USCIS: Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

US Citizenship & Immigration Services (USCIS) updated their Optional Practical Training Extension for STEM Students (STEM OPT) webpage to clarify the reporting responsibilities for those participating in the STEM OPT program. USCIS states:

Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days. As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days.

The reporting obligation is especially important since those failing to do so could possibly accrue unlawful presence, according to updated guidance by USCIS.

Noting that prompt reporting ensures that DHS is able to effectively oversee the program, DHS also clarifies that STEM OPT participants may engage in training that takes place at a location other than the employer’s principal place of business but only if all training obligations are met, including that the “employer has and maintains a bona fide employer-employee relationship with the student.” DHS notes that they will perform a case-by-case review confirming whether the student will be a “bona fide employee” of the employer that signs the training plan, and also confirm that the employer signing the training plan is the same entity employing the student and providing the practical training experience.

Bloomberg Law: “Immigration Lawyers to Trump: See You in Court”

As a result of increasingly strict immigration policies and more petition denials under the Trump administration, more attorneys are considering suing the federal government. “I’ve been preaching the gospel” of litigation, attorney Thomas Ragland tells Bloomberg Law. Ragland says that although businesses have in the past been more reluctant than individuals to sue, he is encouraging corporate clients to pursue litigation in certain cases. He says: “Employers should consider litigation in cases where they think the agency got it wrong.”

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Consequences of Violating Your Visa Status

Foreign nationals who violate their visa status can face serious consequences. Just ask Peter. Who is Peter? Okay, Peter is not a real person. He is a fictional foreign national who, to be clear, is not based on any of our clients (and any resemblance to a real person is entirely coincidental). Let’s say that Peter enters the United States as a B-2 tourist on December 5. The immigration officer processes his entry and Peter now has an I-94 (now electronic) with valid status until June 5.

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Forbes: “USCIS Uses Questionable 'Overstay' Report To Justify Policies”

On May 10, 2018, US Citizenship & Immigration Services (USCIS) issued a policy memorandum for public comment that changes how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the US. This updated policy, which will be effective August 9, 2018, is meant to align with President Trump’s “Executive Order: Enhancing Public Safety in the Interior of the United States.” Since USCIS’s announcement of the proposed policy change, many have expressed concern, calling it restrictive and unfair since it may result in international students who unknowingly violate their immigration status being barred from the US up to ten years. Importantly, respected demographer Robert Warren has disputed a key Department of Homeland Security (DHS) report, Fiscal Year 2016 Entry/Exit Overstay Report (released on May 22, 2017), that USCIS relies on to justify its proposed change of policy for students. 

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USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

US Citizenship and Immigration Services (USCIS) has posted a policy memorandum for public comment that changes how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the US. This updated policy, which will be effective August 9, 2018, aligns with President Trump’s “Executive Order: Enhancing Public Safety in the Interior of the United States,” USCIS says. L. Francis Cissna, director of USCIS, says the policy sends a message that nonimmigrants in these statuses cannot overstay their periods of admission or violate the terms of admission. “USCIS is dedicated to our mission of ensuring the integrity of the immigration system,” he says. “F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status.”

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