The New STEM OPT Training Plan: What Do I need to know?

Screen Shot 2016-07-08 at 10.05.15 AM.pngUnder the new rules that went in effect on May 10, 2016, all students seeking STEM extensions for additional OPT time must have a training plan that is developed by them and their employer.  Below are some important points to keep in mind about the new training plan requirement

1.    Plan is Collaborative in Nature

Unknown.jpegFirst, employers and students must develop the plan together.  It is a collaborative process that, as stated below, must take into account the students education, and how the employer can help enhance that education through training and working.

However, that being said, there are certain parts that just the employer needs to complete and certain parts that just the student needs to complete.

2.     Intent of the Plan

 

Unknown-1.jpegThe intent of the plan is to show how the program the employer has developed for the student will help he student “achieve” their objectives for work-based learning.  Basically showing how the work is related to the STEM major of the student and how it will help them get real world experience in that area.  Each plan will be different as it is based on the Student’s major and future plans as well as by the employer’s business and the position that the student will be placed in.

It is important to also note that one of the attestations made by the employer and student is that the training opportunity is directly related to the STEM degree that qualifies the student for the OPT extension.

3.    Progress Evaluations

Unknown-2.jpegThere must be a mechanism in place to evaluate the progress of the student in meeting the goals of the training plan.  The student prepares a self-assessment and the employer must sign off on this assessment.  The assessment must then be given to the DSO within the applicable timelines (10 days of the deadline).  An evaluation must be done at the 12 month mark in the training and the 24 month mark of the training.

Part of the training plan (and the attestations made by the employer) includes having a person designated as supervisor/trainer for the student.  Most likely it would be this person who would sign off on the plan as they can best testify to the fact that the student has been meeting the goals of the plan.

4.  Changes to the Training Program

Unknown-3.jpegPart of the application process requires the employer and student to affirm under oath that they will alert the DSO to any material change in the training plan or material deviation from the training plan as soon as possible.  What would this include?  Changing the position or duties of the trainee most likely would fall within this definition as would changes to compensation, and changes in the employer or employer structure.  There are certainly other changes that would be considered material (as well as deviations) in general this may be an area in which it is better to inform the DSO of a chance rather than trying to explain after the fact why you feel it was not a material change.

5.  Conclusion

The training plan is an important piece of the OPT extension.  While there has been no announcement as of yet I am sure that USCIS will start enforcement actions around this requirement.  Perhaps they will send out officers to review the plan, visit the work site and ensure the student is doing what is required and the correct resources have been allocated.  It behoves employers and students to ensure that the training plans they develop meet the requirements of the law and regulations.  Please let us know if we can provide any assistance in that regard.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

What Type of Questions Can an Employer Ask At A Job Interview?

For immigrants, it can sometimes be tough looking for a job, as there are employers who are simply not interested in hiring people on temporary visas.  For employer, it can be difficult to know what you can and cannot ask about someones immigration status without running afoul of discrimination laws.   Recently the Office of Special Council for Immigration Related Unfair Employment Practices (OSC), which is part of the Office of Civil Rights at the Department of Justice, was asked about several different types of questions that an employer might ask, and if those types of questions were allowable under the anti-discrimination laws.  Here are the exact employer questions that were posed:

 A. Do you now, or will you in the future, require sponsorship (e.g., H-lB visa status, etc.) to work legally for THE COMPANY in the United States?

B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?

C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or . Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined in the following government website: https://www.ice.gov/sites/default/files/ documents/Document/2016/ stem-list.pdf?

As can be seen, these were fairly specific questions aimed at either determining if the person would require sponsorship, and/or if they had their own source of employment authorization for a good period of time.  Here is the response from the OSC:

As you know, the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring under the INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.

So, interestingly, as long as you ask ALL job applicants these questions, there should be little danger of running afoul of the discrimination laws.  However, the OSC went on to say:

However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.

The above should give some pause to employers who want to go beyond simple questions made to ALL applicants.  Even if you follow the above, that is no guarantee that you will not be referred to the OSC, as an applicant can still allege that they felt discriminated against, or that the questions made them feel as though they were not welcome to apply (for those in a protected class).    It is also important to remember that the above is ONLY in relation to discrimination based upon immigration status.

There are other forms of discrimination including national origin discrimination that does extend to those with work authorization cards.  Here is what the OSC says about this type of discrimination:

In addition, all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired based on national origin-for example, their country of origin, accent or appearance-may allege discrimination on this basis.

So  even though not hiring someone based upon their need for sponsorship would not violate one provision, it may violate this provision if the applicant can show that they were discriminated upon because of their national origin, accent or appearance.  This is something else to keep in mind, especially for the HR personal carrying out the interviews.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Updates on Court Cases against USCIS

Unknown.jpegThere are two relevant updates to discuss.

First, in terms of the STEM OPT court fight, the District Court this week dismissed the action against USCIS for the STEM OPT rules.  The Court found that USCIS had fixed the necessary issues and did not agree that USCIS overstepped its bounds with OPT.  However, it is still possible, and very probable, that this decision will be appealed to the Circuit Court.

Second, the court action against USCIS for the sudden changes in the October 2015 visa bulletin was dismissed.  As you may recall, USCIS and DOS retrogressed dates mid-month because USCIS had failed to properly inform DOS of the expected demand if the dates were not retrogressed.   The Court dismissed this suit saying that the Visa Bulletin is not a final rule that can be challenged in court.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

STEM OPT: The Fight is Not Over Yet

UnknownWith the publishing of the new STEP OPT rule just last month, many thought that this could be the end of the lawsuit brought against USCIS over this issue.  The Court overseeing this case found that USCIS had violated procedures surrounding the rule making of that last OPT extension, which lead to USCIS redoing the rule making process and the new rules.

Unfortunately, the group that brought the lawsuit Washington Alliance of Technology Workers (Washtech), through their attorneys from the Immigration Reform Law Institute (ISLI), is still appealing the ruling of the lower Court which ruled that the ISLI only had jurisdiction to sue over the STEM OPT rule and not all OPT as well as the part of the ruling that agreed with USCIS that the definition of student could include those not in school any more at the time (without the benefit of such a definition USCIS could not implement any OPT rules).  Washtech and ISLI maintain that all OPT rules were developed to circumvent protecting for the US workforce required for such visas as the H-1B (payment of a prevailing wage, no lockouts or strikes, etc.).  They also maintain that OPT hurts US workers, especially recent US graduates.

Before discussing the impact of the continuation of the law suit, I would like to state that the allegations that OPT or other immigration programs hurt US workers or graduates is disproved by all research in this area.  All research shows that areas with higher level of immigrants who are working create more jobs, have a lower unemployment rate and a better economy that those with less immigrations.  (See this article for example).

If the appeals court agrees with Washtech it could call into question all OPT Rules and lead to USCIS having to stop issuing OPT documents unless and until the US Congress changes the statute. Considering the divided nature of the current congress, the chances of them getting together on this issue is very small, which means if the Court rules that the OPT laws are no longer valid, that ruling will not be changed by legislation anytime in the near future. This would hurt not just foreign graduates, but the US economy as well, as fewer students would come to the US and many fewer students would stay after their studies. As discussed above, this decrease in immigration would actually act to hurt our economy.

Hopefully the Appeals court will uphold the lower court ruling and the OPT rules will remain in place.  We will, of course, update you as news develops in this case.

USCIS Proposed New Regulations for Skilled Workers

USCIS has just submitted a proposal to amend and add to its regulations regarding highly skilled worker.  Below is a summary of the provisions of this proposed rule. Before discussing the proposed rule, however, let me be clear – this is proposed at this point, so it is not currently law.  The provisions may or may not be adopted as is (USCIS could also choose to make changes depending on the comments they receive). Once we have any information relating to the adoption of these rules, we will certainly let you know.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS will clarify and codify its definition for two cap-exemptions. First, it will define who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation will state that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS would codify its definition of “related or affiliated nonprofit entity” plus add one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition would also include entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS is proposing to amend its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS would change its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS will amend its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS will amend the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two proposals here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS will codify a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS will codify that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS would codify that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS will codify the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.)
Whistleblower Protections: USCIS will institute certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).
Again, once the above provisions are adopted (or if changes are made) we will post an update on this blog. Please do let me know if you have any specific questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

STEM OPT Extensions and the February 16, 2016 Deadline

images.jpegAs we reported previously (see this post), USCIS was sued by a group of individuals who claimed that the STEM OPT extension rules (granting an additional 17 months of OPT) where illegal. The Courts have already found that rule making provisions of Federal Law were not followed and required USCIS to undertake a new rule making by February 16, 2016. While everything seems on track so far (Just recently the Office of Management and Budget finished their review of the proposed rule, the last step before publication), the question still remains whether USCIS will be able to get the new rule in place by then, whether the Court will accept the new rule and USCIS efforts and what happens to the people already on STEM OPT extensions once that deadline passes.

To answer that last question, USCIS had previously stated that the STEM OPT cards would remain valid after February 16, 2016 regardless of what happens with the Court. However, just recently, USCIS changed its tune, and they are now saying that the decision of whether those EAD cards remain valid is still under review. This makes the request that USCIS recently made to extend this deadline to May 10, 2016 even more important.

We will update you with any new information as soon as USCIS updates us.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

2015 Legislative Update

There are two updates regarding current legislation that would affect immigration programs. Please note, these are just bills that were introduced but not yet passed.  While the content of the bills is worrisome, to say the least, there is no indication at this point that they will actually get enough votes to pass and become law.

Senator McCain’s Bill

First, Senator McCain has introduced a bill that would require the U.S. Department of Homeland Security to probe “all public records” to determine whether foreigners applying for admission would have something in their backgrounds that could make them inadmissible under the Immigration and Nationality Act. This would include all social media. The house judiciary committee has also started markup on a similar bill that would require that the agencies responsible for vetting the visa applicant check his or her employment and educational history as well as review open source information, such as social media accounts, to learn more about the person seeking to come to the U.S. according to Rep. Goodlatte.

Senator Cruz’ Bill

Second, Sen. Cruz has also introduced a bill. His would make three main changes to immigration law:

  1. The bill would get rid of all OPT.  OPT would no longer be allowed for any student in F status
  2. The bill would impose a 2 year “cool-off” period on all companies that have had furloughs, lay-offs or strikes. During this two year period, the company could not use the H-1B program.
  3. The bill would basically create a minimum salary under the program of $110,000 (it mandates the higher of the actual wage paid over the last year or $110,000).

 

Again, we wish to point out that these bills have not been signed into law, nor have they even been passed by either the House or the Senate.  They are just bills.  However, it is clear, that Congress is intent on using the recent tragedies to try and re-write immigration law to meet their views.   Hopefully cooler head will prevail and this legislation will not pass.  We will certainly keep everyone updated.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.