Foreign Students Granted Extended Work Benefits to Limit Impact of Congressional Inaction on High-Skill Visas
On April 6, 2008, Immigration and Customs Enforcement ("ICE"), a component of the Department of Homeland Security, published an interim final rule extending benefiting foreign students educated in the sciences, engineering and mathematics at American colleges and universities. The rule also benefits US employers seeking to employ these students in the United States, rather than hiring them in their operations abroad, or losing them to competitors overseas.
International education is the country’s fifth-largest export of services, adding approximately $14.5 billion to the US economy last year, according to a study by the Institute for International Education (IIE). According to IIE, foreign students make up about 50 percent the graduate school admissions in many science and technology fields.
To
retain the benefit of these highly talented individuals for the US
economy, current visa regulations allow a foreign student in F-1 status
to obtain up to 12 months of work authorization, called Optional
Practical Training (OPT), after completion of their degree to work in
the US. If a US employer chooses to sponsor them for an H-1B visa or
permanent residence, they can remain after the end of OPT, provided
their employer can show that their skills are in short supply and their
wages are competitive with US workers.
For several years, the number of new H-1B nonimmigrant petitions that
can be issued under quotas Congress set in 1990 were exceeded the
first day such petitions can be filed (April 1 of each year). Until
recently, more than twice as many petitions were filed as the
approximately 80,000 petitions available. That limit was even exceeded
for the "supplemental cap" of 20,000 H-1Bs limited to new employees who
have earned a Master’s or higher degree from a U.S. college or
university. The random selection process used to determine which
petitions will be processed is referred to as the H-1B lottery system.
This lottery system limits the ability of employers to plan for hiring.
Protection for F-1 students
granted OPT whose H-1B petition was selected
The first change made by the rule is protection for all F-1 students
granted optional training last year, if they are the beneficiary of an
H-1B petition selected in this year’s H-1B "lottery." This new
regulation is meant to prevent what is known as the "cap gap": the lapse
in work authorization and, eventually, lawful status caused when a
student’s grant of Optional Practical Training ends prior to October 1
of the following fiscal year. The "cap gap" means that even F-1s whose
petitions are selected for the following year’s H-1Bs may have to stop
working, and their employers may have to do without them, for a number
of months until the effective date of the H-1B petition (October 1) is
reached.
A measure to correct the Cap Gap
The new rule addresses the "cap gap" by providing that the period of a
student’s F-1 status, and the duration of the work authorization granted
by OPT, are extended by operation of law. The extension of employment
authorization is granted to F-1 students automatically of the student is
the beneficiary of an H-1B petition filed for a student in lawful while
in lawful F-1 status and the H-1B petition is selected in lottery and
eventually approved. Employers and their counsel should note that this
extension is automatic (by operation of regulation) when the conditions
are met, so that no new Employment Authorization Document is required
for I-9 purposes. Similarly, this extension applies to all F-1s
selected to receive an H-1B for the following fiscal year, whether the
F-1 works in a science, technology, engineering or mathematics field or
not. The extension of status also covers the student’s spouse and
children, if they hold F-2 (dependent of F-1) status.
The second major change included in this rule addresses one of the major
policy issues presented by the H-1B cap. The cap results in
unavailability of visas for individuals who graduate from US schools
with degrees in Science, Technology, Engineering and Mathematics
(“STEM”) fields. These individuals are forced by the cap to seek
employment in other countries rather than benefiting US companies, and
some US companies (with Microsoft noisily leading the way) have expanded
their facilities overseas rather than increasing employment in the US
because of visa restrictions. The new rule seeks to ameliorate the H-1B
cap as applied to employers of STEM graduates, providing for a new
extension of OPT for an additional 17 months for F-1 students in these
fields. The carrot comes with a large stick, however: interested
employers must sign up for an electronic employment eligibility
verification system known as "e-Verify." The new rule is meant to help
close the gap for those students, and give them at least two chances to
be selected in the H-1B cap "lottery" during their OPT period.
In order to be eligible for a
17-month extension of OPT, the following
conditions must be met:
- The student must be participating in a 12-month period of approved post-completion OPT at the time the extension is requested;
- The student must have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;
- The student must be working for a U.S. employer in a job directly related to the student’s major area of study;
- The student’s employer must agree to report the termination or departure of the F-1 student to the student’s DSO;
- The student must be working for, or have accepted an offer of employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program; and
- The student must maintain F-1 status.
Whether or not to Participate in E-Verify
Students and employers should be aware that the decision whether or not to participate in e-Verify is a significant decision for employers, who may opt not to assume the obligations of e-Verify (since they cover the whole workforce, not just the students in OPT status).
Because so few employers participate in the USCIS’s voluntary "e-Verify" program, the new rule conditions the availability of OPT extension on the employer’s willingness to participate in the E-Verify program for all of its employees. E-Verify is a voluntary program under which employers commit to use an electronic database to check whether the name and social security number presented by new hires match the records in the Social Security database, and whether any immigration documents presented by the employee match information contained in the Department of Homeland Security’s database.
Deciding whether or not to participate in e-Verify, particularly for an employer who hires any significant number of employees, is complicated. The system provides certain advantages, but requires a significant investment in training of human resources staff and may expose the company to increased risk of discrimination charges or government audits if not implemented correctly. The pros and cons of registering for e-Verify will be addressed in a future column.
Other changes to maintaining status
The new rule also makes other significant changes with respect to maintenance of status by foreign students during their time on OPT. The rule establishes, for the first time, a requirement that foreign students maintain employment as a condition of maintaining F-1 status during the period of Optional Practical Training. Previously, the regulations had not explicitly required students to maintain employment during the period of OPT as a condition of maintaining F-1 status, so that students could be unemployed between jobs or be in unpaid internships without violating their student status. The new rule provides that a limited period of unemployment that will not violate the student’s status, but also provides that failure to maintain employment for longer than provided in the rule is considered a violation of status. The rule also imposes a new reporting requirement on students and their schools, requiring students to report their employer and employment status to their schools during the OPT period, and requiring schools to maintain their students’ SEVIS records and update ICE regarding their students through the SEVIS system.
The new rule provides that a student may not aggregate more than 90 days of unemployment during the initial 12-month period of OPT. If the student is eligible for the new OPT extension, the student may not aggregate more than 120 days of unemployment during the whole 29-month period of OPT. Because the new rule looks at unemployment in the aggregate, a student with any period of unemployment will need to be careful to avoid a future period of unemployment that would cause his or her total unemployment to exceed 90 (or 120) days.
The new rule also provides enhanced reporting requirements for all F-1 students in OPT status. All students must report any change of address to their DSO, and any interruption in their employment. A student granted a 17-month extension must also report any change in employer or in the employer’s address, and must make a "validation report" every six months to his or her DSO regarding his or her current employment status.
Need for CIR Reform
The ultimate solution to the problem of so many highly-educated workers being sent overseas by visa restrictions lies with Congress, which tried to address these limits in the context of Comprehensive Immigration Reform last year. With the failure of the CIR formula (seeking to address skilled immigration, family reunification, border security and registration of the undocumented in a single package), it remains to be seen if Congress will address the problem piecemeal or will let the problem languish longer, while employers continue to build facilities abroad at which their skilled workforces can innovate.