Category Archives: Students / Trainees

CBP to stop stamping I-20 forms.

NAFSA, the association of international educators, has released information that it received guidance from CBP that CBP will no longer stamp the I-20 Form upon the foreign student/visitor’s arrival in the U.S.

This change in current procedure will likely cause I-20 holders problems with certain State agencies, since most State agencies’ procedures still require that I-20 Forms be endorsed with an original stamp from CBP, issued at the Port-of-Entry.

CBP is aware of this issue and is taking active steps to coordinate with various affected State agencies.

Talking Points on “DREAM Act”

THE DREAM ACT: A CENTRAL ELEMENT OF REFORM
The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: complete high school; demonstrate good moral character; and complete at least two years of higher education or serve for at least two years in the U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.


THE DREAM ACT CAN STRENGTHEN THE U.S. ECONOMY

The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
•  Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
•  DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.

CURRENT LAW PROVIDES NO WAY FOR THESE CHILDREN TO ACHIEVE LEGAL STATUS

•  Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
•  Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.

STATES SHOULD HAVE THE RIGHT TO DETERMINE WHO QUALIFIES FOR IN-STATE TUITION

•  States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
•  States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).

THIS BILL REFLECTS A BALANCED APPROACH TO REFORM AND MUST BE PART OF ANY COMPREHENSIVE EFFORT TO OVERHAUL OUR IMMIGRATION LAWS

•  This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
•  This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
•  This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.

DREAM Act heading for debate… glimmer of hope.

Senate Majority Leader Harry Reid announced that he would attach the so-called “DREAM Act” to a Defense authorization bill expected to come before the Senate as early as next week.

While both Democrats and Republicans acknowledge a desperate need of reform, it will be interesting to see if Congress can get its Act (pun intended) together and transcend its bipartisan bickering and make something happen.

First introduced in 2001, the DREAM Act would address the plight of young immigrants who have been raised in the U.S. and managed to succeed despite the challenges of being brought to the U.S. without proper documentation. The proposal would offer a path to legal status to those who have graduated from high-school, have stayed out of trouble and plan to attend college or serve in the U.S. military for at least two years.

According to the Immigration Policy Center, research has shown that providing a legal status for young people who have a proven record of success in the United States would be a boon to the economy and the U.S. workforce.  University presidents and educational associations, as well as military recruiters, business and religious leaders have added their voice to those calling for passage of the bill. Foreign-born students represent a significant and growing percentage of the current student population. Unfortunately, immigration status and the associated barriers to higher education contribute to a higher-than-average high dropout rate, which costs taxpayers and the economy billions of dollars each year.

The DREAM Act would eliminate these barriers for many students, and the DREAM Act’s high school graduation requirement would provide a powerful incentive for students who might otherwise drop out to stay in school and graduate. This will help boost the number of high skilled American-raised workers.  As they take their place in the workplace as hard working, taxpaying Americans, they will contribute a lifetime of revenues at the local, state and federal level.

Tourist one day, Student the next? …not so fast!

Foreign visitors to the United States who wish to begin a course of study or training in the United States, without first obtaining a visa (such as F-1, J-1 or M-1) at a U.S. consulate abroad, need to be careful when applying for a so-called “change of status” with USCIS.

B1/B2-visitors CANNOT / MUST NOT  enroll in and begin their studies BEFORE the student status is APPROVED by USCIS.  A premature (i.e. “pre-approval”) start will result in a denial of the change of status, and subsequent departing the U.S. and obtaining a proper Visa at the Consulate will now be necessary.

There are no exceptions to USCIS’ position on this issue, and no other way to cure a status violation, other than departing the U.S., obtaining a proper visa, and subsequently re-entering the U.S. to re-establish good status.

A proper “change of status” from visitor to student/trainee IS possible if:

  • you are in current non-immigrant status (not yet expired) when the application for change of status is filed, AND
  • you have not yet enrolled in / begun classes, AND,
  • you have not engaged in unauthorized employment in the U.S. while in visitor status.

F-1′s can bridge time until their H-1B starts on Oct. 1

International students currently in the United States on F-1 (who may or may not have OPT), who are the Beneficiary of a pending or approved, cap-subject H-1B worker petition (which will become effective on or after October 1, 2010), can bridge the time in between their old status expiring and the start date of their H-1B employment. [ read more on the USCIS site ]

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

An H-1B petition cannot be submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is Oct. 1.   Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Once a proper and timely H-1B petition filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a
copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date.

If a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.

The USCIS website has more information regarding this provision, including issues such as petition revocation/withdrawal, changes to OPT dates,  proper maintenance of status through SEVIS, etc.   [ read more ]

Obama Signs Homeland Security Spending Bill; Four Immigration Programs Extended through 2012

Yesterday, President Obama signed into law the Fiscal Year 2010 DHS Appropriations bill (P.L.111-83).

The law extends the non-minister religious worker (section 568), the “Conrad 30″ for J-1 visas (section 568), the EB-5 pilot program for regional center investments (section 548), and the E-Verify (section 547) programs through September 30, 2012.

The bill was previously approved by the House of Representatives on 10/15/09 by a 307-114 roll call vote, and by the Senate on 10/20/09 by a 79-19 vote.

“Conrad 30″ Program For Medical J-1′s extended

On March 20, 2009, President Obama extended the date until Sept. 30, 2009 by which international medical graduates have to have been granted J-1 status in order to later qualify for the “Conrad 30” program.

Under the “Conrad 30” program, each state health department may submit a request directly to the
Department of State (DOS) to initiate the waiver process for a J-1 medical doctor. This request enables
J-1 doctors to obtain a waiver of the two-year foreign residence requirement, if the U.S. State Department submits a favorable recommendation of such waiver to USCIS (which is generally granted absent no underlying concerns).

Once the waiver is granted, J-1 doctors must practice medicine for at least three years in a medically
underserved shortage area or areas. The Department of Health and Human Services designates the
medical shortage areas.

The Conrad 30 (originally Conrad 20) program was originally established in 1994 to address the shortage
of qualified doctors in medically underserved areas. In 2004, Congress amended the program to exempt J-1 doctors who received a Conrad 30 waiver from the annual H-1B numerical limitation (otherwise known as the “H-1B cap”), as these doctors must complete their required three-year period of service as H-1B workers.

This current sunset date of Sept. 30, 2009, applies to the date the medical doctor originally entered the
United States in J-1 status or received a change of status to J-1, to complete a residency program in the
United States.

Doctors who acquired J-1 status before Sept. 30, 2009, may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program, if they meet all the eligibility requirements.

“DREAM ACT” Introduced in U.S. Senate and House

Some aspects of Immigration Reform are starting to materialize in Congress.

This week, Senators Durbin and Lugar introduced the DREAM Act  in the Senate while Representatives Berman and Diaz-Ballart did the same in the House.   Immediately below is background information on the DREAM Act.

DREAM Act
(based on prior Senate proposal in 2007)

Who is eligible?
Those who would qualify under this act include undocumented immigrants who meet ALL of the following criteria:

§         Graduated from a United States high school by the time they apply for relief.
§         Must have lived continuously in the United States for a minimum of 5 years, on the date of the DREAM Act enactment.
§         Entered the U.S. before the age of 16.
§         Under 30 years of age
§         Can demonstrate good moral character and do not have a criminal record.
§         Attended a college / university for 2 years, OR served in the US military for 2 years either before or after enactment.

What are the benefits for those who qualify?

§         Lawful permanent resident status (a green card)
§         Access to federal financial aid
§         States will be permitted to allow eligible students to obtain resident tuition status

Why is this necessary?

The DREAM Act would address the immigration status and educational barriers confronted by U.S.-raised children of undocumented immigrants.  (These statistics are from 2007 version of this information.)

§         Currently, there are 2.7 million immigrant children in U.S. schools grade K-12 and of those 1 million are undocumented immigrants.

§         Every year 50-65,000 students graduate from American high schools, but face limited prospects for continuing their education because they were originally brought to the United States by parents lacking immigration status. Among these students are valedictorians, honors students and student leaders.

§         Many students are prevented from attending college because they cannot afford out-of-state tuition and do not qualify for Pell grants or student loans. In addition, without a lawful permanent resident “green card” students are not eligible for many scholarships, in-state tuition, federal loans, or grants.

USCIS Reminds that EB-5 Pilot Program About to “Sunset” on March 6.

Following a recent extension from September 30, 2008,  the EB-5 Immigrant Investor Pilot Program will “sunset” or expire at midnight on March 6, 2009, unless extended again by Congress.

The sunset date affects all Regional Center Proposals and certain I-526 petitions, affiliated with Regional Centers relying on “indirect” job creation analyses.  If the sunset date is not extended, affected Regional Center sponsors and certain Regional Center affiliated I-526 petitioners will not be able to benefit from indirect job creation under the sunsetting provisions as of March 7, 2009.  Unless prevented from “sunsetting”, no new Regional Center Proposals would be accepted by USCIS for consideration, as of March 7, 2009.
All Forms I-526 received after March 6, 2009 must demonstrate that all ten jobs created will be direct, permanent, full-time (35 hours per week) jobs for qualified U.S. workers (U.S. Citizens, Lawful Permanent Residents, Refugees, Asylees, or persons granted cancellation of removal or suspension of deportation).

Unless the program is extended, USCIS has indicated that it will hold unadjudicated Regional Center proposals and Regional Center affiliated I-526 petitions that were received before the provisions sunset in abeyance for an indeterminate period of time, pending further action by Congress.

Final determinations will be made based on the evidence of “direct” job creation.  The decisions will be made based either on the existing evidence of record or in response to a request for evidence, and denials will be issued for any pending Regional Center Proposals.

For Those Seeking OPT Extension in STEM-Occupations, Good Online Resource Available.

Not too long ago, USCIS made some changes regarding the Optional Practical Training (OPT) for academic students on F-1 status, who are in certain classified fields known as “STEM” (essentially, Science, Technology, Engineering and Mathematics).

To read more about STEM and its occupation classifications, please refer to my previous post on this issue.

To qualify for the OPT STEM extension, F-1 students need to conduct their OPT with U.S. employers using E-Verify. Unfortunately, as of date of this writing, neither USCIS nor ICE provide a searcheable database for this, and often the foreign student must resort to other means of finding such employers.

There is some help available to students seeking out qualifying employers. “NumbersUSA” has a searchable database of about 67,000 E-Verify employers, conveniently searchable by location and business-/occupation-type. This database is located at:
http://www.smartbusinesspractices.com/pilot/