Foreign Students in U.S. Schools

uni_students-large_transqvzuuqpflyliwib6ntmjwfsvwez_ven7c6bhu2jjnt8According to Time Magazine, the number of international students in U.S. colleges and universities topped 1 million for the first time, in the 2015-2016 academic year. The data came from the Institute of International Education.  Here is a breakdown of the nationalities in U.S. schools:  1. China (328,547); 3. Saudi Arabia (61, 287); 5.  Canada (26, 973); 8. Brazil (19,370); 11.  Iran (12, 269); 15.  Germany (10,145)

Click here to learn more about how to become an international student in the U.S.

Related topic on international students with STEM degrees, click here.

Great News for F-1 Students with STEM degrees!

Article by Robin Trangsrud

OPT Extensions can be 24 months instead of 17 months

If you are a student in F-1 status pursuing a degree in science, technology, engineering, or math (STEM), things just got better for you. What’s the great news? Generally, students in F-1 status are allowed a 12-month work permit after they graduate from their academic program, known as Optional Practical Training (OPT), for when the student graduates. Now, students in F-1 status with STEM degrees are eligible for special treatment; they were previously allowed to extend their OPT work permit for 17 months. Now, students in F-1 status with STEM degrees are allowed to extend their OPT work permit for 24 months rather than 17 months.

Translation: STEM OPT students are eligible to stay in the United States for longer. Great news!

On May 10, 2016, The Department of Homeland Security’s (DHS) new rule on OPT extensions was finalized. According to the new rule, Improving and Expanding Training Opportunities for F–1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students, the following are the changes to the STEM OPT process and requirements:

  • The STEM OPT extension period increases from 17 to 24 months
  • The definition of STEM degrees, as well as the categories and fields of study that qualify as a STEM degree, are more clearly defined
  • Employers of STEM OPT students are required to implement a more formal mentoring and training program
  • F-1 students with a non-STEM degree but who previously obtained STEM degrees are eligible to qualify for a STEM extension
  • There are safeguards for U.S. workers in related fields
  • There is clarification and requirements for school accreditation, employer site visits, employer reporting, and compliance
  • There is a revision on the limitation of the number of days a STEM OPT student may remain unemployed
  • There is clarification on the “Cap-Gap” extension for F-1 students with a timely filed H-1B petition. With a timely filed H-1B petition, your F-1 status extends until the beginning of the new fiscal year, October 1, of the year your H-1B petition was filed.

If you’re an F-1 student – or you are an F-1 student who submitted an H-1B petition this year – contact the San Jose immigration attorneys at the Law Office of Alison Yew to learn how you could benefit from this new rule.

Guest Blogger Robin Trangsrud is an Immigration Attorney at a non-profit organization in Santa Clara, California serving low-income victims of crimes with their immigration matters. Previously working internationally and in Boston, Robin has experience in employment-based immigration law, family-based immigration law, and in refugee law. Currently, she is the Chair of the Younger Lawyers Division of the Federal Bar Association’s Immigration Law Section.

P-1A Visa: For Professional Athletes… and Gamers?

P-1A visas for professional athletes now extend to professional gamers, too!
The arrival of spring means we are entering one of the most anticipated times in the sports season. We have the March Madness, NBA playoffs, and the start of the MLB season. This time of year has the immigration attorneys at the Law Office of Alison Yew thinking about U.S. sports visas for professional athletes, which are known as P-1A visas.

The P-1A classification is a type of non-immigrant/ temporary work visa for professional athletes to come to the U.S. to perform or compete at a specific athletic event. The athletes, performing individually or as part of a group or team, must be internationally recognized as having obtained a high level of achievement in their chosen sport.

But did you know that the P-1A visa isn’t just for athletes in sports that we traditionally think of, like basketball, soccer, or football? The definition of “professional athlete” has now been extended to cover professional video gamers!

In the last few years, these U.S. sports visas have been issued to professional video gamers who are coming to the country to participate in major gaming tournaments. Back in 2013, USCIS issued the first P-1A visa to a Canadian League of Legends player, Danny “Shiphtur” Le, to come join a North American team competing in the League of Legends World Championship (LCS). Le was one of the world’s top players of League of Legends, and the first eSports player to be granted the P-1A visa. By issuing the visa, the LCS was officially recognized as a professional sports league, just like the NBA, NFL, NHL, etc. This was later followed by the issuance of a U.S. sports visa to the first professional StarCraft II player, a player from South Korea.

The growth of e-sport gaming has definitely been increasing steadily, with certain U.S. gaming tournaments filling venues as large as the Staples Center in Los Angeles, where tens of thousands of spectators come to watch the championship in person. With all of these changes in technology and culture, it is no surprise that immigration law has been changing and expanding as well!

The demand for temporary work visas like the P-1A continues to grow, and the entire process remains as complex as ever. The San Jose immigration attorneys at the Law Office of Alison Yew have the expertise to help! Learn more about P-1A visas and the specific criteria to qualify for one. You can also contact us for a case evaluation if you think you or someone you know might quality.

More About the H-1B Visa: Cap & Extensions

Did you know the number of H-1B visas issued each year is subject to an annual cap, known as H-1B cap, and is determined by the U.S. Congress? Presently, the maximum number of visas is capped at 65,000 per fiscal year (October 1 to September 30). An additional 20,000 are available to individuals with a Master’s degree or higher from a U.S. institution of higher education. The USCIS begins accepting new H-1B petitions for the upcoming fiscal year on April 1 of that year, and is required to keep accepting cap filings for a minimum of five business days. Thereafter, USCIS continues to accept new petitions only until the H-1B quota is reached. If there are enough cases to meet or exceed the cap in the first five days, the cap closes and USCIS stops accepting new cap filings.

The USCIS then uses a computer-generated random selection process, commonly known as the “lottery” to randomly select petitions that USCIS will adjudicate. USCIS conducts the selection process for advanced degree exemptions first. Advanced-degree petitions that weren’t selected become part of the random selection process for the 65,000 cap. For cap-subject petitions not randomly selected in the lottery, USCIS rejects and returns the petitions with the filing fees.

Are there H-1B petitions not subject to cap?

Under certain circumstances, certain types of H-1B applications are not subject to the cap, including the following:

  • Applications for extensions of H-1B status;
  • H-1B petitions for concurrent employment where the foreign worker is presently in H-1B status that is subject to the cap;
  • H-1B petitions to change employers if the foreign worker has been subject to the quota in the past six years;
  • H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations; and
  • H-1B applications for physicians who received J waivers under a Conrad 30 Waiver Program

Can an H-1B visa extend beyond the six-year limit?

In certain circumstances, an employee may receive extensions of H-1B status beyond six years, if he or she is in the process of applying for employment based permanent residence.

Specifically, under the American Competitiveness in the Twenty-First Century Act (referred to as “AC21 Act”), an employee may request extensions under the following situations:

  • If an H-1B holder has submitted either a Labor Certification Application (LCA) or an I-140 immigration petition prior to their fifth year anniversary of having the H-1B visa (365 days before reaching the six-year limitation), and the LCA or I-140 has not been denied, then he or she is entitled to renew his H-1B visa beyond the six-year limit until a decision has been rendered on the application for permanent residence.
  • If the H-1B holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to the priority date not being current, he/ she may be entitled to a three-year extension of his H-1B visa.

What about dependents?

Spouse and minor children of an H-1B employee are authorized to live in the U.S. in H-4 status.

The H-1B process can be very complex. Contact the Law Office of Alison Yew to speak to our H-1B visa attorneys in San Jose for more detailed information and assistance on the preparation and filing of H-1B petitions.

‘Tis the Season… for Filing

Is it that time of the year already? Looks like it!

It’s never too early to begin preparing for the H-1B cap filing season! Although there has been much speculation on possible changes to H-1B petitions for fiscal year 2017, it’s best to start thinking about and planning for your petitioning needs. Our H-1B visa lawyers in San Jose will be sure to stay on top of any significant updates.

As of now, we assume H-1B petitions for the new fiscal year, effective starting on or after October 1, 2016, will be accepted by USCIS beginning April 1, 2016. In the past few years, the number of H-1B petitions submitted has grown immensely. The USCIS this year received nearly 233,000 H-1B petitions for 85,000 spots (65,000 annual cap and an additional 20,000 available to individuals with a Master’s degree or higher from a U.S. institution of higher education).

If the previous few years serve as a trend, we expect the H-1B quota to be reached within the first week of filing in 2016. Employers should begin preparing H-1B petitions as early as possible so that a complete petition can be submitted to USCIS on April 1, the first day that the quota opens. The H-1B process can be complex and requires in-depth preparation and gathering of required documentation. So we advise you begin to consider your employment needs, and whether you may want to sponsor current or potential employees for H-1B status. This may include professionals who are currently employed in F-1 Optional Practical Training (OPT) status, TN status, J-1/J-2 status, or L-1B employees nearing the five-year limit on their L-1B status.

Learn more detailed information on this specialty occupation visa. For expert help, contact our H-1B visa immigration lawyers in San Jose today. Let’s begin planning and preparing for your H-1B needs.

Work Authorization for Refugees

This is from a recent announcement by the Customs and Border Protection (CBP) regarding Refugee’s authorization to work and the I-94 document.

Employers and refugees should be aware that Customs and Border Protection (CBP) has automated Form I-94 processing for refugees. The stamped paper form will no longer be provided to a refugee upon arrival, except in limited circumstances. A refugee can obtain a copy of their I-94 (record of admission) from Get I-94 Information.

For Employers:

Refugees are authorized to work because of their immigration status. Just as in the case of any employee, a refugee may choose to present any applicable document from the Lists of Acceptable Documents (I-9 Form). DHS provides refugees electronic and paper Forms I-94 (Arrival/Departure Record) that evidence their status and employment authorization (since they are employment authorized incident to status), as well as Forms I-766, Employment Authorization Document (EAD).

The new electronic Form I-94 for refugees does not include an admission stamp but provides the class of admission as “RE” and an admit until date as “D/S.” If a refugee presents a Form I-94 computer-generated printout for Form I-9 Employment Eligibility Verification, the employer must accept it as a receipt establishing both employment authorization and identity for 90 days. No later than at the end of the 90-day receipt period, the refugee must present an Employment Authorization Document (Form I-766) or a combination of a List B document and an unrestricted Social Security card.

For Refugees:

When completing Section 1 of Form I-9 with a computer-generated Form I-94, refugees should check “alien authorized to work until” and may write “N/A” in the space provided. Record the “Admission (I-94) Record Number” from your Form I-94 printout as the “Form I-94 Admission Number.” Next enter your foreign passport number and country of issuance in the “Foreign Passport Number” and “Country of Issuance” spaces. If you entered the US without a foreign passport enter “N/A” in these spaces of Section 1.

For more information about I-94 Automation, please visit this webpage.

H-1B1 for Singaporean and Chilean Nationals

The H-1B1 category of work visa was created by the U.S./Singapore Free Trade Agreement and the U.S./Chile Free Trade Agreement, and only Singaporean and Chilean citizens are eligible as principal applicants.  There are 1,400 H-1B1 visas available for Chileans nationals and 5,400 H-1B1 visas for Singaporean nationals.  The visa availability is per fiscal year, which is from October 1 to September 30.

Spouses and dependent children (unmarried and 21 years of age) may obtain dependent H-4 status.

Eligibility requirements include:

  • The position must be a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources (think H-1B).
  • The foreign national must have a post-secondary degree involving at least four years of study in his or her field of specialization.
  • H-1B1 visa does not allow the foreign national to be self-employed or be an independent contractor.
  • The period of employment in the U.S. must be temporary, so the foreign national must demonstrate non-immigrant intent (unlike an H-1B, which allows for “dual intent”). H-1B1 status is issued in one-year increments, as opposed to 3 year validity periods in H-1B visa status.
  • The United States Citizenship and immigration Services typically approves H1B1 petitions for a one year term which can be extended subsequently.

Unlike the H-1B visa, there is no requirement for a Petition for Nonimmigrant worker to be approved by the United States Citizenship and Immigration Services. The candidate can apply for a H-1B1 visa directly at the US Consulate in his or her home country by submitting the appropriate nonimmigrant visa application along with a detailed employment offer letter, a Labor Condition Application (LCA) certified by the Department of Labor, and the relevant supporting documents.

Due to the limited availability of H-1B visas, employers may find it useful to consider filing H-1B1 petitions for eligible candidates. Filing H-1B1 visa petitions does not preclude citizens of Chile and Singapore from obtainig a regular H-1B visa.

Please contact our law office for additional discussion of this category and alternative options, such as changing to H-1B status to allow for starting the process of filing for permanent resident status.

 

90 days means 90 days, on the Visa Waiver Program!

Certain countries’ nationals holding valid passports and who are otherwise admissible may come into the United States without a visa for a period of 90 days.  This is the “Visa Waiver Program” (“VWP”), and the participating countries are listed here on the State Department’s website.   Recently, I posted a blog update announcing that Chile just joined the list of many other countries on the United States’ VWP.  Travelers should remember that this program confers a non-immigrant status, and the requirement of non-immigrant intent applies.

The benefit of using the VWP is that no visa is necessary for the travel; therefore, the visitor avoids the hassle of applying, paying, and interviewing for a non-immigrant visa.  A trade-off in using the VWP to enter the U.S. is, once in the U.S., the visitor may not file for a change of status (to another non-immigrant status) or extension of status.  Because of this limitation, the visitor must not remain in the U.S. for more than 90 days.  Another type of non-immigrant visa should be considered, if the visitor believes he/she would need more than 90 days on a particular visit to the U.S., despite the temptation to take advantage of the ease of using the VWP.

One recent client tested this 90-day limit, and departed the U.S. 7 hours after the 90th day of her visit in the U.S. on the VWP.  Upon her next visit into the U.S., again, using the VWP, she was denied entry into the U.S. by the Custom Border Patrol (“CBP”) officer at the airport.  She had no right of review or appeal of that decision denying her entry, another condition of using the VWP.  Because of that 7-hour overstay, CBP revoked her VWP privileges.  She can never use the VWP again (unless the privileges under the VWP are reinstated), and she must use some other non-immigrant visa to enter the U.S. in the future.

Moral of the story is, 90 days is 90 days, and not a second longer.

It’s Open Hunting Season for H-1B Employees for the 2015 FY

united-states-citizenship-and-immigration-services-uscis-resized-600.jpg-300x199-230x199H-1B visas are non-immigrant visas issued to employees in specialty occupations and who hold at least a bachelors degree. There are currently 65,000 H-1B visas set aside for each fiscal year (which starts from Oct 1 to Sept 30). Additionally, 20,000 H-1B visas are set aside for those employees with a U.S. masters degree or higher. Employers hiring a new H-1B employee may petition on behalf of the employee six months in advance of the start date of employment.  For example, for employment that begins on October 1, the employer may petition as early as April 1.

For the 2014 FY (October 1, 2013-September 30, 2014), when the filing period opened on April 1, 2013, the standard 65,000 and the “masters” 20,000 caps were reached by April 5, 2013. USCIS had to hold a random computer-generated lottery to choose from the 125,000 petitions it received up to that point (i.e., in 5 days) to adjudicate.

The 2015 FY runs from October 1, 2014 to September 30, 2015, and new H-1B filings will begin on April 1, 2014. An even higher number of petitions than last year is expected to be received by USCIS by the first week of April, due to a number of factors, including re-filing of petitions by employers who missed the cap last year, stricter USCIS scrutiny of other work visa categories (for example, L-1 intra-company transferrees), an improving economy, and increased workforce hiring.

Therefore, now is the time for employers to begin assessing their H-1B needs. Employers and their immigration attorneys should start working now on position offered, job description, wages offered, and location of employment, and on identifying the right candidate for the job. The prevailing wage needs to be determined; a Labor Condition Application needs to be certified by the DOL, before the USCIS petition may be submitted on April 1.