonly called a “STEM” extension, because it is available for students who study science, technology, engineering or mathematics. In addition, the employer must be enrolled in e-Verify, a special system that determines employment authorization of potential employees.

One important reason someone might elect such an extension is to give themselves an additional chance at H-1B status, should they fail to qualify during their regular one-year OPT. Or else, a student simply might want to have more experience in the job in the U.S., before leaving the US and not wishing to receive H-1B status.

Regardless of the reason, here are some things to watch for with regard to the STEM extension:

-          Avoid confusing the OPT STEM extension with the H-1B cap gap extension
These two extensions, while in some cases are related, nonetheless are separate concepts. The OPT STEM extension deals with making your OPT period longer. The H-1B cap cap extension provides a way for you to remain in status and possibly maintain work authorization between the original end of your F-1 status and the beginning date of an H-1B cap-subject job. A person can receive both extensions, neither extension, or one but not the other.

-          Avoid these INCORRECT ways to determine your eligibility

The following methods of determining eligibility are INCORRECT:

o   Looking solely at the name of your field of study
If your field of study contains one of the STEM subject names, the chances are high that you are eligible. However, this situation does not always hold. For example, not all types of engineering might really be STEM eligible.

o   Basing your conclusion on your type of degree
In the same way, do not automatically conclude that you are automatically eligible because your degree says “of Science.” Conversely, do not automatically despair that you are ineligible because your degree says “of Arts.” These degree names are determined by your institution, and need not correspond to your actual field of study. In fact, in some institutions, you might be able to select whether your degree is “of Arts” or “of Science.”

-          Follow this CORRECT way to determine your eligibility

To truly determine whether or not you are eligible for the OPT STEM extension, consult the top of page 3 of your I-20. There, you will see the name of your field of study, and following it will be a number, probably with a decimal point included. This number is called your “classification of instructional program” (CIP) code. To determine whether you are OPT STEM extension-eligible, compare this number with a table of STEM codes maintained by U.S. Immigration and Customs Enforcement (ICE). At the web site www.ice.gov, perform a search of “STEM” to find a spreadsheet or web page of eligible codes.

A few years ago, a friend, who received a Master of Arts degree in environmental science, told me she was upset about not being eligible for the STEM extension. She based her idea on the “of Arts” degree she received. After I told her the above correct way to check, she did so, and discovered she WAS eligible. She was so happy with me that she bought me a Starbucks.

If you too are so happy with this information that you wish to do the same, I will not be mad at you. In any event, I hope this information helps you.

You are welcome to contact me with questions. Please remember that this blog post, as with others, does not constitute legal advice.


Friday, August 16, 2013

If you are driving a car in the U.S.

If you drive or plan to drive a car in the U.S., here are some things to consider. Please note that this blog entry is not intended to be an exhaustive guide, but merely to remind you of things you yourself need to check. This blog entry also is not legal advice. Driving and automobile laws vary from state to state, and may vary even across different cities in the same state.

When confirming requirements, you are better off checking the official web site of your state transportation department, bureau of motor vehicles, or similar state agency. Be careful if instead you are relying on message boards or blogs for official information.

Driver licensing

You will need a license for yourself to drive a car. Each U.S. state is supposed to honor driver licenses of any other state. Therefore, you do NOT need a separate driver license for each state you plan to drive in. Your state might also honor an international driver license, for at least a limited time if not indefinitely.

In any event, be aware that the validity period of your license, as well as any other requirements, may differ from those of U.S. citizens. Here, for example, is a chart from the Pennsylvania Department of Transportation:  http://www.dmv.state.pa.us/pdotforms/fact_sheets/pub195nc.pdf

If you need to take an actual road test in order to receive your license, know how your state or location does so. Some states or locations will test you on “real” streets. Others will test you on a specially constructed range. Or, still others may use a combination. If all or most of your test will be on a range, find out about the possibility of practicing on that range prior to your test, during off-hours. One such center is in Frazer, PA, in Chester County. I have seen cars on their range as late as 9:30 pm, long after their business hours are over.

Most likely, the car you use for a driving test will need to have proper registration, insurance and inspection. More on these topics below.

Vehicle requirements: insurance, inspection and registration

In addition to having, yourself, a valid driver license, your car must meet certain requirements. In general, states require that cars have insurance, be inspected and be registered. Please note that these requirements generally are separate and independent of each other.

You almost certainly will need to carry automobile insurance for your car. When you complete the insurance process and get a policy, the insurance company most likely will send you a document to prove that you have insurance, and most if not all states will require that you be able to produce this document upon request by a law enforcement officer or after an accident.

Your car will probably need to be inspected. That is, an authorized person will certify that your car meets certain minimum safety requirements, such as functioning headlights and horn, sufficient tread in your tires and other matters. In some states, private repair facilities will do this inspection. In others, the state will operate facilities. If you are in a populated area, your car also might have a separate test for exhaust emissions. Once your car passes an inspection, you probably will have a sticker placed on your windshield.

Your car will need to be registered with the state agency that deals with motor vehicles. You probably will need to supply the license tag number and possibly the title number, as well as information on insurance. After you register, you should receive a card to that effect. You also may receive some sort of sticker to place on your license plate or on your windshield. Please be aware that in certain places, motorists have had their registration stickers stolen from their license plates. The thief usually does so by actually cutting away the part of the license plate that holds the sticker.

Your registration and inspection stickers will probably show a month and year on them, to indicate when they expire. Having an expired sticker could result in your receiving a warning, or worse, a violation notice from a police officer. In some places, having such expired stickers, or lack of insurance, even could result in the confiscation of your car. Therefore, please be sure to have current stickers and insurance cards.


I recommend you carry a set of battery jumper cables (also known as “booster cables”), particularly if you drive in places with cold winters. In such places, you have a greater risk that your battery will lose power and not be strong enough to start your car. In such cases, jumper cables, when attached to another car with a properly functioning battery, will allow you to start your car by using power from the battery of the other car. Such cables will come as a pair. One cable will be red (the “positive” cable), the other will be black (the “negative” cable). To help me keep the colors straight (positive red, negative black), I imagine that a LONG set of cables extends fromPuerto Rico to New Brunswick.

A flashlight can be a lifesaver. I recommend the “Mini Maglite,” available in many stores including Wal-Mart. It is renowned for its reliability and quality. In addition, people, particularly women, can carry it not only to provide light, but for self-defense. Its hard casing makes the Mini Maglite a good weapon for striking an attacker.

You also might want to purchase and have in your car a tire pressure gauge. The most convenient ones are those shaped like a pen. The tire gauges you might see at a service station, if you see any at all these days, often are unreliable.
I hope this information is helpful.

Calvin Sun, attorney at law 孙自成,律师
Immigration and nationality law

Monday, August 5, 2013

New electronic I-94 arrival/departure document replaces paper-based ones

Have you, or anyone you know, ever lost your I-94 arrival/departure document? Not only is replacing it a time-consuming nuisance, but it is also an expensive nuisance. The current fee for filing form I-102, for replacement of your I-94, is $330.

Now, however, having to do is a thing of the past. Beginning in the spring of 2013, U.S. Customs and Border Patrol (CBP) began a system of issuing electronic I-94s. This change means that now, upon arrival at a U.S. port of entry, you receive no paper-based I-94. If you do need evidence of your lawful admittance and confirmation of your “admitted until” date, you can check www.cbp.gov/i94.  The entry screen will prompt you for name, date of birth, passport number, country of passport issuance, most recent date of entry and class of entry (e.g. F-1, H-1B, E-2 etc.). After you enter the required information and submit it, you will see, on the resulting screen, your I-94 number and your “admitted until” date. The latter two pieces of information are important if you apply for statuses such as H-1B.

This change has advantages but disadvantages. On the one hand, you no longer have any paper-based, hardcopy I-94 to lose. On the other hand, without a piece of paper for warning purposes, you might forget or forget about your “admitted until” date, and end up staying beyond your “admitted until” date, and doing so is a bad idea.

Therefore, if you are within a class that does have a definite “admitted until” date, such as H-1B or E-2, then you might want to program that date into your smart-phone or other device, or at least circle on a traditional wall calendar. Remember that if you are in certain other classes, such as F-1, you have no specific “admitted until” date, but rather you are admitted for duration of status. In other words, so long as you maintain the conditions of your classification, you will be considered to be within your “admitted until” period, and you will have neither a status violation nor unlawful presence.

You are welcome to contact me at 610-296-3947 or via email at csun@calvinsun.com. This information does not constitute legal advice.

Thursday, August 1, 2013

“This is not a competition”: Regarding H-1B petitions

For the past several years, I was a leader of a church youth group that did short-term summer  missions work in the Rio Grande Valley area of south Texas. On several of those trips, we needed to rent multiple cars, usually minivans, to transport the team members. During such trips, I would say to the other drivers, as we going from one place to another, “This is not a competition.” In other words, I was reminding them not to jeopardize safety by trying to be the first one to arrive at our destination. Of course, I was usually the first one anyway.

I mention this story because of conversations I have had with a number of people who mention the “competitive” nature of gaining H-1B status. For that reason, I would like to clarify the adjudication process for those who might be unfamiliar with it.

Filing a petition for H-1B status is different from applying to a university. There is no committee that sits at a table and evaluates a pool of H-1B petitions against each other. That is, your own petition does not get judged by how “qualified” you are compared to another person’s petition. Furthermore, they do not “rank” the petitions, then select only the “best” 65,000 of them. Rather, a USCIS adjudicator looks at YOUR petition, and the evidence that you, your employer and your attorney have prepared,  then decides—based on immigration regulations and the statute—whether you qualify for H-1B status.

The only “competition” involved with an H-1B petition involves those petitions that are subject to the cap. The competition involves filing your petition before the cap fills up. Actually, though, according to USCIS procedures in the past, petitions could be filed any time during the first five days of April. Then, if the cap is reached during those five days, USCIS would conduct a lottery, as they did this past April. If your petition was filed before the cap filled up in a non-lottery year, or if your petition “won” in any H-1B lottery, then whether you are approved or denied depends only on YOUR petition and supporting evidence, not on how well you compare with another.

So, as with my summer missions trip transportation, so too with H-1B petitions: this is not a competition.

You are welcome to contact me at 610-296-3947 or csun@calvinsun.com. This material does not constitute legal advice.