Volume Eighteen, Number Six

Shusterman’s Immigration Update June 2013 is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.

Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x 0.

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Client Reviews

Immigration Update June 2013

TABLE OF CONTENTS:

1. Immigration Reform Bill Reaches the Senate
2. CSPA: Opposition to DOJ’s Petition Submitted to the Supreme Court
3. Shusterman’s Upcoming Immigration Law Seminars
4. Traveling Abroad while Changing Status from F-1 (OPT) to H-1B
5. Success Story: Overcoming the Denial of an I-140 Petition
6. Immigration Trivia Quiz: History of Los Angeles
7. State Department Visa Bulletin for June 2013
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Should I Apply for OPT?
10. Winner of Our May 2013 Trivia Quiz!

NEWS FLASHES

• BIA Unpublished Decisions Online – We have always linked to all BIA published decisions.  Now, courtesy of the  Immigrant & Refugee Appellate Center, we also link to hundreds of unpublished BIA decisions. Some of these decisions are truly remarkable.  For example, in a decision dated August 23, 2012, the BIA remanded a case to an Immigration Judge because he failed to advise an LPR who had a criminal conviction that he had a right to seek legal representation, did not inquire as to whether he conceded removability, did not analyze whether his conviction was for a crime of moral turpitude, did not rule on whether he was eligible for a waiver and did not issue either an oral or a written decision.  Presumably, this Judge remains on the bench. The BIA did not mention whether he was awake or asleep during the hearing in question.

• DACA Interviews at Local USCIS Field Offices – Some Deferred Action for Childhood Arrivals (DACA) cases are being transferred to local USCIS field offices for interviews, either as part of a random selection process or due to eligibility issues.

• DHS and EOIR Agreement on Information Sharing – The Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR) have signed a memorandum of agreement regarding the sharing, use, protection, and ownership of data exchanged between the two agencies during status verification, investigation, enforcement, processing, and adjudication of immigration cases.

• Diversity Visa Lottery Results – The 2014 Diversity Visa Lottery results are now available online. The government warns those who applied that results will not be e-mailed and that applicants should be cautious of scams.

• EB-5 Investors: USCIS Issues New Policy Memo – On May 30, the USCIS issues a major policy memorandum regarding EB-5 investments setting forth guidance for adjudicating EB-5 applications and petitions, addressing important issues like the preponderance of evidence standard, definition of “capital,” amount of capital that must be invested, definition of “targeted employment area” and more.

• EOIR Online Attorney Registration Program – Starting December 10, 2013, attorneys and fully accredited representatives will need to complete eRegistry, a new mandatory electronic registry required to practice before EOIR. This program will be available beginning June 10 of this year, and in preparation EOIR has released many resources.

• HHS Poverty Guidelines for 2013 – The U.S. Department of Health and Human Services (HHS) has issued the 2013 Poverty Income Guidelines. These guidelines are used to determine the minimum income requirement necessary when filing an Affidavit of Support (I-864).

• H-1B Jobs Database Tech Companies Might Hate – The H-1B database proposed in the comprehensive immigration reform bill is intended to make it more likely that a U.S. worker will be hired rather than a foreign worker. However, vague language such as “good faith” hiring and enforcement may limit the effectiveness of the database to carry out this goal.

• ICE FOIA Response Wait Times Growing – According to a study by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the number of Freedom of Information Act (FOIA) requests sent to ICE are experiencing increasing backlogs. Within the past 60 days alone, the number of unanswered FOIA requests grew by 64% and by the end of May the median wait time has climbed to 105 days.

• Immigration “How-To” Videos – Our 40+ “How-To” Immigration Videos have been viewed over 444,000 times. Subjects include the newly-introduced immigration reform bill, how to obtain a green card, become a U.S. citizen, win your case in immigration court and select an immigration attorney. Our video Green Cards through Marriage  has been viewed over 160,000 times. We encourage you to take advantage of this free resource.

• National Resident Matching Program 2014 – International Medical Graduates (IMGs) participating in the 2014 National Resident Matching Program should apply for Step 2 Clinical Skills (CS) by December 31, 2013. If hopeful participants don’t register early and schedule a test date soon, they may be unable to obtain a CS test date in time.

• New G-28 Required as of May 26 – On March 28, USCIS published a revised version of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. USCIS has stopped accepting the prior version of the form.

• TPS Extended for Salvadorans – DHS Secretary Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of El Salvador by 18 months, starting September 10, 2013 and ending March 9, 2015. Interested Salvadorans should re-register during the 60 day period from May 30 to July 29 of this year.

• USCIS Releases its April 2013 Straight from the Source Newsletter – Straight from the Source is a newsletter from USCIS that provides helpful and important immigration news to subscribers. The April 2013 edition discusses the new E-Verify system, the new I-9 form, provisional waiver rejections, and much more.

• USCIS to Expand Entrepreneurs in Residence Initiative – On May 8, USCIS released a summary of the work being done through the Entrepreneurs in Residence (EIR) Initiative, a program intended to help immigrant entrepreneurs who aid in job creation and American economic growth. USCIS is now seeking private sector experts in the performing arts, healthcare, and information technology sectors to help strengthen its policies and practices.

1. Immigration Reform Bill Reaches the Senate

On May 21, the Senate Judiciary Committee approved an amended version of S.744, the Comprehensive Immigration Reform bill that was introduced in the Senate on April 17 by the “Gang of 8”.

The vote was 13-5 with a number of Republican Senators joining their Democratic colleagues to send the bill to the Senate floor where it will be debated starting around June 10.

Although the Committee approved a total of 141 amendments to the bill, only a handful of these amendments would significantly alter the immigration benefits included in the original version of the bill.  We list some of the more significant amendments below:

H-1B Workers – In a last-minute deal with Senator Hatch (R-UT), the Committee agreed to further increase the number of H-1B numbers available, and to remove the labor-certification requirement for employers wishing to sponsor H1-B workers.  This represents a significant victory for the high-tech industry and a defeat for labor unions which had vigorously opposed this measure.  H-1B dependent employers, many of them IT “job shops” from India will have to advertise for U.S. workers before petitioning for an H-1B worker.  Certain H-4 spouses will be eligible to apply for employment authorization and workers will be granted a 60-day grace period when transferring between H-1B employers.

LGBT Amendment Withdrawn – Senator Patrick Leahy (D-VT) withdrew his amendment which would have permitted U.S. citizen partners in same-sex marriages to sponsor their foreign-born spouses for permanent residence after Senator Marco Rubio (R-FL) and his Republican colleagues informed him that passage of such an amendment would kill the compromise bill.

Other Significant Amendments – Committee voted to make the EB-5 Regional Center Program permanent, to add Hong Kong to the Visa Waiver program, to permit certain applicants for visitor visas to have their interviews waived or conducted by video and to ban from RPI eligibility, persons with 3 or more DUI convictions.

We have blogged about how the bill would change the family-based legal immigration preference categories. Briefly, spouses and children of permanent residents would be exempted from numerical restrictions and visa bulletin waiting times would disappear. The USCIS would stop accepting I-130 visa petitions for the sibling category after 18 months, and U.S. citizen parents would only be able to sponsor sons and daughters who are 30-years-old or less. The per-country quotas would be more than doubled from 7% to more than 15%. This would dramatically shorten waiting times for persons born in the Philippines and Mexico. Also, our interpretation of CSPA’s automatic conversion clause would not only be written in such a way that the Justice Department would not be able to challenge it, but it would be expanded.

The bill would make employment-based (EB) immigration the focus of our country’s immigration policy. Many categories of EB immigrants would no longer be counted against the 140,000 per year numerical cap. These categories include persons of extraordinary ability, outstanding professors and researchers, multinational executives and managers, physicians with national interest waivers, persons holding a doctorate in any field and certain persons with advanced STEM degrees from universities in the U.S. In addition, spouses and children of EB immigrants would not be counted against the cap. EB per-country limitations would be completely abolished. A CSPA amendment would also apply to all employment-based petitions. Read more in CIR Bill Would Create New Employment-Based System

On June 1, we wrote a new blog post entitled CIR Bill Would Benefit Foreign-Born Physicians . The bill would significantly reform the J visa and waiver system. J visas would become “dual intent” visas like H-1Bs and L-1s. It would become much easier for physicians to change jobs and to obtain green cards. The Conrad 30 waiver program would, at last, be made permanent.

Finally, we discuss the centerpiece of the CIR bill in the Pathway to Citizenship .

Proponents of immigration reform are hoping that a bipartisan coalition of Senators approves the bill before the end of June.  Then, the fight moves on to the House of Representatives where the debate is expected to be even more contentious.

We will continue to follow the progress of the CIR bill on a day-to-day basis.

2. CSPA: Opposition to DOJ’s Petition Submitted to the Supreme Court

On May 24, we submitted our Opposition to the Justice Department’s Petition for a Writ of Certiorari which asks the Supreme Court to reverse our victory in the U.S. Court of Appeals for the 9^th Circuit regarding the “automatic conversion” clause of the Child Status Protection Act (CSPA).

We should receive the government’s reply by June 4. The Court will consider whether to review this matter on June 20, and we should know the answer at 9:30 Eastern Time on June 24.

In DeOsorio v. Mayorkas, the 9^th Circuit held that CSPA’s automatic conversion clause applies to family-based 3^rd and 4^th preference petitions.  By extension, the clause applies to all derivative beneficiaries of family-based and employment-based petitions as well as under the diversity visa lottery.

The case is a class action lawsuit.  The facts are as follows: Mrs. DeOsorio is the primary beneficiary of a 3^rd preference visa petition filed by her mother, a U.S. citizen.  When her mother submitted the petition in 1998, Mrs. DeOsorio’s son Melvin was 13 years old.  The INS approved the petition in one month.  By the time that his priority date became current in November 2005, Melvin had “aged-out” in that he had reached the age of 21 just four months earlier.

The automatic conversion clause of CSPA, 8 U.S.C. 203(h)(3), provides that aged-out derivative beneficiaries like Melvin are entitled to retain the priority date of the original petition, and that the petition is automatically converted to the appropriate category, in this case, the family-based 2B category since Melvin is the unmarried adult son of his mother, now a lawful permanent resident of the U.S.

If the USCIS had followed the law, Melvin would have been granted a green card years ago, and could have proceeded to the U.S. to be reunited with his mother.  Instead, the government refused to accord Melvin his 1998 priority date, and we were forced to sue the government in 2008 on his behalf.  Now, after five years of litigation, the government is requesting that the Supreme Court reverse our victory on Melvin’s behalf in the U.S. Court of Appeals for the 9^th Circuit

According to the government, the automatic conversion clause solely benefits children who “age-out” of the family-based 2A category (children of permanent residents) and convert to the 2B category (unmarried adult sons and daughters of permanent residents) even though this has been permitted by regulation for decades before the passage of CSPA.  The government maintains that Melvin should receive no credit whatsoever for the 15 years that he has waited in line for a green card.

We disagree.  The plain language of the law should control the outcome of this matter, not the government’s restrictive interpretation of the law.

However, if the Supreme Court decides to review the holding of the Circuit Court, Melvin and other children, similarly situated, will have to wait until 2014 for this issue to be finally resolved.

P.S. – The Senate’s CIR bill, S.744, if enacted into law would render this controversy moot.  The bill adds a new sub-paragraph 1153(h)(3)(B), which guarantees that “[t]he beneficiary of any petition shall retain his or her earliest priority date … regardless of the category of subsequent petitions.”

3. Shusterman’s Upcoming Immigration Law Seminars

• Kaplan
  Immigration Seminar
  Kaplan Center Pasadena
  Pasadena, California
  June 4, 2013
  Topic: “Physicians Guide to U.S. Immigration”

• American Immigration Lawyers Association (AILA)
  Annual Conference
  Hilton San Francisco Union Square
  San Francisco, California
  June 29, 2013
  Topic: “Informational Marketing Techniques to Start and Grow Your Practice”

• Professionals in Human Resources Association (PIHRA)
  Ventura County District Meeting
  Spanish Hills Country Club
  Camarillo, California
  July 18, 2013
  Topic: “What Every HR Manager Needs to Know About Immigration”

• Professionals in Human Resources Association (PIHRA)
  California HR  Conference
  Anaheim Convention Center
  Anaheim, California
  August 26-28, 2013
  Topic: “Employer’s Responsibilities under the New Immigration Law”
  To attend this event, register online.

• Professionals in Human Resources Association (PIHRA)
  District 1 Meeting
  McCormick & Shmick
  Los Angeles, California
  September 18, 2013
  Topic: “Employer’s Responsibilities under the New Immigration Law”

• Pincus Professional Education
  Continuing Legal Education (CLE)
  Los Angeles, California
  December, 2013
  Topic: “Immigration 101”

4. Traveling Abroad while Changing Status from F-1 (OPT) to H-1B

For many foreign students in F-1 status, being sponsored by an employer for an H-1B visa is a popular option. Are you are an immigrant whose employer has requested to change your nonimmigrant status from F-1 to H-1B starting on October 1, 2013? Are you a student in F-1 “cap-gap” extension period? If so, there may be a catch: you may have to wait until October 1 to come back to the United States if you travel abroad.

As such, if you intend to travel abroad between now and October 1, you should consider the details of your trip very carefully. The following questions and answers are designed to help you when formulating your travel plans.

Can I travel abroad while my H-1B petition, with a request to change from F-1 status to H-1B status, is pending with the USCIS?

If you travel before your H-1B petition is approved, you could be considered by the USCIS to have abandoned your request to change your status from F-1 to H-1B. Though the H-1B petition might still be approved, you would need to leave the U.S. again and apply for an H-1B visa at the U.S. Consulate abroad to return to the states in H-1B status. This could delay your return to the U.S. and you would have to obtain a valid H-1B visa stamp in your passport at the U.S. Embassy or Consulate and return to the U.S. no earlier than 10 days before your H-1B starts. If you decided to come back in F-1 status, your employer would have to submit a new petition to the USCIS with a request to change your status to H-1B after you return.

I am still in school and have not applied for Optional Practical Training (OPT). My H-1B petition has been approved with a start date of October 1, 2013. Can I travel abroad before October 1, 2013?

It depends on whether you are in F1 status or in “cap-gap” extension coverage before you start your H-1B employment on October 1, 2013. If you maintain your F-1 status and your course of study continues until September 30, 2013, you should be able to travel abroad and use a valid F-1 visa to return to the U.S. in F-1 status. Otherwise, it is advisable that you remain in the U.S. during the cap-gap period. If you plan to return in F-1 status, you might be questioned about your nonimmigrant intent and will have difficulties with getting a new F-1 visa at a U.S. Embassy or Consulate and admission at the port of entry. Please remember to carry the required documents with you when you travel, your original passport valid for more than six months, and Form I-20 that is endorsed for travel. Also note that you may need to pay the mandatory SEVIS I-901 Fee and bring a copy of your SEVIS fee payment receipt with you when applying for your F-1 Visa at a U.S. Embassy or Consulate and when entering the U.S.

I have finished my F-1 study without applying for OPT or my OPT has expired. My H-1B petition with a request for change of status to H-1B starting from October 1, 2013 was filed when I was in F-1 status or during the 60-day cap gap grace period or before my OPT expired. May I travel abroad before October 1, 2013 and come back to continue working during a cap-gap extension period?

You may still be eligible to remain in the U.S. or work during the cap-gap extension period until October 1, as long as the petition to change your status to H-1B is approved and your H-1B was subject to cap and filed before your F-1 status (including 60 day grace period) or OPT expired. If you are eligible for cap-gap extension coverage, it is best for you to remain in the U.S. during the cap-gap period. If you travel abroad before October 1, 2013, you can only come back in H-1B status and cannot be readmitted in F-1 status. You will lose your cap-gap benefits and have to wait for your H-1B to be approved and apply for an H-1B visa at a U.S. Embassy or Consulate abroad to come back no earlier than September 20, 2013.  When you plan your foreign travel, you should consider the delay of return and possible missing work days.

My change of status to H-1B has been approved and is valid from October 1, 2013. My OPT is also still currently valid. Can I travel abroad before October 1, 2013 and return in F-1 status? When will my H-1B status start after I come back to the U.S.?

Yes, if your OPT is valid on or after September 30, 2013 and your petition for change of status to H-1B has been approved before you leave, you can return to the U.S. in F-1 status with a valid F-1 visa stamp and required documents (see below). Please note that your time spent outside of the U.S. will be counted against the unemployment period during OPT, which is no more than 90 days (or 120 days for F-1 students who have received an OPT extension based on STEM degree). Your H-1B status will start from October 1 as long as you return to the U.S. before that time.

I have applied for an H-1B change of status petition and plan to travel abroad and obtain an F-1 visa at the U.S. Embassy or Consulate abroad to reenter the U.S. on F-1 status. What should I consider during the visa issuance at the U.S. consulate and F-1 admission at the port of entry?

Please see the above listed questions to determine if you are eligible to come back in F-1 status. Before you travel, you should bring the required documents and expect possible delays and difficulties with getting a new F-1 visa and admission in F-1 status. If you are an F-1 student who is still in school, you need to make sure that you are carrying a valid passport with a valid F-1 visa, Form I-20 that is endorsed for travel, and SEVIS fee payment receipt. If you are in valid OPT status, you also need to bring your valid EAD card and an employment verification letter from your OPT employer.

My H-1B Change of Status petition has been approved. When can I apply for an H-1B visa at a U.S. Embassy or Consulate abroad and enter the U.S. in H-1B status if I travel abroad before October 1, 2013?

You may apply for your H-1B visa at a U.S. Embassy or Consulate up to 90 days before your requested start date in H-1B petition. If your approved H-1B starts from October 1, 2013, you would be able to apply for your H-1B visa at a U.S. Embassy or Consulate abroad up to 90 days in advance, i.e., no earlier than July 3, 2013. Once you get the H-1B visa stamp in your passport, be sure to check your H-1B visa expiration date as this might be different from the end date shown on the H-1B approval notice. Please note that you can only enter the U.S. up to 10 days before your H-1B effective date (no earlier than September 21, 2013 if your H-1B start date is October 1, 2013). Also, your H-1B visa stamp has to be valid on the day when you enter the U.S. Though you may come to the U.S. up to 10 days earlier, you cannot start working during these extra days as they are just given to allow you to get settled in the U.S. You need to wait until your H-1B start date as shown on the approval notice to start your employment.

5. Success Story: Overcoming the Denial of an I-140 Petition

This month’s success story tells of how we were able to help overcome the denial of an I-140 and the I-485s for an executive of a small company, his wife and their two children.

Born and raised in Australia, Duncan worked for several years as a General Manager of a company. After doing very well in this capacity, he was given the opportunity to come to the U.S. to work as an executive at an affiliate in California. After working on an L-1A visa for several years, Duncan was then offered a position at the U.S. affiliate as a Managing Director, an executive position at the company.

In order to apply for a green card as a multinational executive, a foreign worker must have been employed in an executive position for at least one of the past three years with the same employer or a parent, subsidiary, or affiliate. He must also manage a major function of the organization and exercise discretionary decision-making. As Duncan fulfilled these eligibility requirements, his attorney submitted an I-140 Immigrant Petition for Alien Worker and I-485 Applications to Adjust Status for him and his family.

Unfortunately, the I-140 and all the I-485s were denied, as the evidence failed to demonstrate that Duncan was an executive or manager of a multinational organization. Even though the U.S. company had 15 employees, USCIS did not believe that Duncan’s role as an executive was crucial to business operations. Further, due to Duncan’s part ownership of the company, USCIS found that he was more likely to act as an employer than as an employee and so was not eligible for a green card as an executive.

Duncan’s attorney submitted an appeal before the Administrative Appeals Office (AAO) as he believed that the I-140 petition was wrongly denied. However, Duncan and his family became concerned that they would run out of their L-1A and L-2 status before they heard the (hopefully favorable) outcome of the appeal. It was at this point that Duncan came to our office to see what their options were.

During the consultation, I told Duncan that since his status was set to expire in a matter of months, we should apply to extend his L-1A status to give him and his family time to stay in the U.S. while they awaited a decision on the appeal. How was this possible since they were about to reach their maximum of seven years in L-1A/L-2 status? Duncan had spent a few months outside the U.S. during the past seven years, and this time could be “recaptured” and added to his L-1A status. An extension would give our office time to file new I-140 and I-485s should the appeal be denied. This would be no easy task since there was every possibility that the USCIS would deny the L-1A extension on the same grounds that the I-140 was denied.

Attorney Raj Iyer began working on the case and was able to extend Duncan’s L-1A status (and his family’s L-2 status) by demonstrating that Duncan could reclaim the time he had spent outside of the U.S., evidenced by Duncan’s travel itineraries and copies of his passport pages with entry and exit stamps. This was a major turning point in the case, as we were able to get the L-1A extended despite the fact that the I-140 had been denied due to questions regarding Duncan’s executive capacity and ownership issues. As proof of Duncan’s eligibility, we submitted documentation of Duncan’s executive role in the company despite the company’s small size. Attorney Iyer was also careful to clarify the qualifying relationship between the U.S. and foreign entity.

However, this victory was only temporary. We then received the news that the AAO had denied Duncan’s appeal for his I-140 and I-485. Attorney Iyer prepared new applications, and worked very hard to ensure that this time around, USCIS could be convinced that Duncan occupied an executive position. Fortunately, the necessary groundwork for a strong I-140 petition had to be laid by getting the L-1A extension approved as the requirements for both types of petitions were very similar.

While the company was relatively small in size, it had a high revenue stream and Duncan’s oversight was crucial to the functioning of the business. Additionally, Attorney Iyer stressed that Duncan, as a senior level executive managed two vice presidents and their support staff and exercised considerable discretion in making day-to-day decisions. Further, he argued that Duncan was uniquely qualified for his position at the U.S. company in a permanent capacity given his years of experience both at the affiliate company in Australia and at the U.S. company.

Much to everyone’s relief, this time, the I-140 was approved without so much as a request for evidence. As such, the approval of the I-485s should be a piece of cake!

We are very happy to have helped Duncan, his wife and their children remain in the U.S. where Duncan can help grow his company and continue to create jobs for American workers.

6. Immigration Trivia Quiz:

Quiz Removed.

7. Visa Bulletin for June 2013

The Visa Bulletin for June 2013 contains great news for those waiting in line under the worldwide employment-based third category (professionals, skilled and unskilled workers).  After advancing 5 months in May, worldwide EB-3 jumps forward 10 more months to September 1, 2008.  In contrast, the India EB-3 priority date advances only 2 weeks.  The EB-3 category for the Philippines moves ahead only 1 week.

The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 8 weeks, EB-2 India does not move at all.

The Senate CIR bill would eliminate all per-country EB quotas.  Write your Senators and Representatives now, and ask them to support this important modification to our broken immigration system!

The worldwide family-based preference 2A category moves forward almost 4 months while the F4 sibling category remains at May 1, 2001.  Other worldwide family-based categories advance between 3 and 7 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 7 months.  Family-based waiting times for Mexico barely advance at all.

The charts below tell the story in more detail:

FAMILY CATEGORIES

 

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	4-22-06	4-22-06	8-15-93	1-1-00
2A	6-8-11	6-8-11	5-8-11	6-8-11
2B	7-8-05	7-8-05	6-15-93	11-1-02
3rd	9-1-02	9-2-02	4-1-93	11-15-92
4th	5-1-01	5-1-01	9-15-96	11-8-89

EMPLOYMENT CATEGORIES

 

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	7-15-08	9-1-04	Current	Current
3rd	9-1-08	9-1-08	1-8-03	9-1-08	9-22-06
Unskilled	9-1-08	10-22-03	1-8-03	9-1-08	9-22-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

8. Immigration Government Processing Times

We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.

Read more…

9. Ask Mr. Shusterman: Should I Apply for OPT?

Many international students come to the U.S. using F-1 visas to pursue an education at a university. While the American classroom experience can prepare you for a variety of jobs upon graduation, employers are increasingly looking for students with resumes that display knowledge and work experience.  Optional Practical Training (OPT) offers an opportunity for foreign students to gain the skills necessary to succeed in today’s competitive job market.

U.S. Citizen and Immigration Services (USCIS) defines OPT as “temporary employment that is directly related to an F-1 student’s major area of study.” OPT is available before completing your education and after graduation, but the requirements for pre-completion and post-completion OPT vary. Below, you will find information regarding the benefits of pursuing an OPT program as well as the steps and requirements to participate in OPT.

Advantages of OPT

Benefit #1: Practical experience can put you ahead of your competition. Employers are looking for people with hands-on training, not simply academic qualifications.  While there is no doubt that good grades in the classroom are important, being able to highlight practical experience on your resume gives you a boost that many other job-seekers do not have.  It is absolutely vital in today’s job market that you discuss OPT with your Designated School Official (DSO) to determine if it is right for you. Do not let this opportunity go!

Benefit #2: You’re low on money and you’re still in school… pre-completion OPT can help! An American education can be very expensive. On top of tuition, high living expenses can make it difficult to make ends meet. Pre-completion OPT is available to F-1 students who have been enrolled for one full academic year. As a participant in a pre-completion OPT program, you will be able to work up to 20 hours a week while school is in session and full-time when school is not in session.

Please note that (as discussed below) all periods of pre-completion OPT are deducted from the available periods of post-completion OPT. Additionally, a foreign student may seek on-campus work as soon as they are admitted in F-1 status and may seek off-campus work after one year if they can show severe economic hardship. This type of work eligibility is independent of OPT.

So, you want to apply for OPT?  What’s the procedure?

Step #1: In order to apply for OPT, you must have been enrolled for one full academic year. Though students are ineligible for a work permit through OPT until one school year has passed, this does not prohibit you from discussing the possibility of OPT with your DSO before that time. The more you know about the OPT process, and the earlier you know, the more prepared you will be when you become eligible.

Step #2: You must initiate the process by requesting the DSO at your academic institution to recommend OPT. The DSO will have all of the forms necessary to apply for OPT, but you must start the process by requesting his/her recommendation to participate in an OPT program. The DSO will recommend you by endorsing your Form I-20 and making the appropriate notation in the Student and Exchange Visitor Program (SEVIS). In order to obtain the DSO’s recommendation, you must meet the following requirements:

• Your potential OPT employment must be directly related to your major area of study.  This rule applies both to pre-completion and post-completion OPT. This means you cannot use OPT to work just anywhere, such as a fast-food restaurant or a shoe store. (Besides, you’re looking for practical experience!)
• If you are seeking pre-completion OPT, you must demonstrate that your work schedule will not interfere with your education. If you are authorized to participate in a pre-completion OPT program, you must work only part-time while school is in session. When school goes out of session, you may work full-time.
• If you are seeking post-completion OPT, you must apply before the end of your 60-day departure preparation period.

Step #3:  After the DSO’s recommendation, you must file a Form I-765, Application for Employment Authorization Document (EAD), with USCIS. An OPT recommendation is only one part of the process – without a Form I-765 approval, you will not receive a work permit and you will be unable to lawfully start your OPT job. You must wait until you have received your EAD to start working.

You’re now working through OPT, what next?

OPT is generally available for only 12 months total. While a student can do pre-completion OPT and post-completion OPT, any time spent in pre-completion OPT will be deducted from your post-completion OPT allowance.  Therefore, if you engage in pre-completion OPT for 3 months while you are still enrolled in school, you will only have 9 months available for post-completion OPT.

However, under the new rule put in place in 2012, certain OPT participants in the high-tech industry are eligible for a 17-month extension of post-completion OPT. This is known as a STEM extension. In order to qualify for a STEM extension, you must meet the following five requirements.

Requirement #1: You must receive a bachelor’s, master’s, or doctorate degree in science, technology, engineering, or mathematics (STEM) that is included on the STEM Designated Degree Program List. You should keep in mind that to be eligible for an OPT extension you must currently be in an approved post-completion OPT period based on a designated STEM degree. For example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.

Requirement #2: Your OPT employer must be enrolled in E-Verify.

Requirement #3: You must have received an initial grant of post-completion OPT related to such a degree.

Requirement #4: You must apply for a STEM extension prior to the expiration date of your current OPT period by filing a new Form I-765 with USCIS. Along with the Form I-765, you must submit the Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee. Please remember that if your post-completion OPT expires while your 17-month extension application is pending, you will receive a 180-day extension of your employment authorization after your current employment authorization expires.

Requirement #5: If you are granted a STEM extension, you must report to your DSO, within 10 days, any change in legal name, residential or mailing address, e-mail address, employer name, or employer address. Even if there have been no changes to the above information, you must report to your DSO every six months to confirm this information.

While participating in post-completion OPT, you must maintain a valid F-1 status until the expiration of your OPT. Once your OPT has ended, you are authorized to remain in the U.S. for up to 60 days to prepare for departure. Your F-1 status is automatically extended when you are the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on your behalf during the period in which H-1B petitions are accepted for that fiscal year.  This is commonly known as the “cap-gap”.

OPT is a tremendous opportunity for the hard-working student. That said, if you do not follow the OPT rules, you could ruin your opportunity to stay and work in the U.S. You should contact your DSO to schedule an appointment to talk about the possibility of OPT. Furthermore, the process and timeline for changing from OPT to H1-B status can be complicated. You should seek  an experienced immigration attorney if you desire such a change of status.

10. Winner of our May 2013 Immigration Trivia Quiz!

Quiz Removed.

 

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California, Former Immigration and Naturalization Service (INS) Attorney (1976-82), Served as Member of AILA Board of Governors (1988-97)

Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550, Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“The Gang of Eight has made a substantial contribution to moving the issue forward. So far, I’m told that the Judiciary Committee has not in any fundamental way undone the agreement reached by the eight senators… I’m hopeful we’ll be able to get a bill we can pass here in the Senate.”

– Mitch McConnell
Senate Minority Leader

Newsletter US Immigration Update June 2013 – Quick Links

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June 1, 2013

Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.