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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
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 2 of 15
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
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 3 of 15
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
F-1 Student Medical Leave
Second Degree: BS to AA
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?
Second Degree: BS to AA
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 4 of 15
Hypotheticals
9
01
02
VWP or B-2 to F-1
CPT
03
04
F-1 Student Medical Leave
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)
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 5 of 15
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
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 6 of 15
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
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 7 of 15
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
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 8 of 15
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?
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 9 of 15
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
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 10 of 15
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
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 11 of 15
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
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 12 of 15
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
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 13 of 15
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.”
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 14 of 15
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?
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 15 of 15