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

 

 

 

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