On Friday, March 11, the Department of Homeland Security (DHS) published a rule expanding Optional Practical Training (OPT) opportunities for F-1 students who have earned a degree in Science, Technology, Engineering, or Math (STEM).
The original rule, published in 2008, granted an additional 17 months of OPT work authorization (for a total of 29 months) to STEM graduates whose employers participate in the E-Verify employment verification program. A Federal court vacated the original rule in August 2015, but delayed the effective date of its ruling until May 10, 2016, to allow DHS to develop a new rule. The new STEM OPT rule is effective May 10, 2016, consistent with the court’s order. The rule expands OPT opportunities for STEM graduates, and imposes new obligations on both students and employers. STEM graduates will now be eligible for an additional 24 months of OPT work authorization. Combined with the 12 months of post-completion OPT available to all students, STEM graduates potentially could have 36 continuous months of post-completion OPT work authorization. To be eligible for the additional OPT, a student must have earned a degree in a field of study designated by DHS as a qualifying STEM field. DHS will revise and update the list of acceptable STEM fields based on the U.S. Department of Education’s categorization. The rule retains the requirement that the student’s STEM OPT employer participate in E-Verify. The rule clarifies that a student may obtain a STEM OPT extension based on his or her most recent degree or on a previously earned STEM degree. The STEM OPT employment must relate to the STEM degree field. A student may also obtain a second STEM OPT extension if he or she earns another STEM degree at a higher degree level. In addition to expanding student opportunities for OPT, the rule adds certain reporting requirements for students, places a new focus on the training provided by STEM OPT employers, and adds protections for U.S. workers. The rule requires students to report their name, address, and employment details to their Designated School Official (DSO) every six months, and must report any changes in employment status or deviations from the employer’s training plan within 10 days of the change. Students also must complete and submit to the DSO two self-evaluations during the STEM OPT period. STEM OPT employers must implement a formal, individualized training plan (using DHS Form I-983) and have an annual performance evaluation process in place. Employers may rely on existing training and evaluation processes as long as they meet the STEM OPT requirements. The training plan must:
STEM OPT employers must assist students with their reporting requirements and attest that they have sufficient resources to provide the training, that they will not use students to replace U.S. workers, and that the opportunity helps students reach their training objectives. In addition, the terms and conditions of the OPT employment, including salary and benefits, must be commensurate with the employer’s similarly situated U.S. workers. Finally, the rule authorizes DHS to conduct site visits to ensure that STEM OPT employers are meeting the program requirements. Generally, these site visits will be announced in advance. We will provide more details about some of these new provisions over the next few weeks. Meanwhile, please contact us with any questions. The State Department has released the April 2016 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. In April, the “Application Final Action Dates” will move forward in most categories. In the family-based preference categories, with the exception of the F2B category for nationals of Mexico, the “Application Final Action Dates” will advance at least one week in each category. However, as we pass the halfway point off the 2016 fiscal year, we see the pace of advancement slow to a few weeks at most, with no dates moving ahead by several months as has been the case in the recent past. In addition, the “Dates for Filing” in the family-based categories again will remain stagnant in April, the third consecutive month with no movement. In the employment-based preference categories, we see a similarly restrained pace of advancement in the “Application Final Action Dates.” EB-1 and EB-2 for most countries will remain current, and all other categories will advance in minimal amounts. The EB-3 cutoff remains ahead of the EB-2 cutoff for nationals of China. Finally, there is no advance at all in the “Dates for Filing,” which at this point affects only nationals of India, China, and the Philippines since all categories are current for all other countries. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the April 2016 Visa Bulletin. You can view the visa bulletin in its entirety below. Please contact us with any questions. This is a guest post by our friend Avi Gomberg of Gomberg Dalfen S.E.N.C., a law firm specializing exclusively in Canadian immigration law. For additional information, contact the team at Gomberg Dalfen here.
Effective March 15, 2016, certain international travelers will need an entry document called an Electronic Travel Authorization (eTA) to travel by air to Canada. This applies to visa-exempt foreign nationals, in other words, non-Canadians who are not required to have a visa to enter Canada. The requirement only applies to those traveling by air, not those traveling by land or sea. It does not apply to citizens of the United States (those with U.S. residency (Green Cards) will require an eTA). Thus, if you require a visa to enter Canada or you are a U.S. citizen, you will not require an eTA. What is the purpose of the eTA? The implementation of the eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan. In essence, the eTA is a security measure that allows the Canadian authorities to screen foreign travellers before they arrive in order to ensure that they are not inadmissible to Canada. In the absence of such a pre-screening measure, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian port of entry. The eTA will allow the Canadian authorities to lessen the expense and delay to travellers, airlines and the Canadian government caused by the significant volume of travellers being deemed inadmissible when arriving at Canadian ports of entry. Reasons for inadmissibility include membership in terrorist groups, participation in war crimes or crimes against humanity, membership in organized crime groups, criminality, or public health risks. The United States has already implemented a similar travel authorization program. Travellers will need to show the eTA before boarding a flight to Canada, or they will not be permitted to fly to Canada. It is important to note that the requirement to obtain an eTA does not dispense with any other authorizations or requirements applicable to the traveler such as work permits or study permits. In addition, the traveler remains subject to examination by the Canada Border Services Agency upon arrival in Canada. Who will need an eTA? Citizens of the following countries will need an eTA to travel to Canada by air as of March 15, 2016: Andorra; Antigua and Barbuda; Australia; Austria; Bahamas; Barbados; Belgium; British citizens*; Brunei; Chile; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hong Kong*; Hungary; Iceland; Ireland; Israel*; Italy; Japan; Republic of Korea; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; New Zealand; Norway; Papua New Guinea; Poland; Portugal; Samoa; San Marino; Singapore; Slovakia; Slovenia; Solomon Islands; Spain; Sweden; Switzerland; Taiwan* and Vatican City (Holy See).* It is best to always consult the Canadian government’s website for the most current list. * Please note that certain citizens of these countries do require Visas to travel to Canada and hence would not need an eTA Certain individuals are exempt from the eTA requirement. This group includes individuals who hold a valid Canadian temporary resident visa, members of the British Royal Family, and certain foreign nationals seeking only to transit through Canada as a passenger on a flight stopping in Canada for the purpose of refueling, among others. How to get an eTA? Applicants can access the eTA application online at www.canada.ca/eTA. Applicants will have to provide passport details, basic personal information, responses to background questions and contact information. The online application process also allows the applicant to indicate whether there are any additional details pertinent to the application, where applicants can indicate any urgent need to travel to Canada, if applicable. No documents are required for the eTA application. The Canadian authorities may request additional documents later, to be submitted manually. Once the application is submitted, the applicant will receive an automated email confirming receipt and containing an application number and a link by which the applicant can check the status of the application. The cost is CAD$7.00. Applicants who are unable to submit the application electronically because of a physical or mental disability may do so by other means, including a paper form of application. The eTA itself is an electronic document. There is no paper evidence or counterfoil provided to the applicant upon approval. Air carriers have access to the Canada Border Security Agency’s database to confirm the presence of an eTA prior to boarding the aircraft. Before a boarding pass is issued, the air carrier must receive an “ok to board” message from the CBSA database. How long will it take to process an eTA? Most eTA applications are approved within minutes of applying. However, some requests may need more time to process. If this is the case for an application, one can expect an email from Citizenship and Immigration Canada within 72 hours that tells you what the next steps are. How long is the eTA valid? The eTA is linked to the applicant’s passport. It is valid for five years or until the passport expires, whichever occurs first. The same passport used to obtain the eTA must be used for travel with the eTA. Gomberg Dalfen S.E.N.C. provides this newsletter as a service to its clients and colleagues, to provide updates on changes in Canadian immigration law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel. The State Department has released the March 2016 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. In March, the “Application Final Action Dates” will move forward in most categories. In the family-based preference categories, again with the exception of the F2B and F4 categories for nationals of Mexico, the “Application Final Action Dates” will advance at least one week in each category, with the largest advancement being five months (November 1, 2003 to April 1, 2004) in the first preference (F1) for nationals of the Philippines. However, the “Dates for Filing” in the family-based categories will remain stagnant in March, the second consecutive month with no movement. In the employment-based preference categories, there will be continued movement in the “Application Final Action Dates.” The EB-3 category again will again advance across the board from a few weeks to up to several months, highlighted by an eight-month jump to June 1, 2013, in EB-3 for nationals of China. This continues the rare situation in which the EB-3 cutoff is ahead of the EB-2 cutoff (August 1, 2012) for nationals of China. The State Department continues to expect many Chinese nationals to take advantage of this by filing new I-140 petitions to “downgrade” to the EB-3 category, but so far, this additional EB-3 demand does not seem to have materialized. Finally, the “Dates for Filing” will advance for all except for nationals of India and the Philippines. The EB-2 filing date for nationals of China will advance six months to June 1, 2013, while the EB-3 filing date will advance 19 months to May 1, 2015. The EB-3 “date for filing” for all other countries not listed separately will become current. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the March 2016 Visa Bulletin. You can view the visa bulletin in its entirety below. Please contact us with any questions. On April 1, 2016, employers may begin filing fiscal year 2017 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2016. Congress places a cap of approximately 65,000 on the number of new H-1B’s available each year. There is also a separate cap of 20,000 new H-1B’s available for individuals who have a master’s degree or higher from a U.S. college or university.
Generally, any petition for an individual who is currently in H-1B status or has held H-1B status within the past six years is not subject to the cap, although there are some rare exceptions. In addition, certain types of employers are exempt from the H-1B cap, such as nonprofit research organizations and nonprofit entities that are affiliated with a U.S. college or university. In each of the past few years, USCIS received enough petitions to exceed these caps within the first week, and we expect that the cap will again be reached during the initial filing period this year. Therefore, employers must identify any individuals for whom they might want to obtain H-1B status and file those petitions as early as possible for the best chance at getting one of the available visas. This is particularly critical for any recent graduates who are currently working pursuant to Optional Practical Training (OPT), and for employees who might be nearing the maximum limit on their current status, such as R-1 religious workers or L-1 intracompany transferees. If you are an employer or potential employee and you have questions about the H-1B cap or the H-1B visa category, please contact us. On January 15, USCIS published a final regulation that will offer greater predictability and opportunities for employers and foreign workers in the H-B1, E-3, and CW-1 categories, as well as those applying for permanent residence as an Outstanding Professor or Researcher.
The most significant part of the regulation, which is effective on February 16, 2016, is the application of continued work authorization to H-1B1, E-3, and CW-1 temporary workers with a pending, timely filed extension of stay petition. As background, the H-1B1 and E-3 categories allow nationals of Chile and Singapore (H-1B1) and Australia (E-3) to work in specialty occupations in the U.S. The CW-1 category covers employment solely in the Commonwealth of the Northern Mariana Islands (CNMI). The regulations have for many years provided up to 240 days of continued work authorization to temporary workers in the E-2, H-1B, J-1, L-1, O-1, and TN categories who have a pending, timely filed application for extension of stay filed by the same employer. The new regulation extends this 240-day period to workers in the H-1B1, E-3, and CW-1 categories. If an employer files an extension petition for a worker in any of these categories prior to the expiration date of the current petition, the employee has continued employment authorization for up to 240 days from the date of expiration of the current petition if USCIS does not approve the extension before that date. This welcome change will put H-1B1, E-3, and CW-1 workers on equal footing with other similarly situated workers and will prevent lost wages and lost productivity caused by an inability to continue working while awaiting an extension. Another key element of the regulation is the broadening of evidence that petitioners can submit in support of EB-1 immigrant petitions to classify outstanding professors and researchers for permanent residence. To qualify as an outstanding professor or researcher, current regulations require the professor or researcher to prove international recognition by submitting specific documentation to meet at least two out of a list of six criteria. The new regulation allows for the submission of “comparable evidence” to the specific documentation already required by the regulation. This expansion of the type of acceptable evidence harmonizes the EB-1 outstanding professor and researcher category with other similar categories, such as EB-1 for those with “extraordinary ability” and EB-2 for those with “exceptional ability.” The new rule makes some additional technical modifications so that the affected sections are consistent with both the Immigration and Nationality Act and other, related regulations, including clarifying that H-1B1, E-3, and CW-1 workers do not require employment authorization separate from the approved petition and adding the H-1B1 and E-3 categories to the procedural regulations governing petitions for extension of stay. Please contact us with any questions. The State Department has released the January 2016 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. In January, the “Application Final Action Dates” will continue marching forward in most categories. In the family-based preference categories, with the exception of the F2B and F4 categories for nationals of Mexico, the “Application Final Action Dates” again will advance at least a few weeks in each category, with the largest advancement being six months (January 1, 2003 to June 1, 2003) in the first preference (F1) for nationals of the Philippines. Many of the “Dates for Filing” in the family-based categories will also move forward in January, in most cases by three to five months, although F2B, F3, and F4 for nationals of Mexico and the Philippines will not advance. There is a bright spot for spouses and minor children of Lawful Permanent Residents (F2A). There, the date for filing will advance over three months to June 15, 2015, as that category moves ever closer to becoming current. As has been typical, the picture is not as rosy in the employment-based preference categories. There will be some movement in the “Application Final Action Dates,” highlighted by an eight-month jump to February 1, 2008, in EB-2 for nationals of India. This comes on the heels of a 10-month advance in the December 2015 Visa Bulletin. The EB-3 category again will advance across the board from a few weeks to up to four months, and the rather unusual situation for nationals of China will continue as the EB-3 final action date will move ahead nearly three months to July 1, 2012, while the EB-2 final action date remains at February 1, 2012. This will undoubtedly cause many Chinese nationals to continue filing new I-140 petitions to “downgrade” to the EB-3 category, but this has been the case for several months and there seems to be little effect on the priority dates so far. Finally, whatever good news there is in the “final action dates” for nationals of India and China is diminished as the “Dates for Filing” for those countries remains at a standstill, as does EB-3 for the Philippines. The EB-3 “date for filing” for all other countries will advance to January 1, 2016, essentially making that category current. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the January 2016 Visa Bulletin. The January Visa Bulletin also provides guidance regarding the scheduled expiration of two categories: the non-minister special immigrant program, which expired on December 11, 2015, and the Employment Fifth Preference Categories (I5 and R5), which expired on December 10, 2015. Those categories are “unavailable” for final action as of those dates and continuing into January 2016, unless Congress acts to extend those programs. We expect that Congress will ultimately extend these programs as part of larger budget legislation before the Christmas break, but there will likely be significant changes to the EB-5 program. Whenever the programs are extended, the priority dates would immediately become “current” for January for all countries except for China EB-5, which will have a January 8, 2014, priority date. You can view the visa bulletin in its entirety below. Please contact us with any questions. The State Department has released the December 2015 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. There is continued good news with respect to the “Application Final Action Dates” in the EB2 and EB3 categories. Although EB2 for nationals of China will not advance, EB2 for nationals of India will advance 10 months to June 1, 2007. The EB3 category will advance across the board from a few weeks to up to four months. Unfortunately, as has been the case under the revised Visa Bulletin, the “Dates for Filing” in the employment-based preference categories will again not advance at all in December. In the family-based preference categories, the “Application Final Action Dates” will advance at least a few weeks in each category, with the greatest advancement being six months (June 1, 2002 to January 1, 2003) in the first preference (F1) for nationals of the Philippines. There will be no forward movement in the “Dates for Filing” in December. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the December 2015 Visa Bulletin. The December Visa Bulletin also contains an estimate of upcoming priority date movement. DOS estimates that each of the family-based preference categories will advance several weeks each month. On the employment-based side, increased demand will likely result in little movement in EB2 for Chinese nationals, but DOS projects monthly advances of up to eight months in the EB2 category for Indian nationals. In the EB3 category, DOS estimates continued advancement of EB3 priority dates for all countries, including rapid movement for nationals of China and three to six weeks for nationals of India and the Philippines. You can view the visa bulletin in its entirety below. Please contact us with any questions. The State Department has released the November 2015 Visa Bulletin listing the priority dates eligible for “Application Final Action,” i.e. when an I-485 adjustment of status (AOS) application may be approved or an immigrant visa (IV) issued, and the priority dates eligible for “Filing Applications,” i.e. when an AOS or IV application may be filed. Despite the initial hope that the revisions effective with the October 2015 Visa Bulletin would allow individuals in the most severely oversubscribed preference categories to file their AOS applications sooner than under the previous procedures, the November bulletin shows little to no forward movement in the filing eligibility dates. The biggest disappointment is in the employment-based preference categories, where the “Dates for Filing” will not advance at all in any category for any country in November. There is some good news with respect to the “Application Final Action Dates” in the EB2 and EB3 categories, each of which will advance between one and three months for nationals of China and India, while EB3 for nationals of the Philippines will advance over six months to June 15, 2007. On the other hand, there will be no forward movement in November in the EB3 category for other countries, as that date will remain at August 15, 2015. In the family-based preference categories, the “Application Final Action Dates” will advance at least a few weeks in each category, with the greatest advancement being a full year (June 1, 2001 to June 1, 2002) in the first preference (F1) for nationals of the Philippines. Only three categories will see any movement in the “Dates for Filing.” The F2B category (Unmarried Sons and Daughters (21 years of age or older) of Lawful Permanent Residents) for nationals of Mexico will advance three months to April 1, 1996, while the same category for nationals of the Philippines will advance four months to May 1, 2005. The F4 category (Brothers and Sisters of Adult U.S. Citizens) for nationals of Mexico will advance one month to June 1, 1998. As a reminder, the “Dates for Filing Applications” are valid only for consular processing immigrant visa applications. USCIS will make a separate determination whether to allow the filing of AOS applications under the “Dates for Filing” chart in the visa bulletin. If so, USCIS will post the current “Dates for Filing Applications” charts on its website. At the time of this post, USCIS has not made any determination with regard to the November 2015 Visa Bulletin. You can view the visa bulletin in its entirety below. Please contact us with any questions. On the evening of Friday, September 25, the U.S. State Department (DOS) made the surprising and disappointing decision to re-issue the October 2015 Visa Bulletin. The Department of Homeland Security and United States Citizenship and Immigration Services (USCIS) will rely on the revised visa bulletin to determine eligibility for filing of applications for adjustment of status.
The revised bulletin largely rescinds the advancements made in some of the most severely backlogged preference categories. Specifically, the “Dates for Filing Applications” in the EB-2 category for nationals in China and India were shifted to much earlier dates that in the original bulletin. The affected categories are as follows: • EB-2 China moved back May 1, 2014, to January 1, 2013 • EB-2 India moved back from July 1, 2011, to July 1, 2009 • EB-3 Philippines moved back from January 1, 2015, to January 1, 2010 • FB-1 Mexico moved back from July 1, 1995, to April 1, 1995 • FB-3 Mexico moved back from October 1, 1996, to May 1, 1995 This is certainly frustrating news for the many individuals who had hoped to finally file adjustment of status applications based on the original October 2015 visa bulletin. We will continue to monitor this situation and we will alert our readers of any new developments on as soon as possible. As always, please contact us with any questions. |
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