Immigration Policy Changes for Foreign Students & Exchange Visitors

U.S. Citizenship & Immigration Services (USCIS) has recently issued two updates that may have major consequences for foreign students and exchange visitors.

Most recently, USCIS issued a policy memorandum which changes the way USCIS will interpret and calculate unlawful presence for F-1 and J-1 visa holders (including their dependents).  Generally, a foreign national who remains in the U.S. beyond the expiration date of their I-94 Arrival/Departure Record begins to accrue unlawful presence, and in certain circumstances, may be subject to a 3-year or 10-year bar to re-admission to the United States.  Under the previous policy, however, foreign national students and exchange visitors who are granted duration of status (D/S) would not begin to accrue unlawful presence until either USCIS made a formal determination that a status violation had occurred or an immigration judge ordered a foreign national deported.

Under the new policy, starting August 9, 2018, F-1 and J-1 visa holders will begin to accrue unlawful presence on the earliest of the following:

  • The day after the student/exchange visitor no longer pursues the course of study or authorized activity, or the day after the person engages in unauthorized activity
  • The day after the grace period, after completing the course of study, program, or practical training (OPT/CPT)
  • The day after the person’s Form I-94 Arrival/Departure Record expires;
  • The day after an Immigration Judge orders the person deported or removed.

Simply put, this new policy, will have a dramatic impact on F-1 and J-1 nonimmigrants who are not vigilant with respect to maintaining valid status and/or are engaging in “unauthorized activity.”  

Additionally, last month, USCIS updated its website regarding STEM OPT extensions , which allow F-1 STEM gradates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the E-Verify program.  The new USCIS guidance no longer permits students to engage in STEM OPT at third party worksite locations (even if the employer maintains the requisite employer-employee relationship with the STEM worker).

This new guidance changes previous policy which only required the student be a bona fide employee of the employer signing the I-983 training plan.  Now, any employees performing duties at sites not controlled by the E-Verify employer could risk being in violation of their status.

These updates are very nuanced and complex, especially when it comes to when and whether someone is in violation of their status or engaged in unauthorized activities.  As always, if you have questions on these issues or how to maintain status, please don’t hesitate to contact me

Understanding the New STEM OPT Regulations for Students & Employers

Beginning today, the U.S. Department of Homeland Security (“DHS”) will be expanding Optional Practical Training (“OPT”) extensions for students on F-1 visas enrolled in science, technology, engineering, and mathematics (“STEM”) degree programs. The new regulations authorize OPT for up to 36 months for F-1 students with a qualifying U.S. STEM degree.  Meaning, F-1 STEM degree students will now be eligible for 12 months of initial OPT plus an additional 24-month extension of OPT.  This new rule does not apply to the standard 12-month OPT program, which will remain the same. 

Under the new regulations, certain students will qualify for the OPT extension based on a prior eligible STEM degree obtained in the U.S., and F-1 students who enroll in a new STEM academic program and earn a qualifying advanced STEM degree will be able to apply for one additional extension. The rule also adds fields of study that qualify for a STEM extension (click here for the list). 

STEM OPT Extension Eligibility

The new rules will not apply to STEM OPT extension applications that were filed and approved before May 10th (i.e. they will be evaluated with the old STEM OPT extension rules and will be issued only a 17-month extension).  If, however, a STEM OPT extension application was filed prior to May 10th and remains pending on May 10th, DHS will send a request for evidence ("RFE") to the applicant to see if they meet the requirements for the new 24-month extension.  F-1 students who already have a 17-month OPT may be eligible to apply for an additional 7 months of STEM OPT, provided they meet the following requirements:

  • The F-1 student's STEM degree meets the new requirements of the regulation;
  • The F-1 student has at least 150 days remaining on the 17-month STEM OPT Employment Authorization Document ("EAD") on the day USCIS received the petition;
  • The employer and the F-1 student comply with the new STEM OPT extension rules (see below);
  • The F-1 student files for a 7 month extension on Form I-765 between May 10, 2016 and August 8 2016.  (Application for a 7 month extension will not be accepted after August 8, 2016).    

New Employer Obligations

Along with this good news, there are, however, new reporting requirements and obligations for students, designated school officers ("DSO"), and employers.  Under the new rule, students and their employers seeking STEM OPT extensions must now work together to draft the new Form I-983, Training Plan for STEM OPT Students, in which the employer must attest: they have sufficient resources and personnel available and are prepared to provide appropriate training in connection with the specified opportunity; the student on a STEM OPT extension will not replace a full or part-time, temporary, or permanent U.S. worker; and the student’s opportunity assists the student in reaching his or her training goals.  Employers must also ensure that the F-1 student's compensation and other working conditions are commensurate with those of similarly situated U.S. employees.

Employers may now also be subject to compliance inspections conducted by U.S. Immigration & Customs Enforcement (ICE) and will be required to notify the DSO within 5 business days if the student ceases employment.   Students will be required to submit annual self-evaluations to the DSO and confirm the validity of the information provided in the Student and Exchange Visitor Information System (SEVIS) every six months.

Employment & Unemployment During STEM OPT

OPT employment during the 24 month period is limited to certain employer and employment opportunities.  The STEM OPT employer must have a Federal Employment Identification Number (FEIN) and must be enrolled in and using E-Verify, hiring the student in an employer-employee relationship (i.e. a staffing agency, labor-for-hire, or volunteer opportunities will not qualify).  The employment opportunity must be directly related to the student's qualifying STEM degree and the student may not work concurrently for multiple employers during the STEM OPT period.

Students who obtain the 24-month STEM extension may be unemployed for up to 90 days during the initial 12-month OPT period, and an additional 60 days during the 24-month extension. 

As the new rules roll out, we will continue to keep you informed about any issues with the program.  As always, if you have any questions, please don't hesitate to contact us.