Tag Archive for: OPT

Cyrus Mehta

Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the US Even If Rejected in the H-1B Lottery

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By Cyrus D. Mehta and Kaitlyn Box*

On January 21, 2021, the Biden administration announced a series of actions aimed at attracting and retaining STEM students and workers to the United States. Among the most significant provisions, the U.S. Department of Homeland Security (DHS) has added 22 new fields to the STEM optional practical training (OPT) program to “enhance the contributions of nonimmigrant students studying” in STEM fields and to “support the growth of the U.S. economy and innovation.” The additions include a number of new and emerging fields, including bioenergy, cloud computing, climate science, business analytics, and financial analytics, to name only a few. Nursing, among other significant science-related fields, was not included in the list. Additionally, DHS has updated its guidance to clarify how individuals with advanced degrees in STEM fields, as well as STEM entrepreneurs, can self-sponsor for green cards through the national interest waiver (NIW).

Furthermore, DHS also updated its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics. For the first time, the update provides examples of evidence that might satisfy the criteria, focusing on the complex nature of the supporting evidence in STEM-related petitions. For instance, under the published material criterion,  USCIS will accept a transcript of professional or major audio or video coverage of the beneficiary and the beneficiary’s work.  Regarding the critical  role criterion, the contribution by a founder of a startup might also qualify. Certain doctoral dissertation awards and Ph.D. scholarships  will also be accepted under the receipt of national or international award criterion. The update “also emphasizes that, if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition”, and provides examples of comparable evidence that could be submitted by individuals in STEM fields.

The Department of State (DOS) guidance will also provide for an extension of J-1 status for undergraduate and graduate students in STEM fields to facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021-22 and 2022-23 academic years.

Taken together, these updates will alleviate some of the uncertainty employers and STEM workers face in contending with the H-1B cap. Research has shown that the OPT program benefits the U.S. economy and is important in the creation of job opportunities, so the Biden administration should take all possible measures to encourage foreign students to utilize the program. Expanding STEM OPT fields, as well as allowing students to work in the U.S. for three years pursuant to STEM OPT, are good first steps.

In the time afforded them by the STEM OPT program, students can potentially be entered in the H-1B lottery three to four times. Each year as more petitioners register under the lottery, the chances of being selected become correspondingly less.  Even if individuals are unlucky enough to never be selected, they could potentially utilize the new O-1A guidance to obtain O classification. As discussed above, USCIS has broadened the evidentiary standards for O visas, including allowing online publications or videos to qualify as “published material”, which provides enhanced flexibility that may allow more STEM workers to qualify.

Potential for New Green Card Opportunities

For individuals from many countries, the PERM labor certification process can be completed for some during their time in STEM OPT, allowing them to obtain an employment-based green card.  Unfortunately, those born in India or China will not be able to benefit from this strategy due to enormous green card backlogs in the employment-based second and employment-based third preferences. However, certain individuals who were born in India or China with STEM degrees could try to obtain permanent residence through the employment-based first preference if they demonstrate extraordinary ability under EB-1A classification. Although the DHS has updated its guidance to make it easier for STEM graduates to obtain permanent residence through the national interest waiver, this category is of limited use to talented students who were born in India due to the decade plus long crushing backlogs in the employment-based second preference.  The employment-based first preference is current for India unlike the employment-based second and third preferences for India. Since the evidentiary standards for O-1 visas have been broadened in the USCIS Policy Manual, the same should hold true for the EB-1A category as the legal standards for O-1A and EB-1 are the same. In addition, while we applaud the Biden administration for broadening the O-1A evidentiary standards, we urge the administration to do away with the final merits analysis  under EB-1A in addition to broadening the EB-1A evidentiary standards. The final merits analysis rightfully does not exist for evaluating an O-1A petition, so it should not exist  under the EB-1A either, or for that matter any employment based green card category. Under the final merits determination (see our Curse of Kazarian  blog), the USCIS arbitrarily  denies meritorious EB-1A petitions on a purely subjective and arbitrary basis even when the petitioner has readily met 3 or more out of the 10 criteria.

Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, the policy makers at the White House and DHS who fashioned these initiatives should be commended for removing obstacles for talented noncitizens to remain and contribute to the US in the face of inaction by the US Congress. This is a good first step but a lot more can be done.

(This  blog is for informational purposes only and should not be viewed as a substitute for legal advice)

∗ Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to COVID-19

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In continuation of my Frequently Asked Questions (FAQ) relating to the COVID-19 crisis on immigration issues, I focus on other nonimmigrant visa categories besides the H-1B visa category. Changes in employment at the workplace, especially salary reductions, continue to abound especially for other nonimmigrant visa workers in L, E, O and TN status. There are also questions relating to students in F-1 status who are under Optional Practical Training.  Although a prior FAQ covered changes in salary and working conditions for H-1B workers, where the Department of Labor imposes rigid and inflexible rules, there may be more flexibility for other nonimmigrant visa categories that are not subject to DOL rules and the Labor Condition Application. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.

1. Can the salary of an L-1 nonimmigrant worker be reduced as a result of the adverse economic impact caused by the COVID-19 crisis?

Since the L-1 visa is not governed by the same DOL rules as the H-1B visa category, it may be permissible to reduce the compensation of a nonimmigrant worker on an L-1A or L-1B visa. So long as the nonimmigrant is working in the appropriate L-1 capacity as either an executive or manager or in a specialized knowledge capacity, a reduction in salary ought not to be considered as a violation on the part of the employer or status violation for the nonimmigrant worker. There is a long line of administrative decisions holding that the employment of an L-1 worker is not necessarily determinative upon the amount or existence of a salary. A non-salaried chairman has been able to qualify for an L-1, see Matter of Tessel, Inc., 17 I&N Dec. 631 (AAC 1981), and the salary may even emanate from the foreign entity, see Matter of Pozzoli, 14 I&N Dec. 569. While there is a legal basis for an L-1 worker’s salary to be reduced, this does not mean that the government cannot later question whether the lower salary is commensurate to the executive, managerial or specialized position under the L-1 visa. One should also note a recent decision, see Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017), which held that USCIS cannot approve an L-1 petition where the proffered wage violated the minimum wage under the Fair Labor Standards Act.

Changing the terms of an L-1 worker’s employment in the US from full time to part-time may also not require an amendment as it may not constitute a material change so long as the worker is still employed in the qualifying L-1 capacity.

2. Can one re-file under the L-1 “new office” rule if the business has been impacted due to COVID-19?

The USCIS rules governing the L-1 visa category detail special provisions where a new parent, subsidiary, branch or affiliate office is opened in the US within 1 year, and this new office petitions for an L-1 visa for a manager, executive or specialized knowledge worker. The petition may be approved even if there is no proof of extensive business activity. A new office is an organization which has been doing business in the US through a parent, subsidiary or branch for less than 1 year. If the business is shuttered due to a stay at home order, it may be possible to argue that it has not been doing business for 1 year, and should still be possible to obtain another extension as a new office. In the past, the USCIS has not been receptive to such arguments if the business has been in existence for 1 year, but could not function due to economic downturns. However, it would not hurt to apply as a “new office” for another year, in the alternative, when also applying for a regular 2 year extension given the most unusual economic impact COVID-19 has caused, and the fact that the business was forced to stay shut as a result of government orders and not due to the volition of the employer.

3. Is there similar salary flexibility for a nonimmigrant on an O-1, E-1, E-2 or TN visa?

I would say “Yes” since these nonimmigrant categories are also not subject to the LCA and other DOL rules. With respect to the O-1 visa, if one of the basis to establish extraordinary was to demonstrate a high salary in relation to others, then a reduction in the O-1 worker’s salary may undermine the worker’s ability to maintain status. On the other hand, if there has been an across the board reduction for all persons in that category, then the salary reduction could still be potentially justified as being in comparison to others who have demonstrated extraordinary ability in the field.

With regards to an E-2 investor, it is important for the investor to demonstrate that the enterprise is not marginal. An enterprise is marginal if it does not have present or future capacity to generate more than a minimal living for the investor and the family. Therefore, it would be important to demonstrate that a drop in revenues from the business that would otherwise sustain the investor was temporary due to COVID-19.

4. Can nonimmigrant workers in L, O and TN status perform their duties without pay and not be in danger of violating their status?

One could argue that so long as the nonimmigrant worker is performing the duties for the employer under the terms of the nonimmigrant visa category, it would not be a violation of their status even if the employer cases to pay them. The government will likely disagree, but it may be possible to counter argue that ICE has indirectly allowed F-1 students who are engaged in Optional Practical Training to serve in a voluntary capacity in work that is related to their studies so long as it is 20 or more hours (although the 20 hour minimum requirement has been relaxed during COVID-19). For instance, an F-1 who graduated with a law degree could conceivably still be legitimately maintaining status under F-1 OPT by providing pro bono representation to indigent clients. Note that ICE does not permit voluntary employment under STEM OPT. Still, employers have to be careful that they do not violate federal and state laws regarding paying the minimum wage. This sort of voluntary situation would more readily apply to an O-1 who is traditionally self-employed or an E-2 investor in a startup that has yet  to generate revenues.

5. Would nonimmigrant visa holders in E-3 and H-1B1 status have the same flexibility?

No. Since the E-3 (for Australians) and the H-1B1 (for  Singaporeans and Chileans) visa categories are subject to the LCA like the H-1B visa category, please refer to my prior FAQ relating to changes in salary and working conditions for H-1B workers.

6. Can an F-1 engage in Curricular Practical Training while overseas?

Yes. According to the latest COVID-19 Guidance for SEVP Stakeholders dated April 30, 2020, students may engage in CPT during their time abroad, provided they are:

  • Enrolled in a program of study in which CPT is integral to the program of study;
  • Their DSO authorized CPT in advance of the CPT start date; and
  • Either the employer has an office outside the United States or the employer can assess student engagement and attainment of learning objectives electronically. According to earlier March 13, 2020, COVID-19: Guidance for SEVP Stakeholders, this enrollment may be online. All other requirements at 8 CFR 214.2(f)(10)(i) still apply.

7. Can an F-1 engage in Optional Practical Training while overseas?

Although an F-1 can engage in OPT while working in the US for an employer remotely, it has not been determined by DHS whether a student can engage in OPT while overseas during the COVID-19 period. Since USCIS also adjudicates applications for employment authorization, this is not just an SEVP issue.  Since an F-1 OPT cannot be unemployed for more than 90 days, and a STEM OPT cannot be unemployed for more than 150 days, an F-1 should be prepared  to argue that working overseas for a US employer while overseas during the COVID-19 crisis did not constitute  unemployment during OPT or STEM OPT.

Fortunately, in 2010, SEVP provided the following guidance, which is likely applicable even during COVID-19:

“Time spent outside the United States during an approved period of post completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:

  • Employed during a period of leave authorized by an employer; or
  • Traveling as part of his or her employment.”

While this 2010 does not directly relate to a student working remotely for an employer while overseas during the COVID-19 period, as the student is neither on authorized leave nor travelling as part of the employment, it is closely analogous and hopefully SEVP and USCIS should approve of remote OPT employment while overseas as not counting towards unemployment.

 

Cora-Ann Pestaina

Guidance To The Perplexed After USCIS Sneaks In Ban On Third-Party Placement Of STEM OPT Workers

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Recently, without any prior notice, USCIS quietly updated its STEM OPT webpage to reflect a ban on the placement of STEM OPT workers at third-party client sites. As background, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule took effect on May 10, 2016 and replaced the 17-month STEM OPT extension previously available to STEM students most significantly expanding the extension period to 24 months. The rule set forth various requirements that must be met by schools, students and employers. Briefly, in order to obtain 24-month STEM OPT, the employer must have an Employer Identification Number (EIN) and be enrolled in the E-Verify program. The employment opportunity must be directly related to the student’s qualifying STEM degree and there must be an employer-employee relationship between the employer and the student.  Therefore, employment for staffing agencies where an employer-employee relationship is not maintained or other labor-for-hire arrangements will not qualify. Within 10 days of the employment start date, the student and the new employer must complete a Training Plan on Form I-983 and submit it to the Designated Student Officer (DSO). I previously blogged about STEM OPT here where I examined the Form I-983.

In another blog, I specifically examined whether the student could be employed at a third-party client site and argued that there isn’t anything in the governing regulations that expressly forbids this type of employment. The employer should be able to satisfactorily demonstrate the employer-employee relationship and its control over the student despite placement of the student at an end client site. The Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Although having the student work at a client site makes for a more difficult case, I opined that if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable. Since the implementation of the STEM OPT rule, thousands of students have obtained the required authorization to receive their STEM OPT at third party client sites. This authorization required the full disclosure of the employment arrangement to the DSO.

USCIS recently updated its website to now state:

[T]he training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

Based on this update, the placement of a STEM OPT worker at a third-party client site is apparently unacceptable because ICE lacks authority to visit third-party client sites.  No explanation was provided as to exactly why ICE supposedly lacks the authority to conduct a site visit on the premises of a third-party client if that client site had been clearly listed on an approved Form I-983. The Form I-983 sets forth that DHS may, at its discretion, conduct a site visit. It would be reasonable to conclude that by listing a third party client site as the student’s work location on the I-983, that the worksite is open to a site visit by ICE.

By updating the USCIS website with no prior notice and no opportunity for comment, USCIS has effectively created a state of confusion and has left employers and students, with previously approved Forms I-983, unsure of what action they must now take. Have employers been unknowingly violating the STEM OPT rule? Will USCIS now deny H-1B petitions for change of status for OPT students employed at third party client sites? Despite a denial of a request for a change of status, the underlying H-1B petition could still be approved but the STEM OPT worker would have to leave the US and apply for an H-1B visa abroad, a process that can come with its own set of issues such as administrative processing delays that can force the visa applicant to remain abroad for weeks or even several months.

Should employers scramble to relocate all STEM OPT workers to their headquarters or other office locations? And, if they do relocate them, would this change in worksite location be considered a material change necessitating a modification of the approved I-983? Based on how USCIS chose to update the STEM OPT rule, there are no immediate and definitive answers to these questions. However, some immigration attorneys are advising employers to relocate STEM OPT workers to headquarters or other office locations where there would be no question regarding ICE’s authority to conduct a site visit. On the issue of a relocation being a material change, while the regulations at 8 C.F.R. §214.2(f)(10)(ii)(C)(9)(ii) do not specifically list relocation as an example of a material change, relocation is considered a material change in the H-1B context which leads one to think that it would similarly be considered in the STEM OPT context. Also, there is the potential practical problem of the student not being at the location listed on the I-983 when ICE attempts to conduct a site visit. On the other hand, since USCIS claims that ICE would not go to a client site anyway, due to a supposed lack of authority to do so, then there is a good argument that a relocation is not a material change that necessitates a modification of the I-983.

Is there any basis for continuing to employ STEM OPT workers at third-party client sites? Some immigration attorneys are advising employers to stay the course while we wait for additional guidance regarding USCIS’ update to its STEM OPT page. One main basis is the fact that the Student and Exchange Visitor Program (SEVP) is governed by ICE and not by USCIS and therefore ICE ought to present any amendments to the program. Another reason is the fact that the mere modification of a web page does not have the same force as an amendment to the regulation or a Policy Memorandum. USCIS should issue a proposed regulation and allow a period for public comment. In addition, provided all the requirements are being met under the regulations found at 8 C.F.R. §214.2(f)(10)(ii)(C)(6)-(12), then the employer’s decision to continue to employ the STEM OPT worker at the third party client site may be justifiable. The following could serve as a reasonable defense although there is no guarantee that the DHS will agree:  Under 8 C.F.R. §214.2(f)(10)(ii)(C)(7)(ii), the I-983 clearly identified the goals of the training and explained how these goals would be met through a work-based learning opportunity with the employer and described the employer’s performance evaluation process including how oversight and supervision would occur at the third party client site perhaps by the employer’s more senior staff also stationed at that site.  This in turn may also meet the requirement under 8 C.F.R. §214.2(f)(10)(ii)(C)(10)(i) that the employer have sufficient resources and personnel to provide the training. Furthermore,  if ICE would be welcomed at the client site (similar to how USCIS site visits are welcomed in the H-1B context) where ICE could satisfy itself that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences (8 C.F.R. §214.2(f)(10)(ii)(C)(11)), then the mere fact that the STEM OPT worker is stationed at a third party client site ought not invalidate a previously approved placement.

Still, the practical fallout may not be worth it and employers and students alike are justifiably worried.  There are many unanswered questions and employers are hesitant to make any changes when it is not clear that these changes are actually required under the regulations. It appears that this is yet another way that USCIS is seeking to comply with President Trump’s Buy American, Hire American Executive Order that allegedly protects US workers. The ultimate success of a challenge to USCIS’ modification of their webpage is therefore hard to predict. But what is also clear is that the STEM OPT rule ought to encompass all kinds of modern work arrangements, including working at third party sites. US businesses should not be deprived of the opportunity to engage talented foreign students. DHS ought to bear in mind that the industries which rely on assigning workers to third party client sites – such as the Information Technology industry – are the industries that give American businesses that necessary competitive edge. It is not clear how seeking to destroy theses industries by wholly affecting how they do business is supposed to make America great again.