FEBRUARY 2016 MONTHLY VISA PRESENTATION

Transcription

1 FEBRUARY 2016 MONTHLY VISA PRESENTATION 1. QUESTIONS 2. VISA UPDATES 3. SCENARIOS AND EAD CARD PROCESSES

2 QUESTIONS FROM ATTENDEES

3 VISA UPDATES: CONTINUING USCIS DELAYS WITH PROCESSING H-1B VISAS IT IS RECOMMENDED FOR ANY EMPLOYEES CHANGING TO H-1B STATUS TO CONSIDER PREMIUM PROCESSING.

4 VISA UPDATES: F-1 STEM OPT On February 5, 2016, DHS sent the final STEM OPT rule to OMB for review. This is the last phase of review before the rule is published in the Federal Register. DHS had previously announced an intention to have an effective date 60 days after the Federal Register publication date. The final rule would have to be published by about March 10, 2016 to accommodate the May 10, 2016 vacatur date of the current rule. On January 23, 2016, the District Court granted DHS's motion to extend the stay of the vacatur of the STEM OPT rule from February 12, 2016 until May 10, Read the court's order and memorandum opinionexplaining why the court granted the extension. On January 14, 2016, DHS filed a response brief to WashTech's January 11, 2016 response, arguing that the district court does have jurisdiction to extend its stay of vacatur through May 10, 2016, and asking the court to reject WashTech's opposition brief. In addition, DHS made the following important request in its brief: ""In the event the Court denies DHS's Rule 60(b)(6) motion, the agency respectfullyrequests that the Court clarify that its vacatur will not affect the legal status of F-1 students holding unexpired employment authorization documents ("EADs") granted under the 2008STEM OPT Extension rule, and their dependents. Such an order of clarification is appropriate in light of the interests of many F-1 students, their schools, and their employers, and would help DHS ensure that it is in full compliance with the Court's order. Moreover, it will assist interested parties greatly as this case continues to move forward." DHS also asked the district court to issue a decision on its motion to extend the vacatur date "as expeditiously as possible. On January 11, 2016, the Washington Alliance of Technology Workers (WashTech) filed a response to DHS's December 22, 2015 motion, arguing that the District Court should not grant the extension until May 10, 2016 that DHS requested in its motion. On December 24, 2015, the court granted a WashTech motion for an extension of time to respond to DHS's December 22, 2015 motion. The court granted WashTech until January 11, 2016 to respond to the DHS motion. On December 22, 2015, after receiving over 50,000 comments on the proposed rule, DHS moved the WashTech court to extend the stay on the vacatur of the current STEM OPT rule from February 12, 2016 until May 10, 2016, to provide for "approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community." Read the December 22, 2015 DHS motion to extend the stay on the court's original vacatur order. If the court does not grant DHS' motion to extend the stay of vacatur, the current rule would expire effective February 13, 2016, and DHS suggested that it may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule. On November 18, 2015, NAFSA commented on the proposed STEM OPT rule. Read NAFSA's comment letter. On October 19, 2015, the Department of Homeland Security published the much-anticipated proposed STEM OPT rule. The public will have 30 days (until November 18) to comment on the proposed rule. Many of NAFSA's longstanding priorities are addressed, but there are also some additional obligations. A brief summary of the proposed rule's major provisions, and updates on the progress of the proposed rule, can be found on NAFSA's separate STEM OPT Rulemaking Page, at On August 18, 2015, the Washington Alliance of Technology Workers (WashTech) filed a notice of appeal with the United States Court of Appeals for the District of Columbia Circuit [Civil Action No. 1:14-cv-529]. It is likely that WashTech will challenge the District Court's August 12, 2015 determination that establishing the STEM OPT benefit in 2008 was within the scope of DHS's regulatory authority. In an August 12, 2015 opinion and order, the United States District Court for the District of Columbia found that DHS' failure to provide notice and invite public comment at the time of the 2008 STEM OPT extension rule was "a serious procedural deficiency" that merits "vacatur" (i.e., rescinding, setting aside, annulling) the STEM OPT extension. It is important to note that the court found that establishing the STEM OPT benefit itself in 2008 was within the scope of DHS's regulatory authority, and that the court's decision to vacate was based on the procedural deficiency only. The judge's vacatur order specifically references only "the 17- month STEM extension described at 73 Fed. Reg 18,944 (Apr. 8, 2008)," and so it is unclear what impact, if any, the order will have on parts of the 2008 rule other than the 17-month STEM extension. In any case, DHS has been working on publishing a new STEM OPT regulation to cure the procedural defects of the 2008 rule and to address other issues raised with STEM OPT. In a June 8, 2015 letter to DHS Secretary Jeh Johnson, Senator Charles Grassley (R-Iowa) expressed concern "about the Department s plans to expand the Optional Practical Training (OPT) program," and urged DHS "to reconsider expanding the program without adding adequate controls and safeguards." See Senator Grassley's website for details.

5 OIP UPDATES NEW FORMS POSTED ON OIP WEBSITE FOR THE FOLLOWING CATEGORIES: LPR/O-1 REQUESTS: CONRAD 30 REQUESTS: H-1B QUESTIONNAIRES: OIP SERVICE REQUEST: TRAVEL REGISTRATION:

6 J-1 FEE INCREASE CURRENT EFFECTIVE FEBRUARY 15, 2016 J-1 INITIAL PROCESSING FEE J-1 INITIAL PROCESSING FEE RESEARCH SCHOLAR $75 RESEARCH SCHOLAR $125 PROFESSOR $75 PROFESSOR $125 SHORT-TERM $75 SHORT-TERM $125 RESEARCH SCHOLAR RESEARCH SCHOLAR STUDENT INTERN $75 STUDENT INTERN $200

7 EMPLOYMENT AUTHORIZATION DOCUMENT (EAD)

8 WHAT IS AN EAD? An EAD card provides evidence of a nonimmigrant s authorization to work temporarily in the United States. EAD cards are not issued to internationals whose work authorization is inherent with their status i.e. H-1B or J-1. Issued by the USCIS to those eligible. USCIS application fee is typically $380. The card does not provide any details on the individual s visa status

9 VISA STATUS AND EAD CHART F-1 INTERNATIONAL STUDENT VISA-OPT (OPTIONAL PRACTICAL TRAINING) F-1 INTERNATIONAL STUDENT VISA-STEM OPT (OPTIONAL PRACTICAL TRAINING) F-1 INTERNATIONAL STUDENT VISA-EMPLOYMENT AUTHORIZATION BASED ON HARDSHIP J-2 EXCHANGE VISITOR VISA- DEPENDENT OF J-1 H-4- DEPENDENT OF H-1B EMPLOYEE WITH APPROVED I-140 PETITION FOR PERMANENT RESIDENCY PENDING I-485 CHANGE OF STATUS PETITION FOR PERMANENT RESIDENCY TPS- TEMPORARY PROTECTED STATUS DEFERRED ACTION- DACA

10 F-1 INTERNATIONAL STUDENT VISA EAD BASED ON SEVERE HARDSHIP EAD BASED ON OPT EAD BASED ON STEM OPT Eligibility Must prove to USCIS that employment is necessary due to severe economic hardship caused circumstance beyond his or her control that arose after obtaining F-1 status Must be in F-1 status for one full year Must have been lawfully enrolled on a full-time basis in an academic program. Can work for any employer as long as employment relates to degree earned/program completed. Eligibility is determined by major. Degrees earned in STEM fields allow for requesting 17-month extension. Employment has to relate to degree earned and employer must be registered as E-Verify Duration Granted for one year at a time or until program end date whichever is shorter Granted for 12 months Granted for 17 months effective day after current OPT ends Employment requirements Limited to 20 hours per week while school is in session; fulltime during official breaks. Must have card in hand to engage in employment Allowed to work full-time. Must have card in hand to engage in employment Allowed to work full-time. 180-day portability rule applies (automatic work authorization while STEM extension is pending) Visa Related Requirements Must continue to maintain F-1 status Cannot be unemployed for more than 90 days. Must report employment changes to university/sponsor that holds the F-1 record. Reporting periods at the 6 month mark and 12 month mark while on STEM OPT. Must report employment changes to university/sponsor that holds the F-1 record. Application Process Application costs $380 USCIS makes decision within 90 days Application costs $380 Can apply only within 90 days of program end date USCIS makes decision within 90 days Application costs $380 Can apply within 120 days of current OPT/EAD end date USCIS makes decision within 90 days EAD CARD WILL BE ACCOMPANIED BY AN I-20 DOCUMENT

11 J-2 DEPENDENTS COST: $380 EAD VALIDITY BASED ON THE J-1 S STATUS DATES CAN WORK FOR ANY EMPLOYER AND IN EITHER PART-TIME OR FULL-TIME STATUS MUST ALWAYS MAINTAIN A VALID EAD CARD CAN APPLY FOR EAD RENEWAL 90 DAYS PRIOR TO CURRENT CARD S END DATE EAD CARD WILL BE ACCOMPANIED BY A DS-2019 DOCUMENT

12 H-4 DEPENDENTS COST: $380 EAD VALIDITY BASED ON THE H-1B S STATUS NOT ALL H-4 DEPENDENTS ARE ELIGIBLE FOR AN EAD H-4 dependents can qualify to obtain work authorization if their H-1B spouse has a pending or an approved I-140 petition for permanent residency MUST ALWAYS MAINTAIN A VALID EAD CARD CAN APPLY FOR EAD RENEWAL 90 DAYS PRIOR TO CURRENT CARD S END DATE EAD CARD WILL BE ACCOMPANIED BY EITHER AN H-4 VISA STAMP (ISSUED BY U.S. EMBASSY) OR AN I-797 APPROVAL NOTICE

13 PENDING I-485 PETITION TO CHANGE STATUS TO PERMANENT RESIDENCY WHEN PETITION FOR I-485 TO CHANGE STATUS TO PERMANENT RESIDENCY, SIMULTANEOUSLY CAN APPLY TO RECEIVE AN EAD UNTIL GREEN CARD IS ISSUED

14 TPS-TEMPORARY PROTECTED STATUS From USCIS website: The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS. The Secretary may designate a country for TPS due to the following temporary conditions in the country: Ongoing armed conflict (such as civil war) An environmental disaster (such as earthquake or hurricane), or an epidemic Other extraordinary and temporary conditions During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible): Are not removable from the United States Can obtain an employment authorization document (EAD) May be granted travel authorization

15 TPS-TEMPORARY PROTECTED STATUS CONTINUED COUNTRIES CURRENTLY DESIGNATED FOR TPS ( 1. EL SALVADOR 2. GUINEA 3. HAITI 4. HONDURAS 5. LIBERIA 6. NEPAL 7. NICARAGUA 8. SIERRA LEONE 9. SOMALIA 10. SUDAN 11. SOUTH SUDAN 12. SYRIA 13. YEMEN

16 DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) WHAT IS DACA? FROM USCIS WEBSITE ( On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. GUIDELINES FOR ELIGIBILITY: Were under the age of 31 as of June 15, 2012; Came to the United States before reaching your 16th birthday; Have continuously resided in the United States since June 15, 2007, up to the present time; Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; Had no lawful status on June 15, 2012; Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

17 SCENARIO 1

18 SCENARIO 1 If a student intends to start their OPT work authorization immediately after a program end-date, it is crucial for the OPT application to be submitted 90 days prior to the program end-date. Once an OPT application has been submitted, no changes can be made to SEVIS record The program end-date cannot be extended The OPT start-date cannot be altered While an OIP Advisor can submit a request to expedite an OPT application, via a written Expedite Letter, the USCIS does not have a formal process for expediting OPT application. There is never a guarantee that an OPT application will be expediting even if this letter is provided. Until the student physically receives the EAD, he or she would not be permitted to continue any kind of employment, including volunteering, after the program end-date. Performing work without and EAD can negatively affect a student s immigration status now and in the future OPT App. cannot be submitted more than 90 days before the program end-date. 90 Days 60 Days 1. OPT App. can not be received by the USCIS more than 60 days after the program end-date. 2. Employment Start- Date must be requested to start within 60 days of program end-date.

19 SCENARIO 2

20 SCENARIO 2 If a F-1 Student on OPT falls into one of the STEM Categories (designated by the Department of Homeland Security) he is eligible for a 17 month extension immediately following their current OPT end-date If a student submits their application for STEM OPT in a timely manner (anytime prior to the current OPT end-date), he is permitted to continue their employment after their OPT end-date for up to 180 days OIP can provide any student a Portability letter verifying that his or her STEM application was submitted and he is authorized to continue employment for 180 days until the EAD is received. STEM App cannot be submitted more than 120 days prior to the OPT end-date. 120 Days 180 Days Student can continue employment for up to 180 days after the OPT end-date as long as app was received by the USCIS prior to that date. OPT End-date STEM App must be received by the current OPT end-date.

21 SCENARIO 3

22 SCENARIO 3 J-2 Dependents are permitted to apply for an EAD and obtain work authorization The EAD would be have validity dates dependent on the J-1 VISA holder s program The work authorization would end when the J-1 program ends In order to extend employment, the J-1 program must first be extended and then a new EAD application must be submitted to the USCIS J-2 would also have the option of obtaining her own J-1 VISA She can do this by either leaving the country and re-entering immediately on a J-1 VISA OR She can submit a change of status application here in the U.S. This takes approximately 4 months She would not be permitted to begin employment until the COS is approved.