USCIS Amends Previous Position and Now Allows F-1 STEM OPT Employees to Work at Third-Party Sites

Several months ago, the USCIS revised its website to state that F-1 STEM (science, technology, engineering, and mathematics) graduates on an OPT (optional practical training) extension were no longer able to work at third-party sites. Specifically, the USCIS expressed concern that an F-1 STEM OPT employee should not receive training experience at any third-party site, such as at the location of one of the employer’s clients, since U.S. Immigration and Customs Enforcement (ICE) would be unable to visit such a site to ensure that all training obligations were being met.

The STEM OPT extension allows graduates with STEM degrees to work in the U.S. for up to three years after they graduate as long as they meet training requirements, including the development and submission of a Training Plan along with a confirmation from the employer that a valid “employer-employee” relationship exists between themselves and the STEM OPT employee. Therefore, a STEM OPT employee should be able to work at a third-party site as long as these restrictions were met. However, the revision to the USCIS website implies that even if a valid employer-employee relationship does exist for an employee working at a third-party site, this type of arrangement is prohibited due to ICE’s inability to visit the site in order to confirm that the employer is meeting the necessary requirements. Ultimately, this rule change would limit the ability of F-1 STEM OPT workers to receive valuable professional training.

As this revision was unannounced, this change created a great deal of confusion for both employers and employees who were impacted. In order to address this concern, the American Immigration Lawyers Association (AILA) contacted the Department of Homeland Security to receive clarification about this change. On August 17, the USCIS responded, amending its previous position. The USCIS has now confirmed that third-party placements for F-1 STEM OPT employees are allowed as long as the training requirements are met and as long as a bona fide employer-employee relationship is maintained.

Increase in I-907 Premium Processing Fee from $1225 to $1410

Multiple outlets are reporting that the Department of Homeland Security will publish a notice tomorrow announcing the increase in the I-907 premium processing fee from $1225 to $1410. The I-907 premium processing option allows for petitioners to request a faster processing time of 15 days for certain I-129 and I-140 petitions. This fee increase is expected to be effective on September 30, 2018.

 

For more information, please refer to the following notice from the DHS: https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-19108.pdf

USCIS plan to rescind work authorization for H-4 spouses

In 2015, the Obama administration granted work authorization to H-4 visa holders whose spouses are in line to obtain their green cards. To date, over 100,000 work permits have been approved for H-4 visa holders since 2015. The majority of these work permits are held by educated Indian women whose husbands are working in the United States on H-1B visas.

 

However, in December of 2017, President Trump signed the “Buy American and Hire American” executive order. In light of this executive order, the Department of Homeland Security announced a plan to issue a new proposed rule in June of 2018 to rescind the ability of these H-4 holders to obtain work authorization on the premise that these H-4 work authorizations deprive American workers of jobs. Since that time, the publication of the new rule has been postponed twice. The USCIS has explained that it still intends to proceed with the rescission of work authorization for these H-4 visa holders but that it is currently focused on solving other issues.

 

After the DHS does propose a new rule regarding work authorization for eligible H-4 visa holders, there will be a 60-day public comment period during which time members of the public are able to submit their comments regarding the new rule. In addition, it is possible that any new rule on this topic issued by the Trump administration may face a court challenge from a district court issuing an injunction to stop the implementation of the new rule.

 

Currently, the rule allowing work authorization for eligible H-4 visa holders remains unchanged. As such, these H-4 spouses are still able to apply for and renew these work authorizations. Nevertheless, the USCIS has confirmed its intent to eventually propose a new rule regarding this topic, and as such any eligible H-4 visa holders should consider alternatives in the event that a new rule may prevent them from working in the future.

EB-2 and EB-2/NIW Retrogression Imminent Worldwide

Breaking news: The Department of State has recently noted just minutes ago that the 2nd preference category for employment-based petitions will retrogress at the end of the month of August. This means that anyone wishing to adjust their status for the remainder of the fiscal year must file their I-485 before this time.

Furthermore, it seems that the EB1 category will now NOT return to current on October 1st, 2018 but rather remain retrogressed worldwide until December 2018 at the earliest.

We will keep you posted about further developments.