Business 8 - F-1 to H-1B - LaMorticella-Allman ... - 01 - Spring/02-14... · the August 9, 2018 Memo • Practice Pointer: AILA Doc 18101939 CPT • 2/9/18 Practice Pointer re 2nd

LisaChristoffersenChristoffersen Law PS

MelinaLaMorticellaTonkon Torp LLP

MachelleAllmanTerra Dotta LLC

Formerly UW Seattle PDSO

Outline

F-1 Maintenance of Status Unlawful Presence MemoWorking with DSOsDSO Wish List

01

Four Hypotheticals02

STEM OPT ExtensionsStudent / Employer ResponsibilitiesTraining PlansOff-site Employment

03

Change of Status (COS) & H-1B LotteryCap GapIssues with lengthy adjudication

04

Timeline Hypothetical05

Questions? 06

2

2019 NW Regional Immigration Law ConferenceBusiness Track Session 8: F-1 to H-1B

Machelle Allman, Lisa Christoffersen & Melina LaMorticella

February 14-15, 2019 Page 1 of 15

How Does SEVIS Work?

SEVIS: Student and Exchange

Visitor Information System

1

2

3

Batch vs. RTICan use software to interface with SEVIS or work in Real Time Interactive directly

AdmissionsCreation of initial I-20 or DS-2019 creates the SEVIS record which is used throughout the academic program, any transfers, and any OPT.

QuestionsDoes termination of SEVIS record trigger ULP? Remedies if the data base is wrong or down?

3

DSOs wish that private attorneys understood:

1. There is a process

2. Our relationship and responsibility is with the student

3. Our focus is the academic objective

4. The student’s timeline is not always the DSO’s timeline

5. Not everything in SEVIS is correct or transparent

DSO Wish List

What do Designated School Officials do?01

How to Work with Designated School Officials (DSOs)

02

When to Consult with a Private Attorney 03




F-1 Issues

5

Maintenance of Status

• Advising students under the August 9, 2018 Memo

• Practice Pointer: AILA Doc 18101939

CPT

• 2/9/18 Practice Pointer re 2nd degree with immediate CPT: AILA Doc 18020939

0201

Hypotheticals

6

01

02

VWP or B-2 to F-1Yi Ling is from Singapore and will be a 1st yearstudent at a U.S. university, starting in September. She and her mother enter the US in August on visa waiver to sightsee and get Yi Ling settled before herprogram begins. • Proceduarally, how can she change her status?• Problems?• What if Yi Ling is not from Singapore – what if

she is Chinese and they enter in B-2 status?See Practice Pointer: AILA Doc 18020247

CPT

03

04

F-1 Student Medical Leave

Second Degree: BS to AA




Hypotheticals

7

01

02

VWP or B-2 to F-1

CPTMarie is an F1 student from Canada. She is on aSTEM extension but was not selected in the H-1B lottery. Her employer is starting the PERM processfor her. She has three years of part-time workexperience gained during her Bachelor’s degreeprogram, on CPT.• When is a student eligible for CPT?• Are there any restrictions?• How much CPT can a student have?• What documentation would you expect to see?

03

04



Hypotheticals

8

01

02

VWP or B-2 to F-1

CPT

03

04

F-1 Student Medical LeaveYuri is an F-1 student enrolled at a US college. Shemust go on medical leave in February and goesback to Japan for medical care. • What are the requirements for medical leave in

terms of circumstances, timing, duration ofleave, international travel, and reinstatement?

• What if she goes on a four month medical leaveduring her period of post-completion OPT?

• Can a student apply for an H-1B in the lotterywhen on medical leave?





Hypotheticals

9

01

02

VWP or B-2 to F-1

CPT

03

04


Second Degree : BS to AAHans is a student who enters the US in F1 status and graduates from a 4-year university with a Bachelor’s degree in Engineering. He uses 1 year of OPT and then gets a STEM extension. After that, he goes to a community college for a different engineering program at the AA level. He is currently working pursuant to CPT and wants to apply for an H-1B in the lottery in April.• Issues?

DSO Resources for Attorneys

10

8 CFR 214.2 (F) and (J)

Study in the States

https://studyinthestates.dhs.gov/schools

SEVP Field Representatives

Network NAFSA

http://network.nafsa.org/home

Student Network

Scholar Network

NAFSA Advising Manual 360 (subscription)




OPT to H-1B

Timeline: Options:

Graduation

April 1H1B

Lottery

OPT expires A. Depart US within 60

days of expiration

File OPT 90 days prior to graduation

12 months OPT EAD

B. STEM Extension orChange Status in US

C. Cap Gap then Oct 1 H‐1B

F-1 OPT

• 12-month Post-completion OPT

• EAD card is required for employment. Valid for 12 months. May apply up to 90 days before program end date.

• Not more than 90 days of unemployment during post-completion OPT period

• Must work at least 20 hours/week. Employment must be directly related to the student’s U.S. major/field of study

• Note: SEVIS Form must be updated to reflect OPT, Cap Gap, and STEM Extension




STEM OPT Extension

13

STEMOPT

• Status: In Valid Period of Post-Completion OPT

• Degree: Bachelor’s, Master’s, or Doctorate in STEM field

from an accredited school, certified by SEVP

• Prior STEM Degree(s)?

• What is a STEM Degree?

• Employer: eVerify

• Timing: File I-765 up to 90 days before current OPT EAD

expires and within 60 days of date DSO enters

recommendation for OPT into SEVIS

STEM Basics

STEM OPT Application

14

How and When Does the Student Communicate with the DSO?

What does the Application Look Like?• Form I-765

• Employer name as listed in eVerify• Employer’s eVerify ID Number

• Form I-20 Endorsed by DSO within Past 60 Days

• Copy of the STEM Degree

Who Files the Extension, How, and When?• See Practice Pointer: AILA Doc 14042447• www.uscis.gov Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B

Cap-Gap Regulations: “However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day departure grace period.”

Timelines and Work Authorization While Extension is Pending• If STEM Extension is filed before OPT expires, but OPT expires while STEM Extension Application is pending, provides automatic

180 day extension of Employment Authorization • Automatic Extension ceases once USCIS adjudicates I-765




STEM Student Requirements

15

01 02 03 04

Report Changes to DSO w/in 10 days of change• Name, address, email• Employer

name/address

Unemployment Limits

• Post completion OPT: not more than 90 days

• 24 month OPT ext: cannot exceed 150 days aggregate

Report to DSO every 6 months• To confirm personal &

employer details• Even if no change

Evaluation of Student Progress / Final Assessment1. Eval w/in 12 months

of STEM OPT start2. Final assessment at

STEM OPT end date

STEM Employer Requirements

16

• Enrolled in E-Verify, maintain good standing

• Report any material changes in employment with updated Form I-983 to DSO at earliest available opportunity

• Report termination to DSO within 5 business days

• Implement formal training program (sufficient resources)

• “Provide an OPT opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours, and compensation”

• What does this mean?

• Bona fide employer-employee relationship

• Ensure student will not replace a full- or part-time, temporary or permanent U.S. worker




STEM Employer Requirements, Continued

17

• Training Opportunity will assist the student in attaining training goals• Wage requirements• Student may not work on “volunteer” basis

• Personnel providing training must be employees of employer or contractors employer has directly retained to provide services to the employer

• Bona fide employer-employee relationship• Student cannot be employee or contractor of the employer’s clients or customers• Person providing training cannot be employee or contractor of the employer’s clients or customers

• Staffing/Temp Agencies/Consulting Firms are ok if:• It is the entity providing training and• Maintains bona fide employer-employee relationship

• Cannot be another F-1 student

Training Plan Specifics

18

Students may work off-site as long as:

Training obligations are met & employer

maintains bona fideemployer-employee

relationship withstudent

But how?

Explain student’s role with employer & how role will enhance student’s knowledge gained through STEM degree

How does employer provide oversight and supervision?

How will student achieve specific objectives for work-based learning related to STEM degree?

How does employer measure whether or not student is gaining skills, etc?




Discretionary STEM Employer Site Visits

19

Preparing Employers

• When?

• Who?

• Why?

• What to have ready for review?

Will Provide 48 hours notice unless triggered by complaint• Who?• How?

What will be requested?• Employers must provide evidence used to assess wages of similarly situated US workers

RFEs and System Problems

CPT RFEs:Increase in RFEs regarding

CPTCPT “mills”

I-539 RFEs: B2 to F1

I-765 RFEs: OPT I-765 Applications,

increase in RFEs asking for documentation of

maintenance of status

H-1B COS RFEs:Problems with SEVIS on

10/1

20




Future of the STEM Extension

21

2017

Students with OPT EAD:

328,205

2017

Students with STEM OPT:

89,839

Future?

What next?

STEM Ext

OPTF‐1




H‐1B

Lottery: File first 5 business days of April for H‐1B start date of October 1. Notice of Proposed Rulemaking 11/30/2018; Final Rule 1/31/2019, reverse order of lottery; electronic registration starting FY2021

Quota: 65,000 per fiscal year with additional 20,000 to holders of U.S. Master’s or higher degrees.

Timeline: Can apply up to 6 months in advance for new filings (April 1) or extensions. Lottery results in April/May. Adjudications usually before October 1

Cap Gap: extends F‐1 status to September 30 for those with timely filed pending/approved H‐1B

If OPT valid at time of filing, EAD is extended; if in 60 day grace period, then status extended

See Cap Gap Practice Pointer, AILA Doc 18091901

F-1 to H-1B Timing & Numerical Limitations




Cap Gap

25

01 02 03 04

Timely filed H-1B Petition

• Filed during H-1B acceptance period

• F-1 D/S admission still in effect, incl OPT & 60 day grace period

• With proof of filing: DSO will ext I-20 to June 1

If not selected in the lottery

• Extension terminates if petition is denied, withdrawn, revoked, rejected, or not selected

• 60 day grace period granted from termination date or program end date, whichever is later (unless COS denied for status violation/fraud)

If H-1B petition is selected/approved in the lottery

• Notify DSO: will update I-20 to reflect F-1 ext of status and OPT (if applicable) to Oct 1

• If in grace period, no OPT ext

October 1

a. Change of Statusb. Consularc. H-1B still pending

F-1 International Travel while H-1B Pending

26

International Travel with

valid F-1 OPT EAD and visa

International Travel with

cap-gap authorization and expired F-

1 OPT EAD

International Travel before 10/1 but after H-1B Petition is Approved

02 0301




H-1B Lottery RFE Examples

?

Specialty Occupation

Bachelor’s Degree in a Specific Specialty

1. Normally min req forentry into position

2. Common to industry3. Employer normally

reqs degree or equivfor position

4. Duties so specializedand complex

$

Level One Wage

Level 1 is for employees with only a basic understanding of the occupation. These employees “perform routine tasks that require limited, if any, exercise of judgment.”9/20/17 Practice Pointer: AILA Doc 170901323/12/18: Practice Pointer re AAO: AILA Doc 18031236

Availability of Work

Establish that the petitioner has specialty occupation work

available

Also: Employer/Employee Relationship

Maintenance of Status

Ex 1: International travel:incorrect record of

departureEx 2: Unemployment:

show employed throughout OPT and STEM

extension

27

https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations

“Laid off or terminated by the H‐1B employer: If the student has been approved to change their status to an H‐1B nonimmigrant but is laid off/terminated by the H‐1B employer before the date they officially obtain H‐1B status, the student can retrieve any unused OPT if he or she has an unexpired EAD issued for post‐completion OPT. The student will remain in F‐1 status and can continue his or her OPT using the unexpired EAD.The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H‐1B change of status goes into effect. This will prevent the student from changing to H‐1B status. Once the petition has been revoked or withdrawn, the student must provide his or her DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.If USCIS does not receive the withdrawal request before the date that the student is supposed to change status to an H‐1B nonimmigrant, then the student will need to stop working, file Form I‐539, Application to Extend/Change Nonimmigrant Status to request F‐1 status, and wait until the change of status request is approved before resuming employment.Student finds a new H‐1B job: The F‐1 student can continue working with his or her approved EAD while the data fix in SEVIS is pending if:

The (former) H‐1B employer withdrew the H‐1B petition on time;The student finds employment appropriate to his or her OPT;The period of OPT is unexpired; andThe DSO has requested a data fix in SEVIS.

If the student had to file Form I‐539 to request reinstatement to F‐1 student status, the student may not work or attend classes until the reinstatement is approved.”…“If the employer withdraws the H‐1B petition after the date that the student officially changes to H‐1B status, the student’s status will have been changed from F‐1 to H‐1B. The student will no longer be in valid F‐1 status and will either need to apply for F‐1 status or immediately depart the United States.”




F-1 to H-1B Timeline: Hypothetical

29

Activity Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Post‐Completion OPT EAD Valid

STEM Extension Filed and Pending

STEM Ext EAD Valid

H‐1B Filed and Pending

H‐1B Approval

International Travel

Q: SEVIS COS Issue

Questions?




Documents

Business 8 - F-1 to H-1B - LaMorticella-Allman ... - 01 - Spring/02-14... · the August 9, 2018 Memo • Practice Pointer: AILA Doc 18101939 CPT • 2/9/18 Practice Pointer re 2nd