Visa Lawyer Blog

Articles Posted in STEM OPT

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We kick off the start of a brand-new week with the latest in the world of immigration. This week we are excited to announce new H-1B FY 2023 cap season updates — the lottery is now complete!

H-1B Fiscal Year 2023 Season Updates

As our readers will know, the mandatory electronic registration period for the H-1B fiscal year 2023 season kicked off on March 1, 2022, and ended on March 18, 2022.

We had expected USCIS to notify all H-1B petitioners of selection by April 1st (the earliest date when H-1B cap-subject petitions for FY 2023 can be filed). However, news of selection came much quicker.

On March 29, 2022, USCIS announced that the H-1B FY 2023 cap was reached, and that enough registrations were also received for the advanced degree exemption (U.S. master’s cap). From these registrations, USCIS selected petitioners at random to be eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Petitioners will need to login to their USCIS online accounts to check the status of their registration.

If you were not selected in the FY 2023 cap the following status will be shown in your online account:

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

If you were one of the lucky winners of the FY 2023 cap the following status will be shown:

  • Selected: Selected to file an H-1B cap petition.

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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! It’s a brand-new week and we are excited to share with you a recent update that will benefit F-1 students applying for employment authorization under the Optional Practical Training program (OPT).

Today, April 12, 2021, the United States Citizenship and Immigration Services (USCIS) announced that F-1 students requesting OPT may now file their Form I-765, Application for Employment Authorization, online by creating an online account at myaccount.uscis.gov, instead of having to submit a paper application by mail to USCIS, if they fall under one of the following categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

What is Optional Practical Training (OPT)?

Optional Practical Training (OPT) refers to a temporary period of employment that is directly related to an F-1 student’s major area of study.

Eligible F-1 students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion).

Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

How Can You Qualify for OPT?

All OPT must be directly related to your major area of study. If you are an F-1 student, you may be eligible to participate in OPT in two different ways:

  • Pre-completion OPT:  You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.

If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.

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Welcome back to Visalawyerblog! We kick off the start of a brand-new week with some important immigration updates.

USCIS Expands Premium Processing Service to E-3 Petitioners

We are happy to report that beginning February 24, 2021, petitioners filing Form I-129, Petition for a Nonimmigrant Worker, who are requesting a change or extension of status to E-3 classification, will be able to take advantage of premium processing service to expedite processing of their petition. The filing fee for premium processing service for E-3 petitions is $2,500.

What is premium processing?

Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker and I-140 Immigrant Petition for Alien Workers. The main benefit of this service is a guaranteed 15-calendar day processing time for all those who take advantage of it.

When does the 15-calendar period begin?

The 15-calendar day period begins when USCIS properly receives the current version of Form I-907, Request for Premium Processing Service, at the correct filing address noted on the form.

Once the I-907 is received, USCIS either issues an approval notice, denial notice, notice of intent to deny, or request for evidence within the 15-calendar day period.

Is premium processing available for other petitions?

At the moment premium processing service is only available for I-129 and I-140 petitions. However, H.R. 8337 proposed expanding premium processing service to other types of applications in the future including applications to change or extend nonimmigrant status, applications for employment authorization, and other types of benefit requests.

USCIS Introduces Flexibilities for Certain Students Filing Form I-765 for OPT

We are happy to report that on February 26, 2021, USCIS announced new flexibility policies for certain foreign students who have not received receipt notices for Form I-765 petitions for OPT as a result of USCIS delays.

USCIS has stated that the agency has been experiencing delays at certain lockboxes and has not been able to issue receipt notices for certain Form I-765 applications for optional practical training (OPT) for F-1 students in a timely manner.

As a result, USCIS will provide the following flexibilities to assist certain applicants for OPT who have been impacted by the delays.

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nesa-by-makers-IgUR1iX0mqM-unsplash-scaledWe are very happy to announce that yesterday July 14, 2020, the Trump administration backed down and agreed to cancel a new set of federal guidelines that would have required international students to attend classes in-person during the upcoming Fall 2020 semester.

As you may be aware, on Monday July 6th U.S. Immigration and Customs Enforcement (ICE) issued a news release with new modifications that would have applied to international students in the United States, and those awaiting their visas abroad. The announcement prohibited international students from taking courses entirely online during the upcoming semester. It stated that students enrolled in schools with only online instruction would not be issued visas, and CBP would not permit these students to enter the United States. In addition, students already in the United States, who had enrolled in an online program, were given two options, transfer to another school with a hybrid or in person curriculum or depart the United States.

Shortly after these measures were announced, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on behalf of all international students affected by the new guidelines. The universities requested an emergency hearing to block the government from enforcing these measures. That hearing was scheduled to take place yesterday morning, but in a surprising turn of events, just before the hearing was getting started, the judge announced that the government had agreed to rescind its policy and would no longer require students to attend in-person classes in order to remain in the country.

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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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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New rumors are yet again circling regarding the possibility of a future executive order banning the entry of certain non-immigrants from the United States. An official speaking on condition of anonymity has fueled these rumors divulging information that the Trump administration is getting ready to issue a new executive order that would temporarily suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a period lasting several months.

A copy of the executive order has allegedly been leaked to the media; however, our office has not been able to find a draft copy of such an order. It is also important to note that even if a version of the executive order has been leaked, the official version of a future executive order banning non-immigrants might look substantially different.

What is being said about the potential executive order?

The order is rumored to suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a temporary period lasting several months.

Like previous executive orders suspending immigrant and non-immigrant entry, the order will contain numerous exceptions, although these exceptions have not yet been made clear. We believe exceptions will likely apply to essential workers such as health professionals, those working to mitigate the effects of COVID-19, and essential workers in food-related industries.

As it relates to J-1 visas, it is rumored that only summer workers, camp counselors, trainees, and interns will be impacted, not medical physicians.

TAKEAWAY: If you have a valid L-1, H-1B, H-2B, or J-1 non-immigrant visa and you are abroad, you should consider returning to the United States as soon as possible.

Who will the order likely impact?

The order is rumored to impact only those in L, H, and J non-immigrant status outside the United States, however, the Trump administration is considering adding regulatory changes to the order that would impact OPT students and new H-1B applicants in the United States. This includes provisions that would end the STEM OPT program, and provisions tightening H-1B visa requirements to narrow the definition of “specialty occupation,” require higher wages, and increase H-1B filing fees.

TAKEAWAY: STEM OPT applications and extensions should be submitted as early as possible to avoid a negative impact.

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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