• 03Dec

    On Thursday, November 20th 2014, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system (hereinafter “DHS memo”). The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. The following is a brief overview of the most pertinent of the proposed measures:

    1. Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates of U.S. Colleges and Universities: Most foreign students on F-1 (student) visas are eligible for 12 months of post-graduate OPT work authorization as long as the work experience that they seek is in a field that relates to their program of study. Under current regulations, OPT can be extended an additional 17 months for a total of 29 months of work authorization for U.S. college graduates with degrees in designated science, technology, engineering and mathematics (“STEM”) fields. The proposed regulatory changes will seek to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign graduates. Finally, it is proposed that certain labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of U.S. workers in related fields.

    2. Pre-Registration for Adjustment of Status: With the emphasis on facilitating foreign worker portability, USCIS is expected to develop new regulations that will allow foreign nationals with an approved employment-based immigrant visa petition (Form I-140) who are caught in the immigrant visa quota backlogs to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485), notwithstanding that their respective priority dates are not current. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document (while also allowing the principal to port to another employer after the I-485 is pending for 180 days), but it will also enable his or her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    3. Expanded Green Card Portability: USCIS is expected to provide additional guidance regarding the definition of a “same or similar” job for purposes of expanding eligibility for a green card applicant to be promoted to a new job within the same company or, alternatively, to port to a new job with a new employer. This guidance will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

    4. Proposed Rule to Extend Work Authorization to Certain H-1B Spouses: While this was not specifically addressed in the DHS memo, it is rumored that the proposed rule published in the Federal Register in May 2014 to extend work authorization to the H-4 spouses of H-1B specialty occupation workers with an approved employment-based immigrant visa petition (Form I-140) may also be finalized in the next few months.

    5. Bringing Greater Consistency to the L-1B Visa Program: The L-1 visa program is a common vehicle used by multinational companies to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from locations outside of the U.S. Noting the “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes “specialized knowledge” for L-1B visa eligibility.

    6. Promoting Research and Development in the United States: The DHS memo recognizes that the current immigration laws do not meet the needs of foreign entrepreneurs and calls for enhanced and expanded options under the law to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the U.S., including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

    It is important to note that the details and timing for implementing many of the above measures remains uncertain, since many of them may require a change in regulations with a notice and comment period. It also remains to be seen whether Congress will act on comprehensive immigration reform, which could have the effect of preempting some of the executive actions taken by President Obama.

    Please stay tuned for additional information on the pursuit of President Obama’s Executive Order as we plan to issue additional advisories in the future as key components of the executive action are implemented.

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  • 25Jun

    The Fraud Detection and National Security (“FDNS”) unit of USCIS recently announced plans to expand its worksite inspection program to include L-1 employers, likely in response to the 2013 report by the Department of Homeland Security (“DHS”) that addressed fraud and abuse in the L-1 program.

    In a typical FDNS audit, DHS inspectors (or third party government contractors) will conduct pre- and post-adjudication site inspections, usually without notice, at the petitioning employer’s principal place of business and/or at the work location set forth in the petition documents. The purpose of the site inspection is to verify the validity of the information submitted to USCIS with the nonimmigrant petition and ensure compliance with the terms and conditions of the relevant nonimmigrant status. This may include an audit of any of the following information: (1) that the petitioning employer exists and is engaged in the operations set forth in the petition, (2) that the stated job duties are in line with the employee’s classification as either a manager or executive (L-1A) or specialized knowledge employee (L-1B), and (3) the company is paying the employee the wage indicated in the petition and that the wage is consistent with the listed duties and level of experience.

    During the audit, FDNS inspectors may seek to review documents, speak with company representatives, and interview L-1 employee(s). Inconsistencies between the petition and the actual worksite conditions could trigger a Notice of Intent to Revoke (“NOIR”) the approval of the subject L-1 petition(s).  Moreover, the employer’s failure to provide the appropriate documentary evidence requested in the NOIR also could lead the USCIS to revoke the petition.

    To date, USCIS has provided little guidance regarding L-1 regulatory compliance.  As such, sending FDNS officers to company worksites to investigate a petitioning employer’s compliance with the L-1 program raises significant questions.

    With or without additional guidance from USCIS, L-1 employers should be prepared for FDNS site visits (and take them seriously should such a visit occur). In advance of an FDNS site visit, L-1 employers should conduct an internal audit of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Employers should also retain complete copies of all I-129 petitions and paperwork filed with USCIS. Additionally, employers should ensure that L-1 employees and their managers are aware of the content of the I-129 petition(s) and supporting documentation. While there is currently no requirement under the regulations to file an amended L-1 petition due to minor changes in employment, employers are required to file an amended petition if there has been a substantial change in employment (e.g., full-time to part-time, change in job location outside of MSA), or if it has been determined, post-filing, that there is a material fact provided in the petition documents that is false.

    Here are some practice pointers in dealing with an FDNS site visit:

    • The company representative should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit different nonimmigrant programs (e.g. the H-1B program), including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical that the company representative determine which agency he/she is providing information to in the event follow up is necessary.
    • If the investigator identifies him/herself as a USCIS FDNS contractor, the company’s representative should request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.
    • Legal counsel for the L-1 employer should be advised of the visitation prior to the start of any interviews of company representatives and should attend in person or by phone, if possible.
    • A company representative and/or counsel should accompany the FDNS officer during his/her review of the facility and request to be present during the interviews of any of the company’s employees. (This request may be denied in order to obtain the most candid responses from the employee).
    • The company representative should take notes of all information requested, and provided to, the FDNS officer – both verbally or in writing, including the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit.
    • Always provide complete and accurate information whether requested to do so onsite or subsequently via email.
    • If the FDNS officer has not gathered the required information, the officer will follow up with the L-1 employer via telephone or email to obtain additional information to complete the compliance review. (Counsel may assist with preparing such response).

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  • 06May

    While it’s not “news” that the Form I-94 Arrival/Departure Record system is now automated, on May 1, U.S. Customs and Border Protection (“CBP”) launched a new function to the existing Form I-94 website that permits all temporary (nonimmigrant) workers/visitors access not only to (i) one’s most recent Form I-94 Arrival/Departure Record, but also to (ii) one’s Form I-94 arrival/departure history for the past five (5) years from the request date.

    To do so, travelers should visit the same I-94 webpage (www.cbp.gov/I94) and enter the required name, date of birth, and passport information.

    By clicking on the “Get Most Recent I-94” button, as it has done in the past, the site will provide a printable copy of the most recent I-94 record, including the I-94 number, most recent date of entry, class of admission and the expiration or “admit-until” date.  (Keep in mind that this information will not reflect a change of status, extension of stay, or an adjustment of status granted by the USCIS).

    The new addition to the site includes the “Get Travel History” button.  By clicking on that button, the site should provide a printable five-year travel history based on one’s I-94 arrival/departure records.

    This electronic travel-history function means that travelers may no longer need to file Freedom of Information Act (“FOIA”) requests with CBP in order to obtain their arrival/departure history, greatly speeding up their process.  As such, CBP has added a function to allow travelers to cancel pending FOIA requests for travel history information – after they have received the information from the new website – by adding their FOIA Request Number and clicking on the “Request FOIA Cancellation” button.

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  • 22Apr
    H-1B Visa News Comments Off

    As anticipated, USCIS announced on April 7 that it received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

    In the first 5 business days of filing, USCIS reported to receive a record 172,500 H-1B petitions, including petitions filed for the advanced degree exemption.  This represents a nearly 30% increase from last year’s cap filings when 124,000 H-1B petitions were received within the first week of the filing period.

    On that basis, on April 10, 2014, USCIS announced that it deployed a computer-generated random selection process (i.e., a “lottery”) to select a sufficient number of petitions needed to meet the quotas.

    For those cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

    Given the exhaustion of H-1B visa numbers for fiscal year 2015, absent immigration reform legislation, the next time U.S. employers will be eligible to file an H-1B petition under the cap will be April 1, 2015, for a start date of October 2015.  Until then, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2015 to employ.

    Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

    If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 29Jan
    H-1B Visa News Comments Off

    This is a reminder of the quickly approaching April 1, 2014 “deadline” for the filing of H-1B for Fiscal Year 2015 which starts on October 1, 2014.

    Given pent-up demand for H-1B numbers, we fully expect the cap to be reached on the first day of April.  USCIS will, however, accept petitions during the first five (5) business days; i.e., through April 7, 2014. Once the H-1B cap has been reached, employers will be ineligible to file new cap-subject H-1B petitions for a full year, until April 1, 2015. As such, we strongly encourage you to identify employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    Assess Your Company’s H-1B Cap-Subject Needs:

    The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign-born, professional workers. The H-1B category requires sponsorship by a U.S. employer and is limited to specialty occupations which generally require the candidates hold at least a bachelor’s degree or the equivalent in a relevant discipline.  For current or transferring employees, employers should consider who might need to file an H-1B on April 1, 2014 for Fiscal Year 2015:

    • Identify F-1 (student) employees working pursuant to Optional Practical Training who will need to file a change of status to H-1B to continue working beyond the expiration of their current Employment Authorization Document (EAD);
    • Determine whether any TN employees (NAFTA professionals) will need to file a change of status to H-1B to be eligible to apply for adjustment of status to a lawful permanent resident;
    • Consider employees in L-1B status (intra-company transferees with specialized knowledge) who will need to file a change of status to an H-1B to gain an additional year of work authorization  (and for whom a change of status is a necessary component for a longer-term strategy of pursuing lawful permanent residence for that employee);
    • Consider employees in O-1 status (which O-1′s  are renewable in only one year increments) as compared to a full three (3) year validity period offered by the initial approval of the H-1B classification; and
    • Identify potential candidates who are currently abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay or a transfer petition are not subject to the cap.

    Any cap-subject petitions filed after the cap has been met will be returned to the sender who will not be eligible to re-file until April 1, 2015.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 09Apr
    H-1B Visa News Comments Off

    U.S. Citizenship and Immigration Services (“USCIS”) announced on April 5 that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (“FY”) 2014. USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced U.S. degree cap. As such, Friday, April 5, was the final receipt date for new cap-subject H-1B petitions requesting an employment start date of October 1, 2013.

    The following Monday, April 8, USCIS followed up with an announcement that it received an astounding 124,000 H-1B petitions within the first week of the filing period, including petitions filed under the advanced degree exemption.

    As such, as it has done in the past, USCIS deployed a computer-generated random selection process (more commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps.  For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

    It may be a few weeks before we are advised whether a particular petition has been selected for adjudication.  In the past, this was accomplished by USCIS sending the petitioning employer (or its legal representative) a receipt notice (Form I-797) of the filing.

    The fact that the cap was reached within a matter of days is evidence of the high level of demand by U.S. employers eager to hire highly skilled foreign workers.  By contrast, last year, the H-1B cap was reached in slightly more than two (2) months.  The year before that, in 2010, the H-1B cap was not reached for ten (10) months.

    Given the exhaustion of H-1B visa numbers for fiscal year 2014, absent new reform legislation, the next time U.S. employers will be eligible to file an H-1B petition under the cap will be April 1, 2014, for a start date of October 2014.  As such, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2014 to employ.

    Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

    If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 01Feb

    On January 29, 2013, President Obama addressed the country on his principles for comprehensive immigration reform. A major theme running through the President’s remarks was that there should not be a struggle between “us” and “them.” President Obama pointed out that most of “us” used to be “them,” reminding the country that America was built by immigrants. He urged Congress to adopt a common-sense approach to immigration issues, hoping that progressive reform could be attained in the near future.

    The President’s plan is similar to the blueprint that was released earlier this month by the bipartisan group of Senators known as the “Gang of Eight.” The members of the “Gang of Eight” are Republican Senators Marco Rubio (FL), John McCain (AZ), Jeff Flake (AZ), and Lindsey Graham (SC); and Democrats Chuck Schumer (NY), Robert Menendez (NJ), Michael Bennet (CO), and Richard Durbin (IL). The issues at the heart of the immigration debate are border security, workplace verification, a pathway to citizenship, and a revamping of our legal immigration system.

    The first steps to immigration reform have been (and will continue to be) stepped up efforts of border security and a continued expansion of prosecutions for worksite compliance violations (I-9 and H-1B compliance) against employers. Opponents of immigration reform will push hard for tougher border security before considering a pathway to citizenship for undocumented immigrants. As such, we can expect more enforcement actions against U.S. employers, and perhaps a nationwide mandate to require employers to utilize the E-Verify system. (The Department of Homeland Security’s E-Verify system cross-references the Social Security Administration database with the DHS’ Immigration database to ensure that employees are legally authorized to work in the U.S.) A reform bill will most likely call for improvements to the E-Verify system to cut down on technical errors within the system.

    The next issue is creating a pathway to citizenship for the more than 11 million undocumented immigrants in the U.S. The plan proposed by the “Gang of Eight” calls for immediate “probationary legal status” for undocumented immigrants. This will be followed by an opportunity to obtain a permanent residence conditioned on the payment of back taxes, submitting to a background check, and other requirements, including learning English, passing a civics test, paying fines, and completing community service. In addition, it has been noted that undocumented immigrants will not jump ahead of those already “in line” for U.S. lawful permanent residence. Lastly, the Senate’s proposal supports implementing the Dream Act, which will open the door to citizenship for undocumented children who, through no fault of their own, were brought to the U.S. illegally by their parents. The DREAM Act will allow such undocumented children to pursue their studies at U.S. colleges and universities as well as a pathway to U.S. lawful permanent residence that would not require the same lengthy process as other undocumented immigrants.

    Last, but certainly not least, there has been discussions on many other types of backlog and quota reforms relating to legal immigration system. The President addressed the need for reform in the Immigration Courts, judicial review, increased opportunities for entrepreneurship visas in the United States, as well as a more expansive definition of families that includes same-sex couples. These reforms were not mentioned in the original plan outlined by the “Gang of Eight,” but are meant to be expanded upon in discussion on the Senate floor. Other possible reforms include increasing the H-1B cap to over 100,000 visas per year  and increases in the quotas for immigrant visas in order to shrink the horrendous backlogs we are currently facing in the both employment-based and family-based applications for lawful permanent residence.

    It should be interesting to monitor the progress made in Congress on immigration reform over the coming months. If the President is not satisfied with the progress of comprehensive immigration reform, he may propose his own legislation ahead of the “Gang of Eight.” The ability of politicians from both sides of the aisle to compromise and work together will be critical prior to any reform bill being passed.

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  • 29Jan
    H-1B Visa News Comments Off

    With all of the recent political debate in Washington over the expansive topic of Comprehensive Immigration Reform, it’s easy to lose sight of the fact that the H-1B filing season is rapidly approaching!

    On April 1, employers will be eligible to begin filing new H-1B petitions with the USCIS for Fiscal Year 2014, which begins October 1, 2013. The quota (more commonly referred to as the “cap”) for new H-1B petitions is currently set by Congress at 65,000 per year and, of that number, 6,800 visas are automatically set aside for qualified foreign nationals from Chile and Singapore based on Free Trade Agreements with the United States. An additional 20,000 H-1B visas are available to candidates with a U.S. Master’s Degree.

    While last year’s H-1B cap was reached in less than three (3) months (mid-June 2012), due to pent-up demand, the cap may very well be reached in a few weeks, or perhaps even a few days! So to prepare for this year’s April 1 filing date, if you have not done so already, we recommend that you identify your current (or prospective) employees who may be subject to the cap and contact qualified immigration counsel to begin preparing your H-1B petitions for a timely April 1 filing.

    To Identify Employees Subject to the H-1B cap:  New H-1B applicants generally fall under one of the following 3 categories:  (i) current employees or new hires with a nonimmigrant status that will not permit them to work continuously through the effective date of a new H-1B classification, October 1, 2013 (e.g., F-1 students working pursuant to OPT, H-3 trainees, and/or J-1 exchange visitors), (ii) potential candidates who are abroad and have not been previously counted against the H-1B cap; or (iii) those employees for whom a change of status is a necessary component to planning your business’ long-term strategy of pursuing permanent residence for that employee (e.g., TN-1 professionals, L-1B specialized knowledge employees, and/or L-1A managers who do not qualify for permanent residence as multinational managers).

    It is important to note that the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B employees seeking to file an H-1B extension of stay, or an H-1B transfer petition, are not subject to the cap.  Moreover, employees seeking H-1B sponsorship with an institution of higher education, a nonprofit research organization or a qualifying government research organization are generally not subject to the cap.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 27Jun

    The negative impact of the recent trend of heightened scrutiny of employment-based immigration benefits (as evidenced by DOL’s statistics of increased PERM audits and denials, along with USCIS’ increased requests for evidence (“RFEs”)) was thrust into the limelight by recent coverage in Bloomberg Businessweek in an article entitled “Want to Move A Worker to the U.S.?  Good Luck”.

    The article discussed the utter frustration experienced by Oracle Corporation (NASDAQ:ORCL) regarding the increasing difficulty and expense in hiring and transferring foreign technology workers.   According to Denise Rahmani, the Director of the U.S. Immigration program at Oracle, the government denied an astonishing 38% of the Oracle’s visa requests last year. In the wake of these results, Ms. Rahmani has indicated that in today’s climate of heightened scrunity, “it feels like the roll of the dice every time.”

    While these frustrations are nothing new to multinational companies, large or small, Oracle’s recent complaints bring to life the realities associated with the recent trend by both USCIS and DOL of heightened scrutiny and standards of proof for employment-based petitions and applications.  Many companies, like Oracle, assert that the denials and requests for evidence are arbitrary in nature, the results of which often cost these companies millions of dollars in unnecessary expenses.  Indeed, in one rather gleaming example of the arbitrary nature of some of these USCIS denials, Ms. Rahmani reported that an Oracle worker’s request for an extension of stay of his/her L-1B nonimmigrant classification was denied because USCIS determined that the company failed to demonstrate the particular worker’s specialized knowledge of a certain type of Oracle software when, in reality, this particular employee was responsible for writing Oracle’s training manual for that software.

    It’s easy to understand the frustrations of Oracle and other companies. The higher instances of issuance of requests for evidence and ultimate denials reflect a major policy change in the Obama Administration of the immigration policy from prior years, when the denial rate for petitions seeking the L-1B classification, for example, was in the single digits.  Since 2008, the denial rate has tripled.

    USCIS Director Alejandro Mayorkas acknowledges the criticism that his office is inconsistent in its decision-making is “in part warranted,” and that he’s working to fix the problem.

    Bloomberg Businessweek posits that perhaps there aren’t enough caseworkers to properly handle the 400,000+ petitions filed every year for nonimmigrant workers and, that further, it is probably difficult for some caseworkers at USCIS to understand certain specialized fields, or whether or not American workers would be able to perform some jobs as well as the foreign workers many companies aim to hire.

    These frustrations have resulted in large companies including Oracle, Microsoft, Starwood Hotels and 50 other companies writing a letter to the Obama Administration warning them that this practice was hurting the American economy and job growth.

    Only time will tell if such letter will result in any type of policy change or whether the government will continue the disturbing trend of increased audits, RFEs and denials.

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  • 26Jun

    In May 2012, the Department of Homeland Security (DHS) released an updated list of science, technology, engineering, and mathematics (STEM) degrees that qualify for a 17-month extension of the 12-month period of Optional Practical Training (OPT). Indeed, students whose most recent degree qualifies as one of the disciplines provided on the DHS’ recently updated list are now eligible for up to 29 months of OPT, provided all other conditions are met (described below).  This 17 month extension of the OPT period, in most cases, is good news for a qualifying employer, as such extension may postpone the need for such employer to file an H-1B petition for an OPT employee for one additional year.  It also presents an advantage to employers, when the U.S. economy is more robust and the demand for new H-1B numbers is so great that USCIS resorts to an H-1B filing-based “lottery” system.  In those years, this 17 month extension of the OPT period provides employers with two “bites at the apple” for the chance of an employee being selected in the H-1B lottery.

    This decision is part of the Obama Administration’s attempt to make the United States more competitive in the global race to attract those students whom are often referred to as our “best and the brightest”.  When taking a closer look at the updated list, one will note the addition of new disciplines, which may also suggest that the government has actually expanded its horizons, and is adjusting to the ever-changing needs of our market economy. The list now includes, among other disciplines, degrees in behavioral sciences, pharmaceutical studies, econometrics and quantitative methods studies, all of which are new disciplines to the STEM designation entirely.

    The DHS has also suggested that it may “grandfather” certain students by permitting students with STEM degrees to apply for the OPT extension even if their STEM degree is not their most recent degree. We can only hope this suggestion comes to fruition as it will allow more highly-qualified foreign students in these newly introduced disciplines to take advantage of the 17 month extension of OPT, which extension was otherwise unavailable upon their completion of that degree.

    However, until such a change is formally adopted by DHS, the requirements for the 17 month extension of the 12 month period of OPT remain as follows:

    1)    A qualifying student must apply (and be authorized for) an initial 12-month OPT authorization;

    2)    The qualifying student must be working for an employer that is registered with E-Verify;

    3)    The qualifying student must apply for the 17 month extension during the 12 month period of OPT (i.e., he/she cannot apply within the 60-day departure grace period). However, if the qualifying student timely applied for the extension and a decision remained pending at the time the initial OPT period expires; the student can extend his/her work authorization for up to 180 days.

    Also, if a sponsoring employer applies for the H-1B classification under the annual cap for an OPT candidate, that candidate may also take advantage of the “cap gap” measure, which measure allows F-1 students whose OPT expires prior to October 1 (the effective date of a cap-subject H-1B petition) to continue working for the employer (with valid work authorization) while the H-1B visa petition is pending review and/or following approval of the petition by USCIS.

    If you have any questions regarding eligibility for an OPT extension, E-Verify, or the H-1B cap gap measure, please feel free to contact us.

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