Ensuring a Smooth Transition from F or J to PR

FBA ILS ANNUAL CONFERENCE AUSTIN 2019

David Ware, DL, Ware|Immigration, In the Cloud

Lucy Cheung, Goldstein and Cheung, LLP, New York, NY

Dahlia French, Texas Tech University Health Sciences Ctr., Lubbock, TX

Liz Goss, Goss Associates, Boston, MA

What Will I Learn?

• How students qualify for employment.

• The insidious danger of the unlawful presence rule.

• What is “cap gap” protection for students and how it works.

• Possible workarounds if student misses H lottery.

• J waiver timing for H, PR.

• Going directly from student status to PR.

Mr. Fnu Lnu

A small management consulting company, WeToo, wishes to hire Mr. Fnu Lnu, currently enrolled in a Master’s of Business Analytics program at Tejas University. He is set to graduate in August. Mr. Lnu was born in India, and a citizen of India, but his fiancée is from Trinidad. They ask you to walk through the process to get him work authorized, a work visa, and then permanent residence. They are extremely interested in him as Business Analytics is in high demand. They don’t want to lose him under any circumstances.

Mr. Fnu Lnu Part 2

• CPT is granted until graduation

• OPT is granted from August 2019 to August 2020

• H petition is filed April 2020

• Petition is selected in lottery

• What is cap gap?

• Is he eligible for STEM extension?

• Should he apply for STEM?

• Downsides for employer to STEM

Mr. Fnu Lnu Part 3

• STEM OPT is approved until August 2022.

• H, after MONSTER RFE on specialty occupation, is on Jan 1, 2021, for the period 1/1/21 to 9/15/24.

• Alternatively, H is denied, what are other nonimmigrant options?

• Is there an option to go straight to green card? What are the pitfalls?

• You discover that many years ago, Mr. Lnu was in the US as J in the field of Biology…and he did his academic training in a lab funded by the NSF.

• BTW, Mom back in India has a bride for him and has told him he cannot do a “love marriage”.

Students: Entering the Workforce

• Generally, students common to EB practice come in two flavors:• F academic students studying at colleges and universities.• J exchange visitor students studying at colleges and universities.

• F students have four commonly encountered employment programs: On Campus Employment, Off Campus Employment for Economic Necessity, Curricular Practical Training, and Optional Practical Training.

• J students have three: On Campus Employment, Off Campus Employment Permission, and Academic Training.

• Both also may qualify for work authorization not related to study (humanitarian, family, etc).

F Students During Program of Study• On school’s physical campus, either for school or private contractor serving

students, OR off campus with an “educationally affiliated” employer (requires MOU). • 20 hours/week while school in session/40 hours during breaks, holidays; no permission

required.

• Off campus due to severe economic hardship arising after entry.• Same hourly limitations as on campus employment; USCIS approval reqd.

• Curricular Practical Training (CPT), “integral to program of study”.• Unlimited amount of part time CPT.• One year or more of FT CPT negates OPT (discussed next).• Granted by Designated School Official, based on job offer with specific employer.• Exact contours of CPT opportunities vary from school to school.• Can begin after nine months in F status, or immediately if required by grad program.

• 8 CFR 214.2(f)(9),(10)

Optional Practical Training (OPT)

• 12 months employment.

• Offered to students in Associate’s or higher program.

• Available during program of study (PT), after completion of all but thesis or dissertation (FT), or following course of study (FT).

• Pre completion deducted from max 12 months post completion.

• Must be in employment related to last program of study.

• No pre-existing job offer.

• Granted by USCIS based on school’s recommendation.

• Qualify for additional 12 months after each higher degree.

• Forms most students’ “bridge” into the US workplace.

STEM OPT

• Students who finish a US STEM degree, or who have a prior STEM degree from a US university earned within prior 10 years qualify for 24 extra months.

• May get up to two “lifetime” STEM extensions. Second if earn STEM degree at higher level.

• Requires school’s recommendation, application prior to expiration of post-completion OPT.

• Requires that employer be enrolled in E-Verify, devise training program, oversee training and periodically evaluate student.

J Student Work Programs

• On campus, PT during school.

• Off campus, for “serious, urgent and unforeseen” economic reasons, PT during school.

• Academic training (AT), during school (PT) or after program.

• AT authorization: 12 month (bachelor’s); 18 months (master’s, Ph.D); 36 months (postdoctoral appointment).

• All require prior authorization from J program Responsible Officer.

• 22 CFR 62 (f), (g).

Accrual of Unlawful Presence and F, J, and M Nonimmigrants

• USCIS Policy Memoranda – effective August 9, 2018• AILA Doc No. 18081000

• MAJOR Policy Change

• What does it do?• Eliminates D/S safety net

• Equates status violation with overstay for F/J/M

• F/J/M principal violation ascribed to F/J/M derivatives

Triggering ULP

ULP begins:• Day after no longer pursues course of study or authorized activity

• Day after engages in unauthorized activity

• Day after completing course or program + respective grace period

What constitutes unauthorized activity?

GOOD QUESTION!

No clear definition of “unauthorized activity”• Off-campus volunteer position?

• Renting your room via Airbnb?

• Mistakenly working on-campus 21 hours?

• Drop a class?

• OPT – a minefield• Is employment in major field of study?

• STEM reporting requirements not met

• Commencing new degree program while still on OPT

• Failing to change address with DSO

• Hit by a car and accrues more than 90/150 days unemployment

Determination of ULP

• USCIS adjudicator decides based on• Information in USCIS system

• Information in FN’s record including “any admissions regarding his or her immigration history or other information discovered during adjudication”

• Does this mean they will scour social media?

• How will they “discover” information during adjudication

• Information contained via RFE or NOID – assuming there are still RFEs or NOIDs

• Memo provides NO limitation on how far back adjudicators may reach

• IS USCIS ABLE TO ADMINISTER THIS RULE?

EXCEPTIONS FOR Fs

• Annual vacation, 30 days before program start, grace period

• Authorized reduced course load

• Practical training, including allowed periods of unemployment

• Change of level transition process

• Authorized H-1B “cap gap” period

• Pending application for post-completion OPT

• School transfer transition process

EXCEPTIONS FOR Js & Ms

J Exceptions

• During the program period indicated on Form DS-2019

• 30 day period preceding the program and 30 day grace period at end

• During any extension of program period indicated on Form DS-2019

• During any “cap gap” period (if ever authorized)

M Exceptions

• Period of admission indicated on Form I-94 & Grace Period

• Authorized period of practical training

ALSO: EXCEPTION FOR ALL

• Timely filed Application for Reinstatement with USCIS• If reinstatement approved, no ULP• If reinstatement denied, ULP goes back to the date of the

status violation • No ULP tolling if untimely filed reinstatement application

Is this Legal?

• APA violation? Due Process violation?

• CBP, DOS, SEVP yet to provide guidance or comment

• AILA Litigation: (AILA Doc. No. 181002471)• “Guilford College v. Neilsen”, October 23, 2018, District Court

North Carolina • Amici Curie includes more than 65 U.S. Institutions of Higher

Education• January 28, 2019: TRO barring application of memo against two

individual named plaintiffs• May 3: Nationwide preliminary injunction

F or J to Nonimmigrant Status: Options: H1B

• H1B is the natural choice for most college graduates.

• Student or EV must possess four year degree or equivalent professional work experience (3 for 1 rule).

• The position must require at least a Bachelor’s degree in same or very closely related field (generally, must be industry standard).

• Employer must be willing to pay “required wage” and comply with other H1B program requirements.

The Cursed Quota

•How many H visas are made available per year?• Currently H1B’s are limited to about 78,200 per fiscal year.~58,200 for those with no US earned Master’s.--20,000 for those with US earned Master’s or higher.~6,800 reserved for citizens of Chile, Singapore (H1B1—

available all year—see subsequent slide).

Quota Statistics• 2012: Masters, June 7; regular June 11.• 2013: both caps exhausted on April 5; lottery. • 2014: both caps exhausted on April 7; lottery.• 2015: both caps exhausted on April 7; lottery.• 2016: both caps exhausted on April 7; lottery. 236K +

petitions received. • 2017: about 199K petitions received; lottery.• 2018: about 190K petitions received; lottery.• 2019: about 201K petitions received; lottery.• So, in other words, it is likely there will be a lottery for

H visas every year.• Note: new registration system for next year!

Transition to H-1B

•When is it too early and too late to start•Putting together pieces of the puzzle

• Degree – signed, sealed, delivered• Some schools have early completion by April 1

• LCA – seven business days• Premium processing—is it available?

• Get acquainted with cap-gap.

• Watch out for horrendous RFE’s: specialty occupation, Level I wage, mismatch between position description, wage level

H-1B RFEs and Denials

Fiscal Year Approval % RFE % Approval % after RFE

2018 84.5% 38% 62.3%

2017 92.6% 21.4% 73.6%

2016 93.9% 20.8% 78.9%

2015 95.7% 22.3% 83.2%

H-1 Pre-Registration in 2020

•H-1B employers will register online before submission

•When pre-registration period closes, USCIS will run H-1B lottery• First, general lottery for 65,000 standard cap• Second, U.S. master’s lottery for 20,000 master’s cap

• If selected, may file full H-1B petition with evidence

•USCIS may create waiting list

H-1B and OPT Cap-Gap Extension

•Must be on OPT, STEM OPT or 60-day grace period on April 1• Extends status and work auth to midnight Sept 30• If in grace period, status extended but no work auth

•No cap gap if petition for consular notification•No travel during cap gap•Validity period of cap gap•Apply for STEM during cap gap?

Issues with Cap Gap

• SEVIS glitches

•Cap gap while waiting for receipt?

•After September 30?

•What if employer is not subject to H-1B cap?

•H-1B rejected, withdrawn or denied

OPT/F-1 Status Graduated Extension Scheme

• No cap gap for quota exempt employers

• SEVP uses graduated extension scheme for OPT and F-1 Status extensions during cap gap (flexible dates; announced each year)• Timely Filed H-1B (June 1)• Not Receipted (No additional extension)• H-1B Wait-Listed (July 28 with proof of wait-listing sent to DSO)• H-1B Receipted (September 30) • If H-1B Approved (September 30)• If H-1B Denied/Withdrawn (OPT ends 10 days after date of denial/withdrawal.

60-Day Grace Period Begins)• If H-1B Still Pending On October 1 (None – F-1 begins 60 day grace period)

STEM OPT & Travel After H-1B Filing

• Shift to STEM OPT if H-1B not receipted/denied/revoked/withdrawn. Must file I-765 before 60-day grace period begins

• Student travel during cap gap—very limited circumstances• If COS pending, will abandon if travel occurs;• If only F-1 cap gap EOS, no travel recommended; regulation states student must have

valid EAD card to return to the United States.• If both F-1 EOS & OPT extension, and H-1B approved, travel allowed (USCIS & SEVP).

DOS (9 FAM 41.61 N13.5-2) travel allowed; CBP has no guidance.

• https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations

Can I Find an H Cap Exemption?

• H-1B with a Cap-Exempt Employer• College/University (non-profit)

• Non profit with written affiliation agreement for joint activities with college/university

• Research Organization• Non-Profit

• Government

• Concurrent Employment with an H-1B Cap Subject Employer• Is there a minimum number of hours?

• Pitfalls?

• Working “at” rather than “for” cap exempt employer

Missing the Cap: H-1B Workarounds

• If employer has int’l operations, out for a year and back as L-1B?• Watch out for conservative adjudication trends!

• “Day 1” CPT after OPT? • Sporadic denial of COS if CPT at same educational level. See 8 CFR 214.2(f)(10).• Not all schools, programs permit.• May only be PT.

• Trainee visas• H-3: must be very robust program, OJT limited, employer petitions USCIS.• J-1: must be based on foreign degree + 1 year experience, or 5 years experience.

Third party sponsor issues DS 2019.

• Enroll in new course of study; apply for PR and wait it out…unless Chinese or Indian!

Country Specific Nonimmigrant Options: TN• TN: Citizens of Canada and Mexico

• Specific Occupations• Degree or Experience Requirement, Depending on the Occupation• Duration• Processing

• Via USCIS• Via Consulate (Mexicans)• Via Border/Port of Entry (Canadians)

• Landmines• Economists• Management Consultants• Scientific technicians/technologists

• Nonimmigrant Intent

Country Specific Options: E 3

• E-3• Citizens of Australia

• Specialty Occupations

• Degree/Experience Equivalency

• Labor Condition Application

• Duration

• Spousal Employment Authorization (don’t forget the “inverse”)

• Processing• Via USCIS (No Premium Processing)

• Via Consulate

• Nonimmigrant Intent

Country Specific Options: H1B1

• H-1B1• Citizens of Singapore and Chile

• Specialty Occupations

• Degree/Experience Equivalency

• Labor Condition Application

• Duration

• No Spousal Employment Authorization

• Processing• Via USCIS

• Via Consulate

• Nonimmigrant Intent

Other Nonimmigrant Options: O

• O 1 alien of extraordinary ability or achievement

• Must prove ”sustained national or international acclaim”

• Will utilize abilities in US employment

• Sadly, most recent college grads don’t meet this criterion, BUT • Look closely at Ph.D recipients

Other Nonimmigrant Option: E • E-1: Treaty Trader

• Ownership by at least 50% of Treaty Nationals• Substantial Trade • Principal Trade > 50% with Treaty Country

• E-2: Treaty Investor• Ownership by at least 50% of Treaty Nationals• Substantial Investment• Test of Marginality

• Includes both principal investors and “essential employees” of investing company

• Spousal Employment Authorization

J-1 Waiver Timing

• INA §212(e) – cannot change status or apply for H visa, L visa or permanent residence• §212(e) never goes away, unless waived or satisfied

•Waivers: no objection, hardship, persecution, IGA• Timing of filing waiver vs. filing H-1B•Most waivers take about six months •When to file change of status from J-1 to H-1B •What about Canadians?

OPT or AT Directly to PR

•Possible or advisable?• Strategizing timeline

• Indians and Chinese, oh my! Check cross-charge.• Is STEM EOS available?

•Navigating nonimmigrant intent • Travel during process• Immigrant visa retrogression•PERM vs. EB-1 vs. NIW

Questions?Comments?