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SEVP Publishes Guidance on OPT Employment and Student’s Major Area of Study

Posted October 7, 2019Cheryl KilbornArticles

The Student and Exchange Visitor Program (SEVP) recently issued guidance on determining whether an optional practical training (OPT) request or opportunity is directly related to a student’s major area of study. The guidance explains that students are responsible for providing their school a written explanation of how their job relates to their major area of study (and that the school must review and retain this information in the student’s file). This requirement is meant to ensure that the employment experience supplements the student's education.

The school’s Designated School Official (DSO) is charged with reviewing the student’s written explanation and determining whether there is a nexus between the duties involved in the practical training opportunity and the student’s major area of study. The guidance notes that in most cases this should be a straightforward analysis. In more difficult cases, however, the DSO may refer to outside sources such as the Department of Labor’s O*NET online which contains detailed job descriptions for nearly every occupation.

Finally, the guidance provides examples of instances where a clear nexus exists between the job duties and major area of study:

  1. Bachelor’s degree in Electrical Engineering: I work full time as an Electrical Engineer at ABC Corp., a government contractor. In my job, I analyze client requirements for electrical systems and provide them with cost estimates of such systems. My work requires understanding of electrical circuit theory, which I studied in-depth at the University of ABC.
  1. Bachelor’s degree in Business: I work full time as a Loan Officer at a mortgage company, Happy Homes, where I meet with clients and evaluate, authorize and recommend approval of loan applications. On a daily basis, I use the knowledge I gained in my credit analysis, sales and marketing classes that I took as part of my major program of study.
  1. Master’s degree in Music: I am working at a hospital paying the harp in patient rooms. I also conduct hands-on harp beginner workshops for long-term patients. On average, I work at the hospital 35 hours a week. My duties directly utilize the skills and knowledge I acquired from my coursework and degree in music therapy.
  1. PhD in Computer Science: I am employed as a Computer and Information Research Scientist at ABC Research Institute. I work as part of a team of scientists and engineers that designs experiments to test the operation of various software systems. My work builds on research in complex algorithms and machine learning, which I studied as part of my dissertation.
  1. Master’s degree in Kinesiology: I am working 25 hours a week in a health food store as a consultant for Self-Made Inc., designing and teaching exercise classes that are incorporated into a customer’s overall nutrition and exercise plan. My designs and customer instruction draw upon my studies and classwork in exercise therapy and physical reconditioning.

Students are responsible for reporting their employment to the DSO and explaining, in writing, how the job relates to their major area of study so that the information can be reported in the Student and Exchange Visitor Information System (SEVIS). Students who fail to report or enter their information in a timely manner or otherwise fail to comply with their reporting requirements may be deemed to be in violation of their nonimmigrant status.

Students currently have indefinite access to the SEVP system where they can report or enter their information. Starting in October 2019, SEVP will begin limiting access to six months after OPT ends. As such, students are encouraged to print or save a copy of their portal records for future reference, including their Event History, prior to termination of portal access.

Please contact your designated Meltzer Hellrung Attorney if you have any questions.

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Preparing for F-1 Student (STEM OPT) Employer Site Visits

Posted October 2, 2019Cheryl KilbornArticles

U.S. Immigration and Customs Enforcement (ICE) recently started conducting site visits at worksite locations where certain F-1 trainees are employed pursuant to STEM Optional Practical Training (OPT). The purpose of site visits is to verify that employers are complying with STEM OPT requirements and meeting the obligations of Form I-983 training plans.

Specifically, Form I-983 requires employers to answer the following questions:

  • How are the student’s assignments with the employer related to the student’s STEM degree?
  • How will the assignments with the employer contribute to the student making progress toward professional goals and objectives?
  • How will the employer evaluate the student?
  • How will the employer supervise the student?

Employers must also attest on Form I-983 that the student will not replace a U.S. worker and that the terms and conditions of the STEM OPT training are commensurate with similarly situated U.S. workers. As part of a site visit, ICE may ask employers to provide information on how it assessed wages of similarly situated workers. In general, a similarly situated U.S. worker performs similar duties, is subject to similar supervision and has similar qualifications, levels of responsibility and skill set as the F-1 student. Duties, hours and compensation must be consistent with the range of terms and conditions the employer has or currently offers similarly situated U.S. employees.

ICE provides 48 hours’ advance notice of a site investigation unless site visit is triggered by evidence of noncompliance with STEM OPT program rules. Employers are advised to prepare for site visits ahead of time by designating one point of contact on all Form I-983 training plans, keeping copies, and updating regularly as changes occur.

If you are concerned about a site visit or would like assistance with preparing for one, please reach out to your designated Meltzer Hellrung attorney.

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HR 1044, The Fairness for High Skilled Immigrants

Posted September 25, 2019Green Card, Immigration Reform

Current law allocates 140,000 immigrant visas, known as green cards, to employment-based categories. No more than seven percent of these immigrant visas can be granted to individuals born in any given country. Currently, there is a backlog for individuals born in several countries, especially China and India. The wait time for individuals born in India can exceed a decade. This limitation on granting visas based on the country of birth is fundamentally unfair as two people employed in the same job, with the same qualifications, may wait very different periods of time to achieve permanent residence.

HR 1044 does not increase the number of available immigrant visas. At this time there are more than one million backlogged cases for individuals born in India and China. The language of HR 1044 may improve the timeline for access to immigrant visas for these individuals, but the bill will subject all other applicants to a minimum wait time of seven years. The bill, furthermore, does nothing, to handle the continuing influx of new immigrant visa petitions that exceeds the 140,000 allocation each year.

Our firm has opposed HR 1044 and notified our Senators of our opposition. The practical consequence of this policy is that all employees who are sponsored for green cards will need to eventually transition to H-1B visas. Individuals in single intent categories, such as TN, E-3, and O-1, will not be able to maintain those statuses with an approved I-140 petition. The demand for H-1B visas will only increase. However, some individuals in classifications such as TN and O-1 may not qualify for H-1B. In our opinion this will negatively impact the ability of employers to hire the world’s best talent.

Please reach out to your designated Meltzer Hellrung attorney if you have any questions.  

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Diversity Lottery for FY 2021 will open on October 2, 2019

Posted September 25, 2019Maria CabralesArticles

Every year the Department of State administers a Diversity Immigrant Visa lottery for individuals from countries with historically low rates of immigration to the United States. Fifty-thousand visas will be available for fiscal year 2021.  There is no cost associated with registering for the lottery.

Individuals born in the following countries are not eligible to apply because nationals of these countries had more than 50,000 people immigrate to the United States in the previous five years:

  • Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
  • People born in Hong Kong SAR, Macau SAR and Taiwan can participate.

Those who cannot register because their country of birth is excluded may be able to qualify through a spouse who was born in an eligible country or, in certain circumstances, through a parent’s country of birth.

Applicants may submit entries beginning Noon EST October 2, 2019 through Noon EST November 5, 2019. Entries should be submitted online at dvlottery.state.gov. Only one entry per person is permitted during each registration period. Individuals with more than one entry will be disqualified. Applicants should carefully follow the State Department’s lottery instructions.

The Department of State will randomly select individuals through a computer process and the results of the lottery will be available online beginning May 5, 2020 through September 30, 2021.

We encourage nationals from eligible countries to apply for the lottery as an alternative or in conjunction to employment-based immigrant visa options.

As always, if you have any questions regarding the Diversity Lottery, please reach out to your designated Meltzer Hellrung attorney. 

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FICA Tax Exemption for F-1 Students

Posted September 25, 2019Stephanie WedelArticles, H-1B

As October 1st approaches and F-1 student employees, whose H-1B cap petitions have been approved, change to H-1B status, it is important that employers review payroll procedures and update tax withholding for these employees. Under the Internal Revenue Code, employees in F-1, J-1, M-1, Q-1 or Q-2 non-immigrant visa status may not subject to FICA. The FICA tax exemption becomes inapplicable when an employee changes to H-1B non-immigrant status.  Employers must start withholding FICA taxes on the effective date of the H-1B status change.  If an H-1B petition is not approved as of October 1st, the tax change will go into effect when the H-1B petition is approved.
 
Please contact your designated Meltzer Hellrung Attorney if you have any questions.

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