Author: SCwpadmin

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DHS Announces Final Rule on OPT Extension for Select STEM Students

Certain F-1 students will now be able to extend their optional practical training period (OPT) by 24 months under a new final rule published by the Department of Homeland Security on Friday. This extension will allow STEM graduates to supplement their academic knowledge with practical workplace experience. The rule also includes requirements for the employer to protect the integrity of the training program and safeguard U.S. workers from any adverse effects.

 Who is Eligible?

 The new 24-month OPT extension is only available to F-1 students who have earned a qualifying STEM degree from an accredited school in the United States. The specific fields of study that qualify as a basis for a STEM extension can be found on the Department of Education Classification of Instructional Program Categories. Students may use a previously-earned STEM degree to apply for the extension, but the STEM degree must be from an accredited U.S. school certified by SEVP to receive F-1 students, and the student’s most recent degree must also be from an accredited and SEVP-certified school.

 Employer Requirements

 Apart from the degree requirement, the rule also places requirements on the employers. Specifically, all STEM OPT employers must participate in DHS’s E-Verify program, and the employer must incorporate a formal mentor and training program that includes concrete learning objectives and oversight. In an effort to guard against any adverse effects on U.S. employees, employers will also be required to attest that 1) the employer has the resources and personnel to provide training and mentoring, 2) none of the employer’s full- or part-time U.S. workers will be terminated, laid off or furloughed as a result, and 3) the student’s opportunity assists the student in attaining his or her training objectives. Additionally, both the student and the employer will be required to report any changes in employment status or material changes to the student’s training plan to their designated school officials. Finally, the rule clarifies that DHS may conduct employer site visits to verify whether employers are meeting the program requirements.    

 OPT Background

 Normally, F-1 nonimmigrant student must return to their home country upon completion of their studies. The OPT program allows F-1 students to remain and work in the United States after completing their degree. This employment period is intended to supplement the student’s formal education and provide valuable on-the-job workplace experience. The OPT program is available to F-1 students in all academic fields except English Language programs. The initial OPT period is limited to 12 months, but the new rule will allow F-1 students with STEM degrees to extend their OPT period by an additional 24 months, for a total of three years. The new rule replaces the previous 17 month extension available to STEM OPT students.

by SCwpadmin SCwpadmin 93 Comments

DAPA and Expanded DACA Case to be Heard by the U.S. Supreme Court on April 18, 2016

United States v. Texas, the lawsuit filed by 26 states against President Obama’s DAPA and Expanded DACA immigration reform programs, has been officially scheduled for oral argument before the United States Supreme Court on April 18, 2016.  This lawsuit was filed 16 months ago after President Obama used his executive powers to order the creation of DAPA and Expanded DACA, programs that expanded eligibility requirements for the DACA program and allowed undocumented parents of citizens and lawful permanent residents to apply for work authorization and protection from deportation.  The 26 states, led by Texas, argue that the President’s implementation of these programs through executive action was unconstitutional and that he bypassed federal procedure for changing the law.  The United States Supreme Court will consider these questions during oral argument on April 18, 2016 and could issue a decision on this case as early as June 2016.

by SCwpadmin SCwpadmin 85 Comments

California Universities Provide Low-Interest College Loans to Dreamers

Public Universities in California are leading the nation by being the first to provide low-interest college loans to Dreamers.  The law making this possible appropriates funding through the California DREAM loan allotment and currently totals a fund of $7 million.  Each applicant will be eligible to borrow up to $4,000 for each academic year at 4.29% interest.  Like many other student loans, students will have a 6 month grace period before they must begin repaying the loan.  Approximately 10,000 students may be eligible to qualify for a loan, which would help reduce the cost of their college tuition and help make attending college a reality for more students.  This will come as an immense help to noncitizen children living in the United States who do not qualify for federal financial aid.

by SCwpadmin SCwpadmin 80 Comments

It’s H-1B Season!

It’s H-1B season! As a reminder to employers in the tech industry and other sectors that rely on H-1B workers, employers must file their H-1B petitions April 1, 2016 to try to obtain one of the limited H-1Bs with a start date of October 1, 2016.

There are a total of 85,000 H-1B visas available each year, with 20,000 of those reserved for individuals who obtained a master’s degree or higher in the U.S.  During the first week of April last year, USCIS received nearly 233,000 petitions, up from the 172,500 petitions received in 2014. As such, time is of the essence. Please contact us now if you have employees currently on working on OPT or if you are recruiting foreign nationals and you would like to submit an H-1B visa on their behalf.

 

 

by SCwpadmin SCwpadmin 80 Comments

Further Restrictions for the Visa Wavier Program

The Department of Homeland Security is expanding restrictions to the Visa Waiver Program.  At present, the Visa Waiver Program allows citizens of 38 specified countries to travel to the United States for 90 days or less without first obtaining a visa.  However, a new law established in December 2015 created new travel restrictions to the Visa Waiver Program intended to tighten national security.  This new law made nationals of Visa Waiver Program countries who have traveled to or been present in Iran, Iraq, Syria, or Sudan on or after March 1, 2011 ineligible to participate in the Visa Waiver Program.  Similarly, nationals of Visa Waiver Program countries who are also nationals of Iran, Iraq, Syria, or Sudan are precluded from the Visa Waiver Program.

On February 18, 2016 the Department of Homeland Security announced that it is also including Libya, Somalia, and Yemen on the above-mentioned list of countries of concern.  While individuals who have visited these countries since March 1, 2011 or are dual nationals of these countries are ineligible to participate in the Visa Waiver Program, they may still apply for a visa to enter the United States at a U.S. consulate or embassy.  If entry on the Visa Wavier Program is in the best interest of national security or law enforcement, an applicant can also apply for a waiver of these travel restrictions from the Department of Homeland Security.

by SCwpadmin SCwpadmin 75 Comments

Lawmakers Sponsor Bill to Provide Legal Counsel to Children in Deportation Proceedings

Senator Harry Reid of Nevada and several other democratic lawmakers have introduced a bill that would require the Attorney General to appoint legal counsel for children in removal proceedings.  The current immigration laws do not provide counsel for immigrant adults or children in removal proceedings.  At present, unrepresented immigrant families and unaccompanied children are required to represent themselves before the immigration judge and are forced to defend themselves against well-trained trial attorneys from the Department of Homeland Security, unless they can afford to hire an immigration attorney.  Not surprisingly, having an immigration attorney significantly increases the likelihood that the immigrant will be successful before the immigration court.  Statistics support that almost half of children in removal proceedings are without counsel and almost 70 percent of families in immigration proceedings are without counsel.  The purpose of this bill introduced by Senator Reid is to provide minors and other vulnerable populations with the right to counsel.  Given the political divide on immigration, Senator Reid’s bill will undoubtedly face opposition in Congress.

 

 

by SCwpadmin SCwpadmin 493 Comments

Woman Given Advanced Permission to Travel was Deported on her Return to the U.S.

Lesly Cortez-Martinez, an undocumented mother of 3 United States citizen children, was deported last week after the United States granted her advanced permission to travel to Mexico.  Ms. Cortez-Martinez immigrated to the United States at the age of 15 with her family and was granted Deferred Action for Childhood Arrivals, or DACA.  Before traveling to Mexico she requested advanced travel permission from the United States government to allow her to visit her family in Mexico and return to the United States.

When Ms. Cortez-Martinez attempted to return from visiting her family and re-enter the United States last week at Chicago O’Hare International Airport immigration authorities detained her due to a 2004 deportation order that was in Ms. Cortez-Martinez’s immigration history.  Despite having the advanced permission to travel, Ms. Cortez-Martinez was deported back to Mexico because of this 2004 deportation order.

After national outrage at the Department of Homeland Security’s decision to deport Ms. Cortez-Martinez, she was allowed to re-enter the United States and be reunited with her husband and three children.  The Department of Homeland Security has stated that Ms. Cortez-Martinez will likely be placed into deportation proceedings after her return.  Ms. Cortez-Martinez’s experience raises significant concerns for other noncitizens who have been granted advanced travel permission and highlights the risks involved in international travel plans on advanced parole.

Before international travel, and especially for those who are traveling on advanced parole, noncitizens should consult with an experienced immigration attorney to discuss the risks involved in their travel before departing the United States.

 

 

by SCwpadmin SCwpadmin No Comments

D.C. Federal Court Grants 90 Day STEM Extension

The United States District Court sitting in D.C. ordered that the lawsuit regarding the 17 month STEM OPT extension be stayed further until May 10, 2016.  This means that foreign nationals on STEM OPT may continue to work and their work authorization will remain valid and not impacted by this lawsuit until at least May 10, 2016.

At present, students who graduate with a qualified Science, Technology, Engineering or Math (STEM) degree, and are currently in an approved post-completion OPT period based on their designated STEM degree, may apply for a 17-month STEM extension of their post-completion OPT.  Subsequently, a proposed rule by the Department of Homeland Security sought to extend the available STEM OPT time to a total of 36 months.  However, this past year a lawsuit was brought against the Department of Homeland Security alleging that the original 17 month STEM extension was invalid because the rule was proposed without going through proper notice and comment rulemaking.  Because of this lawsuit, countless foreign nationals working pursuant to their STEM OPT have been unsure if their work permission will continue to be valid and if so for how long.  Additionally, potential STEM OPT applicants have been unsure if they are able to gain work permission under STEM OPT in the future.  Stern & Curray will continue to monitor the status of the STEM OPT lawsuit and will post the most up-to-date information on our blog.  Stay tuned!

 

 

by SCwpadmin SCwpadmin 24 Comments

United States Supreme Court Will Hear Case on President Obama’s Executive Actions on Immigration

The United States Supreme Court announced that it has granted the petition for writ of certiorari to hear Texas v. United States, the lawsuit that has stalled President Obama’s executive action programs of DAPA and Expanded DACA from taking effect. The Court is expected to answer the question of whether the President’s executive orders violated the Take Care Clause of the U.S. Constitution at Article II Section III. The Take Care Clause commands that the President take care that the laws of this country be faithfully executed. This ruling will determine the ultimate fate of the President’s long-anticipated programs and will be a key decision in this presidential election year during which immigration is such a hotly debated topic.

by SCwpadmin SCwpadmin 10,924 Comments

Ken Stern & Emily White Recognized as Top Lawyers

We are proud to share that partners Ken Stern and Emily Assunta White were recognized as Top Lawyers in the field of Immigration Law by 5280 Magazine. Both Ken and Emily were also listed in the 2015 rankings. Attorneys are selected by collecting votes from thousands of Denver area lawyers along with additional research by 5280.

Congratulations, Ken and Emily, for this well-deserved honor!

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