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STEM OPT Extension for Foreign Students Invalidated

F-1 visa holders who are graduates of U.S. universities can receive work authorization under the Optional Practical Training (OPT) program for a limited period of 12 months after having been enrolled in their academic program for one full academic year. A student can have 12 months of OPT each for the bachelor’s, master’s, and doctoral levels.

In 2008, the Department of Homeland Security (DHS) published a rule extending the post-completion OPT of F-1 students who earn a degree in science, technology, engineering, or mathematics (STEM) for an additional 17 months.

On August 12, 2015, a federal court ruling vacated the rule extending the OPT period for STEM graduates. U.S. District Judge Ellen Segal Huvelle ruled that the DHS did not comply with the Administrative Procedure Act (APA) when it issued the regulation without notice and comment.
Fortunately, the judge stayed her ruling, finding that immediately vacating the rule would create “major labor disruption” for employers as well as cause “substantial hardship” to foreign students with work authorization who would be forced “to scramble to depart the United States.”

The court, therefore, gave the DHS until February 12, 2016 to comply with the notice and comment requirement. This means that students who were granted STEM OPT extension will continue to be authorized to work. Adjudication of pending applications will also continue.

Foreign students who are eligible may still apply provided they submit their applications before February 12, 2016. Students who qualify for the additional 17 months of OPT time must be currently engaged in the 12-month period of approved post-completion OPT, must be in the fields of science, technology, engineering or mathematics (STEM) and must be employed in a business enrolled in the E-verify program. Also, the student must be maintaining F-1 status. The USCIS is expected to issue guidance in light of this ruling.

The STEM OPT extension allows F-1 visa holders who are working under the Optional Practical Training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st, the start of the fiscal year.

This regulation also remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment.

The regulation likewise helps alleviate the problem of U.S. companies especially those with technology components who are in need of tech workers but are unable to hire eligible applicants because of the limited H-1B visa numbers each year.

The lawsuit was brought last year by the Washington Alliance of Technology workers which alleged there was no emergency tech worker shortage which justified circumventing the required notice and comment procedure. They also alleged that the DHS exceeded its authority when it created the STEM OPT program.

Although the court agreed with the plaintiffs on the procedural flaw, the court found that for years Congress recognized practical training regulations for foreign students and that the DHS interpretation in this area should be given deference. The DHS is expected to propose a rule for notice and comment before the date set by the court.

Inadmissibility Waived due to Hardship of Filipino Mother

Under the Immigration and Nationality Act, an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure or has procured admission to the United States is inadmissible.

The alien may, however, be granted a waiver of inadmissibility upon showing that the alien’s citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the alien is refused admission to the U.S.

The term “extreme hardship” is not exactly defined in the law. However, there are relevant factors in determining what constitutes extreme hardship.

The factors include the qualifying relative’s family ties outside the United States, the political and economic conditions in the country where the relative would relocate and the relative’s ties in that country, the financial effect of the relative’s departure from the United States and the relative’s health conditions given the unavailability of suitable medical care in that country.

In order for the waiver to be approved, the applicant must satisfy the two-prong test. First, the applicant must demonstrate extreme hardship to the qualifying relative if he were to remain in the United States while the applicant resided abroad. Second, the applicant must prove extreme hardship to the qualifying relative if he were to live abroad with the applicant. In addition, the applicant must prove eligibility for the waiver in terms of equities in the U.S. that are not outweighed by adverse factors.

In one case, the Officer-in-Charge in Manila, Philippines denied the waiver application of an alien who was found inadmissible for having procured admission to the U.S. through fraud or misrepresentation. Although the Administrative Appeals Office (AAO) initially denied the appeal, it subsequently granted the waiver upon the applicant’s second motion to reopen.

The applicant was a citizen of the Philippines who was married but claimed to be single during his immigrant visa interview in order to qualify for a visa as the unmarried son of a lawful permanent resident.

The applicant tried to establish that his mother would suffer extreme hardship if she were to remain in the U.S. while the applicant resided abroad. He presented evidence showing the emotional and psychological hardship that his mother was experiencing and the potential physical effects that could result from her psychological condition.

The AAO, however, denied the appeal because the evidence presented by the applicant failed to establish extreme hardship to his mother if she was forced to relocate abroad as a result of the denial of the waiver.

In his second motion to reopen, the applicant submitted new evidence establishing extreme hardship to his mother in the event of relocation. The applicant showed that his mother no longer had strong family ties in the Philippines. Her parents and seven siblings were all U.S. citizens and were living in the U.S. and the four remaining siblings in the Philippines were leaving for the United States within the year based on petitions filed long ago.

He also showed evidence of his mother’s financial hardship submitting documents showing his dependence on his mother’s remittances for living and how his mother would have no employment prospects in the Philippines. Although the applicant’s sister was in the U.S., he also submitted documentation showing that it would be financially burdensome on her to support both him and his mother if she were forced to relocate to the Philippines especially with her medical conditions.

The AAO found that the applicant established suffer extreme hardship to his mother if she were to move back to the Philippines.

In deciding the case, the AAO had to balance the adverse factors with the favorable factors. It found that the single adverse factor in this case, namely, the misrepresentation, was outweighed by the favorable factors consisting of the extreme hardships to the applicant’s mother and the applicant’s lack of criminal record.

Applicants may Benefit from CSPA despite Late Filing

The Child Status Protection Act (CSPA) grants relief to certain children of U.S. citizens and lawful permanent residents who would have lost the privilege of getting a green card simply for turning 21 years old. It allows a child who has aged out or turned 21 to still be considered a “child” for immigration benefits purposes.

To determine the age of the applicant using the CSPA formula, the length of time the petition was adjudicated is deducted from the beneficiary’s age on the date a visa number became available. If using this formula the child’s age falls below 21, the child can benefit from the CSPA if he “sought to acquire” lawful permanent resident status within one year of visa availability.

A child is considered to have met the “sought to acquire” requirement if he filed Form I-485, application for adjustment of status, submitted an application for immigrant visa and alien registration or filed Form I-824, application for action on an approved application or petition filed on his behalf.

If the child did not do any of the above within one year of visa availability, he may still be covered by the CSPA protection if he can show that his failure to timely file was due to “extraordinary circumstances” beyond his control.

The Board of Immigration Appeals, in Matter of O. Vazquez, found that extraordinary circumstances may warrant the exercise of discretion for late filings, if the applicant demonstrates the following: (1) the circumstances were not created by the alien through his own action or inaction, (2) the circumstances were directly related to the alien’s failure to file the application within the one year period; and (3) the delay was reasonable under the circumstances.

The USCIS released a policy memorandum providing guidance on evaluating claims of “extraordinary circumstances” for failing to timely satisfy the “sought to acquire” requirement.

One example of extraordinary circumstance which may warrant a favorable exercise of discretion as set forth in the memo is the ineffective assistance of counsel.

The following requirements, however, should be met: (1) that the alien files an affidavit setting forth in detail the agreement entered into with counsel with respect to the actions to be taken and what representations the counsel did or did not make; (2) that the counsel has been informed of the allegations against him and have been given the opportunity to respond or good faith effort to do so is shown; and (3) the alien indicates whether the complaint has been filed and an explanation if no complaint is filed.

Serious illness or mental or physical disability during the one year period or legal disability such as instances where the applicant was suffering from mental impairment during the one year period are also examples of extraordinary circumstances that may warrant a favorable exercise of discretion.

Another example is the death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.

Also, where a timely application was rejected by the USCIS as improperly filed and was returned to applicant for correction and the deficiency was corrected within a reasonable period, the applicant’s failure to meet the deadline may be excused.

In determining whether the applicant demonstrated extraordinary circumstances for failing to timely file, the officers consider the totality of the circumstances and use the “preponderance of the evidence standard.”

Conversion to another Preference Category

Because of the visa backlog, it is possible for certain life changes to occur while the beneficiary waits for a visa number on the basis of an approved family-based preference petition. Changes such as the naturalization of the petitioner, the change in marital status of the beneficiary or his aging out can affect the beneficiary’s visa classification.

Family based preference petitions fall under the following categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).

The change can either shorten or further delay the wait for a visa number. The Department of State sets a cut-off date which is published in the monthly Visa Bulletin. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date is on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the Immigration and Nationality Act (INA).

As a general rule, when there is a change in visa classification, the priority date is retained and there is no need to file a new immigrant petition. If the F2A beneficiary (child of a lawful permanent resident) turns 21 or ages out and is not eligible to benefit under the Child Status Protection Act (CSPA), for example, the petition will automatically convert to F2B and the priority date is retained.

Similarly, when the lawful permanent resident parent naturalizes, the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to F1 (unmarried sons and daughters of U.S. citizens). The beneficiary, however, may opt out of the F1 conversion if the F1 category is more backlogged than the F2B. As long as the petition was properly filed, the priority date is retained even if the petition has not yet been approved at the time of the parent’s naturalization.

If the beneficiary in an F2B petition marries after the parent’s naturalization, the petition will automatically convert to F3 (married sons and daughters of U.S. citizens). However, if the F2B beneficiary marries before the naturalization of the parent, the beneficiary is no longer eligible for the immigration benefit and the priority date is lost.

If the marriage of an F3 beneficiary (married sons and daughters of U.S. citizens) terminates, the petition will automatically convert to F1.
Meanwhile, the petition for an F2A beneficiary (spouses and minor children of lawful permanent residents) is automatically converted to immediate relative petition upon naturalization of the lawful permanent resident. Immediate relatives are not subject to the numerical limitations and an immigrant visa number is immediately available to them.

Also, under immigration law, parents who are the principal beneficiaries of a family based preference petition can include their unmarried children under 21 as derivative beneficiaries. The automatic conversion and priority date retention under the CSPA, however, only apply to derivative beneficiaries of F2A petitions.

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