Visa Lawyer Blog

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International students seeking a STEM Optional Practical Training (OPT) extension must be aware that the Department of Homeland Security (DHS) has not yet published a replacement rule authorizing further STEM OPT extensions, this following a court decision prohibiting DHS from allowing 17 month extensions to be issued. The OPT program allows foreign students the right to seek temporary employment during or following their studies in the United States. On August 12th of this year a court decision invalidated the processing of a DHS rule allowing a 17 month STEM OPT extension program to take place, due to procedural errors. The court’s ruling will be officially enforced on February 12, 2016 in an effort to delay hardships STEM students are likely to experience, and the disruption of employment among technology companies and relevant sectors. The delay also allows DHS to present a new rule before February 12, 2016.

With time running out (4 workdays to be exact) no such rule has since been released by DHS. While DHS has not communicated any changes to international student offices, we expect that any new rulings will have no impact on the initial 12-month OPT program. Until further clarification is provided by DHS, universities are authorized to continue to produce I-20 forms for STEM extensions. In fact, most universities are continuing to accept applications for STEM extensions, regardless of DHS’ failure to publish a new rule within the given time. Students should heed with caution if they wish to file an application for extension, as they may risk forfeiting money spent on such applications. EAD cards already issued under the existing STEM program are considered valid until further notice. DHS mandated employment reports and regular attendance should continue as normal. Students should make sure to abide by the strict unemployment limits of OPT, regardless of these developments.

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Last week, we reported to our readers that on September 25th the Department of State and USCIS re-issued the October Visa Bulletin and changed the date of filing chart drastically, rolling back the ‘Dates of Filing’ for heavily used visa categories, including employment based and family-sponsored petitions. The American Immigration Lawyers Association, along with policymakers, and immigration advocates, are urging Congress, the White House, USCIS, and Department of State to restore the initial dates of filing that were authorized and released on September 9th 2015 with the October Visa Bulletin.

If you would like to pressure the government to honor the initial dates of filing, released on September 9th, we invite you to sign the White House petition by clicking here. We must hold the government accountable for their actions by advocating for the restoration of the initial dates of filing. With the release of the October Visa Bulletin, the DOS introduced a dual chart system for the first time in history which included a new ‘date of filing’ chart. The new date of filing chart would have allowed thousands of foreign nationals to file their adjustment of status and employment authorization applications, before a visa became available to them. This action was made by the DOS in an effort to modernize and streamline our immigration system as part of President Obama’s Executive Actions on Immigration announced on November 20th of last year. Due to the recent drastic changes that have been made to the date of filing chart, we encourage you to become involved by signing the petition or writing to your local Congressman/Congresswoman. Thousands of foreign workers and family members of foreign nationals have been impacted by the recent changes, given that the majority of applicants who would have been eligible to file for their green card applications and employment authorization cards, will no longer be able to do so. They must continue to wait until their priority date becomes current on the date of filing chart.

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On September 9th the Department of State and USCIS jointly announced new procedures that will allow family-based and employment-based applicants stuck in immigrant visa backlogs to apply for an immigrant visa (adjustment of status) before their priority date becomes current and an immigrant visa becomes immediately available to them. These new procedures will be implemented beginning October 1, 2015 as part of President Barack Obama’s executive actions on immigration with the purpose of modernizing and streamlining our legal immigration system for the 21st century. These new changes were introduced in the October Visa Bulletin. 

What is the Visa Bulletin?

The Department of State publishes a monthly report of visa availability known as the ‘Visa Bulletin.’ The Visa Bulletin is essentially a guide to be used by applicants and consular officials denoting visa availability for the issuance of visas at consulates and embassies worldwide. USCIS utilizes the Visa Bulletin to determine whether Form I-485, Application to Register Permanent Residence or Adjust Status, can be accepted for filing and processing. In order to file Form I-485 a prospective immigrant must determine whether a visa is available to them at the time the Form I-485 is filed and at the time Form I-485 is approved. The Department of State and Department of Homeland Security work together to revise the Visa Bulletin on a monthly basis estimating immigrant visa availability for prospective adjustment of status applicants. The DOS allocates available visas by providing visa numbers according to the prospective immigrant’s preference category, country of birth and priority date. This allows distribution of visas for all preference categories. A prospective immigrant’s priority date can be found on Form I-797 Notice of Action or ‘Receipt Notice’ for the petition filed on the applicant’s behalf.

What is a Priority Date?

A priority date is generally defined as the “date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS.”  For employment-based petitions, “if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.”

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On August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the Department of Homeland Security’s 17-month STEM OPT Extension program that has been in existence since 2008. But because an immediate vacatur of the STEM OPT program would cause “substantial hardship” to thousands of F-1 students and create a “major labor disruption” for technology employers, the court allows the program to stay valid till February 12, 2016 and gives DHS in the next 6 months to issue a new rule and complete its notice and comment obligations by providing the public an opportunity to comment on any proposed rule.

For now, F-1 students with an approved STEM 17-month OPT extension remain eligible to work and USCIS should be still accepting and adjudicating STEM extension applications throughout the court’s stay of its ruling.

Any guidance or further action taken by the DHS and USCIS, we will update you via our blog.

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We would like to inform our readers that on July 21, 2015 the Department of Homeland Security issued a policy memorandum which provides guidance to employers and H-1B applicants regarding when to file an amended or new H-1B petition following the case law, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

The memorandum is important because it is used to guide all determinations made by USCIS employees including adjudication procedures effective immediately.

To read the complete memorandum please click here  USCIS Policy Memorandum

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DACA Update

On July 15, 2015 USCIS announced that it mistakenly issued approximately 2,100 employment authorization cards to DACA recipients that were printed with a three-year validity period instead of a two-year period, following a court injunction prohibiting USCIS from doing so.

To correct the error, USCIS sent these recipients a notice of intent to terminate deferred action and employment authorization. The letter describes that the three year employment authorization cards received after the injunction, are no longer valid and must be returned to USCIS by July 27, 2015 due to a federal court order Texas v. United States, which prohibits USCIS from issuing deferred action for a period exceeding 2 years.

USCIS also issued about 500 three year EAD cards to DACA applicants who were approved before the court order was enforced. These cards had been returned to USCIS as undeliverable by the United States Postal Service and were re-mailed to an updated address after the injunction went in effect on February 16, 2015. Due to this, these 3-year EAD cards are also deemed invalid.

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On November 20, 2014 President Barack Obama announced a series of executive actions on immigration designed to repair our country’s broken immigration system.

Among its provisions, the executive actions on immigration outline plans to: strengthen border security, expand I-601A provisional waiver eligibility, modernize visa backlogs, expand eligibility for parole in place, improve parole procedures for researchers, inventors, and foreign entrepreneurs, revise removal proceedings–making criminals and those who pose a threat to our nation’s national security a priority for deportation, expand the existing DACA (Deferred Action for Childhood Arrivals) program to include a broader population of undocumented aliens (with no prior criminal history) who have continuously resided in the United States since January 1, 2010.  The expanded DACA program, under the new policy, would last a period of 3 years, rather than the 2 year period, granted under initial DACA.

In addition to expanding DACA, Obama also proposed a new program known as DAPA (Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents) extending eligibility of deferred action to eligible parents of US Citizen or LPR children born on or before the date of the President’s announcement on November 20, 2014. To read the complete DAPA eligibility requirements please click here.

These provisions were scheduled to go into effect on February 18th of this year, however, on February 15th a temporary injunction filed by Judge Hanen along with 26 states put these initiatives on hold. Following the filing of the temporary injunction, the Department of Justice filed an appeal in defense of Obama’s executive actions and an emergency motion for stay, requesting the executive actions to go forward despite the temporary injunction.

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On Monday May 4, 2015 a federal appeals court heard arguments in the case Joseph Arpaio v. Barack Obama, et al, U.S. Court of Appeals for the District of Columbia Circuit, No. 14-5325. Back in November of 2014 in the wake of Obama’s executive actions, Maricopa County Sheriff Joe Arpaio sued President Barack Obama shortly after he announced his executive order extending Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—a plan which would shield over 4.7 million eligible undocumented immigrants from removal proceedings. Arpaio along with 26 other states sued the administration claiming that the president had overstepped his executive power and that the executive actions were unconstitutional.

In the Arpaio case, two out of the three presiding judges from the District of Columbia ruled that Arpaio did not have standing to sue and that he had failed to prove that he was directly harmed by the executive actions. Arpaio had previously claimed that the executive actions directly harmed him because criminals would not be deported as a result of Obama’s executive actions. However, eligible recipients of extended DACA and DAPA would be required to demonstrate strong ties to the United States by providing documented evidence of their continuous residence in the United States, have no criminal record, and/or have U.S. born children.

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Today, April 28, 2015 the U.S. Department of Labor and Homeland Security announced two new rules governing the H-2B Visa Program. The first is a new interim final rule established for the purpose of reinstating and improving the H2B program and second, a final rule to establish the program’s prevailing wage methodology. These rules are designed to protect US workers allowing them to fairly apply to the same jobs being offered to H-2B workers. The rules are also designed so that employers can easily access temporary foreign workers at a time when American workers would be unavailable. The Department of Homeland Security will provide guidance for interim transition procedures that must be followed by US employers. Together, these rules will continue to support American businesses and the country’s economy as a whole bringing continuity and stability to the H-2B program by protecting workers via an improvement in prevailing wage methodology, working conditions, and benefits that must be offered to H-2B and US workers covered by these regulations.

These rules will include numerous provisions designed to expand recruitment of U.S. workers, include “real-time recruitment efforts,” require employers to recruit former US employees first before offering jobs to temporary foreign workers, and will establish a national electronic job registry.

For further information please continue to refer to our blog.

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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

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