Uncertainty Increases for Students Aspiring for H-1B Visas


Earlier this year, the United States Citizenship and Immigration Services (USCIS) made two radical changes affecting foreign students – (1) one pertaining to the calculation of unlawful presence for students; and (2) the second pertaining to third-party placements for STEM OPT students. Due to these changes, F-1 students could potentially find themselves accruing unlawful presence (ULP) in the U.S. resulting in three or ten-year bans on admission to the U.S.

Calculating Unlawful Presence

Generally, ULP accrues when a foreign national stays in the U.S. beyond the date granted in his I-94 record upon entry into the country.  F-1 students are typically not given a specific “end date” when they enter the U.S. unlike other non-immigrant visa holders.  Students are generally admitted for the Duration of Status (D/S), meaning for the duration of their course of study and post-graduation practical training in a field related to their course.  Under current policy, since students are given no specific end date (for their period of stay) they generally begin accruing ULP upon the USCIS’ formal denial of a change of status, finding of a violation of status or being ordered removed, deported or excluded by an immigration judge.

As per the new Policy Memorandum dated May 10, 2018 (New Memo), the USCIS sets out new rules for calculating unlawful presence for individuals in F, J, and M status.

Under the New Memo, effective August 9, 2018, students will begin to accrue ULP for a failure to maintain status on or after August 9, 2018 on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), orders them excluded, deported, or removed (whether or not the decision is appealed).
  • The day after the USCIS denies a request for an immigration benefit if the USCIS finds an immigration violation while adjudicating the petition.

If the individual is admitted for a specific date in the I-94 record, ULP will apply in any of the above instances, or the day after the I-94 expires.

A cap subject H-1B applicant, whose petition to change status from F-1 student to H-1B worker, could be found to have failed to maintain their status before August 9, 2018 in any of the above circumstances and will start accruing ULP on August 9, 2018. 

Generally, a three-year inadmissibility bar applies if an individual was unlawfully present in the U.S. for a period of more than 180 days but less than 365 days; a ten-year bar applies if an individual has overstayed for more than 365 days.  It is the accrual of unlawful presence that triggers the three and ten-year bars to admission.  As a result the New Memo will impose challenges for students who fall out of status and are seeking a visa, adjustment of status or admission to the U.S. once they leave the country. 

Restricting Third-Party Placement for STEM OPT

The second policy change is with regard to third-party placements for STEM OPT students. F-1 students may engage in a twelve-month optional practical training (OPT) after completing their studies. Students who receive a science, technology, engineering, or mathematics (STEM) degrees may apply for a twenty-four month extension to their OPT. So far, no regulations or policy memoranda specifically prohibit STEM OPT students from being placed at third-party sites. However, the USCIS updated its website to prohibit third-party placements – “a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The website requires that training take place on-site exclusively. The USCIS’ stated rationale includes the ability of Immigration and Customs Enforcement, the enforcement arm of the Department of Homeland Security (DHS), to conduct site-visits to ensure OPT compliance.

Conclusion

Reading the New Policy Memorandum along with the USCIS website announcement it could result in quite alarming conditions for certain STEM students.

In other words, if the USCIS enforces its STEM-OPT ban at third party sites it could transpire that the student is engaged in “unauthorized employment.”  The website announcement does not clarify the impact of such a finding on calculating unlawful presence. 

It is also not clear if the situation could be improved to bring the STEM-OPT worker back to the employer’s site and whether this would require any action with regard to form I-983 that was filed to qualify the STEM-OPT’s training with the “employer” at its own worksite.  The USCIS justification for this announcement is that Immigration and Customs Enforcement (ICE) has no authority to visit third party sites.  However, by removing the STEM-OPT worker from the third-party site and moving him to the employer’s own work site will give rise to a situation where the STEM-OPT worker is at a worksite not listed on the form I-983, which could be an issue should there be an ICE visit either at the third-party worksite or the “employer’s” worksite.

H-1B policy allows for third party postings provided the petitioning employer has a clear employer-employee relationship and other insignia establishing this.  Even though the same could arguably apply to STEM-OPT workers at third party sites it is not clear that such an argument will be accepted by the USCIS as valid. 

Action Points for Employers

Review all H-1B petitions filed for change of status (COS) for students and determine if any of them are on STEM-OPT and posted at third party sites.

Review all forms I-983s filed for such STEM-OPT workers to determine completeness and accuracy of information provided on the form, especially with regard to third party worksites.

The decision on whether these workers should be moved to the employer’s own worksite will depend on a case-by-case basis and should be done after carefully considering all implications and in conjunction with professional immigration counsel.

The beneficiary’s interests may not be aligned with that of the employer. Hence, the employer might wish to alert the beneficiary about the risks described here and the need for independent legal counsel to ensure he/she is legally compliant and protected.



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