USCIS Launches Search Tool for Non-Precedent Decisions
USCIS’s Administrative Appeals Office (AAO), recently launched a new search tool for non-precedent decisions since 2005.
Non-precedent decisions are those that apply existing law and policy to the facts of an individual case. The decisions are binding on the parties to the case, but do not apply new or alternative interpretations of law or policy.
To read more, please click here.
USCIS Reaches H-1B Cap and Completes the Lottery Process for FY 2017
On April 7, USCIS announced that it reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. It also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.
On April 9, USCIS used a computer-generated process to randomly select enough petitions to meet the 65,000 general category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.
USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2017 H-1B cap.
For more information, please click here.
Current Version of Form I-9 Will Remain Valid Until New Version is Released
USCIS has extended the public comment period on proposed changes to Form I-9. Comments will now be accepted through April 27, 2016.
Employers should note that the current version of Form I-9 will continue to be valid until USCIS posts a new version on its website. This is the case even though the current version displays March 31, 2016 as its expiration date.
At this time, USCIS has not stated when they plan to release the new version but it is expected that it will be sometime in 2016.
While it cannot yet be confirmed, it is expected that employers will have a grace period to transition to the new form upon its release. The last time the form was updated, USCIS allowed employers to use the older version of Form I-9 for at least 60 days after releasing the new version.
Guidance for Students on 24-Month F-1 STEM OPT Extension
Key Facts
- A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016.
- The STEM OPT extension may be an effective tactic to a student not being selected in the FY-2017 H-1B Visa Lottery.
- Eligible students working on 17-month STEM OPT extensions may apply for an additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).
- To qualify for a 7-month extension, students must apply during the transition period, within 60 days of the DSO entering the student’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.
- Students on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.
Background
On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, students applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Students whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Students who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is received by USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.
General Eligibility Requirements
In order to qualify for the 24-month STEM OPT extension, a student must be currently working
in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The student must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the student and the employer must create and submit a formal training plan on Form I-983 to the student’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.
The training plan must explain how the practical training opportunity is directly related to the student’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the student and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the student. Note that the training plan will be evaluated by the student’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.
Additional Information on the 24-month STEM OPT Extension
- Allows for two lifetime STEM OPT Extensions. The second STEM OPT extension must be based upon a degree completed at a higher educational level than the first STEM extension.
- Students participating in an initial 12-months of post-completion OPT based on a non-STEM degree can use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions and the practical training opportunity is directly related to the previously obtained STEM degree.
- Students must complete annual self-evaluations and obtain the employer’s signature.
- The new rule retains the 90 days of unemployment (during the initial OPT authorization) and adds an additional 60 days of unemployment for students authorized for a 24-month STEM OPT extension (for a total of 150 days of unemployment allowed during the 36 months of OPT).
- The rule requires STEM OPT students to report to their DSOs any name or address changes, as well as any changes to their employers’ names or addresses. Students also must verify the accuracy of this reporting information periodically.
Action Steps for Students
Students are responsible for getting the process with their employer started. If you don’t know where to start, contact your DSO for information and advice on having a conversation with your employer. While students are unable to complete Form I-983 on their own, they must fill out the student portion which includes information about their identity and academic history. Students must work with their employer to effectively convey details of the training opportunity and how that training opportunity meets the requirements of the regulations. Once the details are worked out, the student and employer must sign the Form I-983 and submit it to their DSO for approval. Once the DSO approves the I-983, the student must file the STEM OPT extension package themselves unless their school files STEM OPT extensions for their international students.
A 24-month F-1 STEM OPT extension package should contain the following:
- Completed and signed Form I-765
- Check or money order for $380, payable to “Dept. of Homeland Security”
- 2 color, U.S. passport-style, photographs (see “Guidelines” below) – write name and SEVIS ID on back
- Copy of the front and back of your current OPT card
- Copy of new I-20, with recommendation for OPT extension (keep the original I-20)
- Copy of all previous I-20s
- Evidence that your degree meets the STEM degree/major requirements – ONE of the following must be submitted with your application:
- Official transcript (Request from Registrar’s Office)
- Copy of the diploma that shows your degree level and program of study
- Copy of your current I-94 printout
- Copy of your passport biographic information page (and any renewal pages)
If you will submit directly to USCIS, please be sure to do the following:
- Be sure to sign your STEM OPT I-20 form when you receive it from the DSO.
- Make a copy of the entire application before you submit it to the USCIS.
- Submit the application to the USCIS Lockbox with jurisdiction over the address you list on the I-765 form. Filing jurisdiction information can be found at: https://www.uscis.gov/i-765
Guidance for Employers on 24-Month F-1 STEM OPT Regulation
Key Facts
- A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016.
- The STEM OPT extension may be an effective tactic to respond to an employee not being selected in the FY-2017 H-1B Visa Lottery.
- Eligible employees working on 17-month STEM OPT extensions may apply for an additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).
- To qualify for a 7-month extension, employees must apply during the transition period, within 60 days of the DSO entering the employee’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.
- Employees on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.
Background
On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, employees applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Employees or new hires whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Employees who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is filed with USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.
General Eligibility Requirements
In order to qualify for the 24-month STEM OPT extension, an employee must be currently working
in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The employee must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the employee and the employer must create and submit a formal training plan on Form I-983 to the employee’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.
The training plan must explain how the practical training opportunity is directly related to the employee’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the employee and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the employee. Note that the training plan will be evaluated by the employee’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.
Additional Requirements for Employers
The new 24-month STEM OPT regulation contains several notable requirements for employers:
- Employers with employees on 24-month STEM OPT must be enrolled in E-Verify.
- The terms and conditions (including duties, hours, and compensation) of the STEM practical training opportunity be equal with the terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment.
- Employers must have sufficient resources and personnel available and be prepared to provide appropriate training in connection with the opportunity at the location(s) specified on Form I-983.
- Employers must notify the employee’s DSO if there is a material change to the training opportunity, including the termination or resignation of the employee, within five business days
- The employer must not use the F-1 STEM OPT employee to replace full or part time U.S. workers.
The regulation also indicates that DHS may perform site visits in order to determine if an employer is providing the training opportunity stated in the I-983 and to ensure that the employer is not abusing the program. It notes that employers will receive 48-hours notice of any site visits that do not result from a complaint or other evidence of noncompliance with the program. The number of employer site visits that ICE is planning is not clear at present but, as with other site visit programs, visits are not likely to be a widespread issue in the absence of complaints against an employer.
Action Steps for Employers
- Identify current employees holding 17-month STEM OPT work authorization who are eligible for the 7-month extension
- Employees with STEM OPT work authorization that is valid on or after October 7, 2016 are eligible to file for an extension
- The seven-month STEM OPT extension application must be filed with USCIS between May 10, 2016 and August 8, 2016
- At the time of filing, the employee’s current 17-month STEM OPT work authorization must be valid for at least 150 days
- Identify current employees who can benefit from a STEM OPT extension
- These employees must file for 24-month OPT STEM extension before the expiration of their current OPT work authorization
- Work with eligible employees to complete Form I-983
- Develop a system to identify F-1 initial OPT employees eligible for the 24-month STEM OPT and STEM OPT employees when they are hired and work with them to create and submit training plans to their DSO for approval
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.