F-1 Student Visas

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DHS announces expansion of STEM degree list for OPT extensions

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International students who graduate from U.S. universities are able to remain here and receive training through work experience for up to twelve months. This is known as Optional Practical Training (OPT). Students who graduate from a designated science, technology, engineering, and math (STEM) degree, who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program, can remain in the U.S. for an additional twenty-four months on an OPT STEM extension.

On July 22, 2024 the Department of Homeland Security announced an expanded list of STEM designated-degree programs that qualify eligible graduates for this extension. The list now includes Landscape Architecture, Institutional Research, Linguistics and Computer Science, Composite Materials Technology/Technician, Developmental and Adolescent Psychology, Geospatial Intelligence, Demography and Population Studies, and Mechatronics, Robotics, and Automation Engineering Technology/Technician.

A full list of STEM degrees is available here, and will be of interest to students, employers, and employees with eligible degrees who are currently in their first 12 months of OPT.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

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Executive Order on AI: Attracting Global Talent to the United States

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In a move to strengthen the United States’ position in the global artificial intelligence (AI) landscape, on October 30, 2023, the Biden Administration issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI), which sets forth a comprehensive strategy to attract and retain top AI talent from around the world. These initiatives aim to streamline immigration pathways and ensure that the U.S. remains a hub for innovation and technological advancement.

The Executive Order recognizes the importance of attracting and retaining foreign talent in critical and emerging technologies, such as AI. To achieve this goal, the order outlines several key directives to the Department of State (DOS) and the Department of Homeland Security (DHS) related to immigration, including:

  1. Streamlined Visa Processing: DOS and DHS are tasked with taking appropriate steps to streamline visa processing times for noncitizens seeking to work, study, or conduct research in AI or other critical and emerging technologies. This includes ensuring timely availability of visa appointments and facilitating continued availability for applicants with expertise in these fields.

  2. J-1 Skills List Revision:  DOS is required to consider initiating rulemaking to revise the DOS’s Exchange Visitor Skills List. This would impact the two-year foreign residence requirement.

  3. Stateside Visa Renewal Program:  DOS is required to consider implementing a domestic visa renewal program to enable qualified applicants, including highly skilled AI talent, to continue their work in the United States without unnecessary interruption. The program may also be expanded to include academic J-1 research scholars and F-1 students in STEM fields. (Note that a stateside renewal pilot program is already expected to launch in early 2024.)

  4. Policy Changes for Extraordinary Ability Applicants and Entrepreneurs:  DHS is directed to review and initiate necessary policy changes to modernize immigration pathways for AI experts. This includes reviewing categories such as O-1A and EB-1 extraordinary ability applicants, EB-2 advanced-degree holders, and startup founders in AI and other critical technologies who may benefit from the International Entrepreneur Rule which has largely been unused.  (The modernization of the H-1B program is also mentioned. See our post on the proposed H-1B rules for more information.)

  5. Revision to Schedule A List of Occupations:  The Department of Labor is instructed to publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities. The goal is to identify AI and STEM-related occupations for which there is an insufficient number of qualified U.S. workers, the designation of which which may streamline some permanent residency applications.

Note that many of these proposals would require rulemaking.  Jewell Stewart & Pratt will watch developments related to these directives closely, including the publishing of policy updates or proposed rules, and post updates here as they occur.

 © Jewell Stewart & Pratt PC 2023

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New Rules Affecting F-1 and M-1 Students

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July 29, 2020 update:

On July 24, 2020, ICE issued “clarifying guidance” regarding the gaps noted in our July 19 below. Specifically, universities are now prohibited from issuing I-20s to new or “initial” students, and so students starting new programs will not be eligible to apply for visas. As the proposed rule (discussed below) was withdrawn, students who were already enrolled but left the U.S. due to COVID may be eligible to re-enter and resume studies, even if they are provided in a fully online format. The Department of State similarly revised its guidance, providing for visa issuance for continuing, but not for new, international students.

July 19, 2020 update:

Note that although the proposed rule discussed below was withdrawn, there are still several gaps in the guidance which essentially reverted to FAQ issued in March 2020, which allowed existing students to maintain status despite classes being held primarily online due to COVID. Notably, the March ICE guidance states that students who are not already in the United States should “remain in their home country” which raises questions about new students arriving for Fall semester. In addition, current Department of State guidance directs Consular Officers to refuse visa applications for students who intend to attend their programs entirely online. F-1 and M-1 students (including those participating in CPT or OPT) will need to remain in close contact with their DSOs for guidance. The current H, L, J visa ban does NOT prevent F-1 or M-1 student visa issuance, and the current COVID travel ban for Schengen, U.K., and Ireland does not apply to F-1 students with valid visas and I-20s.

July 14, 2020 update:

The administration reportedly agreed to withdraw the proposed rule in entirety during a TRO hearing on the Harvard/MIT litigation.

Original post:

On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating online for the fall semester. Many universities are currently in the process of determining whether and how they will operate going forward due to COVID concerns, and had been relying on the temporary measures put in place during spring and summer that allowed F-1 and M-1 students to maintain status despite coursework and classes being moved to remote scenarios for safety during the pandemic. (Ordinarily, only 1 class or 3 credit hours may be taken online.)

On July 7, 2020, Harvard and MIT sued to enjoin this new rule. There has already been a hearing on a temporary restraining order (TRO) in that case, with a decision expected around July 15, 2020. Experts are divided as of this writing on whether a TRO could cover only Harvard and MIT, or whether it could be national in scope. Other universities and states, including California, are also filing lawsuits. More guidance is potentially expected when ICE issues the interim final rule (regulation) in the Federal Register, after which there may be a brief comment period.

Many, many questions are unanswered such as what the minimum in-person requirements would be for a so-called “hybrid” program (which would be acceptable under the new rule), how post-docs will be treated if they have completed coursework, how students may maintain active SEVIS status if they elect to take coursework remotely from their home countries (to preserve, say, CPT eligibility), and how the international student offices will deal with the requirements to issue new I-20s for the millions of international students in the U.S.

We are closely monitoring developments on this issue for our clients as there will also necessarily be an impact on CPT and OPT work authorizations if students are not allowed to remain in the U.S. to continue or complete their programs.

Resources:

https://www.nytimes.com/reuters/2020/07/06/us/06reuters-usa-immigration-visas-students.html

https://www.nafsa.org/regulatory-information/sevp-covid-19-guidance-fall-2020

https://www.chronicle.com/article/Here-s-a-List-of-Colleges-/248626?cid=wcontentgrid_hp_1b

© Jewell Stewart & Pratt PC 2020

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USCIS Unlawful Presence Policy Memorandum for Fs, Js, and Ms Permanently Enjoined by District Court

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As described in a prior post, on May 10, 2018, USCIS announced a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (“memo” or “unlawful presence memo”). This memo was finalized on August 9, 2018. As background, F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). In brief, the memorandum would have changed the start of accrual of “unlawful presence” for F, J, and M nonimmigrants from the day after DHS made a formal finding that the individual violated their nonimmigrant status to the day after the individual engaged in an unauthorized activity. Unlawful presence often has serious, irreversible consequences such as bars to re-entry to the United States. This memo essentially undid years of law and policy that allow for notice and due process before a bar is applied.

The memo has been the subject of litigation, and on February 6, 2020, in the case of Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), the U.S. District Court for the Middle District of North Carolina granted the Plaintiff’s motion for partial summary judgment and issued a permanent, nationwide injunction enjoining USCIS from enforcing the memo

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Alarming Change of Policy for Treatment of Certain Status Violations for F, J, and M Visa Holders

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On May 10, 2018, USCIS announced a draft policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees).  The draft policy is slated to become final and effective on August 9, 2018.

In the draft policy, USCIS announced a dramatic change to the treatment of “status violations” by individuals in the U.S. on F, J, and M visas. A status violation is any failure to meet a term or condition of the visa, including unknowing and unintentional technical violations (e.g., lowering one’s course load below a certain number of credit hours, engaging in casual work, accruing too many days of non-work after school completion, etc.).

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U.S. district court dismisses legal challenge to rule allowing 24-month STEM OPT extensions

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News Release from Jewell Stewart & Pratt – April 21, 2017 On March 11, 2016, the U.S. Department of Homeland Security (DHS) published a Final Rule that provided for, among other items, 24-month extensions to Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. See our blog post discussing the rule here.

On June 17, 2016 this new Final Rule became the subject of a lawsuit before the U.S. District Court for the District of Columbia. On April 19, 2017, however, the court dismissed the lawsuit. The court found that the plaintiffs failed to state a claim upon which relief could be granted.

The Final Rule therefore remains in force: 24-month extensions to post-completion OPT are still available in appropriate circumstances, and prior grants of such OPT remain valid. The plaintiffs have not yet announced whether they will appeal the decision.

© Jewell Stewart & Pratt 2017

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New regulation on F-1 STEM OPT extensions, effective May 10, 2016

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On March 11, 2016, the U.S. Department of Homeland Security published a Final Rule, effective May 10, 2016, 81 Fed. Reg. 13039 (March 11, 2016), that provides requirements and procedures for 24-month extensions to post-completion Optional Practical Training (OPT) work authorization of foreign nationals who are in F-1 student visa status with U.S. degrees in fields of Science, Technology, Engineering, and Mathematics (“STEM” fields). The new regulation also contains transition provisions for approved and pending STEM OPT applications filed under prior regulations. Finally, the new regulation carries over the “cap gap” work authorization and status extension provisions that existed under prior rules.

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STEM OPT cut-off of 02/12/2016 is postponed to 05/10/2016

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On January 23, 2016, the federal district court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-CV-00529 (ESH), Document 51 (D. D.C. January 23, 2016), granted a motion by the U.S. Department of Homeland Security to postpone the effective date of the court’s vacatur of DHS’s 2008 STEM OPT regulation from February 12, 2016 until May 10, 2016. In effect, this leaves existing grants of STEM OPT in place until May 10, 2016, and allows DHS temporarily (until May 10, 2016) to continue accepting STEM OPT applications under its 2008 rules. In the meantime, DHS is expected to review the ~50,500 comments it received in response to the proposed replacement regulation it published in October 2015 and to adopt a final rule governing STEM OPT.

Invalidation of STEM extensions for F-1 OPT work authorization: Further information

We recently posted about the U.S. District Court for the District of Columbia's invalidation of STEM extensions for F-1 OPT work authorization. The Department of Homeland Security has not yet indicated that it will reintroduce the STEM extension  rule in compliance with proper regulatory procedure. In the meantime, the American Immigration Lawyers Association (AILA)'s Leadership Blog has a new post from AILA President-Elect William Stock, which provides useful information and insight into likely developments. The blog post can be accessed here.

We will report further details as they become available.

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STEM” extensions of F-1 OPT work authorization invalidated by D.C. federal court

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News Release from Jewell & Associates, PC On August 12, 2015 the U.S. District Court for the District of Columbia invalidated the 2008 interim final rule of the U.S. Department of Homeland Security that created eligibility for a 17-month extension of F-1 OPT work authorization for graduates whose F-1 OPT work authorization was based on a degree in a “STEM” field. The court found that DHS failed to provide the legally required notice and comment period that must accompany any significant new rule, and failed to show sufficient justification to bypass the normal notice and comment requirement and issue the rule via emergency rulemaking.

Although the court invalidated the 2008 rule and its amendments, it placed an immediate six-month stay on the vacatur, until February 12, 2016. Practically, this means that existing F-1 OPT STEM extensions remain valid through February 12, 2016. It is not yet clear what the court ruling means for USCIS’s action on pending or new applications for STEM extensions. If DHS reintroduces the 2008 rule with a proper notice and comment period, and it takes effect before February 12, 2016, there should be no disruption to STEM OPT processes or employment.

© Jewell & Associates, PC 2015