Breaking News 05.15.2016

New 24-Month STEM OPT Rule To Take Effect May 10

The Department of Homeland Security just announced the new STEM OPT rule, which will take effect this coming May 10. Significantly, the new rule permits up to two STEM extensions of 24 months each, replacing the old rule which only allowed STEM extensions of 17 months. Just as with the old rule, the new rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify, but also still allows those employers subject to the higher education E-Verify limitation to offer employment to students seeking the STEM extension. The rule also includes the “Cap-Gap” relief first introduced in a 2008 DHS regulation for any F-1 student with a timely filed H-1B petition and request for change of status.

The new rule introduces compliance requirements for employers who hire STEM OPT workers, including Form I-983, which will document a formal training plan for the STEM employee. Employers will also be required to evaluate student progress annually, attest that the STEM OPT worker is not replacing a U.S. worker, and that the STEM student’s compensation will be commensurate with that of other similarly employed workers.

The rule contains special provisions and deadlines and extends these benefits to persons currently on a STEM extension which will end on or after this October 6. Persons whose STEM extension ends before October 6 will not be able to extend their current STEM authorization beyond 17 months.

This news resolves months of uncertainty about the future of the prior regulations for qualified students in science, technology, engineering or mathematics (“STEM”) fields and means that STEM students will not have their status disrupted by the federal judge’s 2015 order invalidating these regulations.

A copy of the new final rule is available here.

New PERM Regulation at OMB

The Department of Labor (“DOL”) announced about a year ago that the agency was beginning the process of re-examining and modifying existing PERM (permanent labor certification) regulations and related forms, basically unchanged since 2007. We have confirmed that the proposed regulation is now at the Office of Management and Budget (“OMB”), a very significant step forward towards publication.

We will keep you updated with additional developments.

E-3, H-1B1, and CW-1 Nonimmigrants Given Expanded Work Authorization

On February 16, 2016, the Department of Homeland Security implemented a final rule extending the so-called “240-day rule” to E-3, H-1B1, and CW-1 non-immigrant categories. The new rule means that like other specified nonimmigrant categories, nonimmigrants in the newly added categories are authorized for employment with a specific employer incident to status and do not need to separately apply for employment authorization. More importantly, this employment authorization continues for up to 240 days after status has expired, as long as a timely extension of stay petition was filed and remains pending, until USCIS makes a decision on the petition.

The 240-day rule already applies to a number of other non-immigrant visa categories, including A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, or TN work visa.

SEVP Will Begin Sending “Intent to Terminate” Notifications on April 1, 2016

On April 1, 2016, the Student and Exchange Visitor Program (“SEVP”) will begin sending “Intent to Terminate” notifications for F-1, J-1, and M-1 students (and their dependents) who failed to comply with document deficiency deadlines as given in the Form I-515A.

When any such student arrives in the United States without meeting all the SEVP requirements, U.S. Customs and Border Protection may deny entry into the United States and instead issue a Form I-515A, which grants temporary admission for 30 days. Now, if the deficient student does not fulfill his or her compliance requirements within the required timeframe, the student will receive the “Intent to Terminate” Notice. If the student does not response with 14 days, student status may be terminated.

Attorney Speaking Engagements

Ware|Immigration attorneys frequently present at regional and national conferences. They also have speaking engagements at various universities and corporations across the nation.

If you are interested in attending one of the presentations or inviting an attorney to speak at your business, please contact [email protected] to discuss possibilities.

Here are some of the upcoming engagements.

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