Visa Lawyer Blog

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More immigration news is coming your way. This week important updates have been released for F-1 students seeking post-completion Optional Practical Training in certain STEM-related fields of study.

DHS Issues Advance Copy of STEM Designated Degree Program List for post-completion Optional Practical Training

If you are an international student studying in F-1 visa status in the United States, this update may be of interest to you. Today, January 20, 2022, the Department of Homeland Security released an advance copy of the Federal Notice, “Update to the Department of Homeland Security STEM Designated Degree Program List,” which is scheduled to be published in the Federal Register tomorrow, Friday, January 21, 2022.

With this notice, DHS has indicated that the agency will be adding 22 qualifying fields of study to the STEM Designated Degree Program List. This change is significant because DHS relies on the STEM Degree Program List to determine whether an F-1 international student has obtained a degree in a program of study that qualifies as a science, technology, engineering, or mathematics (STEM) degree, to seek employment in the United States following graduation.

What is post-completion OPT?

F-1 students that have earned a degree in a qualifying STEM field, are eligible to apply for a 24-month extension of their post-completion Optional Practical Training (OPT) after completing their studies. Those authorized for post-completion OPT can work part time (20 hours or less per week) or full time.

For those who participated in pre-completion OPT, USCIS reduces the amount of time that an individual is eligible to participate in post-completion OPT by deducting from the authorization period. For example, students you participated in 10 months of pre-completion OPT, would only be eligible for up to 2 months of post-completion OPT.

Who is impacted by this notice?

This notice impacts qualifying F-1 nonimmigrant students who seek a 24-month extension of post-completion OPT who have earned a degree in a STEM field of study as designated by the STEM list.

What are the 22 qualifying fields of study being added to the STEM list?

  • Bioenergy (03.0210). A program of study that focuses on the environmental and economic impact of using plants and microbes for the production of bio-based fuels such as ethanol and biodiesel. Includes instruction in biochemical engineering, bioprocessing, bioseparations, conversion, feedstock, economics, environmental sustainability, hydrology, and natural resource management.
  • Forestry, General (03.0501). A program that generally prepares individuals to manage and develop forest areas for economic, recreational, and ecological purposes. Includes instruction in forest related sciences, mapping, statistics, harvesting and production technology, natural resources management and economics, wildlife sciences, administration, and public relations
  • Forest Resources Production and Management (03.0510). A program that focuses on the application of forestry principles to the production, harvesting, and processing of forest resources and that prepares individuals to perform associated technical and managerial functions. Includes instruction in forest production and utilization, industrial forestry, agroforestry, transplantation, timber harvesting, selection and identification of trees, processing technologies and systems, equipment operations and maintenance, and related management skills.
  • Human-Centered Technology Design (11.0105). A program that focuses on incorporating a human perspective into designing, researching, and creating technological interfaces. Includes instruction in design, human-computer interaction, learning, neuroscience, perception, product design, user centered design, and usability.
  • Cloud Computing (11.0902). A program that prepares individuals to design and implement enterprise software systems that rely on distributed computing and service-oriented architecture, including databases, web services, cloud computing, and mobile apps. Includes instruction in data management, distributed and cloud computing, enterprise software architecture, enterprise and cloud security, mobile systems and applications, server administration, and web development.

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Welcome back to Visalawyerblog! We hope you had a wonderful fourth of July weekend with your family and loved ones.

In this blog post, we share with you some exciting news for Yemeni nationals receiving benefits under the Temporary Protected Status (TPS) program. The Biden administration has made the decision to extend Temporary Protected Status for Yemeni nationals currently receiving protections under the program until March 3, 2023. In addition, the re-designation means that certain eligible Yemeni nationals will be able to apply for TPS protections for the first time.

The main benefit of applying for this program is that those who are approved for Temporary Protected Status can remain in the country on a lawful basis, will receive protection against deportation (deferred status), and are eligible to apply for employment authorization and travel permission by filing, Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, with the United States Citizenship and Immigration Services (USCIS).

How did this all happen?

Extension of Designation of Yemen for TPS

On January 6, 2021, the Secretary of Homeland Security, Alejandro Mayorkas, announced an 18-month extension and redesignation of Temporary Protected Status (TPS) for the country of Yemen. This extension and re-designation will be in effect from September 4, 2021, through March 3, 2023 (an 18-month period)

Secretary Mayorkas made this decision after consulting with government officials and taking into consideration the ongoing armed conflict in Yemen, lack of access to food, water, and healthcare, the large-scale destruction of Yemen’s infrastructure, population displacement, the ongoing cholera outbreak since 2016, and the worsening COVID-19 situation in the country.

Mayorkas found that these circumstances ultimately prevented Yemeni nationals from safely returning to their home country stating, “Yemen continues to experience worsening humanitarian and economic conditions that prevent individuals from safely returning to their homes. Therefore, I have decided to extend and re-designate Yemen for Temporary Protected Status. We will continue to protect and offer these individuals a place of residency temporarily in the United States.”

Currently, there are an estimated 1,700 beneficiaries receiving TPS benefits under Yemen’s designation. The program’s extension will mean that these beneficiaries can re-register for benefits and retain TPS status through March 3, 2023, so long as they can demonstrate that they continue to meet the TPS eligibility requirements.

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Happy Monday! Welcome back to Visalawyerblog. We start off the week with some interesting immigration updates.

USCIS Updates – ASC and Interview Appointments Scheduled on January 19th and 20th will be Rescheduled

In anticipation of the Presidential inauguration on January 20, 2021, the United States Citizenship and Immigration Services (USCIS) has announced the temporary suspension of in-person services at all field offices, asylum offices, and application support centers (ASC biometrics offices) on January 19th and January 20th to ensure the safety of employees and individuals with appointments on these dates.

Accordingly, for individuals who had appointments on these dates (either for biometrics or for an interview) USCIS will be rescheduling these appointments and sending notices with the new appointment dates.

Please keep a look out for these notices in the mail within the next few weeks.

Nationals Eligible to Participate in the H-2A and H-2B Visa Program

In other news, last week the Department of Homeland Security released the list of countries eligible to participate in the H-2A and H-2B visa programs in the Federal Register.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs.

Typically, USCIS approves H-2A and H-2B petitions only for nationals of countries that the secretary of Homeland Security has designated as eligible to participate in the programs.

However, USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States based on the evidence submitted.

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In the few months remaining in the Trump presidency, the Trump administration continues to pass laws and regulations that make it more difficult for immigrants and nonimmigrants to enter the United States.

Most recently, the administration has targeted the B-1/B-2 temporary business visitor/tourist visa program.

On November 24, 2020, the U.S. Department of State published a temporary final rule in the Federal Register entitled, “Visas: Visa Bond Pilot Program.”

What is this rule about?

The final rule calls for the creation of a temporary 6-month visa bond pilot program that authorizes Consular officials at U.S. Embassies and Consulates worldwide to mandate a bond of $5,000, $10,000, or $15,000 for certain B-1/B-2 visa applicants in order for them to receive visas and travel to the United States.

If a consular official finds that a bond is appropriate, the amount of the bond will be determined by him or her based on the circumstances of the visa applicant.

According to the rule, “the Pilot Program is designed to apply to nationals of specified countries with high overstay rates to serve as a diplomatic tool to encourage foreign governments to take all appropriate actions to ensure their nationals timely depart the United States after making temporary visits.”

When does the final rule go into effect?

The final rule becomes effective December 24, 2020 for a period of 6 months (through June 24, 2021).

Who will be impacted?

According to the final rule, visa applicants potentially subject to the Pilot Program include aliens who are applying for visas as temporary visitors for business or pleasure (B-1/B-2); are from countries with high visa overstay rates; and are already approved by DHS for an inadmissibility waiver.

Aliens traveling under the Visa Waiver Program fall outside the scope of the Pilot Program, since a visa application is not required for their entry to the United States.

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Welcome back to Visalawyerblog! Happy Friday. In this post we bring you very important yet unfortunate news regarding ongoing litigation in the fight to invalidate the public charge rule known as “Inadmissibility on Public Charge Grounds.”

As we previously reported, on November 2, 2020, a federal judge from the U.S. District Court for the Northern District of Illinois, issued a ruling in the case Cook County Illinois et al. v. Chad Wolf et al. which immediately set aside the public charge rule. The judge’s ruling allowed applicants to proceed with adjustment of status filings without having to include Form I-944 Declaration of Self-Sufficiency.

Now things have changed.

In a stunning rebuke of the lower court’s decision, the Seventh Circuit Court of Appeals has put the public charge rule back in place. As a result, the Department of Homeland Security (DHS) may continue to enforce the public charge rule as before.

What did the appellate court decide?

On November 4, 2020, the appellate court placed an “administrative stay” on the November 2nd decision stopping the lower court from invalidating the public charge rule.

What does this mean for applicants for adjustment of status?

As a result of this decision, the U.S. Citizenship and Immigration Services (USCIS) may continue to implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.

Accordingly, all applicants for adjustment of status must include Form I-944 Declaration of Self-Sufficiency as well as all appropriate fees and supporting documentation.

What does this mean for employers and foreign nationals?

Until further notice, adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.

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In this post we discuss a new proposed rule published by the Department of Homeland Security (DHS) that seeks to amend regulations governing Form, I-864 Affidavit of Support. The I-864 Affidavit of Support is a required form that must be completed by the person petitioning the foreign national, in order for their relative to immigrate to the United States. The petitioner must attest that they meet the income requirement based on their household size to sponsor the foreign national. Petitioners who are unable to meet the income requirement, must obtain a joint sponsor who does meet this requirement.

Essentially, when the petitioner or joint sponsor signs the affidavit of support, he or she is entering into an enforceable contract with the U.S. government, in which they agree to use their financial resources to support the beneficiary named in the affidavit of support. Where the beneficiary seeks public benefits from a government agency, the petitioner or sponsor can be held legally responsible for repaying those costs to the government agency.

The rules and regulations governing the affidavit of support have recently come under fire during the Trump administration. The President has consistently pushed for stricter enforcement of a sponsor’s obligations, requiring government agencies to hold sponsors liable for any benefits paid out to beneficiaries of an affidavit of support.

What is the New Rule About?

On October 2, 2020 DHS announced a proposed rule that (1) clarifies how a sponsor must demonstrate that he or she has the means to maintain income (2) revises documentation that sponsors and household members must meet as evidence of their income (3) modifies when an applicant is required to submit an Affidavit from a joint sponsor and (4) updates reporting and information sharing between government agencies.

Changes to Documentation Required of Sponsors

The proposed rule updates the evidentiary requirements for sponsors submitting an Affidavit, to “better enable immigration officers and immigration judges to determine whether the sponsor has the means to maintain an annual income at or above the applicable threshold, and whether the sponsor can, in fact, provide such support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect.”

Specifically, this proposed rule would require sponsors and household members who execute an Affidavit or Contract to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Receipt of Means-Tested Benefits May Disqualify Sponsor

The proposed rule also seeks to change the regulations to specify that a sponsor’s prior receipt of any means-tested public benefits and a sponsor’s failure to meet support obligations on another executed Affidavit, or household member obligations on a previously executed Affidavit of Support, will impact the determination as to whether the sponsor has the means to maintain the required income threshold to support the immigrant.

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We have great news for visa applicants regarding the public charge rule. On August 7, 2020, the U.S. Department of State issued an important update explaining that the agency will be complying with the July 29th injunction issued by a federal judge in the United States District Court for the Southern District of New York which temporarily blocks the government from “enforcing, applying, implementing, or treating as effective,” the public charge rule known as “Inadmissibility on Public Charge Grounds,” which was implemented on February 20, 2020.

As a result, effective June 29th (the date of the Judge’s order) neither Consular officials nor the United States Citizenship and Immigration Services (USCIS) can enforce any part of the public charge rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak, and for as long as the injunction remains in place.

In other words, visa applicants applying for both immigrant and non-immigrant visas at a U.S. Consulate or Embassy abroad, can rest assured that Consular officials will not enforce the public charge rule known as “Inadmissibility on Public Charge Grounds,” in any way pursuant to the Court’s ruling on June 29th.

In their statement the Department of State made clear, “the Department is complying with the court’s order and is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders.  Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled.  Applicants are not required to complete, nor should they present the DS-5540, Public Charge Questionnaire.”

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We have news that may be some relief to international students across the United States.

Today, Wednesday, July 8, 2020, Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit in District Court in Boston against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), challenging new guidelines that prohibit international students from taking online classes during the upcoming fall semester.

The lawsuit seeks a temporary restraining order, preliminary, and permanent injunctive relief to bar the Department of Homeland Security and Immigration and Customs Enforcement, from enforcing recent federal guidelines just announced on Monday, that prohibit international students from attending U.S. colleges and universities offering only online instruction during the upcoming Fall 2020 semester.

As our loyal followers know, early this week, Immigration and Customs Enforcement issued a news release introducing a new set of guidelines for international students who will take courses in the U.S. during the upcoming fall semester.

Among the new guidelines, we learned that F-1 and M-1 students will be prohibited from taking courses entirely online during the fall semester. The announcement stated that the Department of State would not issue visas to students enrolled in schools and/or programs operating entirely online, and Customs and Border Protection would not allow such students to enter the United States.

International students in the United States enrolled in schools and/or programs operating entirely online were only given two options (1) depart the United States or (2) take other measures such as transferring to a school with in-person instruction to remain in lawful status.

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Today, Monday, July 6, 2020, the United States Immigration and Customs Enforcement (ICE) issued a news release introducing new modifications taken by the Student and Exchange Visitor Program (SEVP) that will apply to all international students in F-1 and M-1 status taking courses during this upcoming Fall 2020 semester. The U.S. Department of Homeland Security will be publishing new procedures and responsibilities for F-1 and M-1 students during the upcoming Fall 2020 semester in the Federal Register including changes to current policies for F-1 international students.

Monday’s modifications introduce surprising requirements for F-1 and M-1 students taking online classes due to the Coronavirus (COVID-19) pandemic during the fall 2020 semester.

What are these new requirements?

There are three sets of new requirements.

F-1 and M-1 Students Attending Schools with Full Online Instruction During the Upcoming Fall 2020 Semester Must Transfer to In-Person Instruction or Depart the United States

Nonimmigrant F-1 and M-1 students who are attending schools operating entirely online may not take a full online course load and remain in the United States.

The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall 2020 semester nor will U.S. Customs and Border Protection permit these students to enter the United States.

Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status.

If the student fails to transfer to a school with in-person instruction for the fall 2020 semester, the student may face immigration consequences including, but not limited to, the initiation of removal proceedings.

F-1 Students Attending Schools With In-Person Instruction Bound to Existing Regulations – Can Take 3 Credits Online

F-1 students who will attend schools operating under “normal” in-person instruction during the Fall 2020 semester (as opposed to online classes) will be bound by existing federal regulations. Eligible F students are permitted to take a maximum of one class or three credit hours online.

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The government is yet again proposing sweeping changes to current immigration policy, this time targeting Form I-864, Affidavit of Support.

By law, petitioners seeking to immigrate their immediate relative to the United States are required to submit Form I-864 affidavit of support, to ensure to the government that the foreign national will not become a public charge once they have entered the country.

This is true regardless of whether the immigrant is applying for an immigrant visa overseas, or whether the immigrant is adjusting their status to lawful permanent resident in the United States.

The affidavit of support has recently been the subject of intense scrutiny by the Trump administration.

The President has been primarily concerned with alien’s obtaining government benefits that they are not entitled to receive and has sought to enforce a sponsor’s obligations to reimburse the government for any monies paid out to aliens.

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