News and Notes
July 20, 2021
Effective July 21, 2021, U.S. Citizenship and Immigration Services implemented new policy guidance that eliminated the need for individuls who have applied for change of status (COS) to F-1 student to apply to change or extend their current nonimmigrant status while their initial F-1 COS appplication is pending.
Under the previous policy, appplicants needed to maintain status up to 30 days before the progrm start date listed on their form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file multiple extensions of their current nonimmigrant status while their COS to F-1 status was pending so as to avoid having a "gap" in valid nonimmigrant status.
To prevent a "gap" in status, USCIS will now grant the COS to F-1 effective on the day of approval.
November 18, 2016
On November 18, 2016, the U.S. Department of Homeland Security issued a Final Rule titled "Retention of EB-1, EB-2, EB-3 Immigrant Worker Program Improvements Affecting High-Skilled Workers". The rule took effect on January 17, 2017, and includes the following changes among others:
Employment Authorization for Employment-Based Nonimmigrants
(1) The rule permits one year of employment authorization for a nonimmigrant who (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1, or L-1 status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa (IV) petition; (3) does not have an IV immediately available; and (4) can demonstrate compelling circumstances, although the rule provides no guidance on the latter requirement. This benefit was previously limited to H-1B visa holders.
(2) Family members of the principal alien (PA) are also eligible and may apply concurrently with the PA, although their applications cannot be approved until the PA's application is approved and the duration may not be greater than that of the PA.
(3) The PA and family members may apply for renewal so long as the PA is still the beneficiary of an approved EB-1, EB-1, or EB-3 IV petition and either (1) an IV is still not available, and there are still compelling circumstances; or (2) an IV will likely be available within one year based on the PA's priority date and the current Visa Bulletin.
Automatic Revocation of Employment-Based IV Petitions
The rule amends the regulations so that an employment-based IV that has been pending for 180 days or more or where an adjustment of status application has been pending for 180 days or more will no longer be automatically revoked based on withdrawal of the petition or termination of the petitioner's business. Such petitions will continue to be valid for various purposes, including retention of priority dates, H-1 portability, and extensions under AC-21.
Period of Stay Grace Periods
This change makes it mandatory that individuals in E-1, E-2, E-3, H-1B, L-1, and TN status and their dependants be admitted with a ten-day grace period before and after the petition validity. The provision also authorizes a grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1b1, L-1, and O-1 nonimmigrants whose employment has ended before the end of the authorized period of stay. This is a significant change since the beneficiary immediately fell out of status under prior regulations as soon as the authorized employment ended.
AC21 H-1B Extensions
AC21 permitted extensions of H-1B status beyond the six-year limit under certain circumstances. Prior to the rule, there was uncertainty about the timing of filing a petition to extend beyond the six-year maximum period of stay. Generally, a one-year extension is available to nonimmigrants for whom a labor certification (LC) or IV petition has been filed if more than 365 days have elapsed since the filing. The rule makes clear that the petition may be filed before the full 365 days have elapsed as long as the LC or IV petition was filed at least 365 days prior to the date the new petition will take effect. In addition to the one-year extension, the petition may request any time remaining in H-1B eligibility and any recapture time.
Portability Under AC21
Under AC21, an applicant for adjustment of status that has been pending for 180 days or more with an approved IV petition or one that has been pending for 180 days or more may accept a new offer of employment or engage in self-employment so long as the new employment is in the same or similar occupational classification. The new rule now defined the same or similar classification, unlike the prior regulations. Moreover, the new rule provides for a new Supplement J to the I-485 application for adjustment of status in which the applicant will prove that he or she has a valid offer of employment in the same or similar job classification as the one on which the LC or IV petition was based.
Employment Authorization Document Validity
Under the prior regulations, employment authorization ceased upon expiration of the validity on the EAD regardless of whether a timely extension was filed. The new rule now provides an automatic extension of employment authorization for 180 days after filing an extension application. The I-797 filing receipt and the expired card provide employment eligibility documentation for I-9 purposes. However, the rule also eliminates the requirement that USCIS adjudicate EAD applications within 90 days. It also eliminates the requirement that USCIS issue interim EADs where the adjudication takes longer than 90 days.
May 6, 2016
On March 11, 2016, the Department of Homeland Security (DHS) published its new rule amending its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the rule provides as follows:
Accreditation Requirement
The degree must be conferred by an institution of higher education accredited by the U.S Department of Education and approved to accept international students by DHS' Immigration and Customs Enforcement;
STEM Definition
The rule clarifies which degree programs qualify as "Science, Technology, Engineering and Math" degrees based on Department of Education Instructional Programs taxonomy; The complete list can be found here.
Multiple STEM Degrees
The rule clarifies that students receiving multiple STEM degrees may apply for subsequent STEM OPT extensions;
Previously Issued STEM Degrees
Students may use STEM degrees awarded in the prior ten years to apply for a 24 month STEM OPT extension even if the most recent degree is not a STEM degree so long as the preceding degree had not been the basis for a STEM extension;
Formal Training Program
STEM employers must incorporate a formal training program with concrete learning objectives and proper oversight. The student and employer must complete a new Form I-983, Training Plan for STEM OPT Students, and submit it to the Designated School Official (DSO) before the OPT extension can be approved;
Obligation to Report Material Changes
Employers and students must report material changes in the training plan to DHS;
No Adverse Effect on U.S. Workers
The rule requires that the terms and conditions of an F-1 student's training be on a "par" with U.S. workers in the same job and location and further that the student not replace a U.S. worker;
20-Hour per Week Requirement
Students must work a minimum of 20 hours per week;
Period of Unemployment
Students will still be permitted a limited period of unemployment;
The Transition From 17 to 24 Month STEM OPT
The rule provides that students currently holding a 17-month EAD may, in certain circumstances, apply for an additional 7 months so long as their EAD has at least 150 of remaining validity on the date the I-765 is filed, and they apply between May 10, 2018, and August 8, 2016.
The final rule becomes effective May 11, 2016.
November 20, 2014
The President announced a series of executive actions to crack down on illegal immigration at the border, prioritize the removal of felons rather than families, and require certain undocumented immigrants to pass a criminal background check and pay taxes to remain in the U.S.
Key Provisions
Expand Deferred Action for Childhood Arrivals (DACA)
- Removed Upper Age Limit by Extending Benefits to Those Born Before June 15, 1981, the Current Age Limit
- Requires Continuous Residence Since January 1, 2010, Rather Than the Current Date of June 15, 2007
Provide Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA)
- Must Be Living in the U.S. on November 210, 2014
- Have Continuous Residence in the U.S. Since January 1, 2010
- Must Be the Parent of a U.S. Citizen or Lawful Resident Born Before November 20, 2014
- Is Not an Enforcement Priority (National Security Threat, Convicted Felons, and Illegal Entrants Apprehended at Border)
Expanded Provisional Waivers
Provisional waivers allow certain prospective immigrants to remain in the U.S. while an application for a waiver of inadmissibility is applied for. The prior rule required the application to be applied for at the U.S. consulate resulting in lengthy delays and uncertainty.
- Sons and daughters of U.S. Citizens.
- Spouse and sons and daughters of lawful permanent residents.
- Currently, provisional waiver is only available to the spouse and minor children of U.S. citizen.
- Clarifies the meaning of "extreme hardship" required for waiver.
Modernize, improve, and clarify immigrant and nonimmigrant programs to grow the economy and create jobs by:
- Better Allocating Immigrant Visas
- Modifying Visa Bulletin System to More Simply and Reliably Determine Visa Availability
- Providing Clarity in Adjustment Portability to Allow for Natural Career Progression
- Clarifying Standards for National Interest Waiver (NIW) May Be Granted to Inventors, Researchers, and Founders of Start-Up Businesses
- Authorizing Parole to Eligible Inventors, Researchers, and Founders of Start-Up Businesses Who Have (1) Been Awarded Substantial U.S. Investor Financing or (2) Otherwise Hold the Promise of Job Creation Through the Development of New Technologies or Cutting-Edge Research
- Finalizing Work Rules for Spouses of Certain H-1B Visa Holders
- Expanding and Extending the Use of Optional Practical Training (OPT)
- Bringing Clarity to “Specialized Knowledge” in the L-1B Program
June 26, 2013
Supreme Court Declares Section Three of the Defense of Marriage Act (DOMA) Unconstitutional Section three of DOMA defined marriage as a union between a man and a woman. In a five to four decision, the Court held that the section violated the equal protection and due process clauses of the constitution, thus opening the way for Gay, Lesbian, and Transgender people to seek federal benefits based on a legal same-sex marriage. However, the ruling did not go so far as to establish a right to same-sex marriage, leaving that up to the individual states based on the historical right of the States to establish domestic relation laws. The ruling affects a wide range of benefits, including taxes, with which the case before the Court was concerned, and employee benefits and immigration. Click here for the full opinion.
In a related case, decided on the same day as the DOMA decision, the Court held that Proponents of Proposition 8, a California ballot initiative that amended the state constitution to define marriage as between a man and a woman, did not have legal standing to appeal a lower court decision finding Proposition 8 unconstitutional. The decision allowed same-sex marriage to go forward again in California. Click here for the full opinion.
June 18, 2012
On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security, announced a major policy shift with respect to certain young people who were brought to the United States as children and remained without the benefit of legal status. The U.S. government has estimated that some 800,000 children and young people fall into this category and are currently living in a state of limbo. In many cases, young people have completed high school or college and yet have no prospects for a fruitful life in the United States, are unable to obtain employment legally, and continue to live in the shadows in fear of deportation. Yet, many of these young people have no memories or only faint memories of their home countries and, in many cases, have no knowledge of the language.
At the outset, it must be made clear that the policy shift announced by Secretary Napolitano on June 15, 2012, provides no permanent relief. Those eligible under the policy will receive no substantive right, immigration status, or path to citizenship. Instead, the change is an expansion of an existing policy that sets out how the Department of Homeland Security exercises discretion to effectively use its resources in enforcing the country's immigration laws. Those who meet the following criteria will be granted “deferred action” and thus will be spared being placed into immigration proceedings and facing deportation. To be eligible, individuals must:
- Have come to the United States before reaching the age of 16;
- Have continuously resided in the United States for at least five years before June 15, 2012, and be physically present on that date;
- Be currently in school, have graduated from high school, obtained a general education development certificate (GED), or be honorably discharged from U.S. military service;
- Have not been convicted of a felony offense or significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Be 30 years of age or younger.
Those individuals who meet all of the necessary criteria will be granted deferred action for a period of two years which will be renewable pending a review to determine continued eligibility. The practical effect of deferred action is that those eligible will not face the threat of being placed in removal proceedings or ordered deported from the U.S. Eligible individuals will be able to apply for employment authorization from the US Citizenship and Immigration Services (USCIS) upon a showing of economic necessity.
For those individuals currently in removal proceedings, Immigration and Customs Enforcement (ICE) has been directed by Secretary Napolitano to begin implementing the deferred action process no later than August 14, 2012, even in cases where there has been a final order of removal (deportation). Similarly, for those individuals who are at least 15 years of age and not currently in proceedings, USCIS has been instructed to establish a clear and efficient process for exercising prosecutorial discretion by deferring action for those individuals for a period of two years.
By approximately mid-August 2012, USCIS and ICE can both be expected to issue guidance on the manner in which they will comply with Secretary Napolitano’s directive. In the meantime, while the shift in policy is a welcome change for the many “Dreamers,” comprehensive immigration reform is needed to remedy many of the severe defects in the current immigration system.
June 29, 2011
The Board of Immigration Appeals (Board) has advanced family unity in its June 23, 2011 decision, Matter of Le. The Board's ruling has resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. while under age 21, is eligible to adjust to permanent resident status even after turning age 21. The Board concluded that the child's age is fixed when the child is admitted to the United States, rejecting the Department of Homeland Security's position that a K-2 visa holder is eligible only if they are under 21 at the time the adjustment of status application is adjudicated.