USCIS Updates Policy Guidance for International Students

USCIS issued new policy guidance regarding the F and M nonimmigrant classifications for international students. The F and M nonimmigrant classifications allow those without U.S. citizenship to enter the United States to study. The F-1 category is for academic students and includes students enrolled full-time at a college, university, seminary, conservatory, high school, private elementary school, or other academic institution, or in a language training program. The M-1 category is for vocational students and includes students enrolled in established vocational or other recognized nonacademic programs.

The update adds substantial material to the USCIS Policy Manual, including the following notable changes:

• Intent to Depart. The guidance clarifies that F and M students may be the beneficiary of an approved or pending permanent labor certification application (PERM) or immigrant visa petition, so long as they have a foreign residence that they do not intend to abandon. While they still must demonstrate that they intend to depart the United States at the end of their temporary period of stay, a pending or approved PERM or immigrant visa application does not, by itself, prevent a student from demonstrating that intent.

• STEM OPT. The guidance also specifies how F students seeking a STEM OPT extension may be employed by start-up companies. The start-up employer must be enrolled in and remain in good standing in E-Verify, adhere to the training plan requirements, have the resources to comply with the proposed training plan, and provide the STEM OPT worker commensurate compensation to that provided to similarly situated U.S. workers, among other requirements.

The guidance addresses USCIS’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for F and M visa holders and their dependents. The new guidance also clarifies policies related to eligibility requirements, school transfers, practical training, and on- and off-campus employment.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how changes to the policy guidance for international students may apply to your circumstances, please contact your team at D&S.

USCIS Dials Back New Policy Limiting STEM OPT to In-House Employment

Earlier this year, USCIS updated its STEM OPT website with a more narrow interpretation of the STEM OPT regulations, indicating that all STEM OPT training must take place on-site at the employer’s place of business, thereby limiting an employer's ability to place STEM OPT workers at third-party worksites.  However, the STEM OPT website has once again been updated and USCIS appears to have scaled back this new interpretation. The most recent update removed the the pertinent language from the earlier update which suggested that off-site placement, including placement at a client site, was prohibited. The website now clarifies that employers are not prohibited from placing F-1 workers on STEM OPT at third-party worksites provided that a bona fide employer-employee relationship exists and all other STEM OPT training obligations are met.

More specifically, the updated guidance makes clear that, where an employer and the F-1 student working pursuant to STEM OPT have a valid employer-employee relationship, and that same employer provides the practical training experience and signs the STEM training plan, third party placement would not be prohibited under the STEM OPT regulations.

Employers and employees should continue to ensure all training and reporting obligations are met and F-1 students are reminded that status violations or a failure to maintain their status will result in the accrual of Unlawful Presence under USCIS’s new policy.

Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.