Tag: immigration faqs

USCIS provided updated guidance in the USCIS Policy Manual with regard to the F-1 and M visa classifications utilized by international students for vocational, graduate and post-graduate study at U.S. academic institutions. The new USCIS policies address when students may be eligible for optional practical training (OPT) for Science, Technology, Engineering, and Mathematics (STEM) fields. The update also provides guidance on online study, school transfers, the grace period, and study abroad.

Background

F-1 and M-1 are two of the primary visa categories used by foreign students to attend academic programs in the U.S.  Following a period of full-time study, new grads are eligible to apply for one year of work authorization, known as Optional Practical Training (OPT), to gain practical work experience in their area of study.  (OPT is also available pre-degree completion in certain circumstances.)  Students who have earned a degree in a designated STEM field are eligible to apply for a 24-month extension of post-completion OPT, to work for a total of 36 months.

Key Takeaways

• Online study: Students may count one class, three credits (or the equivalent) per semester toward a full course of study for online/distance learning.
• Transfers: Students may transfer between Student and Exchange Visitor Program (SEVP)-certified schools at the same academic level or move between educational levels. Transfers are also permitted during the 60-day grace period following an authorized period of post-completion of OPT.  Previously transferring students were required to be pursuing a full course of study or be engaged in post-completion optional practical training (OPT) until the transfer release date.
• Grace Period: During the 60-day grace period, in addition to transferring schools as noted above, students may change their education level or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.
• OPT Eligibility: Students are eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.
• STEM OPT: Technical corrections to the STEM OPT guidance and clarifies the time periods during which students may apply for STEM OPT.
• Study Abroad: Students enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the program lasts less than 5 months. For study abroad programs that are over 5 months, a new Form I-20 is required.
• Extensions: The guidance also corrects the period during which students may apply for extensions

What this Means for Employers

The new guidance is effective immediately and will apply to any requests or applications that are pending or filed on or after the publication date.  It also supersedes any prior guidance related to the areas that it covers. The changes and clarifications are promising. USCIS has modernized its approach to online courses, a growing area for U.S. colleges and universities.  The new guidance also makes it easier for students to remain in valid status during transfers and other changes to their academic programs. Finally, the guidance clearly establishes eligibility and protocols for OPT and STEM OPT.

Also Good to Know…

International students are on the rise! Over 1 million students from more than 210 places of origin studied at U.S. academic institutions during the 2022/2023 school year, contributing approximately $40 billion to the U.S. economy. This was a substantial increase in student enrollment from the prior years.  A majority of international students are pursuing degrees in STEM fields, with Computer Science and Business Administration as the most popular majors.  In 2023, over 160,000 students participated OPT, a 37% increase from the previous year.  (See https://www.boundless.com/research/international-students-studying-in-the-united-states-trends-and-impacts/ for more statistics.)

For more information, please contact your designated Gibney attorney or email info@gibney.com.

The Department of State released the September  2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will remain unchanged under Final Action Dates for September with further retrogression observed for EB-3 Professional, Skilled Worker and Other Workers for most countries, as detailed below.

Employment-Based (EB) Priority Date Summary for Final Action Dates

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will hold steady with a Final Action Date cutoff of November 1, 2022 and February 1, 2022, respectively.   

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will remain at March 15, 2023.
• China: Final Action Date will maintain a cutoff date of March 1, 2020.
• India:  Final Action will hold steady at July 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will retrogress by approximately one year to December 1, 2020.
• China: Final Action Date will remain at September 1, 2020.
• India: Final Action Date will hold steady at October 22, 2012.

Other Workers

• Other Workers will retrogress by one month to December 1, 2020, for all countries except China, India and Philippines which will hold steady from last month:
  • India will remain at October 22, 2012.
  • Philippines will hold steady at May 1, 2020.
  • China will hold steady at January 1, 2017.

EB-5, Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

What Should Employers Expect?

As predicted in the July Visa Bulletin, further retrogression in the EB-3 Worldwide category was implemented in the September Visa Bulletin. However, the Dept. of State anticipates that the Final Action Dates for EB-3 Professional, Skilled Worker and Other Workers will advance in October 2024 with date movement dependent on worldwide demand and the estimated FY 2025 category limit. Due to a steady increase for employment-based visas during the fiscal year, the Dept. of State notes that numerical limits to most employment-based preference categories for FY 2024 are expected to be reached during September, if not sooner. Accordingly, Employers should file Adjustment of Status applications for eligible applicants as soon as possible as most employment-based categories are expected to reach their numerical limits in the near future.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On April 1 , 2024, USCIS announced that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2025 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 6, 2024 through March 25, 2024. H-1B petitions may be filed for selected registrations starting April 1, 2024.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration during the 90-day period designated on the selection notice. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If a sufficient number of petitions are not filed and approved for selected beneficiaries with the initial 90-day filing window, USCIS may conduct another lottery from the reserve of “submitted’ registrations until the FY 2025 cap is reached.
• Selected: Indicates that the employer may file an FY 2025 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Not Selected: Not eligible to file an H-1B cap petition based on this registration.
• Denied – duplicate registration: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Deleted: The submitted registration has been deleted and is no longer eligible for selection.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary in the applicable selected registration notice. Petitioners must submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.  Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2024.

NEW THIS YEAR:  CHANGE TO FILING LOCATIONS, FORMS, AND FEES

Beginning on April 1, 2024, all paper-filed Form I-129 petitions requesting  H-1B classification, including those with a concurrent Form I-907, Request for Premium Processing Service, and those with concurrently filed Form I-539 and/or Form I-765, must be filed at a USCIS lockbox facility.  USCIS will also accept online filings of I-129H petitions filed alone or with a request for premium processing service

The new version of paper Form I-129 (dated April 1, 2024) is required as of April 1, 2024. Petitions submitted with an older version of the form will be rejected.

The filing fee for H-1B petitions increased substantially effective April 1.  The H-1B cap filing fees for companies with more than 25 employees now total $3,380 (includes base I-129 fee of $780; ACWIA fee of $1,500; anti-fraud fee of $500; and new asylum program fee of $600.)  Non-profit organizations and employers with 25 or fewer employees will pay reduced fees. The premium processing (Form I-907) fee also increased to $2,805 on February 26, 2024. Additional information about USCIS filing fee increases may be found here.

Information about the cap registration process is available at the USCIS H-1B Electronic Registration website.  For additional information please contact your designated Gibney representative or email info@gibney.com.